Courting Blogs: Legal Cases Are a Mixed Bag

By: Steve Yahn An increasingly significant legal question has emerged: Does Section 230 (see our main story) protect online publishers from revealing the names of any of the many anonymous third-party posters who are filling the blog pipelines at mainstream newspapers and elsewhere?

As in many other aspects of blog law, the prevailing opinion is that Section 230 strongly rises to the defense. In one of the most notable legal cases involving a newspaper ? John Doe 1 v. Cahill in Delaware ? the Supreme Court there ruled that online publishers did not have to reveal the names of third-party posters.

Last fall, that court reversed a lower court decision requiring an Internet service provider to disclose the identity of an anonymous blogger who verbally attacked a local elected official. Those justices said that a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his wife had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog operated by Independent Newspapers Inc., publisher of the Delaware State News.

In invoking "heightened standards" of protection for the anonymous blogger, Chief Justice Myron Steele declared that the Internet was a "unique democratizing medium unlike anything that has come before." Added Steele: "We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."

Specifically, under the standards adopted by the Delaware Supreme Court, a plaintiff must first try to notify the anonymous poster that he is the subject of a subpoena or request for a court to reveal his identity.

Further, the poster should be allowed time to oppose the request. The plaintiff at that point would have to present prima-facie evidence of defamation strong enough to overcome a summary judgment motion.

David Finger, a Wilmington, Del., attorney whose practice includes First Amendment/media law work for such clients as Copley Press Inc., Reuters, and The Philadelphia Inquirer (he also represented Doe 1 in the Cahill case) points out that the Delaware Supreme Court is a high-profile court because of all the corporate law that is handled in the state.

However, beyond Cahill and a similar case in New Jersey ? Dendrite International v. Doe ? this legal playing field is little tested.

Proponents of a more balanced legal view of this issue point to the case in Pennsylvania, Klehr Harrison Harvey Branzburg & Ellers LLP v. JPA Development. In that case, Common Pleas Judge Albert W. Sheppard Jr., after carefully noting "heightened standard" protections for the democratizing power of the Internet (built into Cahill and Dendrite), concluded that traditional standards of weighing a blogger's right to free speech versus a plaintiff's concerns about defamation were enough to test whether an anonymous blogger's identity was required to be revealed.

At the conclusion of his opinion, Judge Sheppard cited a law review by Michael S. Vogel, an adjunct professor of law at the University of Illinois, which stated: "Though well intentioned, the rush to apply new standards [to discovery issues related to anonymous posters to the Internet] should be slowed. The threat to core First Amendment free speech rights from too readily identifying anonymous speakers is real, and should be taken seriously in the courts.

"At the same time, however," Judge Sheppard noted, "the new standards offer little real protection for anonymous speech beyond what the courts can provide under existing rules. In exchange for this limited benefit, however, the grafting of new tests onto existing rules threatens to compromise the values protected by other constitutional provisions, including due process, equal protection, and the right to a trial by jury."

The full libel action was later settled out of court.

Nevertheless, Public Citizen's Paul Alan Levy says that Judge Sheppard's opinion, which now stands as new grounds for legal argument in Internet legal cases, was "unfortunate." He adds, "In general, I thought it overestimated the problems that would be created by following the Dendrite and Cahill approaches and underestimated the problems that would be caused by following his approach. I think Dendrite [in New Jersey] and Cahill [in Delaware] have worked well in the states in which they've been used."