FC: More on New Jersey officials sue news website over namecalling

[Declan McCullagh <declan () well com>]

Previous Politech coverage:
http://www.politechbot.com/p-02355.html

And:

http://www.bergenrecord.com/news/pmemd200108165.htm

   [...] Paul Alan Levy, an attorney with the non-profit
   Public Citizen Litigation Group, sent a letter Wednesday to Superior
   Court in Hackensack. He raised questions about officials' attempts to
   force the Internet service provider to identify the 60 people who
   posted messages under anonymous screen names.

   Levy, who argued the Dendrite case, in which a New Jersey appellate
   court upheld the rights of anonymous online critics against companies, said
   the Moldow case is more troubling because it involves public
   officials.

   "We are concerned about people's rights to speak anonymously on the
   Internet," Levy said. "There's no right to go on the Internet and
   libel people, but there need to be procedures in place to protect
   their rights before they are identified." [...]

-Declan

********

Date: Thu, 16 Aug 2001 09:53:13 -0400
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>
Subject: Emerson case

The defendant's lawyer leaked the Emerson letter to the press, so I guess 
it is now public:

http://www.bergenrecord.com/news/pmemd200108165.htm


Here it is, as original except a typo is corrected:

BY TELECOPIER:  201-752-4416

        August 15, 2001

Honorable Mark A. Russello, J.S.C.
Bergen County Justice Center
10 Main Street
Hackensack, New Jersey 07601

                Re: Donato v. Moldow, No. BER-L-6214-01

Dear Judge Russello:

	I write to you as counsel for a potential amicus curiae in this case about 
the request for an expedited subpoena to the Internet Service Provider 
("ISP") VantageNet, seeking information that might lead to the 
identification of several dozen individuals who have posted derogatory 
comments about several public officials in the Borough of Emerson, New 
Jersey.

	This subpoena request raises several concerns.  The persons who posted 
these comments are likely to live in Emerson, where they are subject to the 
governmental authority that the plaintiffs in the case may wield over 
them.  The plaintiffs have made clear that they are very angry about these 
statements, as they are entitled to be given the nature of the comments, 
which, if the allegations in the complaint are to be believed, range from 
some specific factual charges of a potentially damaging nature to other 
comments which make clear that the posters detest the officials.

	However, the Supreme Court of the United States has held that the First 
Amendment protects the right to speak anonymously, McIntyre v. Ohio 
Elections Comm., 514 U.S. 334 (1995), and in a recent case the Appellate 
Division promulgated strict guidelines to balance the rights of anonymous 
speakers in keeping their anonymity against the right of companies that 
have been criticized on the Internet to vindicate their rights under 
contract and tort law to be free of defamatory speech and employees 
revealing trade secrets.  Dendrite v. Doe, 2001 N.J. Super. Lexis 300 (App. 
Div. 2001).  This case presents an even more serious situation, of course, 
because the speech is about public officials.  And we have substantial 
concerns about whether the notice requirements and the substantive 
standards of Dendrite have been satisfied in this case

	In Dendrite, the plaintiffs were required to provide very specific notice 
that informed each defendant of the charges against him or her, and gave 
information about the time and place where they could appear to defend 
their rights to anonymity, as well as giving information about how the 
speakers could find counsel to protect their interests.  The plaintiffs 
were required to identify each of the statements that was alleged to be 
actionable, and to show how those statements were actionable.  Next, the 
plaintiffs were required to provide evidence to support all of the elements 
of their claims.  Finally, assuming that all these tests were met, the 
Court was required to balance the interests of the speakers in anonymity 
against the interest of the plaintiffs in going forward.  And, under 
Dendrite, all of these tests must be met before subpoenas or other 
discovery procedures may be authorized.
        
	Reviewing the complaint, it appears that some of the speech that has been 
alleged in this case could support a defamation claim, assuming that the 
statements were made as alleged and that there is evidence of falsity and 
damages.  On the other hand, we rather doubt that a public official can sue 
a citizen for saying in a public forum, "I hate you."  Thus, it seems to us 
that there is a real need for the careful application of the Dendrite test 
in this case.  The problem is all the greater because, unlike Dendrite 
which was a private company, the plaintiffs here are public officials whose 
possession of state power gives them the automatic ability to cause great 
harm to any citizen of Emerson who is identified through this 
case.  However, the only notice that has been published in this case is a 
short paragraph on an inside page of the web site, which reads as follows:

	On Wednesday, August 1, 2001 the Web Master of The Eye on Emerson, Steve 
Moldow, was served with a lawsuit filed by Vincent Donato, Gina Calogero, 
Larry Campagna and Eric Obernaur (The Plaintiffs). The defendants are Steve 
Moldow, the operator of The Eye on Emerson and approximately 70 anonymous 
users of the web site that are alleged to have posted defamatory and 
harrassing messages about the Plaintiffs. All of the documents, with the 
exception of the exhibits (which are primarily copies of posted messages) 
are available to be viewed by clicking on the links below.

        http://www.geocities.com/emersoneye/lawsuit/contents.html

Unlike the notice in Dendrite, which is posted at 
http://messages.yahoo.com/bbs?.mm=FN&board 
=4688055&tid=drte&sid=4688055&action=m&mid=867, this notice only identifies 
the posters by reference to some other document, and it gives no 
information about how and where posters may appear to defend themselves or 
how they can obtain counsel.  One of the links is to a document specifying 
the time and place for a hearing, but among the purposes of the hearing is 
said to be specifying the way in which notice will be provided to users of 
the existence of the action and of the ways they can obtain counsel.  Thus, 
the notice encourages users to wait until after that hearing to learn how 
they may protect their anonymity.

	Moreover, we believe that given the fact that the speech at issue is core 
political speech (even if some of it is plainly hateful), and given the 
fact that the plaintiffs are public officials, the Court has an additional 
responsibility to ensure that a subpoena for identifying information is not 
issued without a prior assurance that the plaintiff has a valid cause of 
action.  In Dendrite, Judge MacKenzie declined to consider certain 
arguments regarding the privacy of Dendrite employees who had allegedly 
breached their employment contract by speaking online, unless and until 
they appeared in the action to present such arguments.  However, we 
question whether this Court should give government officials authority to 
identify their critics without prior consideration of their privacy rights 
and of the existence of probable cause for the search, regardless of 
whether the citizens have themselves appeared in the matter.

	Unfortunately, it is our understanding that the webmaster, who in our 
judgment has standing to raise the rights of the speakers who have used his 
web site as a forum to voice their concerns about public officials, has 
decided to accept a Consent Order allowing the subpoena to be 
served.   Because the webmaster is also a defendant in the case, and must 
pay his private lawyer for any arguments that he may make, we understand 
the constraints under which he is operating.  However, although that order 
gives a nod in the direction of Dendrite, what Dendrite requires is that 
the Court conduct a certain inquiry before any discovery is 
authorized.  Thus, the Consent Order should not excuse the plaintiffs from 
complying with the strict requirements of Dendrite.

	Public Citizen is the amicus curiae which, along with the American Civil 
Liberties Union of New Jersey, argued for the analysis that was eventually 
adopted in Dendrite; given our concern that the plaintiff in this important 
case may be avoiding the requirements of that decision, we would like to 
have an opportunity to present our concerns to you.  We have contacted the 
ACLU-NJ concerning the role that we might play together in this matter, and 
given time, both amici would be prepared to provide further briefing and to 
participate in a hearing on the First Amendment issues raised by this case. 
Regrettably, given prior commitments to an Internet defendant in a case 
pending in the United States District Court for the Northern District of 
Illinois, I would be unable to attend a hearing before you on August 
17.  Moreover, this is a case seeking damages, and so there would seem to 
be no harm in delaying a hearing on the motion.

	The one concern about delay that does appear substantial to us is that 
identifying information in the hands of the ISP may be destroyed under 
routine procedures.  There are assertions in the affidavit of plaintiff 
Colagero, admittedly made only on the basis of information and belief, 
concerning the procedures followed by VantageNet.   If adequately 
supported, these allegations could support an order to VantageNet to 
preserve evidence, assuming that the Court has jurisdiction of VantageNet, 
which we understand to be located in Minnesota.  The webmaster has agreed 
to preserve any evidence that he has, and perhaps VantageNet would do the 
same, pending a hearing should one be required.  So far as we are aware, 
counsel for neither plaintiffs nor defendant Moldow has been in touch with 
counsel for VantageNet to see whether it would be agreeable to preserving 
information pending a hearing. We have been attempting to contact 
VantageNet to learn what their procedures are, and we think it would be 
appropriate for notice to be given to VantageNet so that its counsel have 
an opportunity to participate in a hearing on such an order.

        Thank you for considering these concerns.

                                                Respectfully yours,


                                                Paul Alan Levy

cc:     Louis Lamatina, Esquire (201-291-0777)
        Jack Darakjy, Esquire (201-261-7978)


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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