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Internet Critic of Delaware Politician Has Right to Anonymity

PRESS RELEASE
August 3, 2005

Message Board Poster Criticized Smyrna Town Council Member’s Job Performance

NOTE: This is a press release from Public Citizen, which EFF is recirculating for your information.

Washington, DC - A person who posted Internet messages criticizing a Delaware politician's leadership skills has a right to remain anonymous, Public Citizen urged the Supreme Court of Delaware today in a "friend of the court" brief. The American Civil Liberties Union, the Electronic Frontier Foundation and the American Civil Liberties Union of Delaware also joined the friend of the court brief.

The Internet critic, known in court documents as John Doe No. 1, posted two messages on the Smyrna/Clayton Issues Blog (web log) in September 2004. The messages stated that Patrick Cahill, a member of the Smyrna Town Council, had diminished leadership skills, energy and enthusiasm, and referred to Cahill's "character flaws," "mental deterioration," and "failed leadership." John Doe No. 1, known as "Proud Citizen" on the blog, also stated, "Gahill [sic] is…paranoid."

On November 2, Cahill and his wife sued John Doe No. 1 and three other anonymous critics, claiming that John Doe No. 1 had accused Cahill of suffering from "mental defects and diseases," and that the misspelling of his name implied he was "engaging in extramarital, homosexual affairs." Without notice to the critics, the Cahills sought to identify the critics through a subpoena to the Internet access provider, which notified the four critics of the subpoena.

John Doe No. 1 attempted to nullify the subpoena, arguing the disclosure would violate his First Amendment right to criticize a public official anonymously, but the trial court denied the motion. John Doe No. 1 appealed.

Public Citizen, which has been a strong defender of First Amendment rights on the Internet, urged the court to allow John Doe No. 1 to remain anonymous. Blogs provide individuals such as Cahill the opportunity to immediately respond to postings they believe are false or misleading at no cost, argued Paul Alan Levy, a Public Citizen attorney. Further, courts have ruled that subpoenas seeking the names of anonymous speakers can chill free speech, and those courts have upheld the right to communicate anonymously over the Internet.

"The blog postings at issue here contained standard criticism of a public official's job performance – not defamatory statements – and it was well within John Doe No. 1's right to make the comments," Levy said. "We urge the court to rule that this Internet critic has a First Amendment right to speak anonymously on the Internet."

Norman Monhait of Wilmington, Delaware, and Lawrence Hamermesh of Wilmington, Delaware, served as local counsel.

Contact:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

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