by Paul Alan Levy
Several bloggers, including redoubtable free speech blogger Marc Randazza, have addressed a defamation case that is being pursued by Cody Saltsman, a high school student in Steubenville, Ohio, and his parents against a crime blogger and several anonymous commenters on her blog, over statements accusing him of involvement in the gang rape of a high school student by some of the plaintiff's fellow high school football players. I have been involved at the margins of this case, but in the end I do not at all share Marc’s total disdain for the plaintiff and his decision to file suit. Indeed, as I see it, there is reason to doubt the often-published assumption that the whole lawsuit is a meritless defamation action that is sure to be counterproductive. At the end of the post, I also address misconduct by the ISP that was hosting the blog when the case began.
There seems to be little question that a young woman was sexually abused by some high school football players at a party, and that Cody Saltsman, who plays on the same football team as the accused rapists, used Twitter and perhaps other social media to disseminate a photograph showing the victim being carried by two young men like a sack of potatoes; accompanying the photo were some disgusting comments referring to the rape victim as a "whore" or as "sloppy." Several members of the community were up in arms about the possibility that, because of the social importance of high school football, because the participants in the rape and the subsequent tweets and YouTube video were star athletes, and perhaps because of the perceived influence of Saltsman’s parents, the crimes might be swept under the rug and the wrongdoers not prosecuted. But several commenters on the blog—and, according to some of the allegations in the complaint, even the crime blogger herself—went beyond the apparently undisputed facts to claim that Saltsman had been present at the scene of the rape, masterminded the crime, or was the “ringleader” of the crime, repeatedly referring to him as “Cody Manson” (by itself only hyperbole and hence not actionable), and even worse, claiming that he had engaged in the supposed conspiracy out of a desire for revenge against a young woman who had refused his advances after seeing him for a period of time. As the crowd discussed the controversy and struggled to identify criminal charges that could be brought to vindicate the public’s outrage, some commenters asserted that Saltsman had texted the photograph to the victim's father, and argued that this conduct could be prosecuted as the crime of telephone harassment. (Note: several of the threads in question have been taken off the site; the blogger showed them to me to enable me to decide whether to represent some of the commenters.)
Saltsman and his parents sued the blogger and fifteen anonymous commenters for their statements. The amended complaint is here. They went directly to Hostgator, the internet service provider for the "prinnified" blog, which apparently turned over the Internet Protocol addresses for the each of the anonymous comments without any notice either to the commenters or even to the blogger herself. The plaintiffs then sought leave to conduct discovery from the Internet Service Providers whose facilities the commenters were using while accessing the blog to make each of the allegedly actionable comments. (Apparently, the plaintiffs sought an order, not because Ohio law generally requires permission for early discovery, but because some of the ISP’s were cable providers that could not furnish information without a court order). The blogger opposed the discovery, arguing that the IP addresses had been obtained even though there was an argument that they were privileged under the First Amendment, and hence under Ohio Civil Procedure Rule 26(b)(6)(b), the plaintiffs were required to sequester the information pending a ruling on the privilege claim. (A similar argument was successful under Michigan’s rules in Thomas Cooley Law School v. Doe). The trial judge initially put the discovery on hold, requiring the ISP’s to safeguard the identifying information pending further rulings, but after additional briefing, specificially identifying the allegedly defamatory comments by each by Doe defendant that were claimed to be actionable, and including affidavits by each of the plaintiffs, attesting in very narrow terms, and sometimes based on on conclusions or on hearsay, to the falsity of certain statements, the court granted leave to pursue discovery from the ISP’s, while directing that notice be given to the commenters and allowing fourteen days after the notice for motions to quash.
Application of the Dendrite Analysis
We became involved in the case after Popehat put out a call for legal assistance for the blogger and the Does; I was in touch both with Ken White, who was helping them find potential counsel, and with the blogger herself as well as her counsel; several Does eventually asked for our assistance. The blogger’s motion papers, and plaintiffs’ response, had cited the line of cases holding that plaintiffs who want to identify anonymous Internet speaker have to show more than that the filing fee has been paid. Initially, plaintiffs both argued against the application of the national consensus approach found in the Dendrite / Cahill line of cases, which requires an evidentiary showing that the litigation has merit, and argued that this standard had been met because plaintiffs had provided evidence that the challenged statements had been made. But this is not enough under Dendrite—the claims have to be legally tenable, and there has to be evidence supporting the elements of a claim, such as falsity when defamation is claimed. (This article discusses the leading cases on the subject). Moreover, because Ohio does not yet have an appellate decision on the Dendrite issue, we took these requests for assistance seriously, and identified local counsel who were willing to join us in filing a motion to quash. In the end, we were willing to help three of the Does with motions to quash, but we had to turn down several others.
The Does we were able to help were those who had not accused Saltsman of the being present for the rape, or of “masterminding” the rape, but had addressed other issues in the case. One commenter, expressing disgust with the charges, indicated that she would not want to do business with Saltsman’s parents, and asked for the name of Mr. Saltsman’s business; another commenter provided a truthful answer to that question. It was apparent that both commenters assumed Saltsman’s guilt, but it is not libel to make statements that follow from the implicit opinion that someone is guilty. What they actually said was not actionable. Another commenter asserted that Cody Saltsman should suffer consequences for what he had done – but even aside from the protected nature of this commenter’s underlying opinion, there seems to be no dispute that Saltsman DID send a number of disgusting tweets, including the photo of the victim. And, when I approached the plaintiff’s lawyer, Shawn Blake, he acknowledged that his clients’ claims against these commenters were weaker than some of their other claims; he promptly assured me that he would not seek identifying information about these three commenters and would, in fact, dismiss them from the action.
For several other commenters, however, it is hard to see how the Dendrite / Cahill line of cases can help them. I have no way of knowing whether Saltsman was involved in the planning of the attack on the young woman in question, or whether he sent a telephone text message to her father as claimed, but he has submitted an affidavit specifically denying these accusations, and fact-specific accusations of criminal conduct are certainly the stuff of a real libel case, assuming that the underlying factual assertions are false. And, indeed, the Internet’s anonymity doesn’t and shouldn't enable open season for false accusations of rape.
Now it may be hard for Saltsman to prevail in the litigation he has initiated. For those commenters who only joined the mob attacking Saltsman, who only republished in general terms the charges against him, there may well be a tenable argument that they lacked awareness of the probable falsity of the charges that they were repeating; and those who commented late may well be able to argue that, by the time they spoke, Saltsman had become an involuntary, limited purpose public figure. (I can conceive as well of the argument, in some cases, that a comment about a pending criminal case does not make an actionably false accusation but simply expresses a constitutionally protected opinion that the accuser is right or that the defendant is guilty). But the Dendrite test is a balancing test, and although I have yet to see a case where a plaintiff with tenable claims failed to secure the Doe’s identity, Dendrite allows plaintiffs to succeed at the subpoena stage even if they ultimately cannot prove their claims at trial. It enables an early look to protect innocent speakers from needless identification, but does not erect an impermeable screen.
Larger Lessons from the Case
In this respect, this case is typical of many others I have seen in which defamation actions have been filed against many anonymous speakers – in their understandable anger about outrageous public attacks, plaintiffs often sue indiscriminately instead of carefully limiting their claims to those that have a reasonable chance of success. From my vantage point, this is partly a function of emotion, anger at the criticisms, partly a cost benefit analysis (it doesn’t cost much more to sue fifteen than to sue ten, and in a state with no anti-SLAPP statute, why not err on the side of suing too many?) and partly perhaps a sense that the more defendants are sued, the louder the implicit message that the plaintiff has been falsely accused, and that criticizing this plaintiff will result in adverse consequences.
It is hard to be sure what actually happened here; I certainly fault plaintiffs and their counsel for including several defendants whom they had no business suing. Plaintiffs have also erred to the extent they seek to hold the blogger liable for the comments on her site (this aspect of the suit is barred by section 230), for seeking to hold her liable because she exercises her discretion to remove some comments (plainly within the protection of section 230), by seeking a preliminary injunction against the defamation (plainly an impermissible prior restraint), and by seeking a permanent injunction against allowing “any” defamatory statements about plaintiffs to remain on the site (assuming that, unlike some other states, Ohio allows equity to enjoin a libel, an injunction against the blogger may enjoin only the blogger’s own statements, and then only specific statements that have been adjudicated). But I also give plaintiffs credit for immediately recognizing that they had overstepped and for moving quickly to eliminate our three clients.
But I do not at all share Marc Randazza’s certainty that Cody Saltsman’s filing of this lawsuit must be the result of bad advice. Marc points to the Streisand effect, arguing that the suit will only serve to amplify the allegations made against Cody Saltsman, and that had Cody Saltsman lain low, there would have been little attention to the accusations; now, Marc suggests, at the very least, the world will remember him as the jerky kid who sent out tweets gloating about a rape. But sitting here in Washington, or sitting in Las Vegas where Marc practices, it is awfully hard to pass judgment on the real effects of the blog's public accusations on Cody Saltsman’s reputation in Steubenville and surrounding areas. And I certainly do not agree with Marc’s assertion that Cody Saltsman’s guilt of sending outrageous tweets makes him libel proof – accusations of the crime of raping a girl, and especially the accusation that he arranged for the rape to punish a young woman who jilted him, are far worse. (In this regard, I note that Marc has considerably toned down the one-sidedness of his legal and policy analysis of this case since his post was first published).
Looking from afar, what I see is a mob that started discussing a situation and may well have taken the charges far further than were justified. Assuming that the more extreme charges were false, and even recognizing that young master Saltsman could well be exposing himself to very nasty discovery about his dating life and sexual relations, I don’t see how Marc can be so sure that he and his parents were wrong to file suit. If the accusations are false, somebody ought to be able sue on them, and maybe it would not be so bad if one of the lessons that comes out of this situation is that you should be careful about what you say online.
Hostgator – Again the Unreliable Blog Host
When I first started looking at this situation, I was struck by the fact that it was Hostgator that disclosed identifying information in response to the subpoena, without giving any notice to the Does or, indeed, to the blogger herself so that they could have had chances to ask the judge to quash the subpoena. This is not the first time one of my clients has experienced Hostgator’s lack of interest in its users’ free speech rights — when John Dozier made bogus trademark claims against Ronald Riley’s web site about him, Hostgator shut down his web site, also without any notice.
Consumers depend on their ISP’s as the first line of defense against abusive subpoenas — if the ISP does not give notice, there is no way to bring the First Amendment right to remain anonymous, and the lack or support for identification under the Dendrite / Cahill analysis, to a judge’s attention. Even when it is only Internet Protocol addresses that are being disclosed, that information can be enough to identify commenters if, for example, the commenter posted from work and the commenter’s employer owns static IP addresses. It is my understanding that this was true for at least one of the comments.
It is a wonder that anybody brings their blogging business to Hostgator. Caveat emptor!
The litigation is ended -- all the Does remain anonymous except for the one whose lawyer outed her at a hearing, the claims against all defendants have been dismissed with prejudice, and young Saltsman was allowed to use the blog as a platform to apologize for his outrageous conduct while making clear that he was not guilty of further involvement, and the blogger acknowledged that there is no evidence that he was further involved.