Further Thoughts on the Delaware Ruling Protecting Anonymous Bloggers
It's important that in yesterday's Doe v. Cahill decision, yet another court has ruled that the Constitution requires that plaintiffs meet a standard showing they have a case before unmasking an anonymous online speaker. Indeed, the Delaware Supreme Court is the first state supreme court in the country to reach this conclusion -- a welcome affirmation of the growing trend in jurisprudence of accepting that "John Doe" subpoenas must pass Constitutional muster.
But what's even more important is how the court defines the standard. In some respects, it's laudable; in others, it could be improved. On the one hand, the standard sets a high bar that will help protect anonymous bloggers unless the plaintiff shows evidence backing up claims. On the other, it oversimplifies the analysis, and may lead some courts to overlook important First Amendment concerns.
(Read on for the full analysis after the jump.)
The court considered three possible standards: the "filed in good faith" standard used by the trial court, the more stringent "motion to dismiss" standard, and the most stringent "summary judgment" standard.
In the "good faith" standard, the court requires that the plaintiff show that the lawsuit has been filed in good faith. In the "motion to dismiss" standard, the court looks only at whether the plaintiff's claims, if we assume they are true, would make a credible case. In the "summary judgment" standard, the court requires that the plaintiff produce evidence for each element of the claims.
In this case, the court dismissed the "good faith" standard as woefully low, noting that a "silly or trivial claim" could survive a motion to dismiss, whereas under a "summary judgment" standard, a court could easily dispose of such claims. Accordingly, to protect the strong interest in sheltering anonymous speech from unwarranted claims, the court adopted the higher standard. This is key; otherwise, legitimate speech could chilled by well-pled lawsuits designed to scare Does into silence, even if the facts would never be able to support the claims.
The Doe v. Cahill decision adopts portions of a test set forth in a corporate defamation case called Dendrite Intl. v. Doe, in which the plaintiff sought the identity of anonymous posters on an online message board. Like the New Jersey court in Dendrite, the Delaware Supreme Court requires that the defendant is notified (which is critical to presenting the court with an opposing argument in our adversarial court system), and that the plaintiff meet a difficult evidentiary standard. So far, so good.
However, the Cahill court departed from Dendrite by holding that two prongs of the four-prong Dendrite test were unnecessary, and instead incorporated both as part of the "summary judgment" standard. The first omitted prong, requiring that the exact statement at issue be provided to the court, is indeed a necessary part of any "summary judgment" analysis and therefore can be incorporated into that standard with ease.
In addition, Cahill folded Dendrite's balancing of the First Amendment right to anonymous free speech against the strength of the plaintiff's case into the "summary judgment" standard: "the summary judgment test itself is the balance." Because the Delaware Supreme Court believes that Dendrite's requirement adds no additional protection, the court ruled that it "needlessly complicates the analysis."
While a court could (and should) use the strong "summary judgment" standard to address the critical First Amendment concerns at issue, it would be more clear (and easier for appellate courts to review) if the court separated assessing the strength of the plaintiff's case from the balancing of the anonymous speech rights. Other courts could look to the Cahill test for guidance and fail to fully balance the First Amendment concerns when they are conflated in a single prong.
The Delaware Supreme Court also departed slightly from the traditional defamation "summary judgment" standard, opining that the plaintiffs need only show the elements of their defamation claim "within the plaintiff's control." Thus, the constitutionally required showing of "actual malice" for a defamation claim by a public figure was not required at this stage. While the court's concern that "satisfying this element may be difficult, if not impossible" with an unknown defendant is valid, the defendant should also have the opportunity to present countervailing evidence showing an absence of malice, if the defendant so chooses.
Once the standard was set, the court turned to applying the standard to Cahill's claim, and contended that:
Blogs and chat rooms tend to be vehicles for the expression of opinions; by they very nature, they are not a source of facts or data upon which a reasonable person would rely.
Ultimately this is very helpful to the anonymous blogger -- defamation must be considered in context, and therefore this observation makes it near impossible for a defamation claim to succeed against a highly opinionated blog. But the court's view of blogs and blogging is too narrow, and fails to recognize that blogs are increasingly becoming reliable sources. Context remains critical for defamation analysis, but the context will vary widely between blogs.