Ill. appeals court takes dim view of anonymous online libel

Tuesday, June 22, 2010

It’s cases like Maxon v. Ottawa Publishing Company that test what we’re willing to accept in the name of free speech.

Granted, speech in other cases — funeral protests and anti-abortion rallies, for example — may be more offensive. In those cases, however, the First Amendment right to express hurtful opinions from public streets and sidewalks is relatively clear and longstanding.

In cases like Maxon, on the other hand, the speech is more accusation than epithet, stating facts that might or might not be true and spreading them over the Internet behind anonymous screen names. The anonymous poster claims a right to speak; the defamation victim claims a right to a remedy. Balancing these claims isn’t easy, and courts have struggled to do so.

In Maxon, Donald and Janet Maxon asked Ottawa, Ill., to change its ordinances so as to allow bed-and-breakfast establishments in residential areas. The local newspaper covered the city’s consideration of the request, and several readers posted comments on the issue on the newspaper’s Web site. To post a comment, a person had to register only with an e-mail address. Registrants did not have to give the newspaper their real names and could post comments under pseudonyms or screen names that did not reveal their identities.

Mary1955, FabFive from Ottawa, and birdie1 commented on the bed-and-breakfast issue frequently, expressing their opposition to the Maxons’ request and their displeasure with the city officials considering it. At one time or another, all three suggested the Maxons had bribed some of the officials.

After one of the articles, for example, Mary1955 posted: “Money under the table???????????” In a longer comment, FabFive warned city officials, “IF this gets anywhere NEAR being passed in favor for the Maxon CULT, you can bet your BRIBED BEHINDS there will be a mass exodus of homeowners from this town.” FabFive later wrote, “The plan should never had [sic] been pushed to the Town Council when several members of the OPC [Ottawa Planning Commission] were not even present to vote on it in the new terms that the BRIBED members had created.” In response, birdie1 posted “FabFive: The bribe has continued since you were last on!!”

The Maxons responded by filing a petition for discovery, a procedure under Illinois Supreme Court Rule 224 that allows parties to learn the identity of potential defendants before filing suit. In this case, the Maxons sought from the newspaper all information that would allow them to identify the three posters.

The trial court, relying on decisions from courts in New Jersey and Delaware, denied the petition, ruling that courts must take special precautions to protect the anonymity of Internet posters.

In the New Jersey case, Dendrite International v. Doe, and the Delaware case, Doe v. Cahill, the courts held that a party seeking the disclosure of an anonymous poster must show that:

  • The poster has been notified of the potential claim and has had an opportunity to oppose the request.
  • The party seeking disclosure has set forth the exact statement allegedly made by the poster.
  • The party’s complaint states a viable legal claim against the poster.
  • The party has produced sufficient evidence to support each element of its claim.
  • The need for disclosure, when considered with the strength of the party’s case, outweighs the poster’s First Amendment right to speak anonymously.

This test, the courts held, appropriately balanced the rights of a person not to be defamed with the First Amendment rights of an anonymous poster.

The Maxons appealed the trial court’s ruling to the Illinois Appellate Court, and on June 1 that court reversed. In a 2-1 decision, the court refused to follow Dendrite and Cahill, holding that the test applied in those cases misguidedly offered anonymous Internet speakers more protection from defamation claims than the law provided speakers who identified themselves.

In Illinois, the court said, there’s already enough protection for anonymous speech under Rule 224, which requires, among other things, that a party seeking a potential defendant’s identity state a legally sufficient claim against the potential defendant. While recognizing that this standard is not as exacting as the Dendrite-Cahill requirement that a party support each element of its claim with evidence, the Illinois court held that, in defamation cases, the Rule 224 standard requires the party to allege facts that establish that the defamatory statements are not constitutionally protected.

Moreover, the court said, no reason exists to balance “the rights of the speaker to anonymity against the rights of a would-be plaintiff.” While acknowledging that “certain types of anonymous speech are constitutionally protected,” the court said “it is overly broad to assert that anonymous speech, in and of itself, warrants constitutional protection.”

Rather, the court held, anonymous Internet speakers enjoy the same protections from defamation claims as identified speakers — but not more. “[O]nce the petitioner has made out a prima facie case for defamation, the potential defendant has no first-amendment right to balance against the petitioner’s right to seek redress for damage to his reputation, as it is well settled that there is no first-amendment right to defame.” Therefore, “given that there is no constitutional right to defame, we find no need for the additional procedural requirements articulated in the Dendrite-Cahill test.”

The court then turned to the Maxons’ allegations. Rejecting the trial court’s finding that the allegations of bribery could be considered opinions, the court held the postings could be interpreted as stating a fact. The notion that the publication of the statements on the Internet made them less likely to be understood as facts was not persuasive, the court said.

“[U]nless we are prepared to hold as a matter of law that nothing published on the Internet is capable of being interpreted as factual,” the court held, “the mere fact that the allegedly defamatory statement is published on the Internet does not render it hyperbole.”

Dissenting Justice Daniel Schmidt disagreed with the majority on all fronts. First, calling the Internet “a modern-day leaflet,” he said the Rule 224 standard did not sufficiently protect anonymous speech.

“Plaintiffs routinely plead ‘facts’ which later cannot be proven,” he noted. “If ‘facts’ are pled that lead to the discovery of the speaker’s identity, and then these facts could not later be proven, the harm to anonymous speech is a fait accompli. Granting the previously anonymous speaker summary judgment would not undo the prior harm: disclosure of the speaker’s identity.”

Then, applying the Dendrite-Cahill test, Justice Schmidt argued the statements at issue cannot reasonably be interpreted as stating a fact. The posting of the statements on an Internet forum, he reasoned, “make it clear that the statements are nothing more than conjecture, surmise, and a statement of subjective theory.”

“Any reasonable person,” Schmidt added, “would construe the words for what they were: the venting of one’s spleen by someone disgruntled by the decision of a local body politic.”

How to protect anonymous speech fairly and constitutionally has been a challenge since the First Amendment was adopted. The rise of the Internet both ensures that challenge is not going away and makes it more difficult.

How we view the challenge of protecting anonymous Internet speech, however, ultimately depends on how much Internet defamation we’re willing to accept.

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