A Victory for Anonymous Blogging?

Recent Events have brought this issue to the attention of Utah Bloggers. In all cases to this point that have been litigated, the person who sought the identity was a public figure. Does your right of free speech allow you to attack the credibility, or allow you to slander a non public person. Should you be able to slam your neighbor, or anyone else for that matter and call it free speech? Several test cases that may answer these questions are in the works. Below is an article by Daniel J. Solve that seems to address the issue for public elected officials.

October 08, 2005
A Victory for Anonymous Blogging
posted by Daniel J. Solove
Anonymous bloggers received a great victory this week in a case decided by the Delaware Supreme Court -- Doe v. Cahill (Oct. 5, 2005). The case involved John Doe, who anonymously posted on a blog statements about Patrick Cahill, a City Councilman of Smyrna, Delaware. Doe, in criticizing Cahill’s job performance, noted that Cahill had “obvious mental deterioration” and was “paranoid.” Cahill sued Doe for defamation.
Doe was anonymous, but his IP address could be linked to his postings, and Cahill sought to obtain Doe’s identity from Comcast, Doe’s ISP. Comcast notified Doe that Cahill was seeking his identity, and Doe immediately went to court to prevent the disclosure of his identity. The case reached the Delaware Supreme Court, which concluded that Cahill should not be permitted to obtain Doe’s identity.
The issues in this case are very important. Many of you comment here anonymously; and many comment anonymously on other blogs. Some have anonymous blogs, such as the person pretending to be Supreme Court nominee Harriet Miers on a blog or the pseudonymous “Article III groupie,” who maintains the famous blog, Underneath Their Robes. EFF has produced a manual about how to blog anonymously.
What if your identity – and those of the Miers impersonator and Article III groupie -- could readily be unmasked?
The First Amendment provides for a right to speak anonymously. It does so because without anonymity, people might be chilled in saying certain things. But what happens when anonymous speakers defame people or invade their privacy? Those injured people should be able to sue. This issue has been a difficult one for courts, which have tried to balance a person’s free speech rights to speak anonymously with the injured plaintiff’s rights to proceed with a lawsuit.
Many courts have adopted a heightened pleading standard before a plaintiff can learn the identity of an anonymous speaker. The prevailing standard is that the plaintiff must be able to present a strong enough case to survive a motion to dismiss, but that standard is relatively easy to satisfy. Only really frivolous cases will fail.
The Delaware Supreme Court adopted a different balance, one that I applaud. It requires that a plaintiff, suing for defamation, must satisfy a summary judgment standard in order to unmask the identity of the anonymous speaker. In this case, Cahill was a public figure, and to prevail in a defamation lawsuit, he had to prove that (1) Doe made a defamatory statement (damaging to Cahill’s reputation); (2) the statement was concerning Cahill; (3) the statement was published (disseminated to others); (4) others would understand the statement to be defamatory; (5) the statement was false; and (6) Doe made the statement with actual malice (he either knew it was false or acted in reckless disregard of the truth).
The Court concluded that Cahill must satisfy the summary judgment standard relating to most of these elements. That means that Cahill must show that there’s a genuine issue of material fact about these issues. In other words, he must show enough evidence to justify why he should proceed to a jury on these issues.
The Court made an exception to this rule for the sixth element – actual malice. With the other elements, they can readily be proven without knowing the identity of who said the statement. But the actual malice element depends upon the motivation of the speaker – and it is here where knowing the speaker’s identity is essential in order to determine whether the speaker had actual malice or not.
This approach strikes me as a very sensible way to balance protecting anonymous speech and allowing plaintiffs to pursue defamation lawsuits.
Posted by Daniel J. Solove at October 8, 2005 12:30 AM