FC: Update on New Jersey web editor case: Judge nixes subpoenas

[Declan McCullagh <declan () well com>]

Some background on the Emerson case:
http://www.politechbot.com/cgi-bin/politech.cgi?name=emerson

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Date: Wed, 02 Jan 2002 15:08:21 -0500
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>
Subject: Development in the Eye on Emerson case

The judge in the case of Donato v. Moldow has issued a decision quashing 
the subpoena issued by several public officials of Emerson, New Jersey, 
seeking to identify the authors of several dozen messages posted on an 
Internet bulletin board that criticized them or called them names.  The 
judge also dismissed the lawsuit against Steven Moldow based on his 
sponsorship of the bulletin board.

A copy of our press release follows:

New Jersey Officials Barred From Learning Identities of Citizens Who Posted 
Criticisms on Web

 Court Cites First Amendment Rights of Critics, Adopts Arguments Set Forth 
by Public Citizen, ACLU

	WASHINGTON, D.C. -- Issuing a ruling that strongly upholds the First 
Amendment rights of anonymous Internet speakers, a New Jersey judge has 
refused an attempt by Emerson, N.J., public officials to learn who 
criticized them on the Internet. The superior court judge also dismissed 
the officials' suit against the Emerson citizen who created the Internet 
bulletin board devoted to public affairs in Emerson on which the citizens 
anonymously aired their views.

	Two Emerson council members, a council candidate and the head of the local 
Republican Party had sued 60 John and Jane Does as well as the site's 
creator, claiming defamation and harassment. The officials sought 
information from Internet service provider VantageNet that would identify 
those who posted the messages. The Bergen County superior court judge, 
however, quashed the subpoena. The decision was made in late December but 
was released to the public today.

	Adopting arguments advanced in an amicus brief by attorneys for Public 
Citizen and the American Civil Liberties Union of New Jersey (ACLU-NJ), 
Judge Marc Russello ruled that the plaintiffs had not met the strict tests 
established by New Jersey courts for a subpoena to be served to obtain the 
identities of anonymous Internet speakers.  The court faulted the 
plaintiffs for not providing sufficient notice of the subpoena on the 
bulletin board and for not providing a sufficient basis to show that each 
of the allegedly defamatory statements was speech that could be the basis 
for a lawsuit.  Also agreeing with the groups, the court extended the 
benefit of its ruling to all of the anonymous speakers, regardless of 
whether they were represented by attorneys.

	"This suit is a clear attempt to intimidate the townspeople so they stop 
making comments about their officials," said Paul Alan Levy, an attorney 
for Public Citizen, which got involved in the case because it has a history 
of defending First Amendment rights.  "The judge's decision protects 
citizens' rights to participate in anonymous debate about their public 
officials, without fear of being dragged into court."

	The court also ruled that no legal action could be brought against the Web 
master for the allegedly defamatory statements published on the bulletin 
board by the anonymous posters, because a federal statute, the 
Communications Decency Act, places responsibility for Internet speech 
squarely on the speakers themselves while protecting Web masters and 
Internet service providers from being sued for statements made by others 
using their facilities.

	"Steven Moldow's site, which is devoted to topics relating to local 
government, represents a terrific gift to the community," Levy said. "If 
someone like Moldow has to face the prospect of ruinous litigation from any 
person who is criticized on the Web site, then very few citizens would ever 
set up such valuable sites."

	Public Citizen attorneys also participated as amicus curiae in the 
precedent-setting case of Dendrite v. Doe, where the New Jersey Appellate 
Division became the first appellate court in the country to apply First 
Amendment principles when setting standards for the identification of 
anonymous Internet speakers.  Public Citizen's attorneys have represented 
Internet speakers in cases in California, Connecticut, Georgia, Ohio, 
Pennsylvania and elsewhere.

###

Public Citizen is a nonprofit consumer advocacy organization based in 
Washington, D.C. For more information, please visit www.citizen.org.

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




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