Some background on the Emerson case:
http://www.politechbot.com/cgi-bin/politech.cgi?name=emerson
*********
From: "Richard Ravin" <[EMAIL PROTECTED]>
Subject: Re: Donato v. Moldow (Eye On Emerson); Motion To Quash Filed By
Anonymous Postsers
Date: Tue, 8 Jan 2002 14:24:41 -0500
FYI, please find the attached.
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Richard L. Ravin, Esq.
Hartman & Winnicki, P.C.
West 115 Century Rd.
Paramus, NJ 07652
Phone: 201-967-8040 x111
Fax: 201-967-0590
E-Mail: [EMAIL PROTECTED]
Web Site: www.Ravin.com January 4, 2001
PRESS RELEASE
Town Officials Barred From Learning
The Names of Online Anonymous Critics
The New Jersey Superior Court has ruled that plaintiffs alleging
defamation cannot seek the identities of anonymous authors who posted
comments critical of them on a community-based Web site and electronic
bulletin board. The anonymous authors were successfully represented by
Richard L. Ravin, Esq., of Hartman & Winnicki, P.C., who had made a motion
to quash the subpoena served on the Internet service provider (ISP) of the
electronic bulletin board. The subpoena, which was quashed by the court,
sought the IP addresses of the anonymous authors. The lawsuit, Donato v.
Moldow (Eye On Emerson case), is an important First Amendment ruling in
that it upholds the right to speak anonymously online. The court also
ruled that the complaint against the Web site operator, Stephen Moldow, a
resident of the Borough of Emerson, would be dismissed with prejudice
pursuant to the Communications Decency Act.
The case was brought by two members of the Emerson town Council, a
candidate for the Council and the Chairman of town's Republican Committee
against anonymous authors using about 40 online screen names (John Does)
for alleged defamation. The Eye On Emerson Web site
(http://www.geocities.com/emersoneye/index.html) and its related electronic
message board was designed and administered by Moldow to promote good local
government by encouraging citizens to voice their opinions about government
affairs.
In ordering that the identities of the online authors remain
anonymous, the court cited to the recent New Jersey Appellate Division case
of Dendrite v. Doe, and held that the plaintiffs failed to satisfy the
four-part Dendrite test. The court specifically held that the plaintiffs
failed to give proper notice of the complaint and subpoena to the anonymous
posters, and to adequately identify the exact statements alleged to be
defamatory or specify why the statements were actionable. The anonymous
posters argued that the statements alleged to be defamatory were either
opinion, name-calling, protected political speech or not properly
specified. The court declined to address the other Dendrite issues until
the plaintiffs give proper notice and the court ascertains whether
plaintiffs will amend the complaint. The court also ruled that the
subpoena was defective because the attached 117 postings exceeded the
postings and screen names referenced in the complaint.
The anonymous posters and Moldow also moved for dismissal of the harassment
count, which the court granted because New Jersey does not recognize the
tort of harassment, notwithstanding that it is a quasi-criminal, petty
disorderly offense.
During oral arguments Mr. Ravin noted that anonymous speech is
hardly a new method of expression, rather it dates back to the founding of
the U.S. Constitution. The Federalist Papers were authored anonymously at
the time of their publication under the pseudonym "Publius". In fact, the
essays, which advocated the adoption of the U.S. Constitution in 1787 and
1788, were actually authored by Alexander Hamilton, John Jay, and James
Madison. Interestingly, New Jersey itself has its own historical examples
of its governmental leaders utilizing anonymous speech. In 1884, Governor
William Livingston authored anonymous articles under the pseudonym
"Scipio", attacking the Legislature's failure to lower taxes and accusing a
state officer of stealing or losing state money during the British
invasions of New Jersey. As recently as 1995, the U.S. Supreme Court
upheld the right of anonymous speech in the case of McIntyre v. Ohio
Elections Commission.
With the advent of the Internet, and in particular, electronic
chat rooms, bulletin boards, message boards, listservs and the Usenet, it
is now easier and cheaper than ever to make statements about others
anonymously. Increasingly, courts will be called upon to act as the
gatekeepers of the First Amendment right to speak anonymously. In the Eye
On Emerson case, the court followed the rule laid down in Dendrite, and
thereby prevented the elected officials and public figures of Emerson (the
plaintiffs) from discovering the identities of their critics. Without the
Dendrite rule, for the mere filing of a complaint and service of a
subpoena, any person could discover the identity of an anonymous speaker
who is critical of him or her, and subject that speaker to
retribution, harassment or embarrassment, even though the speaker has done
no wrong, and could not be held liable.
The Dendrite procedure is unique within the realm of civil
practice in that it requires plaintiffs, at the very outset of their
anonymous online speech case, before discovery even starts, to make a prima
facie showing that they have a meritorious case. The court must then
balance the strength of the plaintiffs' case against the rights of the
fictitious defendants to remain anonymous. Only then, would the plaintiffs
be entitled to compel discovery as to the identities of the speakers. The
high bar set for plaintiffs reflects the high value our society places on
the right to not only speak freely, but anonymously. This system insures
that plaintiffs with a meritorious case will be given the discovery they
need to obtain the identities of the authors who defamed them. The system
will also prevent persons from abusing the judicial process by using it
merely as an instrument to discover the identities of their critics, even
though their case is frivolous.
Mr. Ravin is head of the Internet and Intellectual Property Law
Group at Hartman & Winnicki, P.C., with offices in Paramus, New Jersey and
New York City. Van Mejia, an associate with the firm and a member of the
Group also worked on the Eye On Emerson case. Mr. Ravin is Co-Chair of the
Internet Law Committee of the New York State Bar Association. He can be
reached via e-mail at: [EMAIL PROTECTED], or via phone at: (201)
967-8040. The firm's Web site is located at: www.hartmanwinnicki.com.
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