Re: 10/11/01 - [Donato v. Moldow] PublicCitizen.org: Donato v. Moldow amicus brief in support of unrepresented defendants (Part 1 of 2)
Donato v. Moldow amicus brief in support of unrepresented defendants
INTEREST OF AMICI CURIAE
Public Citizen and the American Civil Liberties Union of New Jersey Foundation file this brief to address an important issue concerning the First Amendment and Due Process rights of the anonymous Internet speakers who are not otherwise represented by counsel in this case. Public Citizen is a national consumer advocacy organization that supports free speech rights on the Internet, and the ACLU is a state-wide civil liberties organization. Both organizations appeared as amici curiae in Dendrite v. Doe, 342 N.J. Super. 134, 775 A.2d 756 (App. Div. 2001), and were the advocates of the four-part test that was adopted by the Appellate Division in that case. We present this brief to explain why we believe that the anonymous speaker defendants are entitled to have their First Amendment rights considered and protected whether or not they personally appear through counsel to object to enforcement of the subpoena in this case, and why the case cannot be maintained against the operator of an internet message board on which allegedly tortious messages have been posted.
INTRODUCTION AND SUMMARY OF ARGUMENT
This is a case in which the plaintiffs, a group of public officials in the Borough of Emerson, New Jersey, seek damages and injunctive relief against a large number of anonymous persons, all of them apparently citizens of Emerson, who have criticized the plaintiffs on an Internet message board, and against a citizen of Emerson who created that message board. The message board host is represented by counsel, as are a significant group of the anonymous posters, who have moved to quash the subpoena against them. These posters have argued that, under the recent decision in Dendrite v. Doe, the plaintiff must satisfy certain standards before enforcing a subpoena that seeks to obtain identifying information about them (1) that notice be given, (2) that plaintiffs be required to set forth the precise words alleged to be actionable and to show that those words are actionable, (3) that plaintiffs be required to present sufficient evidence establishing that it has a genuine chance of prevailing on the claim against each anonymous speaker, and finally (4) that the court balance the equities before deciding on whether to divest each speaker of his anonymity. Amici agree that it is appropriate to hold the plaintiffs to this test, and without prejudging whether that test can be met in this case, we note that there are a large number of comments that do not appear to provide fair grounds for litigation.
However, this brief is devoted to two different questions first, how should the Dendrite test be applied to anonymous speakers who are not represented by counsel, and second, what standard should be applied to the liability of the webmaster who created the bulletin board on which the allegedly libelous statements were posted. It is our contention that the Court has an independent obligation to apply the Dendrite standard before permitting the enforcement of a subpoena from public officials to identify anonymous critics, even against those who have not yet appeared in the case, and that the webmaster cannot be held liable absent specific allegations that he himself wrote or adopted specific messages whose text is set forth and determined to be actionable. To explain why this is so, we begin by reviewing the reasons why the Appellate Division imposed such a rigorous standard on plaintiffs seeking to identify anonymous speakers, and then proceed to a consideration of the specific issues in this case.
A. The First Amendment Protects Against the Compelled Identification of Anonymous Speakers.
It is well-established that the First Amendment protects the right to speak anonymously. The Supreme Court has repeatedly upheld this right. Buckley v. American Constitutional Law Found. 119 S. Ct. 636, 645-646 (1999); McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960). These cases have celebrated the important role played by anonymous or pseudonymous writings over the course of history, from the literary efforts of Shakespeare and Mark Twain through the authors of the Federalist Papers. As the Supreme Court said in McIntyre,
[A]n author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, . . . the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, 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.
* * *
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.
McIntyre, 514 U.S. at 341-342, 356.
These rights are fully applicable to speech on the Internet. The Supreme Court has treated the Internet as a public forum of preeminent importance, because it places in the hands of any individual who wants to express his views the opportunity, at least in theory, to reach other members of the public who are hundreds or even thousands of miles away, at virtually no cost; accordingly, the Court has held that First Amendment rights are fully applicable to communications over the Internet. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). Several cases have upheld the right to communicate anonymously over the Internet. ACLU v. Johnson, 4 F. Supp.2d 1029, 1033 (D.N.M. 1998); ACLU v. Miller, 977 F. Supp. 1228, 1230 (N.D. Ga. 1997); see also ApolloMEDIA Corp. v. Reno 119 S. Ct. 1450 (1999), aff'g 19 F. Supp.2d 1081 (C.D. Cal. 1998) (protecting anonymous denizens of a web site at www.annoy.com, a site "created and designed to annoy" legislators through anonymous communications); Global Telemedia v. Does, 132 F. Supp.2d 1261 (striking complaint based on anonymous postings on Yahoo! message board based on California's anti-SLAPP statute); Hollis-Eden Pharmaceutical Corp. v. Angelawatch, GIC 759462 (Cal. Super. San Diego Cy., March 20, 2001), unofficially published at citizen.org litigation/briefs/holldec.pdf, appeal pending, No. D037907 (Cal. App. 4th Dist.) (same).
Moreover, some of the statements at issue in these cases, such as the statements that various plaintiffs should "go to hell" or "burn in hell" basically statements of antipathy are almost certainly not actionable, even if they are unpleasant, hurtful, or annoying. It is hard to imagine what damages plaintiffs could prove that they suffered as a result of these statements; nor would it make any financial sense to spend tens or even hundreds of thousands of dollars to pay a lawyer to put before the court evidence that these public officials are likeable people who deserve to go to heaven instead. Rather, the very inconsequential nature of these statements strongly implies that this lawsuit is an exercise in intimidation against all citizens of Emerson, warning them not to speak publicly because they cannot keep their identities confidential. Surely, the Court should not permit public officials to abuse the judicial process by bringing a frivolous action against their constituents, using judicial process to identify them, and then using their public authority to punish them, regardless of whether the suit is ultimately deemed to be lacking in merit.
Moreover, at the same time that the Internet gives individuals the opportunity to speak anonymously, it creates an unparalleled capacity to monitor every speaker and discover his or her identity. That is because the technology of the Internet is such that any speaker who sends an e-mail or visits a website leaves behind an electronic footprint that can, if saved by the recipient, provide the beginning of a path that can be followed back to the original sender. See Lessig, The Law of the Horse, 113 Harv. L. Rev. 501, 504-505 (1999). Thus, anybody with enough time, resources and interest, if coupled with the power to compel the disclosure of the information, can learn who is saying what to whom. As a result, many informed observers have argued that the law should provide special protections for anonymity on the Internet. E.g., Post, Pooling Intellectual Capital: Thoughts of Anonymity, Pseudonymity, and Limited Liability in Cyberspace, 1996 U. Chi. Legal F. 139; Tien, Innovation and the Information Environment: Who's Afraid of Anonymous Speech? McIntyre and the Internet, 75 Ore. L. Rev. 117 (1996).
A court order, even when issued at the behest of a private party, constitutes state action and hence is subject to constitutional limitations. New York Times Co. v. Sullivan, 364 U.S. 254, 265 (1964); Shelley v. Kraemer, 334 U.S. 1 (1948). The Supreme Court has held that a court order to compel production of individuals' identities in a situation that would threaten the exercise of fundamental rights "is subject to the closest scrutiny." NAACP v. Alabama, 357 U.S. 449, 461 (1958); Bates v City of Little Rock, 361 U.S. 516, 524 (1960); cf. Brown v. Socialist Workers '74 Campaign Committee, 459 U.S. 87 (1982). It has acknowledged that abridgement of the rights to speech and press, "even though unintended, may inevitably follow from varied forms of governmental action," such as compelling the production of names. NAACP v. Alabama, 357 U.S. at 461. The Court noted that rights may be curtailed by means of private retribution following such court-ordered disclosures. Id. at 462-463; Bates, 361 U.S. at 524. The novelty of the procedural requirements at issue cannot be used to thwart consideration of the constitutional issues involved. NAACP v. Alabama, 357 U.S. at 457. Due process requires the showing of a "subordinating interest which is compelling" where, as here, compelled disclosure threatens a significant impairment of fundamental rights. Bates, 361 U.S. at 524; NAACP v. Alabama, 357 U.S. at 463.
Because compelled identification trenches on the First Amendment right of anonymous speakers to remain anonymous, courts have ruled, in the closely analogous area of disclosure of libel sources, that sources have a qualified privilege against disclosure. When deciding whether to compel the production of documents that would reveal the name of an anonymous source, the courts apply a three-part test, under which the person seeking to identify the anonymous speaker has the burden of showing that (1) the issue on which the material is sought is not just relevant to the action, but goes to the heart of its case; (2) disclosure of the source to prove the issue is "necessary" because the party seeking disclosure is likely to prevail on all the other issues in the case, and (3) the discovering party has exhausted all other means of proving this part of its case. Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974); Cervantes v. Time, 464 F.2d 986 (8th Cir. 1972); Baker v. F&F Investment, 470 F.2d 778, 783 (2d Cir. 1972); Garland v. Torre, 259 F.2d 545, 550-551 (2d Cir. 1958); Richards of Rockford v. PGE, 71 F.R.D. 388, 390-391 (N.D. Cal. 1976). See also United States v. Cuthbertson, 630 F.2d 139, 146-149 (3d Cir. 1980) (qualified privilege recognized under common law).
The Appellate Division in Dendrite adopted a similar balancing test for cases involving subpoenas to identify anonymous internet speakers:
We offer the following guidelines to trial courts when faced with an application by a plaintiff for expedited discovery seeking an order compelling an ISP to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations or businesses. The trial court must consider and decide those applications by striking a balance between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants.
We hold that when such an application is made, the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP's pertinent message board.
The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.
The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to R. 4:6- 2(f), the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.
The application of these procedures and standards must be undertaken and analyzed on a case-by-case basis. The guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.
Dendrite v. Doe, 342 N.J. Super. 134, 141-142, 775 A.2d 756, 760-761 (App. Div. 2001).
B. Public Officials Must Make the Dendrite Showings Before Identifying a Citizen Who Criticizes Them Regardless of Whether the Citizen Appears in Court to Defend His Right to Anonymity.
The Court has an obligation to apply these same tests, sua sponte, before enforcing a subpoena for information that might lead to the identification of those anonymous speakers who are not represented by counsel in this case. After all, a Court subpoena is an injunction, requiring a third party to identify the anonymous speakers, and as the Superior Court recognized in Dendrite, enforcement of such a subpoena through the threat of sanction by the government if the subpoena is not obeyed constitutes state action that has the potential for infringing the First Amendment right to speak anonymously. The fact that a party against whose interests this court order is being issued and enforced is not present in court does not reduce the Court's obligation to protect the First Amendment interests at stake. If anything, the lack of adversary proceedings with respect to such individuals increases the Court's responsibilities.
In this regard, the role of the Court is similar to that of a judge deciding in an ex parte proceeding whether to issue a warrant at the request of a prosecutor. The judge in that context must apply firm standards of probable cause in light of the affidavits presented in support of the warrant application, to ensure that warrant is not being sought in violation of the Fourth Amendment by over-zealous prosecutors. By the same token, when a subpoena is sought for information identifying an anonymous speaker who is not in court to defend himself or herself, the Court should nevertheless apply the governing legal standards, established for this case by the Appellate Division in Dendrite, to protect the rights of the absent Doe defendants.
Indeed, the differences between this case and a warrant application call for an even stricter application of the governing standard. First, in the case of a warrant application, a person whose property has been searched pursuant to an unjustified warrant can move after the fact to suppress the evidence obtained pursuant to the search; and the defendant may also have a Bivens or section 1983 action to recover damages if the search violated his Fourth Amendment rights. Because the evidence obtained pursuant to such a search is held in confidence and not disclosed to the community at large except as needed in conjunction with the pursuit of criminal charges, the suppression and damages remedies undo much of the harm caused by the search itself. In the context of anonymous speech, however, compulsory disclosure of the identity of the speaker violates the First Amendment right to anonymity and cannot be undone by a later suppression or damages remedy. Moreover, there is good reason to believe that plaintiffs often seek such subpoenas to identify their critics as a way to silence or punish their speech, without necessarily intending to pursue litigation against those critics, but in the hope of using private means to obtain satisfaction. Fischman, Your Corporate Reputation Online, fhdlaw.com (attorney specializing in representing plaintiffs in internet libel cases urges companies to file first and decide whether to sue later); Fischman, Protecting the Value of Your Goodwill from Online Assault, fhdlaw.com bruce_article.htm (same); Eisenhofer & Liebesman, Caught by the Net: What to Do If a Message Board Messes With Your Client, 10 Business Law Today No. 1 (Sept/Oct. 2000), at 40-46 (same). Thus, it is at the stage of deciding whether to enforce a subpoena for identifying information that the Court should take care to ensure that the plaintiff has a sufficient legal and evidentiary basis for identifying the speaker.
Second, when the police and prosecutor seek judicial approval of a warrant to search a premises looking for evidence, they are normally acting pursuant to their disinterested duty to represent the interest of the community in punishing or preventing the commission of crimes against the community at large; the Court is entitled to presume that they are not acting out of self-interest and that they will not personally benefit from the execution of the warrant. However, when plaintiffs seek to identify a speaker for the purpose of pursuing a lawsuit against that speaker, not only are they seeking private benefits for themselves, but the lawsuit proclaims their view that the speaker has violated their rights, and that the speaker ought to be punished for speaking about them. No presumption of neutrality or regularity attaches to their desire to identify their adversaries.
Moreover, the fact that First Amendment rights are at stake provides another reason for application of strict standards of necessity before approving the order. This is clear from the decision of the United States Supreme Court in Carroll v. Commissioners of Princess Anne, 393 U.S. 175 (1968), where the Court reversed an ex parte injunction that had been granted against the holding of a rally. "An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order. . . . In other words, the order must be tailored as precisely as possible to the exact needs of the case." Id. at 183-184. Although the holding of the case was that the trial court erred by granting the injunction without giving notice to the defendants, it explained that the reason why notice was so necessary was that the adversary process was needed to enable the Court to perform its obligation of deciding whether any order was needed, and then drawing that order as narrowly as possible. Here, too, where enforcement of the subpoena could breach the message board posters' First Amendment right to speak anonymously, the Court should apply the Dendrite standards sua sponte with respect to any posters who are not represented in the proceedings before the Court.
In this regard, we acknowledge that in an aspect of the trial court proceeding in Dendrite that was not at issue when the case reached the Appellate Division, Judge MacKenzie appears not to have applied the full Dendrite test sua sponte in considering whether to authorize the issuance of a subpoena seeking the identities of two defendants, Doe 1 and Doe 2, who did not hire lawyers to defend their right to oppose issuance of the subpoena. On pages 5 and17 of his opinion, which is not published but which appears on the Public Citizen web site at citizen.org dendrite.pdf, Judge MacKenzie appeared to apply a motion to dismiss standard in favor of these two defendants, inasmuch as he discussed the facts that Dendrite's complaint stated a cause of action for breach of the employment agreement, and that the message posts by Does 1 and 2 appeared to acknowledge their status as employees of Dendrite. On the other hand, Judge MacKenzie stated that he did not need to decide whether there was sufficient evidence that these two employees had actually signed the employment agreement that Dendrite was suing to enforce, id. at 18, and also stated that unless Does 1 and 2 appeared in his court to argue, he would not protect their rights. Id. at 18, 22.
This limitation is distinguishable here for two reasons. First, in securing the consent of the webmaster, defendant Moldow, to its request for the issuance of the subpoena to VantageNet, plaintiffs agreed that the subpoena would be "issued in accordance with the restrictions and procedures established by the Appellate Division in Dendrite v. Doe No. 3, 2001 N.J. Super. Lexis 300 (App. Div. 2001)", ¶ C. Unlike Judge MacKenzie's opinion, which suggests that Does who do not appear may not receive the full benefit of the Dendrite standards, there is nothing in the opinion of the Appellate Division that limits the protections afforded to absent Does.
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