Three adult media entertainment producers filed suit yesterday in the U.S. District Court for the Northern District of Illinois alleging copyright infringement against hundreds of anonymous defendants accused of trading videos using Bittorrent. This kind of action resembles the much-criticized mass litigation undertaken by the U.S. Copyright Group against hordes of unknown accused Bittorrent users [...]
I enjoyed talking with Anna Devlantes and Corey McPherrin this morning on our local Fox affiliate’s morning program about defamation online and the challenging problem of unmasking anonymous defendants. The video is embedded below, or you can go here if it’s not showing up in the RSS feed.
About four months ago, Ed Felten blogged about a research paper in which Hari Prasad, Rop Gonggrijp, and I detailed serious security flaws in India’s electronic voting machines. Indian election authorities have repeatedly claimed that the machines are “tamperproof,” but we demonstrated important vulnerabilities by studying a machine provided by an anonymous source.
The story took a disturbing turn a little over 24 hours ago, when my coauthor Hari Prasad was arrested by Indian authorities demanding to know the identity of that source.
At 5:30 Saturday morning, about ten police officers arrived at Hari’s home in Hyderabad. They questioned him about where he got the machine we studied, and at around 8 a.m. they placed him under arrest and proceeded to drive him to Mumbai, a 14 hour journey.
The police did not state a specific charge at the time of the arrest, but it appears to be a politically motivated attempt to uncover our anonymous source. The arresting officers told Hari that they were under “pressure [from] the top,” and that he would be left alone if he would reveal the source’s identity.
Hari was allowed to use his cell phone for a time, and I spoke with him as he was being driven by the police to Mumbai:
India uses paperless electronic voting machines nationwide, and the Election Commission of India, the country’s highest election authority, has often stated that the machines are “perfect” and “fully tamper-proof.” Despite widespread reports of election irregularities and suspicions of electronic fraud, the Election Commission has never permitted security researchers to complete an independent evaluation nor allowed the public to learn crucial technical details of the machines’ inner workings. Hari and others in India repeatedly offered to collaborate with the Election Commission to better understand the security of the machines, but they were not permitted to complete a serious review.
Then, in February of this year, an anonymous source approached Hari and offered a machine for him to study. This source requested anonymity, and we have honored this request. We have every reason to believe that the source had lawful access to the machine and made it available for scientific study as a matter of conscience, out of concern over potential security problems.
Later in February, Rop Gonggrijp and I joined Hari in Hyderabad and conducted a detailed security review of the machine. We discovered that, far from being tamperproof, it suffers from a number of weaknesses. There are many ways that dishonest election insiders or other criminals with physical access could tamper with the machines to change election results. We illustrated two ways that this could happen by constructing working demonstration attacks and detailed these findings in a research paper, Security Analysis of India’s Electronic Voting Machines. The paper recently completed peer review and will appear at the ACM Computer and Communications Security conference in October.
Our work has produced a hot debate in India. Many commentators have called for the machines to be scrapped, and 16 political parties representing almost half of the Indian parliament have expressed serious concerns about the use of electronic voting.
Earlier this month at EVT/WOTE, the leading international workshop for electronic voting research, two representatives from the Election Commission of India joined in a panel discussion with Narasimha Rao, a prominent Indian electronic voting critic, and me. (I will blog more about the panel in coming days.) After listening to the two sides argue over the security of India’s voting machines, 28 leading experts in attendance signed a letter to the Election Commission stating that “India’s [electronic voting machines] do not today provide security, verifiability, or transparency adequate for confidence in election results.”
Nevertheless, the Election Commission continues to deny that there is a security problem. Just a few days ago, Chief Election Commissioner S.Y. Quraishi told reporters that the machines “are practically totally tamper proof.”
This brings us to today’s arrest. Hari is spending Saturday night in a jail cell, and he told me he expects to be interrogated by the authorities in the morning. Hari has retained a lawyer, who will be flying to Mumbai in the next few hours and who hopes to be able to obtain bail within days. Hari seemed composed when I spoke to him, but he expressed great concern for his wife and children, as well as for the effect his arrest might have on other researchers who might consider studying electronic voting in India.
If any good has come from this, it’s that there has been an outpouring of support for Hari. He has received positive messages from people all over India.
Unfortunately, the entire issue distracts from the primary problem: India’s electronic voting machines have fundamental security flaws, and do not provide the transparency necessary for voters to have confidence in elections. To fix these problems, the Election Commission will need help from India’s technical community. Arresting and interrogating a key member of that community is enormously counterproductive.
—
Professor J. Alex Halderman is a computer scientist at the University of Michigan.
I recall a Twilight Zone episode with a great twist: a man, in order to win a bet that he could stay quiet for an entire year, has had his vocal cords severed. The idea being, it is particularly gruesome to imagine a human being rendered mute for money. Sadly, this episode has not aged terribly well: the obscenity of modern three-strikes Internet laws takes any sting out of the twist ending.
One of our allies, New Zealand, is considering a three strikes Internet termination plan. Another ally, France, has already passed such a measure – HADOPI, but can’t seem to enforce it (legally). While I’ve written about the lunacy that is HADOPI, I thought our friends down under might be interested to learn of the hideous side effects of swallowing the Internet Execution program.
I’ve already written about France’s ill-considered HADOPI law, which mandates termination of accused pirates. Supporters of HADOPI have noted that there is at least a five-minute hearing before the line is snipped. In order to make these hearings more efficient, the French government has considered getting into the spyware business.
In order to defend yourself from an accusation of copyright infringment (and avoid the resulting digital execution), you will need to provide a record of your internet use. The government would make available surveillance tools that users would need to install in their machines. The government has asked that the software include:
So, in order to protect yourself from losing your Internet, you need to offer up some of your privacy? How delicious. There was an old woman who swallowed a fly. . . A three-strikes policy can usher in a regime of “voluntary” self-surveillance. You don’t want to provide the court with your Internet records? What have you got to hide?
But I figure that many of us would do pretty much anything to keep our Internet in the face of false accusations of infringement. Despite what three strikes proponents (read: friends of the Entertainment Industry) claim, the Internet is not some trifle. Internet access, or the lack thereof, implicates job training, education, access to government resources, and self-expression. Severing an individual’s connection seems akin to mutilation or exile.
The morale of the story is: when you put in place a system with enormous consequences and little-to-no due process, individuals will take measures (however unpleasant) to protect themselves from arbitrary punishment. Between plans mandating that users password protect their wifi and record their own Internet use, we have seen a moment to an online copyright regime of guilty until proven innocent. With three strikes looming in New Zealand, and the hints of a three strikes plan in the ACTA negotiations, we may soon find ourselves sacrificing our rights in order to safeguard our basic necessities.
(Andrew Moshirnia is a third year student at Harvard Law School and a CMLP blogger. Somewhere beyond him, a wheel was turned and his number came up black thirteen.)
The Ninth Circuit Court of Appeals issued a decision last Monday in In re: Anonymous Online Speakers, No. 09-71265 (9th Cir. July 12, 2010), a case that could be influential for future courts deciding whether to order the identification of anonymous or pseudonymous Internet speakers. In the course of a primarily procedural ruling, the appellate court suggested in dicta that an expansive category of "commercial speech" is entitled to reduced protection in anonymity cases. As explained below, the decision could have negative consequences for consumers’ ability to remain anonymous while speaking critically about products and services online.
The case is part of a long-standing business dispute between Quixtar, Inc., successor to the Amway Corporation (which has since returned to that name), and Signature Management TEAM, LLC, which sells books, seminars, and motivational speaker appearances to the Independent Business Operators ("IBOs") that sell Quixtar’s products. In this action, Quixtar sued TEAM for tortious interference with contracts and business relations, premised on the allegation that TEAM carried out an online "smear campaign" aimed at inducing IBOs to terminate their contracts with Quixtar.
In a deposition of a TEAM employee, Quixtar sought information about the identity of five anonymous Internet speakers, and the employee refused to answer. Quixtar then moved to compel testimony about the authors of four blogs and a video that were critical of Quixtar management: “Save Us Dick DeVos,” “Q’Reilly,” “Integrity is TEAM,” “IBO Rebellion,” and “Hooded Angry Man." According to Quixtar, statements appearing on these sites were linked to TEAM and therefore supported Quixtar’s claims of tortious interference, including: "Quixtar has regularly, but secretly, acknowledged that its products are overpriced and not sellable"; "Quixtar refused to pay bonuses to IBOs in good standing"; and "Quixtar currently suffers from systemic dishonesty." Slip op. at 9911-12.
After applying the Doe v. Cahill standard to the statements in question, the district court ordered the TEAM employee to disclose the identity of three of the five speakers. Both sides petitioned for a writ of mandamus seeking to overturn the ruling. The Ninth Circuit decision denied both of the mandamus requests on procedural grounds, emphasizing that mandamus is an "’extraordinary’ remedy limited to ‘extraordinary’ causes." Slip op. at 9914.
In the course of its decision, however, the appeals court characterized the statements at issue as commercial speech, which is afforded less constitutional protection than other types of expression. See generally Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (holding that truthful, non-misleading commercial speech is entitled to constitutional protection, though less than other constitutionally guaranteed expression). The Ninth Circuit wrote:
The Internet postings and video at issue in the petition and cross-petition are best described as types of "expression related solely to the economic interests of the speaker and its audience" and are thus properly categorized as commercial speech. The claimed disparagement goes to the heart of Quixtar’s commercial practices and its business operations.
Slip op. at 9913-14. Having made this determination, the court distinguished Cahill as involving political speech and reasoned that, when dealing with commercial speech, "Cahill’s bar extends too far." Slip op. at 9920. The court offered up the following general principle:
[W]e suggest that the nature of the speech should be a driving force in choosing a standard by which to balance the rights of anonymous speakers in discovery disputes. For example, in discovery disputes involving the identity of anonymous speakers, the notion that commercial speech should be afforded less protection than political, religious, or literary speech is hardly a novel principle. The specific circumstances surrounding the speech serve to give context to the balancing exercise.
Id. In formulating its approach, the court relied on two federal appellate decisions, NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998) (involving a government agency’s motion to compel a newspaper to answer a subpoena identifying an anonymous advertiser), and Lefkoe v. Jos. A. Bank Clothiers, Inc., 577 F.3d 240 (4th Cir. 2009) (allowing deposition of an anonymous speaker in a securities fraud class action). The court also relied on the Supreme Court’s recent decision in Doe v. Reed, 09-559 (U.S. June 24, 2010), which held that signatories of referendum petitions generally do not have a constitutional right to keep their identities secret, but that courts should consider in individual cases whether a particular referendum presents sufficiently unique circumstances so that anonymity is required.
While the Ninth Circuit is correct that the First Amendment generally extends less protection to commercial speech, its decision is troubling for a couple of reasons. First, the court’s sense of what qualifies as commercial speech seems unduly broad. It is hard to draw a principled distinction between the derogatory statements here (e.g., "Quixtar currently suffers from systemic dishonesty") from some of the more extreme statements that might appear on a consumer review site or gripe site. Certainly, it would not be too difficult for a business plaintiff to characterize an outraged customer’s commentary on Yelp, Consumeraffairs.com, or a free-standing gripe site as "related solely to the economic interests of the speaker and its audience" and going "to the heart of [the plaintiff's] commercial practices and its business operations." As Wendy Davis succinctly put it last week: "If criticizing another company’s business operations is ‘commercial speech,’ then every post on a gripe site couldbe considered commercial."
Relatedly, Paul Levy points out that the Ninth Circuit seems to have simply accepted Quixtar’s theory of the case in characterizing the speech in question as commercial:
To be sure, it is commercial on Quixtar’s theory of the case (derogatory comments posted by a rival for the purpose of stealing business), but the same could be said in any Cahill-type case – on the plaintiff’s legal theory, the Doe’s speech is unprotected by the First Amendment because, for example, it is false statements of fact made with actual malice. Yet that has never been enough to overcome the right of anonymous speech. Hopefully there was some basis in the record other than the plaintiff’s say-so for finding the speech commercial.
The court’s circular reasoning could tilt the scales in favor of disclosure in every defamation case, where plaintiff by definition claim that the speech in question is not entitled to any First Amendment protection at all. And as Paul suggests, the Ninth Circuit’s approach will simply encourage plaintiffs to characterize all criticism of their businesses as a competitor’s smear campaign as opposed to legitimate consumer criticism. The whole point of the Dendrite and Cahill tests is to make sure that plaintiffs can support such allegations with at least some minimal factual basis before they get what they want.
Photo "Fight the power" courtesy of Flickr user C-Monster, licensed under a CC Attribution-NonCommercial 2.0 Generic.
In re Anonymous Online Speakers, — F.3d —, 2010 WL 2721490 (9th Cir. July 12, 2010) Quixtar (which used to be Amway) sued Signature Management TEAM (“TEAM”) for tortious interference and other claims, alleging that TEAM engaged in a smear campaign against Quixtar on the internet. In his deposition, TEAM’s online content manager refused to [...]
The first rule of Unconstitutional Cyber-Bullying Statute Club is you do not talk about Unconstitutional Cyber-Bullying Statute Club.
One of the problems with the law is that it does not do a great job of preventing jackassery. Talking in the theatre will not result in hard time (though it will result in burning in a special hell). It is not that we as citizens want to endure boorish behavior, it’s just that we don’t know how to criminalize rudeness without chilling all other aspects of public interaction. It is in these situations that we rely on a socially enforced notion of decorum. This system works fine when we can see the loutish perpetrator; but we don’t quite know what to do when the little twit is invisible. See Plato, The Republic, 2.359a – 2.360d (recounting the rapid moral decay of an invisible man); cf. South Park, Mystery of the Urinal Deuce (detailing the difficulty of discovering which boy "la[id] out a big fudge dragon [in the boys' room urinal] for all the world to see").
In the wake of several savage bullying cases in which victims have committed suicide, states have passed cyber-bullying statutes targeting online harassment. While these laws are backed by good intentions, the noble motives of a legislature cannot cure the fatal vagueness that will accompany a statute outlawing mean speech. Last week, Louisiana became the latest state to join Unconstitutional Cyber-Bullying Statute Club when it enacted La. Rev. Stat. 14:40.7 criminalizing abusive online conduct:
A. Cyberbullying is the transmission of any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen.
B. . . (2) “Electronic textual, visual, written, or oral communication” means any communication of any kind made through the use of a computer online service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or online messaging service. . . .
F. The provisions of this Section shall not be construed to prohibit or restrict religious free speech pursuant to Article I, Section 18 of the Constitution of Louisiana.
While I am sympathetic to the cause, I think it is fairly clear that this statute cannot stand. Professor Volokh has already detailed the vagueness inherent in penalizing "malicious" speech and asked "[w]ould publishing an online editorial — or a blog post — condemning an underage criminal for his crimes qualify as ‘malicious and willful intent to . . . abuse [or] torment’?" Until case law develops around this statute, citizens of Louisiana won’t know for sure if they are breaking the law by distributing the latest evidence of teenage recklessness and stupidity. See note on decorum supra. This law would seem to prohibit the distribution of several memes; the Star Wars kid comes to mind.
The use of the word "malicious" could signal the legislature’s intent to mirror more traditional harassment statutes that limit their reach to actions that serve no conceivable purpose but to annoy. The problem with this interpretation is that traditional harassment statutes contemplate direct contact between the perpetrator and the victim (repeated phone calls, for example). See e.g. Ky. Rev. Stat. §§ 525.070, 525.080; Speer v. Com, 2007 WL 3317602 (Ky. Ct. App. Nov. 09, 2007) (harasser stalking former lover); and Mosby v. Com, 2008 WL 162858 (Ky. Ct. App. Jan. 18, 2008) (harasser repeatedly contacting and threatening his estranged wife). The new Louisiana statute is far broader: it concerns any communication or general post to the Internet. So if I send a copy of the Star Wars kid to some friends of mine because I think whoosh noises are funny, then perhaps I am safe. But if I send the same file to the same people because I don’t much care for Star Wars kid, is my conduct now criminal?
Louisiana must desperately want to stay in Unconstitutional Cyber-Bullying Statute Club because the statute also preferences religious speech, a big no-no. A religiously motivated tormentor quoting a religious text while harassing a homosexual minor would seem to enjoy greater protection than a standard issue bigot. So even if this statue were not void for vagueness, it would still run afoul of that pesky First Amendment.
I understand the appeal of joining Unconstitutional Cyber-Bullying Statute Club. Members of the legislature get to score political points, society at large feels less guilt over failures to intervene in previous bullying cases, and district attorneys don’t need to waste their time on prosecutions that would surely be overturned on appeal.
The problem with this approach is that it lessens the need for strong social enforcement of norms — "I don’t need to tell him to shut up, the cops will do it for me." Instead of creating feel-good statutes that will lead to few if any convictions, we should invest our time and money into inculcating children with the idea that words
(even digital words) have real world consequences. Maybe a comparison of bullying to playing with guns or, hell, maybe just repeated viewings of Bambi (if you don’t have anything nice to say . . . ). I don’t know what form the intervention should take. I do know, however, that this approach will almost certainly have a greater impact than membership in the Unconstitutional Cyber-Bullying Statute Club.
The second rule of Unconstitutional Cyber-Bullying Statute Club is you do not talk about Unconstitutional Cyber-Bullying Statute Club.
(Andrew Moshirnia is a rising third year at Harvard Law School. He is Jack’s smirking revenge.)
A North Carolina trial court recently ordered the editor of the local community blog Home in Henderson to turn over the names and addresses of six pseudonymous commenters who allegedly defamed former Vance County commissioner Thomas S. Hester, Jr. As the Reporters’ Committee for Freedom of the Press noted, the court used a lower standard in determining whether to order disclosure than is common in cases of this kind. In a June 28 order, Superior Court Judge Howard E. Manning, Jr. determined that six of out of twenty anonymous comments about Hester were actionable and therefore concluded that Hester’s interest in proceeding with the case overcame those commenters’ qualified First Amendment right to speak anonymously.
Judge Manning’s reasoning is somewhat difficult to follow. He praised the standard set forth in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), the leading case on this issue. Yet, he also qualified this endorsement, saying he would only use "some" of Dendrite‘s test in making his determination. In reality, Judge Manning simply tested the legal sufficiency of Hester’s allegations, considering a testing of the evidence "way too stringent and premature." This is at odds with Dendrite, which clearly requires that the plaintiff support his claim with a prima facie evidentiary showing "[i]n addition to establishing that [his] action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted." Dendrite, 775 A.2d at 760 (emphasis added). In essence, the court simply applied a motion to dismiss standard, reminiscent of that articulated in older cases like Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999).
One of the noteworthy aspects of this case is the blog editor’s argument in his motion to quash that the identities of the commenters were protected by North Carolina’s shield law, N.C.
Gen. Stat. § 8‑53.11. Unfortunately, the court never directly addressed the issue in its decision and so didn’t decide whether Home in
Henderson‘s editor qualified as a journalist for purposes of the law.
In recent years, courts in Montana, Oregon, and Illinois have considered whether news sites can invoke state shield laws to protect the identity of anonymous commenters. It’s too bad this court did not weigh in on this question from the North Carolina perspective.
(Marina Petrova is a rising second year student at UCLA School of Law and a CMLP legal intern.)
(Photo "Anonymous #16" courtesy of Flickr user JacobDavis, licensed under a CC Attribution-NonCommercial-No-Derivs 2.0 Generic license.)
Maxon v. Ottawa Pub. Co., — N.E.2d —, 2010 WL 2245065 (Ill.App. 3 Dist. June 1, 2010) The rules of civil procedure in Illinois permit an aggrieved party to file a petition with the court asking for an order requiring unknown potential defendants to be identified. This is called a Rule 224 petition. A couple [...]
A mid-level appellate court in Illinois ruled on Tuesday that the publisher of a local newspaper must reveal the identity of a pseudonymous Internet commenter. In Maxon v. Ottawa Publishing Co., 3-08-0805 (Ill. App. Ct. June 1, 2010), the court reversed a trial court order granting Ottawa Publishing’s motion to dismiss a pre-litigation petition for discovery seeking the identity of a commenter to its mywebtimes.com website. CMLP and other media organizations filed an amicus curiae brief in support of the lower court’s application of the of the Dendrite standard for determining when to order disclosure of an anonymous speaker’s identity.
The commenter, writing under the pseudonym "FabFive from Ottawa," allegedly posted defamatory comments about Donald and Janet Maxon in response to two articles (here, here) on mywebtimes.com. According to the decision, FabFive’s statements suggested that the Maxons had bribed the Ottawa Planning Commission in connection with a proposed ordinance to allow bed and breakfast establishments to operate in residential areas.
The Maxons sought FabFive’s identity from the newspaper under Illinois Supreme
Court Rule 224, which allows a potential plaintiff to engage in discovery to uncover the identity of an alleged wrongdoer before filing a lawsuit. The trial court granted Ottawa Publishing’s motion to dismiss the petition, relying on Doe v. Cahill,
884 A.2d 451 (Del. 2005), and Dendrite International v. Doe, 775 A.2d 756
(N.J. App. Div. 2001). The court found that FabFive’s statements were nonactionable statements of opinion and thus could not make out the required prima facie case.
On Tuesday, in a 2-1 decision, the Illinois Appellate Court for the Third District reversed the trial court’s order dismissing the
Maxons’ petition. Writing for the majority, Justice Holdridge rejected the lower court’s application of a standard based on Cahill and Dendrite, and concluded that the statements in question were actionable because they "can reasonably be interpreted as stating actual fact." Slip op. at 17. The majority determined that application of a First Amendment test based on the Cahill/Dendrite line of cases was unnecessary in Illinois because Rule 224 gives trial courts "sufficient tools and discretion to protect any anonymous individual from any improper inquiry into his or her identity." Slip op. at 9.
Justice Holdridge explained that Rule 224 imposes its own series of procedural hurdles before discovery may be had. Namely, before ordering disclosure, a trial court must ensure that the would-be plaintiff’s petition: (1) is verified (that is, sworn to under penalty of perjury); (2) states with particularity facts that would establish a cause of action for defamation; (3) seeks only the identity of the potential defendant and no other information necessary to establish the cause of action for defamation; and (4) is subjected to a hearing at which the court determines whether the petition sufficiently states a cause of action for defamation against the unnamed potential defendant. Id.
While Justice Holdridge emphasized the appropriateness of testing the legal sufficiency of the underlying legal claim, he rejected the argument of Ottawa Publishing and amici that additional safeguards are required to protect the right to engage in anonymous speech from unwarranted disclosure. He brushed aside the notice requirement because "in the instant case . . . all potential defendants received some degree of notice" from the newspaper. Id. at 13. More fundamentally, Justice Holdridge rejected the argument that a would-be plaintiff must make some minimal evidentiary showing before being entitled to disclosure:
[W]e reject the claim that the Maxons’ petition must be subjected to a hypothetical motion for summary judgment as suggested in Dendrite and Doe v. Cahill. Illinois is a fact-pleading jurisdiction that requires a plaintiff to present a legally and factually sufficient complaint. Thus, in this jurisdiction, unlike notice pleading jurisdictions, if a complaint can survive a motion to dismiss, it is legally and factually sufficient and should be answered.
Id. at 14 (citations omitted). This reasoning, reminiscent of the Wisconsin Supreme Court’s rationale in
Lassa v. Rongstad,
718 N.W.2d 673 (Wis. 2006), is somewhat less protective of anonymous/pseudonymous speech than the growing trend in other jurisdictions, but at least it recognizes that some legal and factual showing of merit is required.
Much more worrisome are unnecessary statements in Justice Holdridge’s opinion suggesting that the Cahill and Dendrite approaches are unjustified because they provide extra protection to defamatory speech when carried out anonymously. For example, after briefly surveying the Supreme Court cases on anonymous speech, he writes:
We find nothing in these cases to support the proposition that anonymous Internet speakers enjoy a higher degree of protection from claims of defamation than the private individual who has a cause of action against him for defamation. . . .
. . .
Moreover, given that there is no constitutional right to defame, we find no need for the additional procedural requirements articulated in the Dendrite-Cahill test.
Id. at 12.
With all due respect to Justice Holdridge, this reasoning misapprehends the rationale for imposing additional procedural safeguards. As Justice Schmidt writes in his dissent, Justice Holdridge’s conclusion "misses the point" because "[t]he protection of the anonymity of speech is a separate issue from the defamatory nature of the speech." Id. at 1 (Schmidt, J., dissenting). The point of the Cahill/Dendrite line of cases is not to protect anonymous defamatory speech, but to make sure that courts don’t deprive a speaker of his/her right to speak anonymously without sufficient justification. As Justice Schmidt put it: "The additional procedural requirements articulated in the Dendrite-Cahill test are not designed to protect defamatory anonymous speech. Rather, they are designed to protect the identity of those participating in nonactionable anonymous speech." Id. at 4-5 (Schmidt, J., dissenting).
And to the extent these procedural safeguards increase the burden on a would-be plaintiff as a practical matter, this burden is justified—if at all—by the irrevocability of the decision to unmask the speaker, not by a desire to protect anonymous defamers. Again, Justice Schmidt has it right: "Once an anonymous speaker’s identity is revealed, it cannot be ‘unrevealed.’" Id. at 5 (Schmidt, J., dissenting). Ultimately, the dispute between the majority and dissent is pretty mundane: Justice Holdridge thinks that well-pled facts are sufficient to justify this irreversible step; Justice Schmidt and others think that some factual support should be required:
Plaintiffs routinely plead ‘facts’ which later cannot be proven. If ‘facts’ are pled that lead to the discovery of a speaker’s identity, and then these facts cannot later be proven, the harm to anonymous speech is a fait accompli. Granting the previously anonymous speaker summary judgment would not undo the prior harm: disclosure of the speaker’s identity.
Id. at 4 (Schmidt, J., dissenting). CMLP is disappointed that the majority did not see the issue the way Justice Schmidt did, but recognizes that reasonable minds can disagree on precisely what safeguards are sufficient. What is regrettable, however, is the majority’s language suggesting that the Cahill/Dendrite line of cases protects defamatory speech, which it does not.
The case may go up to the Illinois Supreme Court. According to BNA, the newspaper is considering an appeal, but expense is an issue. We’ll continue to monitor developments in our database entry, Maxon v. Ottawa Publishing Company.
CMLP Assistant Director Sam Bayard and George Washington University Law School student Robert Arcamona contributed to this post.
(Photo courtesy of Flickr user Koen Cobbaert, licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic
license.)