FC: New Jersey court rules online critics can remain anonymous

[Declan McCullagh <declan () well com>]

Some background on the Emerson case:
http://www.politechbot.com/cgi-bin/politech.cgi?name=emerson

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From: "Richard Ravin" <Rick () Ravin com>
Subject: Re: Donato v. Moldow (Eye On Emerson); Motion To Quash Filed By 
Anonymous Postsers
Date: Tue, 8 Jan 2002 14:24:41 -0500

FYI, please find the attached.

---

Richard L. Ravin, Esq.
Hartman & Winnicki, P.C.
West 115 Century Rd.
Paramus, NJ 07652
Phone: 201-967-8040 x111
Fax: 201-967-0590
E-Mail: Rick () Ravin com
Web Site: www.Ravin.com                                 January 4, 2001

PRESS RELEASE

Town Officials Barred From Learning
The Names of Online Anonymous Critics

        The New Jersey Superior Court has ruled that plaintiffs alleging 
defamation cannot seek the identities of  anonymous authors who posted 
comments critical of them on a community-based Web site and electronic 
bulletin board.  The anonymous authors were successfully represented by 
Richard L. Ravin, Esq., of Hartman & Winnicki, P.C., who had made a motion 
to quash the subpoena served on the Internet service provider (ISP) of the 
electronic bulletin board.  The subpoena, which was quashed by the court, 
sought the IP addresses of the anonymous authors.  The lawsuit, Donato v. 
Moldow  (Eye On Emerson case), is an important First Amendment ruling in 
that it upholds the right to speak anonymously online.  The court also 
ruled that the complaint against the Web site operator, Stephen Moldow, a 
resident of the Borough of Emerson, would be dismissed with prejudice 
pursuant to the Communications Decency Act.

The case was brought by two members of the Emerson town Council, a 
candidate for the Council and the Chairman of town's Republican Committee 
against anonymous authors using about 40 online screen names (John Does) 
for alleged defamation.  The Eye On Emerson Web site 
(http://www.geocities.com/emersoneye/index.html) and its related electronic 
message board was designed and administered by Moldow to promote good local 
government by encouraging citizens to voice their opinions about government 
affairs.

        In ordering that the identities of the online authors remain 
anonymous, the court cited to the recent New Jersey Appellate Division case 
of Dendrite v. Doe, and held that the plaintiffs failed to satisfy the 
four-part Dendrite test.  The court specifically held that the plaintiffs 
failed to give proper notice of the complaint and subpoena to the anonymous 
posters, and  to adequately identify the exact statements alleged to be 
defamatory or specify why the statements were actionable.  The anonymous 
posters argued that the statements alleged to be defamatory were either 
opinion, name-calling, protected political speech or not properly 
specified.  The court declined to address the other Dendrite issues until 
the plaintiffs give proper notice and the court ascertains whether 
plaintiffs will amend the complaint.   The court also ruled that the 
subpoena was defective because the attached 117 postings exceeded the 
postings and screen names referenced in the complaint.

The anonymous posters and Moldow also moved for dismissal of the harassment 
count, which the court granted because New Jersey does not recognize the 
tort of harassment, notwithstanding that it is a quasi-criminal, petty 
disorderly offense.

        During oral arguments Mr. Ravin noted that anonymous speech is 
hardly a new method of expression, rather it dates back to the founding of 
the U.S. Constitution.  The Federalist Papers were authored anonymously at 
the time of their publication under the pseudonym "Publius".  In fact, the 
essays, which advocated the adoption of the U.S. Constitution in 1787 and 
1788, were actually authored by Alexander Hamilton, John Jay, and James 
Madison.  Interestingly, New Jersey itself has its own historical examples 
of its governmental leaders utilizing anonymous speech.  In 1884, Governor 
William Livingston authored anonymous articles under the pseudonym 
"Scipio", attacking the Legislature's failure to lower taxes and accusing a 
state officer of stealing or losing state money during the British 
invasions of New Jersey.  As recently as 1995, the U.S. Supreme Court 
upheld the right of anonymous speech in the case of McIntyre v. Ohio 
Elections Commission.

        With the advent of the Internet, and in particular, electronic 
chat rooms, bulletin boards, message boards, listservs and the Usenet, it 
is now easier and cheaper than ever to make statements about others 
anonymously.  Increasingly, courts will be called upon to act as the 
gatekeepers of the First Amendment right to speak anonymously.  In the Eye 
On Emerson case, the court followed the rule laid down in  Dendrite, and 
thereby prevented the elected officials and public figures of Emerson (the 
plaintiffs) from discovering the identities of their critics.  Without the 
Dendrite rule, for the mere filing of a complaint and service of a 
subpoena, any person could discover the identity of an anonymous speaker 
who is critical of him or her, and subject that speaker to 
retribution,  harassment or embarrassment, even though the speaker has done 
no wrong, and could not be held liable.

        The Dendrite procedure is unique within the realm of civil 
practice in that it requires plaintiffs, at the very outset of their 
anonymous online speech case, before discovery even starts, to make a prima 
facie showing that they have a meritorious case.  The court  must then 
balance the strength of the plaintiffs' case against the rights of the 
fictitious defendants to remain anonymous.  Only then, would the plaintiffs 
be entitled to compel discovery as to the identities of the speakers.  The 
high bar set for plaintiffs reflects the high value our society places on 
the right to not only speak freely, but anonymously.  This system insures 
that plaintiffs with a meritorious case will be given the discovery they 
need to obtain the identities of the authors who defamed them.  The system 
will also prevent persons from abusing the judicial process by using it 
merely as an instrument to discover the identities of their critics, even 
though their case is frivolous.

        Mr. Ravin is head of the Internet and Intellectual Property Law 
Group at Hartman & Winnicki, P.C., with offices in Paramus, New Jersey and 
New York City.  Van Mejia, an associate with the firm and a member of the 
Group also worked on the Eye On Emerson case.  Mr. Ravin is Co-Chair of the 
Internet Law Committee of the New York State Bar Association.  He can be 
reached via e-mail at: rick () ravin com, or via phone at: (201) 
967-8040.  The firm's Web site is located at: www.hartmanwinnicki.com.




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