Important new protection for anonymous speech in Texas

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Paul Levy" <plevy () citizen org>
Date: December 12, 2007 4:49:25 PM EST
To: <dave () farber net>
Subject: Important new protection for anonymous speech in Texas

The Texas Court of Appeals for the Sixth Appellate District at  
Texarkana took an important step today toward protecting the rights of  
Internet bloggers in Texas to write anonymously. In an opinion issued  
by Justice Jack Carter in Essent v. Doe, the court of appeals joins a  
broad consensus of state and federal courts in insisting that  
plaintiffs present sufficient evidence to show they could win at trial  
before gaining access to information identifying anonymous speakers  
whom they wish to sue for wrongdoing.

The case arose from a blog about the Paris Regional Medical Center in  
Paris, Texas, which included analysis of problems at the hospital (http://the-paris-site.blogspot.com 
). Claiming a concern for patient privacy, Essent, the operator of the  
Medical Center, sued for defamation, and immediately sought discovery  
to identify the employees who, Essent claimed, were revealing  
confidential patient information in the course of criticizing abuses  
at the hospital.  The Doe, represented by James Rodgers of the Moore  
Law Firm in Paris, sought to block discovery but District Judge Scott  
McDowell upheld the request. However, the Court of Appeals has now  
reversed and remanded the case to give the hospital a chance to submit  
evidence for consideration under the proper legal standard.

In ruling, the court recognized that although Internet anonymity can  
be abused, the right to speak anonymously online is protected by the  
First Amendment. That right cannot be denied absent real evidence  
supporting the plaintiff’s claims of wrongdoing.  Otherwise, the very  
threat of litigation will have a serious chilling effect on anonymous  
speech.  The court also agreed with rulings in other states that  
declare an anonymous blogger has “standing” to oppose discovery even  
though the discovery demand is directed to a third-party Internet  
hosting service, and that a blogger has the right to appeal if their  
request for anonymity is denied.

The decision is not a perfect one. Unlike last month’s decision of the  
Arizona Court of Appeals in Mobilisa v. Doe, and the 2001 ruling of  
the New Jersey Appellate Division in Dendrite v. Doe,  the Texas Court  
of Appeals did not add an explicit balancing step, under which, for  
example, the danger of retaliation against an employee whistleblower  
can be considered in deciding whether the plaintiff has put in enough  
evidence of wrongdoing.  This case may well present a realistic  
possibility of such retaliation.  So far as I have been able to  
determine, the balancing step was not proposed to the Texas court.

Still, the requirement of presenting evidence provides an important  
measure of protection for employee whistleblowers and other anonymous  
critics of powerful corporations, political figures, and others.

The opinion can be found on the web site of the Texas Court of Appeals  
at http://www.6thcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=9055

(We have not been involved in the Essent case, having learned about  
the appeal too late to submit our views as friend of the court)



Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation



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