Md. Court Weighs Internet Anonymity
Case Pits Free Speech Against Redress for Defamation

By Henri E. Cauvin
Washington Post Staff Writer
Tuesday, December 9, 2008

In a First Amendment case with implications for everything from neighborhood e-mail lists to national newspapers, an Eastern Shore businessman argued to Maryland's highest court yesterday that the host of an online forum should be forced to reveal the identities of people who posted allegedly defamatory comments.

It is the first time the Maryland Court of Appeals has confronted the question of online anonymity, an issue that has surfaced in state and federal courts over the past few years as blogs and other online forums have increasingly become part of the national discourse.

The businessman, Zebulon J. Brodie, contends that he was defamed by comments about his shop, a Dunkin' Donuts in Centreville, posted on The shop was described as one "of the most dirty and unsanitary-looking food-service places I have seen."

The comment was posted in a 2006 exchange among anonymous posters named CorsicaRiver, RockyRacoonMd and others. Brodie is not certain which poster is responsible for that and other remarks that he claims were defamatory, and he has only their screen names. Brodie is demanding that Independent Newspapers Inc., the company that owns the site, divulge the identities of his critics.

A Circuit Court judge in Queen Anne's County ordered the company to hand over the information. The company appealed, setting up yesterday's argument in Annapolis.

In a sign of the significance of the issue, Independent Newspapers has been represented by the litigation arm of Public Citizen, the national consumer advocacy organization, and by a leading First Amendment lawyer, Bruce W. Sanford.

For advocates of strong protections for anonymous speech and the Internet, online chat rooms are the 21st-century successors to the town square and the political pamphlet.

"There's a long tradition in U.S. history of at least anonymous political speech, and certainly when you contemplate the Internet and the new opportunities it offers, this is the way a lot of speech happens," Sam Bayard, assistant director of the Citizens Media Law Project at Harvard Law School, said in an interview.

At the same time, however, many argue that the First Amendment should not become a shield for those responsible for defamatory remarks. The reach of the Internet has allowed anonymous speech to potentially influence more people than ever, compounding the harm of a false claim.

In the case of Independent Newspapers v. Brodie, the right to free speech has bumped up against the right to seek redress in court for civil wrongs.

For a little more than an hour yesterday, Paul Alan Levy, a lawyer for Public Citizen, and E. Sean Poltrack, a lawyer for Brodie, argued before the seven members of the state's high court over how the judges should balance those rights.

Filing a lawsuit would ordinarily allow a plaintiff to begin the process of requesting relevant information to which it is entitled, known as discovery, not only from the defendant but also from third parties such as, in this case, the newspaper company.

But with the defendants' right to express themselves anonymously in the balance, such information should not be easily compelled, Levy argued. Instead, plaintiffs should have to present more evidence in support of their claim than what is typically required to initiate discovery. "Otherwise, you don't have the compelling government interest to set aside the First Amendment right," Levy told the judges."

Judge Joseph F. Murphy Jr., the most active questioner in the case, challenged Levy about how such a showing would be made. Would an affidavit suffice? Would a hearing be necessary? And he wondered whether a trial judge's preliminary determination that the statements could be defamatory would be a sufficient basis for the plaintiff to obtain the identities of the posters.

Levy did not suggest that the right to speak anonymously is absolute. But caution is in order because once anonymity is gone, it cannot be restored, he said.

A number of state courts have heard similar cases, and Levy urged the Maryland judges to follow the lead of New Jersey, where in 2001 an appeals court crafted a standard for cases involving subpoenas to identify anonymous Internet speakers. The court required plaintiffs to produce "sufficient evidence" of their cause of action and mandated that judges balance First Amendment rights against the strength of the plaintiffs' case and the need for identities to be disclosed.

But Poltrack argued that the circuit judge, Thomas G. Ross, conducted a balancing test of his own and concluded that Independent Newspapers was obligated to identify the users sought by Brodie.

Poltrack said that requiring plaintiffs to provide evidence at such an early stage was unfair. "It's a tremendous and onerous burden," he told the judges.

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