by Paul Alan Levy
In early June, I described a recent decision by a United States Magistrate Judge in Colorado who had been persuaded to adopt a weaker than normal standard to decide whether anonymous Internet posters should be identified when a plaintiff seeks to sue them becauce their speech allegedly violates the plaintiff’s rights. That decision has now been vacated under the Munsingwear doctrine.
As previously reported, the ruling was stayed shortly after we entered the case to represent Skybeam and filed objections with the District Judge. Façonnable promptly sought and, with our consent, was granted a lengthy extension of time to respond to our objections. The day before its response was finally due, Façonnable offered the Doe a face-saving settlement — no apology, no payment of money, and no admission that the sued-on statements were false (in fact, as our objections pointed out, there was actually serious reason to think that the statements may have been true). All that was required was a representation from counsel for the Doe that the poster was not one of Façonnable’s competitors. Once that representation was provided, Façonnable dismissed its libel action with prejudice.
We then moved to vacate the order against Skybeam (including its supporting opinion), contending that Façonnable’s unilateral dismissal of its action had unfairly deprived Skybeam of the opportunity to have its objections to the ruling against it considered. Interestingly, we were unable to find a single reported decision, or even an unreported but reasoned decision, addressing the application of United States v. Munsingwear, 340 U.S. 36 (1950), to a subpoena to a media or Internet host seeking to identify an anonymous sources or user. Now there is such a case: Judge Arguello ruled that Munsingwear applied; the decision appears at 2011 WL 3203125.
The sequence of events served to confirm the need for a strong standard for the identification of anonymous speakers. It is apparent that, as soon as Façonnable was confronted with evidence supporting the truth of those statements, it was ready to drop the case. In other words, Façonnable never had a winnable case. Why, then, should the anonymity of its speaker be compromised? Only by requiring evidence instead of mere allegations can we be confident that baseless claims that seek to identify critics for improper purposes will be sidetracked.
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