[Politech] Court: Criticizing politicos anonymously is OK, thank goodness [fs]

From: Declan McCullagh (declan@private)
Date: Wed Oct 05 2005 - 23:26:40 PDT

-------- Original Message --------
Subject: New decision on Internet anonymity
Date: Wed, 05 Oct 2005 19:38:06 -0400
From: Paul Levy <plevy@private>
To: <declan@private>

I want to call your attention to a very good decision issued today by 
the Delaware Supreme Court in Cahill v Doe, quashing a subpoena to 
identify a citizen who criticized a public official on a newspaper's 
blog.  The decision contains a very good discussion of the potential 
chilling effect of such subpoenas, of the important role of the Internet 
in facilitating citizen communication, and of the need for a standard 
that balances the First Amendment right to speak anonymously against the 
interest of one who believes that he has been defamed to vindicate his 
reputation.  Most important, the decision agrees with most other courts 
that a plaintiff should not be allowed to identify his critics unless he 
presents evidence to support his defamation claims.  This is the third 
appellate court in the country to weigh in on the topic, and all of them 
-- the Pennsylvania Supreme Court in Melvin v Doe, New Jersey's Superior 
Court, Appellate Division in Dendrite v Doe, and now the Delaware 
Supreme Court -- have required the presentation of evidence before a Doe 
defendant may be deprived of his right to remain anonymous.

The decision is not a perfect one -- without much explanation, the court 
rejects the "balancing" stage of the test adopted in New Jersey, which 
can be important in some cases.  However, it is an important development 
in the struggle for free speech online, and its sensitive discussion of 
the context in which speech should be judged is worth reading in full. 
Eventually, the decision will be available on the Supreme Court's web site
but for now the decision is already posted on Public Citizen's web site 
  - the URL is at the end of the press release that follows.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
>>> Valerie Collins 10/05/05 4:53 PM >>>

For Immediate Release: 				Contact: Valerie Collins (202) 588-7742
Oct. 5, 2005				    		 	   Paul Levy (202) 588-1000
Internet Critic of Delaware Politician Has Right to Anonymity, Court Rules
Message Board Poster Criticized Smyrna Town Council Member’s Job Performance

WASHINGTON, D.C. – In a victory for free speech on the Internet, the 
Delaware Supreme Court reversed an order today enforcing a subpoena to 
identify a citizen who anonymously posted criticism of a member of the 
Smyrna Town Council.

The court recognized the enormous chilling effect that such subpoenas 
can have on constitutionally protected speech and the need for a strong 
legal standard to ensure that identification is ordered only in cases in 
which the plaintiff has a real likelihood of proving that the speech is 
wrongful. At the same time, the court’s decision ensured that those who 
are harmed by defamatory statements online will have the ability to seek 

The case involved an Internet critic, known in court documents as John 
Doe No. 1, who posted two messages on the Smyrna/Clayton Issues Blog 
(web log) in September 2004. The messages stated that Patrick Cahill, a 
member of the Smyrna Town Council, had diminished leadership skills, 
energy and enthusiasm, and referred to Cahill’s “character flaws,” 
“mental deterioration” and “failed leadership.” John Doe No. 1, known as 
“Proud Citizen” on the blog, also stated, “Gahill [sic] is … paranoid.”

On November 2, Cahill and his wife sued John Doe No. 1 and three other 
anonymous critics, claiming that John Doe No. 1 had accused Cahill of 
suffering from “mental defects and diseases” and that the misspelling of 
his name implied he was “engaging in extramarital, homosexual affairs.” 
Without notice to the critics, the Cahills sought to identify the 
critics through a subpoena to the Internet access provider, which 
notified the four critics of the subpoena.

John Doe No. 1 attempted to nullify the subpoena, arguing the disclosure 
would violate his First Amendment right to criticize a public official 
anonymously, but the trial court denied the motion. John Doe No. 1 appealed.

Public Citizen, which has been a strong defender of First Amendment 
rights on the Internet, urged the court in a “friend of the court” brief 
filed in early August to allow John Doe No. 1 to remain anonymous. Blogs 
provide individuals such as Cahill the opportunity to immediately 
respond at no cost to postings they believe are false or misleading, 
noted Paul Alan Levy, a Public Citizen attorney who argued the case in 
the Delaware Supreme Court. Further, courts have ruled that subpoenas 
seeking the names of anonymous speakers can chill free speech, and those 
courts have upheld the right to communicate anonymously over the Internet.

“This is the first state Supreme Court to squarely decide the standards 
to govern John Doe subpoena cases,” said Levy. “The court’s 
determination to require sufficient evidence before a critic is outed 
will go a long way toward reassuring citizens that they remain free to 
anonymously criticize public officials.”

Norman Monhait of Wilmington, Delaware, and Lawrence Hamermesh of 
Wilmington, Delaware, served as local counsel. The American Civil 
Liberties Union, the Electronic Frontier Foundation and the American 
Civil Liberties Union of Delaware also joined the August friend of the 
court brief.

The decision is available at 

The brief is available at 


Public Citizen is a national, nonprofit consumer advocacy organization 
based in Washington, D.C. For more information, please visit 

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