Re: 10/13/00 - [AKS] Jane Doe Memorandum in Support of Motion to Quash Subpoena to America Online (Part 1 of 2)
Jane Doe Memorandum in Support of
Motion to Quash Subpoena to America Online
Oct. 13, 2000
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
___________________________________
)
JANE DOE, )
)
Movant, )
)
v. ) Misc. No. 00-_______
)
JOHN HRITZ, )
)
Respondent. )
___________________________________)
MEMORANDUM IN SUPPORT OF
MOTION TO QUASH SUBPOENA TO AMERICA ONLINE
Respondent John Hritz, a high-ranking official of a large company, initiated this proceeding to identify an individual who has exercised her First Amendment right to make anonymous criticisms of his litigiousness on a public Internet message board. Although Hritz alleged generally that movant Jane Doe made "disparaging, threatening and defamatory" comments about him, Hritz has not specified the comments that he deems tortious, and has provided no evidence that anything said was false, much less defamatory. Nevertheless, he invoked a special Ohio procedural rule allowing pre-litigation discovery without even filing a complaint, and has now subpoenaed America Online ("AOL") to provide him with the identifying information that Doe provided to AOL in opening her account. Because there is no reason to believe that a valid lawsuit can be pursued against Doe, and because the First Amendment bars the government from interfering with Doe's decision to speak anonymously unless she is shown to have violated Hritz' rights in some way, the subpoena for information identifying Doe should be quashed.1
STATEMENT
A. Facts.
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The Internet is a democratic institution in the fullest sense. It serves as the modern equivalent of Speakers' Corner in England's Hyde Park, where ordinary people may voice their opinions, however silly, profane, or brilliant they may be, to all who choose to read them. As the Supreme Court explained in Reno v. American Civil Liberties Union, 521 U.S. 844, 853, 870 (1997), "From the publisher's point of view, [the Internet] constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. . . . Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, . . . the same individual can become a pamphleteer." The Court held, therefore, that full First Amendment protection applies to free speech on the Internet. Id.
Knowing that people have personal and economic interests in the corporations that shape our world, and in the stocks they hope will provide for a secure future, and knowing, too, that people love to share their opinions with anyone who will listen, Yahoo! has organized outlets for the expression of opinions on these topics. These outlets, called "Message Boards," are an electronic bulletin board system where individuals freely discuss major companies by posting comments for others to read and respond to.
Yahoo! maintains a message board for every publicly traded company and permits anyone to post messages to it. The individuals who post messages there generally do so under a "handle" -- similar to the old system of CB's with truck drivers. Nothing prevents an individual from using his real name, but, as an inspection of the message board at issue in this case will reveal, most people choose anonymous nicknames. These typically colorful monikers protect the writer's identity from those who disagree with him or her, and encourage the uninhibited exchange of ideas and opinions. Such exchanges are often very heated and, as seen from the various messages and responses on the message board at issue in this case, they are sometimes filled with invective and insult. Most, if not everything, that is said on message boards is taken with a grain of salt.
One aspect of the message board that makes it very different from almost any other form of published expression is that, because any member of the public can use a message board to express his point of view, a person who disagrees with something that is said on a message board for any reason -- including the belief that a statement contains false or misleading statements about himself -- can respond to those statements immediately, and be given the same prominence as the offending message. A message board is thus unlike a newspaper, which cannot be required to print a response to its criticisms. Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974). By contrast, corporations and executives can reply immediately to criticisms on a message board, providing facts or opinions to vindicate their positions, and thus, potentially, persuading the audience that they are right and their critics wrong. And, because many people regularly revisit the message board about a particular company, the response is likely to be seen by much the same audience as those who saw the original criticism; hence the response reaches many, if not all, of the original readers. In this way, the Internet provides the ideal proving ground for the proposition that the marketplace of ideas, rather than the courtroom, provides the best forum for the resolution of disagreements about the truth of disputed propositions of fact and opinion.
One of Yahoo!'s message boards pertains to AK Steel, the company of which respondent John Hritz is Executive Vice President and General Counsel. In addition to the law department,
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Hritz' responsibilities include human resources, industrial relations, productivity, environmental affairs, and research and engineering. AK Steel's web site describes the company as "a leader serving the most demanding markets in the production of carbon cold-rolled, metallic coated and stainless steel products." aksteel.com. Yahoo! 's financial web pages reveal that AK Steel is a very large corporation. In its most recent fiscal year, it had more than 11,000 employees, its sales exceeded $4.5 billion per year, and it had more than $5 billion in assets; Hritz' compensation from AK Steel was $2.7 million. See biz.yahoo.com; yahoo.marketguide.com. The company frequently appeals for public attention, issuing several press releases every month, aksteel.com, and it has been embroiled in a number of public controversies, including its compliance with the nation's environmental laws and protracted labor disputes with the unions that represent employees at many of its plants. E.g,, Robertson, AEIF gets steamed about AK no-shows, American Metal Market, Vol. 105, No. 107, page 2 (June 4, 1997); Hulsey, AK Puts New Deal on Table, Dayton Daily News (November 6, 1999), page 1F; Redekopp, Unions Show Support for AK Steel Workers, Herald Dispatch, August 29, 2000, heralddispatch.com; Dale Dempsey, AK Steel Faces U.S. Pollution Suit, Dayton Daily News, June 30, 2000, ohiocitizen.org campaigns/prevention/akddn.htm.
The opening message on Yahoo!'s AK Steel message board, dated November 26, 1997, explains the ground rules:
This is the Yahoo! Message Board about AK Steel Holding Corp (NYSE: AKS), where you can discuss the future prospects of the company and share information about it with others. This board is not connected in any way with the company, and any messages are solely the opinion and responsibility of the poster.
messages.yahoo.com.
Every page of message listings is accompanied by a similar warning that all messages should be treated as the opinions of the poster and taken with a grain of salt:
Reminder: This board is not connected with the company. These messages are only the opinion of the poster, are no substitute for your own research, and should not be relied upon for trading or any other purpose. Please read our Terms of Service.
messages.yahoo.com.
Many members of the public regularly turn to the Yahoo! message board as one source of information about AK Steel. As of the date this brief is filed, almost 9000 messages have been posted on the board. A casual review of those messages reveals an enormous variety of topics and posters. Investors and members of the public discuss the latest news about what products the
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company has sold and may sell, what new products it may develop, what other businesses AK Steel might buy, what the strengths and weaknesses of AK Steel's operations are, and what its managers and employees might do better. A large number of messages are posted by AK Steel employees, who use the forum to discuss their problems with the company or with unions representing AK Steel workers, including whether AK Steel is meeting its obligations to its employees, and what the employees might do about it. Many of the messages praise AK Steel, some criticize it, and some are basically neutral. Most of the messages give every appearance of being highly opinionated. Many of the posts are extremely vituperative.
Movant Jane Doe is one of the many members of the public who have visited the Yahoo message board for AK Steel and participated in the discussion. Using the screen name "sanibel_us," Doe has posted about 35 messages to the board; like a number of messages from other posters, some of Doe's messages suggest that she works at AK Steel. Hritz attached very short excerpts from twenty of the messages to his Ohio petition; of these excerpts, only one shows an express reference to Hritz: "Hritz will litigate the time of day. OOPS I will be in court." Other messages argue, in sections not shown in the petition, that Hritz' litigious and antagonistic style has hurt AK Steel by provoking hostility on the part of federal regulators and others with whom the company needs to get along, and that his presence is a detriment to the company's interests. Although some of these messages mention respondent Hritz by name, and criticize him, none of them is even close to defamatory or threatening.2
B. Proceedings to Date.
Rather than take advantage of Yahoo!'s open access policy to reply to Doe's criticism, Hritz has substantiated Doe's accusation of litigiousness by filing a petition in Ohio state court, taking advantage of a special Ohio rule that allows discovery to obtain information about a potential adversary in litigation. See Exhibit 1. In support of this demand, Hritz claims, in very general terms, that Doe sent e-mail messages to the Yahoo! chat board "containing threatening, libelous and disparaging remarks about Mr. Hritz," Id., Petition ¶ 2, and that, without knowing the identity of the responsible party, Hritz "will be prevented from pursuing his legal claims." Id. p.1. However, Hritz never specifies the words used by Doe that are allegedly libelous or threatening, not to speak of providing any factual basis for believing that Doe's statements are false, that they contain statements of fact as opposed to non-actionable opinion, or that Doe's statements have caused him any actual damages. Nor, indeed, does the petition ever state that, once Hritz learns Doe's identity, he will file a lawsuit against her.
Based on this barebones petition, Hritz obtained permission from the state court to seek discovery in other states; it then served a subpoena on Yahoo!, forcing it to reveal information that Doe provided when she opened her Yahoo! account. This information included an AOL e-mail
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address, revealing that Doe is an AOL subscriber. Hritz then obtained a subpoena issued by the Circuit Court of Loudoun County to compel AOL to identify the owner of that e-mail address; in response to that subpoena, AOL sent Doe a copy of the petition that informed her that this action was pending against her in Ohio Superior Court, Butler County.
Doe believes that none of her posts violates Hritz' rights in any way. However, she is concerned that, as a prominent executive at AK Steel, Hritz is well-situated to cause extra-judicial pressure to be brought to bear upon her, such as having her fired or harassed, regardless of whether he ever files suit against her or whether a court finds for her in every respect on Hritz' claims, at which his petition does no more than hint. She is, indeed, concerned that the real purpose of this proceeding is to obtain her name so that such extra-judicial action can be taken against her. Accordingly, Doe has retained undersigned counsel who removed this action to the United States District Court for the Southern District of Ohio on diversity grounds (i.e., Hritz is a citizen of Ohio and Doe is a citizen of a different state, and the amount in controversy exceeds $75,000). See Ex. 1.
After a case is removed, "the state courts shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d). Because all outstanding state court orders in a removed case are transformed into federal court orders by operation of law, Granny Goose Foods v. Teamsters Local 70, 415 U.S. 423, 435-437 (1974), subject to the limitations of the Federal Rules of Civil Procedure, we believe that the Loudoun County subpoena is now deemed a subpoena of this Court under Rule 45. Accordingly, Doe now moves to quash that subpoena because its enforcement would violate the First Amendment. 3
SUMMARY OF ARGUMENT
This motion presents the Court with an issue of first impression in this circuit -- what standard should be used to decide whether, in a particular case, a petitioner's right to obtain redress from an allegedly libelous statement outweighs the speaker's First Amendment right to make anonymous criticisms. Although there are precious few opinions from any courts that address this question, it is an important one because of the rising tide of cases in which persons who have been criticized on the Internet are coming to court to unmask their critics. As a federal district judge put it in the leading case of Columbia Insurance Company v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999), in discussing the standards for discovery of a defendant's identity in a domain name dispute, "People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their identities."
We argue below that, to decide this question of First Amendment rights, a balancing test should be borrowed, by analogy, from the standard that has been developed over the years to decide whether to compel the identification of anonymous sources in libel litigation. Under that test, the
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Court will ascertain the degree to which a plaintiff has a genuine need for disclosure in order to pursue an otherwise viable claim, and weigh that need against the speaker's need for anonymity. On the facts of this case, there can be no doubt that the right to anonymity should prevail.
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