by Paul Alan Levy
I heard last week from another lawyer in a Doe case that I am currently litigating about an order from a Philadelphia trial judge, requiring Philly.com, the web site of Philadelphia’s two daily newspapers, to disclose the identifying information of a commenter who, according to the story, had called the head of the local IBEW local “a name.” The article, on the web site of the local CBS station, took at face value the contention of the plaintiff’s lawyer, who asserted that the ruling “could have a broad impact on incendiary online comments”; the headline trumpeted that the ruling “could give anonymous online commenters second thoughts.”
I was inclined to be less concerned, knowing that Pennsylvania is one of the nearly one dozen states where an appellate court has agreed that the First Amendment requires that, before an online speaker may be stripped of her right to speak anonymously, the commenter has to be given the opportunity to oppose the discovery and the plaintiff had to make a preliminary legal and evidentiary of his claim’s merit. Indeed, the leading Pennsylvania decision, Pilchesky v. Gatelli, adopted a strong variation of the Dendrite approach requiring not just evidence to support the plaintiff’s claims but an express balancing of interests. Still, I set about trying to obtain the ruling and the briefs from the reporter, or from the lawyers involved in the case, to see whether the Pilchesky standard had been followed.
A Techdirt Guest Blogger Sounds the Alarm
While I was still trying to get the underlying papers so that I could figure out whether there had been a departure from the standard approach in Pennsylvania, I noticed a guest post on Techdirt that sounded the alarm from the opposite direction, suggesting that the trial judge had not provided sufficient protections for the anonymous speaker. This writer, who linked to an underlying story on Philly.com, seemed to accept at face value the assertion of the Doe’s lawyer that the comment was not defamatory, and sniped both at the plaintiff for not communicating directly with the Doe, as Philly.com had done, and at the court because “it appears the court made no real attempt to balance the commenter’s First Amendment rights versus the plaintiff’s complaint.” The writer also took Philly.com to task for removing the allegedly defamatory comment from its site, which, the post said, was said to be “not exactly innocuous behavior” that “g[a]ve the appearance of a coverup of evidence.” And the post suggested that although the order of disclosure might “prompt cheers” from opponents of anonymity, and that any attack on anonymity “also threatens those who have good reason to withhold their identity.”
I beg to differ. I have reviewed the briefs for the plaintiff and for the Doe; due to a peculiarity of Pennsylvania practice, whereby trial court rulings are often explained only in writing when there is an appeal, the court order of disclosure does not explain the judge’s reasoning. Still, my conclusion is that the ruling is likely a straightforward application of Dendrite.
The Doe defendant in the case commented on a story about local reactions to homophobic remarks by Chick-Fil-A’s founder, including a snarky remark by John Dougherty, a local union leader, expressing the hope that a radio-talk show host who sided with Chick-Fil-A might come home to find his son on the sofa holding hands with another boy. A commenter using the pseudonym “fpbdplt” then attacked Dougherty, using his nickname “Johnny Doc”:
“Johnny Doc, the pedophile. alias 'sparky boy' should not be ridiculing anyone. His [statement about the talkshow host] is probably more like his own experience .. except he was the sofa sitter.
Dougherty sued the anonymous poster, charging that labeling him a pedophile was defamation per se. Dougherty embraced his obligations under the Pilchesky standard and argued that his evidence and legal arguments met that standard. The Doe obtained counsel who, while questioning whether Doe had, in fact, posted that comment, argued only that the statement was opinion, not fact. Doe did not claim that the statement was true (in fact, Doe’s counsel characterized the statements as the product of frustration), and Doe did not point to any special circumstances that could have affected the outcome at the balancing stage.
Indeed, one striking aspect of the Techdirt post is an educated guess, based on a search for other uses of the same pseudonym, about who the Doe might be. If the Techdirt guess is accurate, it is hard to see the basis for any worthwhile arguments against disclosure at the balancing stage (there is no apparent exposure to retaliation), and if anything the vileness of the accusation, and absence of any claimed basis in fact, might be an argument FOR disclosure at the balancing stage. And although I have not been able to find out whether Philly.com has yet complied with the order, or whether the Doe is seeking appellate relief, if the Techdirt post correctly links to the Doe’s name, address and telephone number, the issue may well be moot at this point.
Lessons from the Two Blog Posts
The ruling itself was straightforward. The Doe’s lawyer argued the case creditably, but based on what I saw in the briefs, the statement might well have been one of fact and not hyperbolic opinion. And assuming that the statement was a factual one, the Doe admitted that he had no reason to believe that Dougherty is a pedophile. This is the kind of accusation that could form the basis of a real libel suit, and although the Techdirt guest post rightly wondered how much actual damage could be shown from a single mean comment on a news story, when sexual misconduct is suggested (criminal misconduct at that) damages are presumed, and punitive damages possible (Pennsylvania does not allow injunctions even after a statement has been adjudicated false and defamatory).
Unfortunately, both the CBS news story that I first saw, and the more recent Techdirt post, struck disappointingly familiar themes. When a trial judge orders identification, it is not necessarily the end of the world for online anonymity. The Dendrite test is a balancing test: it is intended to allow viable claims for defamation or other wrongs effected by speech to go forward, while protecting the right to speak anonymously when the plaintiff has not shown that he has a viable case. Far from giving opponents of online anonymity reason to cheer, or giving anonymous speakers undue reason to fear, rulings like this one reflect a system working as it should, separating the wheat from the chaff. And I found Techdirt’s complaint about removal of the post perplexing – this struck me as a straightforward exercise of section 230 discretion to remove a hateful comment for which there is no supporting basis.
The CBS reporter would have done well to second-guess the self-serving statement of Dougherty’s lawyer that his win in the case represented a new development that should strike fear in the hearts of all anonymous speakers. On the other hand the Techdirt writer might have done better to remember that what we have achieved through the widespread adoption of the Dendrite approach (and its Cahill variant) is a balancing test that allows plaintiffs to identify their detractors in appropriate cases. When, as in the recent Hadeed case in Virginia, a court decides to allow identification based on a lesser standard, flatly rejecting any requirement of evidence of wrongful speech, there is cause for concern. So, too, if a trial judge purports to apply the right standard but it is apparent that she has done so poorly. But when the parties agree that the Court should apply the right standard, and there is only a reasonable debate about how that standard should be applied to the facts of a particular situation, we should all be pleased.
To be sure,Techdirt's detective work to identify the anonymous speaker without the invocation of judicial process adds an interesting aspect to the analysis. But we might be much better off if, instead of rushing their posts, writers on the tech policy blogs that matter read the actual papers in cases instead of leaping to conclusions based on fragmentary news reports.