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Texas BlogWire

Appellate Court Protects Bloggers' Identity

by: M. Eddie Rodriguez

Thu Dec 13, 2007 at 03:46 PM CST

Disclaimer: The contents of this post are the author’s personal opinions and should not to be considered legal advice for any purpose.

On Wednesday, the Court of Appeals for Sixth Appellate District of Texas ruled on case affecting a blogger's right to remain anonymous.

The Sixth Court of Appeals in Texarkana ruled that the operator of The-Paris-site blog has a First Amendment right to anonymity in a defamation lawsuit unless the company that owns the Paris hospital can prove it has suffered actual financial losses due to his blog postings.

This is an issue bloggers have started to concern themselves with as their influence and reach increases. This is a fight that bloggers must be prepared to have as there is always those who wish to stifle free speech.

This case what decided on a relatively unsexy reason: procedure.

More on the case after the jump

M. Eddie Rodriguez :: Appellate Court Protects Bloggers' Identity

The plaintiff hospital, Essant, tried to do a end run on getting the names of the anonymous bloggers. The hospital sued the John Does and had an ex parte request (i.e. the hospital spoke with the judge without notifying opposing counsel) asking for the release of the bloggers' names. On that same day, the court granted the order.

Over a month later, the plaintiff and ISP agreed to amend the order allowing the defendants Does a chance to respond. On Sept 7, counsel for the Does, Paris attorney James Rodgers, responded and argued for the anonymous Does.

Based on an unsworn petition and without evidence (e.g. affidavits, etc), the judge sent a letter to counsel quoting two cases that the burden was met by the plaintiff for disclosure under the Cable Communication Policy Act of 1984 (CCPA). Defense counsel responded by pointing out inherent weakness in the Hospital's case also noting that there was no evidence has been presented. It was only until then that the plaintiff's provided some evidence: an affidavit from the Hospital’s representative, copies of the blog and document for breach of contract claim. 

On October 1, the court ordered the ISP to release the name and address of the subscriber. 

According the 6th COA, here is where the trial court erred. First they misused  the CCPA.

"[They] belive the federal statute was not intende or designed as procedural vehcle  to obtain identities  of subcribers to the network; the intent of the statute is to prevent the disclosures of names"

In other words, the court shouldn't have used the CCPA to justify discovery.  Because the appellate courtfound no other procedural basis for the discovery order, it found that the trial court ruling went beyond discovery rules and was an abuse of discretion.

What is notable about the 6th COA opinion is that they took the time to elucidate "Constitutional Requirements for Ordering the Disclosure of Anonymous Internet Authors."

First, the court stated the First Amendment protects anonymous speech and First Amendment extends to the Internet.

The Supreme Court has noted that "[a]nonymity is a shield from the tyranny of the majority."  McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 356 (1995). Indeed, "[u]nder our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. [emphasis added]

Second, the First Amendment does not protect all forms of expression unconditionally. In other words, anonymous speaker are not free to defame people without facing civil liability. There are limits and that is where we will most likely see the legal challenges come from. The court does note the "chilling effect" on free speech if identities  of anonymous speakers are released and that there is a "national interest in inapproprately restricting the free flow of thought and discussion by unsupported threats of  litigation." 

Third, the court describes the test required to obtain the identity of an anonymous speaker.

"[B]efore a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion." [Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005)]. This standard does not require a plaintiff to prove its case as a matter of undisputed fact, but instead to produce evidence sufficient to create issues that would preclude summary judgment.


[T]o obtain discovery of an anonymous defendant's identity under the summary judgment standard, a defamation plaintiff must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question. In other words, the defamation plaintiff, as the party bearing the burden of proof at trial, must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within plaintiff's control.

Best W. Int'l, 2006 WL 2091695; Cahill, 884 A.2d at 465.

Simply put, the plaintiff must be able to produce some proof that there is a claim.

What is not discussed by the court is the whistle blower nature of the speech in the blogs. I suppose the attorneys for the bloggers are preparing their defense because this case is far from over.

Regular commenters have all seen the tension of "sock puppets" on BOR but self-policing (as messy as it is) always seems to call out the bad actors. Anonymous posters and commenters serve an important purpose in furthering open and free dialogue.

This legal case seems more about the whistle blowing of a hospital's practice and a hospital’s attempt to stifle criticism coming from their own house. I make a distinction in what is done (typically but not always) on blogs like BOR and the The-Paris-Site. I believe there is hierarchy of speech. Political speech is the highest form of speech in our country and the most protected.

Be true to the intent of your words and keep speaking up.

To those who wish to infringe on free speech, the true remedy of speech that you do not like, is...... more speech, not less.

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