August 20th, 2009
The First Amendment rights of anonymous defamers
Photo posted on ‘Skanks of NYC’ blog
Yesterday I wrote that a Manhattan federal judge has ordered Google to tell supermodel Liskula Cohen the identity of the blogger behind the “Skanks of NYC” blog, which brands Cohen “a psychotic, lying, whoring, still going to clubs at her age, skank.” Now that that’s been done, Cohen plans to go ahead with a defamation suit against the woman.
Is this just Gawker-worthy gossip? Actually, no. The decision highlights a number of recent decisions on a critical Internet issue — when may a private litigant force third parties (ISPs or search engines) to strip anonymity from their users?
To be clear, this is a First Amendment issue. Quoting McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342:
An author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.
Balancing those First Amendment protections against the right of a plaintiff to remedy a defamation, where do courts draw the line in the Internet context? As far as I know, the Second Circuit Court of Appeals, which includes Manhattan, has not held forth on this question. But just days ago the D.C. Circuit issued a major ruling, essentially upholding the 2005 Delaware Supreme Court decision of Doe v Cahill.
Cahill is based on Virginia’s Dentrite case, and the Maryland court also approved Dendrite but criticized that case’s complicated test. With the DC Circuit’s approval of Cahill, the question is, is there a consensus among the state courts and the federal circuits as to the proper standard for protecting the interests? I asked that of Eric Goldman at Santa Clara (CA) Univ. Law School:
My own assessment is that there has not yet developed a consensus about the standards for unmasking anonymous authors. Courts are using a variety of factors, some of which are similar to each other, but ultimately many courts are framing the tests differently.
The D.C. case is Solers v. Doe (PDF). In this case, an anonymous John Doe reported to the Software & Information Industry Association that Solers Inc., a defense contractor, was engaged in copyright infringement. SIIA investigated the charge and found no wrongdoing. Solers then sought to obtain the identity of the Doe in order to sue for defamation.
The Court announced a five-step test trial courts must apply before stripping a defamation speaker of his or her anonymity:
- ensure that the plaintiff has adequately pleaded the elements of the defamation claim,
- require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served,
- delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash,
- require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and
- determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.
Bottom line. If the blogger were to appeal the Cohen decision, we would have yet another test for assessing when an Internet poster may be stripped of her anonymity. Perhaps that holding would increase the consensus, or perhaps it would be just another wrinkle in the landscape.
