-------- Original Message --------
Subject: New decision on Internet anonymity
Date: Wed, 05 Oct 2005 19:38:06 -0400
From: Paul Levy <[EMAIL PROTECTED]>
To: <declan@well.com>
I want to call your attention to a very good decision issued today by
the Delaware Supreme Court in Cahill v Doe, quashing a subpoena to
identify a citizen who criticized a public official on a newspaper's
blog. The decision contains a very good discussion of the potential
chilling effect of such subpoenas, of the important role of the Internet
in facilitating citizen communication, and of the need for a standard
that balances the First Amendment right to speak anonymously against the
interest of one who believes that he has been defamed to vindicate his
reputation. Most important, the decision agrees with most other courts
that a plaintiff should not be allowed to identify his critics unless he
presents evidence to support his defamation claims. This is the third
appellate court in the country to weigh in on the topic, and all of them
-- the Pennsylvania Supreme Court in Melvin v Doe, New Jersey's Superior
Court, Appellate Division in Dendrite v Doe, and now the Delaware
Supreme Court -- have required the presentation of evidence before a Doe
defendant may be deprived of his right to remain anonymous.
The decision is not a perfect one -- without much explanation, the court
rejects the "balancing" stage of the test adopted in New Jersey, which
can be important in some cases. However, it is an important development
in the struggle for free speech online, and its sensitive discussion of
the context in which speech should be judged is worth reading in full.
Eventually, the decision will be available on the Supreme Court's web site
http://courts.delaware.gov/opinions/(fja0h0fmkphgk0jjrabt1p45)/list.aspx?ag=supreme%20court,
but for now the decision is already posted on Public Citizen's web site
- the URL is at the end of the press release that follows.
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation
Valerie Collins 10/05/05 4:53 PM >>>
PUBLIC CITIZEN NEWS RELEASE
For Immediate Release: Contact: Valerie Collins (202)
588-7742
Oct. 5, 2005 Paul Levy
(202) 588-1000
Internet Critic of Delaware Politician Has Right to Anonymity, Court Rules
Message Board Poster Criticized Smyrna Town Council Member’s Job Performance
WASHINGTON, D.C. – In a victory for free speech on the Internet, the
Delaware Supreme Court reversed an order today enforcing a subpoena to
identify a citizen who anonymously posted criticism of a member of the
Smyrna Town Council.
The court recognized the enormous chilling effect that such subpoenas
can have on constitutionally protected speech and the need for a strong
legal standard to ensure that identification is ordered only in cases in
which the plaintiff has a real likelihood of proving that the speech is
wrongful. At the same time, the court’s decision ensured that those who
are harmed by defamatory statements online will have the ability to seek
recourse.
The case involved an Internet critic, known in court documents as John
Doe No. 1, who posted two messages on the Smyrna/Clayton Issues Blog
(web log) in September 2004. The messages stated that Patrick Cahill, a
member of the Smyrna Town Council, had diminished leadership skills,
energy and enthusiasm, and referred to Cahill’s “character flaws,”
“mental deterioration” and “failed leadership.” John Doe No. 1, known as
“Proud Citizen” on the blog, also stated, “Gahill [sic] is … paranoid.”
On November 2, Cahill and his wife sued John Doe No. 1 and three other
anonymous critics, claiming that John Doe No. 1 had accused Cahill of
suffering from “mental defects and diseases” and that the misspelling of
his name implied he was “engaging in extramarital, homosexual affairs.”
Without notice to the critics, the Cahills sought to identify the
critics through a subpoena to the Internet access provider, which
notified the four critics of the subpoena.
John Doe No. 1 attempted to nullify the subpoena, arguing the disclosure
would violate his First Amendment right to criticize a public official
anonymously, but the trial court denied the motion. John Doe No. 1 appealed.
Public Citizen, which has been a strong defender of First Amendment
rights on the Internet, urged the court in a “friend of the court” brief
filed in early August to allow John Doe No. 1 to remain anonymous. Blogs
provide individuals such as Cahill the opportunity to immediately
respond at no cost to postings they believe are false or misleading,
noted Paul Alan Levy, a Public Citizen attorney who argued the case in
the Delaware Supreme Court. Further, courts have ruled that subpoenas
seeking the names of anonymous speakers can chill free speech, and those
courts have upheld the right to communicate anonymously over the Internet.
“This is the first state Supreme Court to squarely decide the standards
to govern John Doe subpoena cases,” said Levy. “The court’s
determination to require sufficient evidence before a critic is outed
will go a long way toward reassuring citizens that they remain free to
anonymously criticize public officials.”
Norman Monhait of Wilmington, Delaware, and Lawrence Hamermesh of
Wilmington, Delaware, served as local counsel. The American Civil
Liberties Union, the Electronic Frontier Foundation and the American
Civil Liberties Union of Delaware also joined the August friend of the
court brief.
The decision is available at
http://www.citizen.org/documents/DoevCahillSupremeCourtOpinion.pdf.
The brief is available at
http://www.citizen.org/documents/Appellate%20Amicus%20Brief.pdf.
###
Public Citizen is a national, nonprofit consumer advocacy organization
based in Washington, D.C. For more information, please visit
www.citizen.org.
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