Part II Anna Nicole Smith Free Speech and The Real Chilling Effect

Part II.

In writing these articles we hope to alleviate fears, encourage individuals to stop posting harassing threats of imminent lawsuits and educate ourselves and others as to exactly what constitutional protections are afforded to each of us. We also hope that these articles stimulate debate on the topic of internet postings, the right of free speech and the limits imposed by the current case law.

Freedom of speech is at the heart of America’s unique sense of liberty and democratic values. Justice Louis Brandeis wrote in Whitney v. California (1927), that

“freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth… order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones… the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Great legal minds in our nation have recognized the instinct of both government and individuals towards censorship and have struggled to imbue into our culture and our laws tools to withstand the temptation. Jurist such as Justice Oliver Wendell Holmes who wrote in his dissenting opinion in Abrams v. United States (1919), “persecution for the expression of opinions seems to me perfectly logical. . . If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.”

First Amendment decisions handed down by the United States Supreme Court have strenuously rejected the impulse to censor. Consider some of the rights that we as citizens have according to the highest court in the land:

• Desecrate the national flag as a symbol of protest.
• Burn the cross as an expression of racial bigotry and hatred.
• Espouse the violent overthrow of the government as long as it is mere abstract advocacy and not an immediate incitement to violence.
• Traffic in sexually explicit erotica as long as it does not meet a rigorous definition of “hard core” obscenity.
• Defame public officials and public figures with falsehoods provided they are not published with knowledge of their falsity or reckless disregard for the truth.
• Disseminate information invading personal privacy if the revelation is deemed “newsworthy.”
• Engage in countless other forms of expression that would be outlawed in many nations but are regarded as constitutionally protected here. [1]

Legal debate that impinges the right of free speech has focused on such areas as; obscenity laws protecting minors from offensive speech; granting the state the right to arrest individuals who use speech to incite others to violence; the area of copyright infringement; restricting the influence of money through political contributions in order to curb the unequal influence of the wealthy; and the areas of law involving slander, defamation and libel.

So while we recognize that limits on the freedom of speech must exist to protect society (in some cases) and individual rights (in others) over the course of time the courts in the United States have approached such limits with caution and embraced the doctrine of free speech as an essential component to a free and democratic society

In cases of defamation that occurs via the Internet there is a well established process that a litigant must follow in order to discover the identities of an anonymous speaker. A “John Doe” lawsuit can be filed against the speaker in question. Before the information as to the identity is revealed the litigant must obtain a subpoena to be served on the ISP conduits of the speech that is at issue in the matter. The anonymous speaker is then notified that a subpoena has been issued seeking his identity. He then has an opportunity to respond by filing what is called a motion to quash. If successful this motion would bar the revelation of the anonymous speaker’s identity to the litigant. It is up to the court to decide whether or not this should happen because of the absolute guarantee of free speech afforded to each of us under the First Amendment to the Constitution. The party seeking the subpoena must demonstrate beforehand that the speech in question truly creates a liability and that as a result he or she as suffered true damage and harm. This must be done before any information about the personal indentify of the speaker is “given over” to any party in the case.

The courts have struggled with these issues and over time have attempted to balance a citizen’s right to protect himself from defamatory speech that creates real and damaging effects to his person and/or business while at the same time protecting the cherished idea of free speech in our society. This balancing act is evident in all of the important decision regarding free speech handed down by the courts. For example; the courts have ruled that facts verses opinion does not just apply to media defendants but to all citizens.[2] In this case where the defendant wrote an allegedly defamatory letter to the editor of a local newspaper the court decided that if the statements under question were opinion rather then fact, then they are not actionable. [3]

“To determine whether a statement is an opinion or fact, the Court must look at the totality of the circumstances. This entails examining the statement in its “broad context, which includes the general tenor of the entire work, the subject of the statement, the setting, and the format of the work.”[4]

In essence what the court decided is that the specific context and content of the statement under scrutiny has to be examined, “analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation.” Finally, the Court must determine whether the statement is “sufficiently factual to be susceptible of being proved true or false.” (see above cited case).

In the case of postings on Internet entertainment sites under headings (or threads) with titles such as:

From TMZ :

AG on Anna Nicole — “Serious Crime Has Been Committed” (October ’07)

Stern Still Pimpin’ Out Anna Nicole (December ’07)

Dannielynn’s Daddy Gets Down and Dirty (January ’08)

Stern Says He Never Gave Daniel Drugs (March ’08)

From Topix:

Who’s the father of Anna Nicole’s baby? (June ’06)

Tell me this Inquest is not full of bull (December ’07)

Larry Birkhead had a swelled head (from December ’07)

Howard Stern Took Pics Of Anna Nicole’s Dead Son (from February ’08)

Who thinks Anna and Daniel were killed (June ’08)

What court would find that any statements posted anonymously meet the rigorous requirements necessary under case law for the issuance of a subpoena in order to reveal the identity of the author? In the words of Justice Thurgood Marshall in the 1974 case Procunier v. Martinez, “The First Amendment serves not only the needs of the polity but also those of the human spirit – a spirit that demands self-expression.” We have the right to speak irreverently, sarcastically, ironically, with humor, defiance and passion because that’s way we as individuals think.

Various courts have applied a test when reaching a decision on whether or not the identity of an anonymous online speaker should be released. Columbia Ins. Co. V. Seescandy.com in the Northern District of California adopted a four-part test that a plaintiff must meet prior to obtaining discovery into the identity of an anonymous online domain name registrant. The court rule that this type of discovery is inappropriate unless the plaintiff could meet the following criteria;

1. Must be able to identify the sought party with sufficient enough specificity so that the court can determine that the defendant is a real person or entity who could be sued in federal or state court.

2. Must establish and indentify all the previous steps taken to locate the defendant.

3. Establish that the suit against the defendant would withstand a motion to dismiss.

4. Should file a discovery request along with a statement of reasons justifying the specific discovery requested as well an indentifying those persons or entities on whom discovery might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information. [5]

In another California Superior Court case in 2001 the Court granted a motion to quash a subpoena being sought for “Doe” because the party issuing it failed to show a compelling need for the information that outweighed an anonymous online speaker’s constitution rights to free speech and privacy. In this ruling the court stated that absent a showing of a compelling need to reveal the speakers’ identities, the speakers “have constitutional rights to free speech and privacy which allow them to express themselves in a public forum, such as the internet, while keeping their identities secret.”[6] Building on previous case law the court has also ruled that a plaintiff would not be allowed to pursue discovery into Doe’s identity in situations where the plaintiff had failed to prove to the court that the anonymously online speaker had abused the constitutional right of free speech in an unlawful manner or in such a way that would warrant the courts revocation of the protection afforded to them under the First Amendment to the Constitution.[7] Other courts have adopting a two-part test that the plaintiff must meet prior to issuance of a subpoena that would indentify an anonymous online speaker.[8] The necessity for such a showing was articulated by the court in Columbia Ins. Co. (cited above):

“[T]his need [for identity information] must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously. People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate. Furthermore, it permits persons to obtain information relevant to a sensitive or intimate condition without fear of embarrassment. 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 identity.”

Court decision have thus made it clear that a litigant has to establish a legitimate and defined need for information leading to the identity of an anonymous speaker on the internet when requesting a subpoena to avoid discovery whose primary purpose is to chill speech, rather that to rectify any actionable wrong on the part of the speaker.

Most of the posters in this case consciously chose to post messages under a pseudonymous “username.” Furthermore all of the sites in question did not even require registration before access to posting. Courts have held that a litigant must obtain a subpoena before the identity of an anonymous poster is given over to them. This is necessary to preserve the constitutional right of free speech. To have personal information turned over without the benefit of a subpoena would have a deleterious effect on a citizen’s desire to participate in online forums, chat rooms and discussions. This is the “Chilling Effect” that has been much talk about during this saga, but little understood. That a person would limit or abstain from participation on a message board for fear that their identities would be disclosed to outside entities. Thus the courts have held that litigants are first required to make a showing of cause before a judge before any indentifying information is turned over.

The new deciding case law on anonymous internet speech: Doe v Cahill

Previous to Doe v Cahill, most courts had held that a plaintiff must be able to present enough evidence to survive “a motion to dismiss” before being able to learn the identity of an anonymous speaker. This is considered a very low standard because most cases easily survive a motion to dismiss, unless it is entirely frivolous and Courts are reluctant to declare this to be so before discovery is completed.

The Plaintiff is this case Patrick Cahill, a city councilman in Smyrna, Delaware, brought a defamation action against the defendant for allegedly posting defamatory statements about him anonymously on an Internet blog. Doe posted among other things that Mr. Cahill had “obvious mental deterioration” and was “paranoid.” Because Doe had posted the comment anonymously, in order to serve process, Cahill sought to compel the disclosure of Doe’s identity from a third party, Comcast. This actions was in accordance to the Federal Cable Communications Policy Act of 1984 with requires in situations where the issue in the disclosure of personally identifiable information.

(1) . . . a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator.

(2) A cable operator may disclose such information if the disclosure is-

(B)… made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed; [9]

What Cahill was asking was that, Comcast provide him with the information he needed to link Doe’s postings to his IP address. Comcast notified Doe that Mr. Cahill was seeking to obtain the information from them and Doe went to court to prevent the disclosure of his identity. A Superior Court judge applied “a good faith” standard and ordered the third party (Comcast), through the use of a subpoena, to disclose Doe’s identity to the Plaintiff. Doe filed an interlocutory appeal in the Supreme Court of Delaware

The Delaware Supreme Court reversed the lower court’s ruling, finding that “the good faith” standard “namely, that disclosure was warranted because Cahill had established through his pleadings that he had a legitimate, good faith basis on which to bring the defamation claim” [10] applied by the judge did not sufficiently protect Doe’s First Amendment right to speak anonymously. The Delaware Supreme Court ruled that the “motion to dismiss” standard did not adequately protect the right to speak anonymously in a case where the plaintiff is suing for defamation. Instead the Court ruled that the plaintiff must satisfy a “summary judgment standard” in order to compel the identity of the anonymous speaker. This is a much higher standard of evidence required by the judge before a subpoena would be issued to the third party. The plaintiff must show that there is a genuine issue of “material fact” involved and that there is enough evidence to justify why the case should proceed to a jury. This is all before the subpoena can even be issued to the Third Party to compel the release of the speaker’s identity. The Court weighed the balance of “one person’s right to speak anonymously against another person’s right to protect his reputation.” In overturning the lower courts decision the Delaware Supreme Court ruled that Cahill was required to (1) undertake reasonable efforts to notify the anonymous poster that he is the subject of a subpoena or application for an order of disclosure, and (2) submit sufficient evidence to establish a genuine issue of material fact for each essential element of its claim within the Plaintiff’s control. In its ruling the court found that the lower standard previously applied “might encourage meritless lawsuits brought merely to uncover the identities of anonymous critics.”

This is a landmark case on the rights of anonymous posters (and bloggers), and it marked the first time that a state high court addressed the issue.

Anti-SLAPP laws

“Powerful entities are learning that they can use the courts to silence their critics. When individuals choose to participate in a public debate anonymously, they should not have to worry that their identities will be divulged to anyone who doesn’t like what they have to say.”[11]

One person’s slander or defamation suit can be another person’s SLAPP. SLAPP stands for A Strategic Lawsuit Against Public Participation. It is a lawsuit or the threat of a lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.[12] The object of these suits is not always to win, but to administer punishment to someone for their speech. It also serves a secondary purpose of quieting others who may want to similarly speak out.

This is again the “Chilling Effect” that has been discussed ad nasuem. This is especially troubling when wealthy and powerful individuals and/or entities bring lawsuits against the “little guy” in order to stifle perceived criticism. In the arena of civil litigation the playing field is not equal. Those with means can afford a coterie of lawyers to bring suit and to keep the suit going over time while the “little guy” is lucky to even find an attorney that will take the case and when they do, they can spend their life savings defending themselves. Even if the “little guy” eventually prevails in court, he may never recoup his financial losses. The misuse of the court system is the very antithesis of the spirit behind the constitution and the rights it affords to each of us. According to New Your Supreme Court Judge J. Nicholas Colabella, “short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”

Electronic Frontier Foundation (EFF) is an organization that has taken a leading role in protecting the rights of free speech on the Internet. Staff Attorney Matt Zimmerman recently stated,

“The right to engage in anonymous communication is fundamental to a free society. It’s critical that judges resist attempts by anyone – public officials especially — to turn courtrooms into vehicles to harass and intimidate people out of speaking their minds. Thankfully, court after court has recognized that a plaintiff doesn’t have an automatic right to pierce anonymity just because he doesn’t like what someone has said.”[13]

In 1992 The California State Legislature recognizing the “Chilling Effect” that such lawsuits engender passed a bill intended to provide relief from this type of ligation abuse.

[T]here has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.[14]

Conclusion We acknowledge that sometimes “less is more” but felt the issues at stake were of such importance that they merited a full and comprehensive review of the relevant case law and its foundation. While “ignorance is no excuse in the law” it was obvious that many did not fully comprehend the rigorous standards that the courts apply when anyone seeks to “unmask” the identity of anonymous posters on the Internet. We hope that by fully exploring the legal issues and court decisions many of the fears that have been expressed to us can be alleviated and that the continued misguided threats of pending litigation will be quieted.

That said, there are some things that appear to have taken place involving fellow bloggers that raise real constitutional and legal issues. We hope to explore these issues with all of you (from both sides of the debate) in further articles on this site. Questions remain as to the harvesting of IPS’s, and the way in which this was undertaken. For what purposes was it done? Was that information turned over to anyone? Was this act requested by litigants and/or their legal representatives? Did these actions violate the spirit of court decisions and procedures set in place to protect the identity of anonymous speakers?

That is just one area that requires further exploration. We are sure that there are other relevant topics that can be addressed. We welcome any input, questions or concerns that ANYONE may have. Thanks for your patience as we all try to figure out together exactly what happened and why.

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[1] The First Amendment Center, By Rodney Smolla Dean, University of Richmond School of Law

http://www.firstamendmentcenter.org/speech/overview.aspx

[2] Nicosia v. De Rooy, 72 F. Supp. 2d 1093, 1101 (N.D. Cal. 1999)

[3] Rudnick v. McMillan, 22 Cal. App. 4th 1183, 1191, 31 Cal. Rptr. 2d 193, 197 (1994)

[4] Nicosia, 72 F. Supp.2d at 1101 (citing Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir.

1995).

[5] Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999)

[6] Varian Medical Sys. Inc. v. Delfino, et al., Case No. CV 780187 (Cal. Super. Ct., Santa Clara Cty., March
7, 2001)

[7] Dendrite Int’l, slip. op. at 19

[8] re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. at 36

[9] Cable Communications Policy Act of 1984, at 47 U.S.C. §551(c)(2).

[10] Deleware decision defines standards for protecting anonymous internet speech

October 11th, 2005 by Evan Brown

[11] http://w2.eff.org/legal/cases/RMC_v_Does/20010207_eff_pressrel.html

[12] Strategic lawsuit against public participation

http://en.wikipedia.org/wiki/SLAPP, From Wikipedia, the free encyclopedia

[13] http://www.eff.org/press/archives/2006/07/18

[14] 2992 California State Legislature Anti-SLAPP Section 425.16

By Einy and Kerry

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Tagged as: A Strategic Lawsuit Against Public Participation, Anna Nicole Smith, Anti-SLAPP laws, Bloggers for Howard K. Stern, Bloggers for Virgie Arthur, Daniel Wayne Smith, Doe v Cahill, Einy, Free Speech on the Internet, freedom of speech, Kerry, Kerry and Einy, Limits on Free Speech, Lin Woo, Rose Turner, The Chilling Effect, The United States Constitution, TMZ, Topix, Virgie Arthur