by Paul Alan Levy
In Doe v. Coleman, a decision issued yesterday, the Kentucky Supreme Court overruled a decision of the state court of appeals which, considering the validity of a subpoena to identify defendants who had been sued for defamation based on comments about a local official, had held that the plaintiff officials’ conclusory affidavits attesting to the falsity of the anonymous comments were sufficient to meet the standards for enforcing such subpoenas set by Doe v. Cahill, the Delaware Supreme Court decision that the Court of Appeals had endorsed in a 2014 decision in the same case. Instead, the Supreme Court held that Kentucky courts are to follow the full standard adopted by the New Jersey Superior Court Appellate Division in Dendrite International v. Doe, which includes a balancing stage that weighs the relative interests of the plaintiff in securing redress and of the defendant in retaining his or her First Amendment right of speaking anonymously, given such considerations as the nature of the speech at issue and any special dangers to the defendant from being identified.
By my count, there are now seven states whose appellate courts follow the full Dendrite approach, four that follow the Cahill approach requiring evidence but not balancing, and one (Washington) that requires evidence but has reserved judgment on whether to adopt a balancing stage. The Supreme Courts in Michigan (where the preferred approaches of two separate court of appeals panels are in conflict) and Maine will be hearing oral argument on the issue this fall.