Speak No Evil

An age-old question of Internet law has heated up the intrastate rivalry between Philadelphia and Pittsburgh, but this time it's not sports teams or gubernatorial candidates; it's judges. Yes, judges.

The question: When can an anonymous Internet speaker accused of defamation be unmasked? The combatants: Judge Albert Sheppard of Philadelphia and Judge R. Stanton Wettick of Pittsburgh ' two of Pennsylvania's most respected jurists. If Pennsylvania can be split on the issue, so can other states. Which argument is correct?

Wettick dealt with this question first, nearly 6 years ago in Melvin v. Doe after Judge Joan Orie Melvin filed a defamation claim against John Doe defendants based on anonymous statements about her posted on a blog hosted by AOL. When Melvin sought the defendants' identities in discovery, Wettick gave them an opportunity to oppose the subpoena and to challenge Melvin's ability to prevail on her claim. The John Doe defendants responded by filing a motion for a protective order and a motion for summary judgment.

Wettick denied the summary judgment motion, concluding that Melvin had enough evidence to establish an actionable claim. He also denied the motion for a protective order.

After discussing the First Amendment right to speak anonymously, he analyzed the request to unmask the bloggers by employing the classic First Amendment reporter's privilege test ' assessing whether the identities were material, relevant and necessary, obtainable by alternate means, and crucial to plaintiff's case. Wettick determined that the request passed this test, emphasized that plaintiff could establish a viable defamation claim, and thus allowed the discovery to proceed.

Although the Melvin case bounced around the appellate courts for several years, Melvin voluntarily withdrew her suit before the Superior Court or Supreme Court offered definitive guidance on the appropriate standard.

The issue left unresolved in Melvin was whether the First Amendment mandates that Melvin establish that she had suffered actual economic harm before unmasking the bloggers. U.S. Supreme Court precedent makes clear that a plaintiff must establish an actual injury to prevail on a defamation claim.

Earlier this year, in Klehr Harrison Harvey Branzburg & Ellers v. JDA Development Inc., Sheppard issued a decision reaching the same result as Wettick, but with a very different analysis.

In the case, a prominent law firm filed a defamation suit based on statements appearing on two Web sites. The suit names several companies and one individual as defendants and alleges that certain of the defendants wrote the statements, including allegedly derogatory comments posted anonymously on one of the sites' 'guest book.'

After the plaintiff served discovery seeking the posters' names, the defendants filed a motion for a protective order, arguing that because anonymous speech is protected by the First Amendment, the posters' identities should not be revealed. Sheppard denied the motion.

Like Wettick, Sheppard discussed the constitutional protection afforded to anonymous speech. He noted, however, that the Constitution does not protect defamatory speech.

Sheppard then reviewed cases and law review articles addressing the question of unmasking John Doe defendants in Internet defamation cases, ultimately concluding that existing procedures protect First Amendment rights and no new standards were needed to handle anonymous Internet speech cases. The judge then applied the usual rules of discovery, ruling that disclosure of the posters' identities was not unduly burdensome because the speech at issue was 'defamatory per se' and thus not protected by the First Amendment.

Much has been made of what these opinions portend, and the Commonwealth is left with two of its leading judges applying very different approaches. The question is which side of the state has the better approach, Pittsburgh or Philadelphia?

Wettick applied the correct approach in allowing the anonymous bloggers to challenge both the discovery and the plaintiff's ability to establish a viable defamation claim. Nevertheless, the Melvin decision may not have reached the right result since it did not accord proper weight to Supreme Court precedent requiring that a defamation plaintiff demonstrate an actual injury.

In contrast, the Klehr Harrison decision may have reached the right outcome, but its approach appears flawed. First, it undervalues the First Amendment right to speak anonymously by overstating the significance of labeling a statement 'defamatory per se.' Second, it does not address the broad immunity provided by the federal Communications Decency Act.

Right to Speak Anonymously

It is beyond dispute that anonymous speech is protected by the First Amendment. The Supreme Court has recognized this core free speech principle, stressing that '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.'

Anonymous speech has a storied place in American history. Indeed, it played a substantial role in the ratification of the Constitution, most famously in the Federalist Papers. Today's bloggers carry on the proud tradition of yesterday's pamphleteers. More and more, we see policy and politics shaped by debate on the Internet, where bloggers speak freely and anonymously each day.

It is also beyond dispute, as the Klehr Harrison decision notes, that speech proven to be defamatory is not constitutionally protected. The flip side of this tenet, however, is that non-actionable speech is protected.

The Klehr Harrison decision is mistaken to the extent it implies that speech is stripped of constitutional protection simply because it is labeled 'defamatory per se.' The 'per se' label is a legal term of art merely meaning that a statement is capable of defamatory meaning because it states that the plaintiff engaged in a specific class of misconduct.

This, of course, is only one of several elements required to establish the tort of defamation and does not by itself mean that the speech is not protected by the First Amendment.

If any element is missing, speech labeled 'defamatory per se' is not actionable and is constitutionally protected. The Klehr Harrison decision misstates the law to the extent it might be read to suggest otherwise.

Communications Decency Act

The Klehr Harrison decision's second flaw is that it overlooks the Communications Decency Act (CDA). The act, which Congress passed to help foster a free marketplace of ideas on the Internet, provides that a Web site or Internet service provider that publishes 'any information provided by another' person cannot be held liable for defamation based on that publication.

The CDA's immunity applies even if a Web site edits a poster's comments or controls whether comments are posted in the first place. The immunity is lost only if the Web site itself provides the content.

Under traditional defamation law, a person who publishes a defamatory statement is liable for the defamation as if he had written it himself. The CDA provides just the opposite ' a person cannot be held liable for publishing someone else's defamatory statement on the Internet. Only the person responsible for writing the statement can be held accountable.

Under federal law then, a plaintiff must file suit against the actual author of an Internet posting and not the Web site where it appeared. If the author is an anonymous poster, the plaintiff must sue John Doe and attempt to learn the writer's identity in discovery, usually by subpoenaing the Internet service provider.

Federal law requires that the provider notify the poster that it will be disclosing his identity pursuant to a subpoena. This allows the person whose anonymous speech is at issue to challenge the subpoena and the merits of the plaintiff's claim before he is unmasked.

This can be done through a motion for protective order and a motion for summary judgment. These twin motions ensure that the speaker's identity will be disclosed only when the statements themselves are actionable and when the plaintiff has sufficient evidence to establish a prima facie case.

This is precisely the path the anonymous defendants and Wettick followed in Melvin.

And, it is precisely where the Klehr Harrison decision veers off course.

In Klehr Harrison, at least some of the defendants likely are shielded from liability by the CDA. For example, according to the complaint, two of the named defendants 'provide Internet hosting services' for the Web sites. (According to the docket, the court entered an order on March 8 dismissing the claims against one of these defendants.) Although the decision indicates some of the other defendants 'controlled the content of the guest book,' that control may not place them outside the CDA's protection if, for example, they merely decided which comments appeared on the site.

The complaint nevertheless alleges that the named defendants wrote and created the content on the Web site, and the Klehr Harrison decision states that it is a 'reasonable inference' that the individual defendant either wrote the postings or directed them to be posted.

If the plaintiff in Klehr Harrison is correct and the defendants are actually responsible for the content of the allegedly defamatory postings, the court's decision may have reached an appropriate result; however, the defendants should have had an opportunity to challenge the plaintiff's ability to establish an actionable defamation claim and to proffer evidence establishing any legal defense that would defeat that claim.

If, on the other hand, the Klehr Harrison case involves truly anonymous Internet speech and the named defendants are able to show that they were not responsible for the content, the claims against them should be dismissed because they are immune under the CDA.

By not addressing the applicability of the CDA, the Klehr Harrison decision leaves at least some of the defendants exposed to a claim for which they seem to be immune.

Likewise, by not requiring the plaintiff to establish all elements of an actionable defamation claim ' as opposed to only requiring that the plaintiff show that the statements are capable of defamatory meaning ' the decision undercuts the First Amendment protection afforded to anonymous speech.

Safeguards Must be Used

The Klehr Harrison decision is correct that existing procedural safeguards exist to protect anonymous Internet speech. But those safeguards must be employed, and litigants must take advantage of them by filing both a motion for a protective order and a motion for summary judgment.

Now that the Klehr Harrison case is on appeal, the Superior Court must choose which standard to apply ' Pittsburgh, Philadelphia or some third option. The first question it ought to consider, however, is whether the CDA applies and thus whether the case involves anonymous Internet speech at all. If it does, the Superior Court should look to Pittsburgh and Wettick's approach, and require that a plaintiff establish an actionable defamation claim and an actual injury before ordering anonymous speakers to be unmasked.

An age-old question of Internet law has heated up the intrastate rivalry between Philadelphia and Pittsburgh, but this time it's not sports teams or gubernatorial candidates; it's judges. Yes, judges.

The question: When can an anonymous Internet speaker accused of defamation be unmasked? The combatants: Judge Albert Sheppard of Philadelphia and Judge R. Stanton Wettick of Pittsburgh ' two of Pennsylvania's most respected jurists. If Pennsylvania can be split on the issue, so can other states. Which argument is correct?

Wettick dealt with this question first, nearly 6 years ago in Melvin v. Doe after Judge Joan Orie Melvin filed a defamation claim against John Doe defendants based on anonymous statements about her posted on a blog hosted by AOL. When Melvin sought the defendants' identities in discovery, Wettick gave them an opportunity to oppose the subpoena and to challenge Melvin's ability to prevail on her claim. The John Doe defendants responded by filing a motion for a protective order and a motion for summary judgment.

Wettick denied the summary judgment motion, concluding that Melvin had enough evidence to establish an actionable claim. He also denied the motion for a protective order.

After discussing the First Amendment right to speak anonymously, he analyzed the request to unmask the bloggers by employing the classic First Amendment reporter's privilege test ' assessing whether the identities were material, relevant and necessary, obtainable by alternate means, and crucial to plaintiff's case. Wettick determined that the request passed this test, emphasized that plaintiff could establish a viable defamation claim, and thus allowed the discovery to proceed.

Although the Melvin case bounced around the appellate courts for several years, Melvin voluntarily withdrew her suit before the Superior Court or Supreme Court offered definitive guidance on the appropriate standard.

The issue left unresolved in Melvin was whether the First Amendment mandates that Melvin establish that she had suffered actual economic harm before unmasking the bloggers. U.S. Supreme Court precedent makes clear that a plaintiff must establish an actual injury to prevail on a defamation claim.

Earlier this year, in Klehr Harrison Harvey Branzburg & Ellers v. JDA Development Inc., Sheppard issued a decision reaching the same result as Wettick, but with a very different analysis.

In the case, a prominent law firm filed a defamation suit based on statements appearing on two Web sites. The suit names several companies and one individual as defendants and alleges that certain of the defendants wrote the statements, including allegedly derogatory comments posted anonymously on one of the sites' 'guest book.'

After the plaintiff served discovery seeking the posters' names, the defendants filed a motion for a protective order, arguing that because anonymous speech is protected by the First Amendment, the posters' identities should not be revealed. Sheppard denied the motion.

Like Wettick, Sheppard discussed the constitutional protection afforded to anonymous speech. He noted, however, that the Constitution does not protect defamatory speech.

Sheppard then reviewed cases and law review articles addressing the question of unmasking John Doe defendants in Internet defamation cases, ultimately concluding that existing procedures protect First Amendment rights and no new standards were needed to handle anonymous Internet speech cases. The judge then applied the usual rules of discovery, ruling that disclosure of the posters' identities was not unduly burdensome because the speech at issue was 'defamatory per se' and thus not protected by the First Amendment.

Much has been made of what these opinions portend, and the Commonwealth is left with two of its leading judges applying very different approaches. The question is which side of the state has the better approach, Pittsburgh or Philadelphia?

Wettick applied the correct approach in allowing the anonymous bloggers to challenge both the discovery and the plaintiff's ability to establish a viable defamation claim. Nevertheless, the Melvin decision may not have reached the right result since it did not accord proper weight to Supreme Court precedent requiring that a defamation plaintiff demonstrate an actual injury.

In contrast, the Klehr Harrison decision may have reached the right outcome, but its approach appears flawed. First, it undervalues the First Amendment right to speak anonymously by overstating the significance of labeling a statement 'defamatory per se.' Second, it does not address the broad immunity provided by the federal Communications Decency Act.

Right to Speak Anonymously

It is beyond dispute that anonymous speech is protected by the First Amendment. The Supreme Court has recognized this core free speech principle, stressing that '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.'

Anonymous speech has a storied place in American history. Indeed, it played a substantial role in the ratification of the Constitution, most famously in the Federalist Papers. Today's bloggers carry on the proud tradition of yesterday's pamphleteers. More and more, we see policy and politics shaped by debate on the Internet, where bloggers speak freely and anonymously each day.

It is also beyond dispute, as the Klehr Harrison decision notes, that speech proven to be defamatory is not constitutionally protected. The flip side of this tenet, however, is that non-actionable speech is protected.

The Klehr Harrison decision is mistaken to the extent it implies that speech is stripped of constitutional protection simply because it is labeled 'defamatory per se.' The 'per se' label is a legal term of art merely meaning that a statement is capable of defamatory meaning because it states that the plaintiff engaged in a specific class of misconduct.

This, of course, is only one of several elements required to establish the tort of defamation and does not by itself mean that the speech is not protected by the First Amendment.

If any element is missing, speech labeled 'defamatory per se' is not actionable and is constitutionally protected. The Klehr Harrison decision misstates the law to the extent it might be read to suggest otherwise.

Communications Decency Act

The Klehr Harrison decision's second flaw is that it overlooks the Communications Decency Act (CDA). The act, which Congress passed to help foster a free marketplace of ideas on the Internet, provides that a Web site or Internet service provider that publishes 'any information provided by another' person cannot be held liable for defamation based on that publication.

The CDA's immunity applies even if a Web site edits a poster's comments or controls whether comments are posted in the first place. The immunity is lost only if the Web site itself provides the content.

Under traditional defamation law, a person who publishes a defamatory statement is liable for the defamation as if he had written it himself. The CDA provides just the opposite ' a person cannot be held liable for publishing someone else's defamatory statement on the Internet. Only the person responsible for writing the statement can be held accountable.

Under federal law then, a plaintiff must file suit against the actual author of an Internet posting and not the Web site where it appeared. If the author is an anonymous poster, the plaintiff must sue John Doe and attempt to learn the writer's identity in discovery, usually by subpoenaing the Internet service provider.

Federal law requires that the provider notify the poster that it will be disclosing his identity pursuant to a subpoena. This allows the person whose anonymous speech is at issue to challenge the subpoena and the merits of the plaintiff's claim before he is unmasked.

This can be done through a motion for protective order and a motion for summary judgment. These twin motions ensure that the speaker's identity will be disclosed only when the statements themselves are actionable and when the plaintiff has sufficient evidence to establish a prima facie case.

This is precisely the path the anonymous defendants and Wettick followed in Melvin.

And, it is precisely where the Klehr Harrison decision veers off course.

In Klehr Harrison, at least some of the defendants likely are shielded from liability by the CDA. For example, according to the complaint, two of the named defendants 'provide Internet hosting services' for the Web sites. (According to the docket, the court entered an order on March 8 dismissing the claims against one of these defendants.) Although the decision indicates some of the other defendants 'controlled the content of the guest book,' that control may not place them outside the CDA's protection if, for example, they merely decided which comments appeared on the site.

The complaint nevertheless alleges that the named defendants wrote and created the content on the Web site, and the Klehr Harrison decision states that it is a 'reasonable inference' that the individual defendant either wrote the postings or directed them to be posted.

If the plaintiff in Klehr Harrison is correct and the defendants are actually responsible for the content of the allegedly defamatory postings, the court's decision may have reached an appropriate result; however, the defendants should have had an opportunity to challenge the plaintiff's ability to establish an actionable defamation claim and to proffer evidence establishing any legal defense that would defeat that claim.

If, on the other hand, the Klehr Harrison case involves truly anonymous Internet speech and the named defendants are able to show that they were not responsible for the content, the claims against them should be dismissed because they are immune under the CDA.

By not addressing the applicability of the CDA, the Klehr Harrison decision leaves at least some of the defendants exposed to a claim for which they seem to be immune.

Likewise, by not requiring the plaintiff to establish all elements of an actionable defamation claim ' as opposed to only requiring that the plaintiff show that the statements are capable of defamatory meaning ' the decision undercuts the First Amendment protection afforded to anonymous speech.

Safeguards Must be Used

The Klehr Harrison decision is correct that existing procedural safeguards exist to protect anonymous Internet speech. But those safeguards must be employed, and litigants must take advantage of them by filing both a motion for a protective order and a motion for summary judgment.

Now that the Klehr Harrison case is on appeal, the Superior Court must choose which standard to apply ' Pittsburgh, Philadelphia or some third option. The first question it ought to consider, however, is whether the CDA applies and thus whether the case involves anonymous Internet speech at all. If it does, the Superior Court should look to Pittsburgh and Wettick's approach, and require that a plaintiff establish an actionable defamation claim and an actual injury before ordering anonymous speakers to be unmasked.