by Paul Alan Levy
In a ruling yesterday, the Pennsylvania Superior Court has embraced the majority standard applied by state and federal courts across the country to decide whether a plaintiff in a defamation or other lawsuit should be able to identify the anonymous authors of speech over which the plaintiff wants to sue. The Court therefore held that, on the record of the case, former Scranton City Council President Judy Gatelli could not identify constituents who published scathing criticisms of her conduct in office on a message board attached to the “Doherty Deceit” web site maintained by Scranton resident Joseph Pilchesky.
In an opinion by Judge Robert A. Freedberg, the court decided that before the right of anonymous speech can be taken away, the plaintiff has to show that she has a realistic chance of succeeding in the lawsuit by presenting sufficient evidence to defeat a motion for summary judgment. Moreover, the court should apply an explicit balancing test that considers both the interests of the would-be plaintiff and the interest of the anonymous speaker to decide whether there are any special considerations, such as a danger of retaliation, or the particular gravity of the accusations, that warrant protecting the speaker from disclosure or letting the lawsuit go forward on the equities of the case.
Applying this standard to the facts of this case, the court ruled that although the trial judge had properly ensured that the anonymous speakers received notice of the subpoena to identify them, and a chance to protect their anonymity, the judge had not required sufficient proof that the adverse statements had actually harmed her, and had not applied the required balancing test. The court stressed that a conclusory affidavit averring only that the allegedly defamatory statements harmed the plaintiff’s reputation in the community would not be sufficient.
Public Citizen had represented several of the Doe speakers at an earlier stage of the case. Although the trial judge had quashed the subpoena to identify each of Public Citizen’s clients, and although Gatelli did not appeal the ruling in favor of Public Citizen’s clients, we filed a brief laying out the proper standard for adjudicating challenges to subpoenas to identify anonymous Internet speakers, which the Superior Court largely adopted. We indicated that, in our judgment, at least some of the Does at issue on appeal had made statements that could easily be found to be defamatory and hence could support enforcement of the subpoena if there were evidence that they were false and caused damage. Other Does, we argued, had simply expressed derogatory opinions in graphic or hyperbolic terms that should not afford a proper basis for an elected official to sue her constituents.
An interesting coincidence —the author of the opinion, Judge Robert Freedberg, replaced Judge Joan Orie Melvin on the Superior Court after she was elected to the Pennsylvania Supreme Court. Judge Melvin was the plaintiff in one of the earliest Doe cases to reach the appellate level, Melvin v. Doe, although the issue squarely decided in that appeal was that a Doe can appeal an order enforcing a subpoena to identify him even though such orders are interlocutory.