Good new anonymous free speech decision in Arizona Court of Appeals

[David Farber <dave () farber net>]

________________________________________
From: Paul Levy [plevy () citizen org]
Sent: Tuesday, November 27, 2007 4:08 PM
To: David Farber
Subject: Good new anonymous free speech decision in Arizona Court of  Appeals

Over the past few years, courts have begun to adopt two somewhat different approaches to deciding whether to allow 
prospective plaintiffs to identify anonymous Internet speakers for the purported purpose of suing them.  In the 2001 
Dendrite v. Doe decision, New Jersey required the plaintiff to produce evidence that the anonymous speech was wrongful, 
and then called for balancing of the interests of the plaintiff and defendant.  In the 2005 Doe v. Cahill ruling, 
Delaware decided that once there is evidence of wrongdoing, that is enough without any attention to balancing whether, 
for example, the plaintiff is in a position to retaliate against the defendant even without going forward with its 
lawsuit.

For the first time, a court has sat down to think about the difference between the Cahill and Dendrite standards, and 
wholeheartedly (albeit only 2-1) endorsed Dendrite.    The reasons for the two approaches are well discussed in the 
majority and dissenting opinions.


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

> > > Angela Bradbery 11/27/2007 3:59 PM >>>
PUBLIC CITIZEN


For Immediate Release:                                        Contact: Paul Levy (202) 588-1000
Nov. 27, 2007                                                                        Rachel Pleatman (202) 588-7742

In Landmark Ruling, Arizona Appellate Court Upholds
First Amendment Right to Speak Anonymously on the Internet

Court Adopts Reasoning Presented by Public Citizen

WASHINGTON, D.C. - In a landmark ruling issued today in the case of Mobilisa v. Doe, the Arizona Court of Appeals in 
Phoenix upheld the First Amendment right of online anonymity when it has not been abused. The court held that would-be 
plaintiffs suing an anonymous Internet speaker must both present evidence to support their claim and show that their 
interest in identifying the speaker outweighs the speaker’s interest in remaining anonymous.

Following the recommendation of Public Citizen and the Electronic Frontier Foundation (EFF) in a brief filed as amicus 
curiae, the majority opinion by Judge Ann Scott Timmer embraced the approach of New Jersey’s Superior Court, Appellate 
Division. That court, in its pioneering 2001 decision in Dendrite v. Doe, required an explicit balancing of rights even 
after the plaintiff has shown that it has enough evidence to survive “summary judgment” - a request that the case be 
dismissed for lack of merit. The court followed the Dendrite analysis instead of the summary judgment standard used by 
the Delaware Supreme Court in its 2005 decision in Doe v. Cahill.

The case arose from an anonymous message sent to the management team of Mobilisa, a Seattle provider of wireless and 
mobile communication systems, chiding the company’s CEO for an e-mail to his mistress, a copy of which was forwarded 
along with the reproving message. Mobilisa sued the anonymous speaker, claiming that the underlying e-mail must have 
been obtained by hacking into Mobilisa’s computer system. Mobilisa then subpoenaed The Suggestion Box, an Arizona 
company that provided anonymous e-mailing services, to obtain the identity of the anonymous message sender.

The trial court followed the Cahill approach and required the plaintiff to present evidence sufficient to show that its 
suit for trespass to its computer system under state law and for violation of federal statutes protecting the privacy 
of electronic communications could survive a request that the case be dismissed for lack of merit. It then held that 
the evidence presented in response to that ruling was sufficient. The Court of Appeals agreed that the Cahill standard 
had been met but faulted the trial court for failing to take the necessary step of balancing the rights of the Mobilisa 
and Doe before ordering that the defendant’s identity be revealed.

 “The ability to speak or criticize anonymously online is an important tool for whistleblowers to expose misconduct or 
corruption by powerful companies or public figures,” said Paul Alan Levy, the Public Citizen attorney who was the 
principal author of the amicus brief and presented oral argument on behalf of amici curiae. “Speakers often have a good 
reason to remain anonymous when the targets of their criticism have the power to harm them.  This decision strikes the 
right balance to protect online anonymity when it has not been abused and prevent the threat of lawsuits from having a 
chilling effect on this important type of speech.”

Judge Timmer explained that an explicit balancing approach better accommodates the variety of claims that may be 
brought against anonymous defendants; the possibility that, in some cases, significant harm may be suffered by the 
anonymous poster who is identified; and the danger that identification will have a chilling effect on highly protected 
political speech. Because the trial judge did not reach the balancing stage, the appellate court sent the case back to 
the trial court to allow the trial judge to apply that part of the required test. The court of appeals did not indicate 
any view on the outcome of the balancing part of the test.

In a dissenting opinion, Judge Daniel Barker argued that once a plaintiff has presented enough evidence to survive a 
request to dismiss the case for lack of merit, there is no authority for withholding the identity of the anonymous 
speaker, which the plaintiff needs to proceed with the litigation. Judge Susan Ehrlich joined Judge Timmer’s majority 
opinion.

Corynne McSherry of the Electronic Frontier Foundation in San Francisco co-authored the amicus brief, and John Flynn of 
Tiffany & Bosco in Phoenix was co-counsel for Public Citizen and EFF.

To view the ruling and the amicus brief, visit http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=232.

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


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