FC: Revised: New Jersey court rules online critics can remain anonymous

[Declan McCullagh <declan () well com>]

[Revised press release at end, and no, before you ask, the decision isn't 
online yet. Previous message: http://www.politechbot.com/p-03006.html --Declan]

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From: "Duplantis, Ron" <Ron.Duplantis () wonderware com>
To: "'declan () well com'" <declan () well com>, politech () politechbot com
Cc: Rick () Ravin com
Subject: RE: New Jersey court rules online critics can remain anonymous
Date: Tue, 8 Jan 2002 14:13:44 -0800

Declan,

The opening of Mr. Ravin's press release falsely over-generalizes the ruling
of the New Jersey court by stating flatly that 1) it "ruled that plaintiffs
alleging defamation cannot seek the identities of anonymous authors who
posted comments critical of them on a community-based Web site and
electronic bulletin board" and 2) it "is an important First Amendment ruling
in that it upholds the right to speak anonymously online."

The ruling does no such things.

According to an article on the Harvard Law School website called,
Discovering the Identity of Anonymous Internet Posters
(http://eon.law.harvard.edu/stjohns/anon-net.html):

"Accordingly, the courts that have considered defamation cases involving
anonymous Internet speech have rejected the position that there is an
absolute, or near-absolute right to anonymous speech on the Internet. For
example, in Melvin v. Doe, 49 Pa. D. & C.4th 449 (Ct. C.P. Allegheny County
Nov. 15, 2000), a Pennsylvania Superior Court Judge brought a libel action
against 13 anonymous posters who alleged that she lobbied on behalf of a
local attorney for a judicial appointment. The Court of Common Pleas held
that 'the First Amendment protections afforded the anonymous speaker do not
extend to speech that may be false and injurious.' The court concluded that
the First Amendment interests of anonymous posters could be protected only
to the extent that they 'do not interfere with the underlying purposes of
state tort law.' Thus, the court concluded, a plaintiff may use discovery to
learn the identity of an anonymous defendant once a prima facie case of
libel has been established. The court acknowledged that pursuit of the
defamation action would require that the anonymous speaker lose his
anonymity, but held that 'there is no case law which would suggest that the
First Amendment leaves the states without any meaningful tort law to
discourage the publication of defamatory statements concerning public
officials.' "

Therefore, anonymous speech on the Internet is no different from anonymous
speech of any other form.

As much of the remainder of Mr. Ravin's press release outlines, the Emerson
case ruling set no new legal ground. The plaintiffs in the case merely did
not (for now) satisfy the four-part Dendrite test to prove that a "prima
facie case ... has been established."

Mr. Ravin's opening takes this single ruling and generalizes it to
"plaintiffs" (i.e., any plaintiff, including others in other cases) and
states unequivocally that they "cannot seek the identities of anonymous
authors." That's flatly untrue. Only if they fail the Dendrite test are they
so barred, which is the case so far in Emerson, but not so if other
plaintiffs pass the Dendrite test. He also erroneously states that this
ruling is "an important First Amendment ruling," which it isn't (the
plaintiffs merely could not meet previously established tests in common law)
and that "it upholds the right to speak anonymously online," which it
doesn't (if the plaintiffs had passed Dendrite testing, the anonymous
speakers would be unmasked).

Respectfully,
Ron Duplantis
Huntington Beach, CA

---

From: "Richard Ravin" <Rick () Ravin com>
To: "Duplantis, Ron" <Ron.Duplantis () wonderware com>, <declan () well com>,
        <politech () politechbot com>
Subject: Re: New Jersey court rules online critics can remain anonymous
Date: Tue, 8 Jan 2002 17:34:14 -0500

Dear Mr. Duplantis:

    Thank you for your e-mail.  At first blush, I agree with almost all of 
your comments.  After re-reading the press release, I note that the first 
sentence is overbroad.  In the first sentence I meant to refer to the 
plaintiffs in the Eye on Emerson Suit.  I will change the press release and 
re-circulate.

    I do think the ruling is important which I will address in a follow up 
e-mail, but first I want to revise the press release.  Thank you again for 
your comments.

Yours,

Richard L. Ravin, Esq.
Hartman &  Winnicki, P.C.
West 115 Century Rd.
Paramus, NJ  07652
----------------------------------------
230 Park Avenue, Suite  2430
New York, NY  10169
----------------------------------------
Office:   201-967-8040  x111
Fax:       201-967-0590
Cell:      973-886-6502
----------------------------------------
E-Mail:           Rick () Ravin com
Web Site:        www.Ravin.com

---

Richard L. Ravin, Esq.                                                          
Hartman & Winnicki, P.C.
West 115 Century Rd.
Paramus, NJ 07652
Phone: 201-967-8040 x111
Fax: 201-967-0590
E-Mail: Rick () Ravin com
Web Site: www.Ravin.com                                 January 4, 2001 (v.3)

PRESS RELEASE

Town Officials Barred From Learning
The Names of Online Anonymous Critics

	The New Jersey Superior Court has ruled that plaintiffs alleging 
defamation in the Eye On Emerson case (Donato v. Moldow) cannot seek the 
identities of  anonymous authors who posted comments critical of them on a 
community-based Web site and electronic bulletin board.  The anonymous 
authors were successfully represented by Richard L. Ravin, Esq., of Hartman 
& Winnicki, P.C., who had made a motion to quash the subpoena served on the 
Internet service provider (ISP) of the electronic bulletin board.  The 
subpoena, which was quashed by the court, sought the IP addresses of the 
anonymous authors. The decision in the Eye On Emerson case is an important 
First Amendment ruling in that the court protected the anonymity of even 
the unrepresented online authors from having their true identities 
disclosed due to plaintiffs failure to meet the  Dendrite 
requirements.  The court also dismissed with prejudice the complaint 
against the Web site operator, Stephen Moldow, a resident of the Borough of 
Emerson, pursuant to the Communications Decency Act.

The case was brought by two members of the Emerson town Council, a 
candidate for the Council and the Chairman of town's Republican Committee 
against anonymous authors using about 40 online screen names (John Does) 
for alleged defamation.  The Eye On Emerson Web site 
(http://www.geocities.com/emersoneye/index.html) and its related electronic 
message board was designed and administered by Moldow to promote good local 
government by encouraging citizens to voice their opinions about government 
affairs.

	In ordering that the identities of the online authors remain anonymous, 
the court cited to the recent New Jersey Appellate Division case of 
Dendrite v. Doe, and held that the plaintiffs failed to satisfy the 
four-part Dendrite test.  The court specifically held that the plaintiffs 
failed to give proper notice of the complaint and subpoena to the anonymous 
posters, and  to adequately identify the exact statements alleged to be 
defamatory or specify why the statements were actionable.  The anonymous 
posters argued that the statements alleged to be defamatory were either 
opinion, name-calling, protected political speech or not properly 
specified.  The court declined to address the other Dendrite issues until 
the plaintiffs give proper notice and the court ascertains whether 
plaintiffs will amend the complaint.   The court also ruled that the 
subpoena was defective because the attached 117 postings exceeded the 
postings and screen names referenced in the complaint.

The anonymous posters and Moldow also moved for dismissal of the harassment 
count, which the court granted because New Jersey does not recognize the 
tort of harassment, notwithstanding that it is a quasi-criminal, petty 
disorderly offense.

	During oral arguments Mr. Ravin noted that anonymous speech is hardly a 
new method of expression, rather it dates back to the founding of the U.S. 
Constitution.  The Federalist Papers were authored anonymously at the time 
of their publication under the pseudonym "Publius".  In fact, the essays, 
which advocated the adoption of the U.S. Constitution in 1787 and 1788, 
were actually authored by Alexander Hamilton, John Jay, and James 
Madison.  Interestingly, New Jersey itself has its own historical examples 
of its governmental leaders utilizing anonymous speech.  In 1884, Governor 
William Livingston authored anonymous articles under the pseudonym 
"Scipio", attacking the Legislature's failure to lower taxes and accusing a 
state officer of stealing or losing state money during the British 
invasions of New Jersey.  As recently as 1995, the U.S. Supreme Court 
upheld the right of anonymous speech in the case of McIntyre v. Ohio 
Elections Commission.

	With the advent of the Internet, and in particular, electronic chat rooms, 
bulletin boards, message boards, listservs and the Usenet, it is now easier 
and cheaper than ever to make statements about others 
anonymously.  Increasingly, courts will be called upon to act as the 
gatekeepers of the First Amendment right to speak anonymously.  In the Eye 
On Emerson case, the court followed the rule laid down in  Dendrite, and 
thereby prevented the elected officials and public figures of Emerson (the 
plaintiffs) from discovering the identities of their critics.  Without the 
Dendrite rule, for the mere filing of a complaint and service of a 
subpoena, any person could discover the identity of an anonymous speaker 
who is critical of him or her, and subject that speaker to 
retribution,  harassment or embarrassment, even though the speaker has done 
no wrong, and could not be held liable.

	The procedure adopted by Dendrite is unusual within the realm of civil 
practice in that it requires plaintiffs, at the very outset of their 
anonymous online speech case, before discovery even starts, to make a prima 
facie showing that they have a meritorious case.  The court  must then 
balance the strength of the plaintiffs' case against the rights of the 
fictitious defendants to remain anonymous.  Only then, would the plaintiffs 
be entitled to compel discovery as to the identities of the speakers.  The 
high bar set for plaintiffs reflects the high value our society places on 
the right to not only speak freely, but anonymously.  This system insures 
that plaintiffs with a meritorious case will be given the discovery they 
need to obtain the identities of the authors who defamed them.  The system 
will also prevent persons from abusing the judicial process by using it 
merely as an instrument to discover the identities of their critics, even 
though their case is frivolous.

	Mr. Ravin is head of the Internet and Intellectual Property Law Group at 
Hartman & Winnicki, P.C., with offices in Paramus, New Jersey and New York 
City.  Van Mejia, an associate with the firm and a member of the Group also 
worked on the Eye On Emerson case.  Mr. Ravin is Co-Chair of the Internet 
Law Committee of the New York State Bar Association.  He can be reached via 
e-mail at: rick () ravin com, or via phone at: (201) 967-8040.  The firm's Web 
site is located at: www.hartmanwinnicki.com. 




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