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The First Amendment Right to Anonymous Speech - DE Ruling as Text
Saturday, October 15 2005 @ 11:40 PM EDT

There's an interesting First Amendment decision [PDF] out of Delaware Supreme Court, which is being noticed by the press and by lawyers, John Doe No. 1 v. Cahill. At issue was anonymous speech on the Internet. A politician wanted to "out" four critics who, he claimed, had defamed him. One of them fought back. The ruling explains the setting:
The defendant-appellant, John Doe No.1, anonymously posted allegedly defamatory statements about the plaintiff-appellee, Cahill, on an internet blog. Cahill brought a defamation action. Seeking to serve process on Doe, Cahill sought to compel the disclosure of his identity from a third party that had the information. A Superior Court judge applied a good faith standard to test the plaintiff’s complaint and ordered the third party to disclose Doe’s identity. Doe appeals from the Superior Court’s order. Because the trial judge applied a standard insufficiently protective of Doe’s First Amendment right to speak anonymously, we reverse that judgment.

As you can see, the ruling speaks of a First Amendment *right* to speak anonymously.

A good faith standard requires a plaintiff to show the following, as the ruling explains: "(1) that they had a legitimate, good faith basis upon which to bring the underlying claim; (2) that the identifying information sought was directly and materially related to their claim; and (3) that the information could not be obtained from any other source." The court chose a higher standard. The article Slashdot linked to explains what happened:

In June, the lower court judge ruled that the Cahills had established a "good faith basis" for contending that they were victims of defamation and affirmed a previous order for Comcast to disclose the bloggers' identities.

One of the bloggers, referred to in court papers only as John Doe No. 1 and his blog name, "Proud Citizen," challenged the ruling, arguing that the Cahills should have been required to establish a prima facie case of defamation before seeking disclosure of the defendants' identities.

The Supreme Court agreed, reversing and remanding the case to Superior Court with an order to dismiss the Cahills' claims.

"Because the trial judge applied a standard insufficiently protective of Doe's First Amendment right to speak anonymously, we reverse that judgment," Chief Justice Myron Steele wrote.

The media and the ruling speak of bloggers, but actually the critics left messages on a public message board. However, the ruling applies to all Internet speech, including blogging.

The judge wrote this about why he chose a higher standard for a plaintiff to meet before the identity of the allegedly defaming defendant could be ordered revealed:

"We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously," Steele wrote. "The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."

He wrote that the internet is a "unique democratizing medium unlike anything that has come before" and equated blogs and chat rooms in some instances with the founding fathers' pamphleteering. For that reason, he held that a plaintiff alleging defamation would have to show evidence of defamation, not mere allegations, sufficient to overcome a defendant's motion for summary judgment. That is a very high standard. The judge was obviously aware that lawsuits are brought sometimes not for money or redress but as a weapon to suppress speech or to intimidate. Here is what he said about the matter:

A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics. The revelation of identity of an anonymous speaker “may subject [that speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes.” Plaintiffs can often initially plead sufficient facts to meet the good faith test applied by the Superior Court, even if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final decision. After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or retribution.

Indeed, there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has noted, “[t]he sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money.” “The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him.” This “sue first, ask questions later” approach, coupled with a standard only minimally protective of the anonymity of defendants, will discourage debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked. . . .

In a case like Ramunno where the plaintiff knows the defendant’s identity, no constitutional harm comes from allowing a silly or trivial claim to survive a motion to dismiss; the trial court can easily dispose of these cases on a motion for summary judgment. In a case like the one at bar, however, substantial harm may come from allowing a plaintiff to compel the disclosure of an anonymous defendant’s identity by simply showing that his complaint can survive a motion to dismiss or that it was filed in good faith. As we intimated in Ramunno, a summary judgment proceeding can dispense with weak or even “silly” libel cases before trial (but even then only after significant expense and anxiety to the parties). Applying a summary judgment standard to a public figure defamation plaintiff’s discovery request to obtain an anonymous defendant’s identity will more appropriately protect against the chilling effect on anonymous First Amendment internet speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass or to unmask their critics.

As you can see, this judge knows how some try to abuse the legal system.

I thought about transcribing the ruling right away, because it's a topic I consider vital, obviously, and because it is an important decision, being the first decision about protecting the anonymity of a blogger, as EFF points out in its coverage:
This is the first state supreme court to rule on a "John Doe" subpoena or to address bloggers' rights.

"Bloggers have a strong First Amendment right to speak anonymously," said Kurt Opsahl, staff attorney at the Electronic Frontier Foundation (EFF). "It is critical that plaintiffs' claims face a stringent test before a court unmasks online critics, lest we reduce the vibrant public debates on the Internet to the cautious views of a select few voices." . . .

Instead, the Court required a stricter standard: the plaintiff must (1) make reasonable efforts to notify the defendant; and (2) provide facts sufficient to defeat a summary judgment motion (i.e., submit enough evidence to show the Court that the case was strong enough to proceed to trial). The Court held that the plaintiffs had not shown that statements made by Proud Citizen met this test, in large part because they were likely to be seen by the Internet audience as statements of opinion.

EFF filed an amicus brief in the case, along with Public Citizen, the American Civil Liberties Union, and the American Civil Liberties Union of Delaware. The Delaware judge points out that anyone who doesn't like what is written about him on a blog or message board has a simple remedy: reach the same audience by writing your own comment, correcting anything you think is untrue.

So I started to transcribe it, but then I saw the decision has 78 footnotes in 34 pages, and while scholarly decisions are wonderful to read and are the kind that influence other courts, they are tedious to code in HTML, and I hand code everything. So, at first, I thought I'd just put the PDF of the ruling in News Picks and let you read it that way.

But then I saw that the Breitbart article has some misinformation which, ironically enough, makes the anonymous critic sound guilty of obscene speech, something the judge said explicitly in his ruling this anonymous defendant wasn't guilty of. I thought it would be a shame for the defendant, accused of defamation, to go down in history falsely represented in the media himself. You see, there was a message board, and a lot of things may have been said by other people, but only one, with the nym Proud Citizen, stood up and challenged the lower court ruling that their identities should be revealed to the politician. The Breitbart article explains, with the misinformation:

In a series of obscenity-laced tirades, the bloggers, among other things, pointed to Cahill's "obvious mental deterioration," and made several sexual references about him and his wife, including using the name "Gahill" to suggest that Cahill, who has publicly feuded with Smyrna Mayor Mark Schaeffer, is homosexual.

That is not accurate. If you note in the ruling, Proud Citizen did not use obscene speech in his comments, which were hardly tirades. I don't know what others did or didn't do. Proud Citizen did write "Gahill" but the judge said, quite correctly, that it could be just a typo: "Using a 'G' instead of a 'C' as the first letter of Cahill’s name is just as likely to be a typographical error as an intended misguided insult." The judge puts the two comments Proud Citizen posted in their entirety into the ruling, so judge for yourself:

The first of Doe’s statements, posted on September 18, 2004, said:
If only Councilman Cahill was able to display the same leadership skills, energy and enthusiasm toward the revitalization and growth of the fine town of Smyrna as Mayor Schaeffer has demonstrated! While Mayor Schaeffer has made great strides toward improving the livelihood of Smyrna’s citizens, Cahill has devoted all of his energy to being a divisive impediment to any kind of cooperative movement. Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration. Cahill is a prime example of failed leadership – his eventual ousting is exactly what Smyrna needs in order to move forward and establish a community that is able to thrive on its own economic stability and common pride in its town.

The next day, Doe posted another statement:

Gahill [sic] is as paranoid as everyone in the town thinks he is. The mayor needs support from his citizens and protections from unfounded attacks....
These were the only two internet postings attributed to Doe or mentioned in the Cahills’ complaint.

Does that sound like an "obscenity-laced tirade" to you? Me either.

And then I read some comments on the story on Slashdot, and I was surprised at how many people thought there was no right to anonymous speech, that you should be "man enough" to stand behind what you say by putting your name on it. So I decided to transcribe the ruling and also to explain a little about the fundamental legal principles on which the US was founded. Yes, anonymous speech is built into the US Constitution. This is a history lesson, not talking about any current events or delving into politics at all. It's about the First Amendment and how it might protect you too one day. Here's a relevant section from the ruling:

The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate. Unlike thirty years ago, when “many citizens [were] barred from meaningful participation in public discourse by financial or status inequalities and a relatively small number of powerful speakers [could] dominate the marketplace of ideas” the internet now allows anyone with a phone line to “become a town crier with a voice that resonates farther than it could from any soapbox.” Through the internet, speakers can bypass mainstream media to speak directly to “an audience larger and more diverse than any the Framers could have imagined.” Moreover, speakers on internet chat rooms and blogs can speak directly to other people with similar interests. A person in Alaska can have a conversation with a person in Japan about beekeeping in Bangladesh, just as easily as several Smyrna residents can have a conversation about Smyrna politics.

Internet speech is often anonymous. “Many participants in cyberspace discussions employ pseudonymous identities, and, even when a speaker chooses to reveal her real name, she may still be anonymous for all practical purposes.” For better or worse, then, “the audience must evaluate [a] speaker’s ideas based on her words alone.” “This unique feature of [the internet] promises to make public debate in cyberspace less hierarchical and discriminatory” than in the real world because it disguises status indicators such as race, class, and age.

It is clear that speech over the internet is entitled to First Amendment protection. This protection extends to anonymous internet speech. Anonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering. As the United States Supreme Court recently noted, “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.”

So, I did transcribe it after all, kind of fast, because I'm busy doing lots of other things, so please excuse any minor errors. But if Groklaw ever gets so busy I have no time or heart to write about the importance of anonymous speech, I might as well fold my tent and head on home. So, a little history about the First Amendment.

The founding fathers of the United States were predominantly people who came here seeking escape from religious and political persecution. Europe, you'll recall from your school days, had a long history of persecuting religious and political minorities, including by such things as torture, and on a larger scale, religious wars. I remember studying in school about England, and it seemed to me every time a new king or queen came to power, whatever the monarch's religion was, everyone else had to be that religion too, and then the next one would come to power, and if the previous ruler had been Catholic and the new one Protestant, everyone had to switch their loyalties or be persecuted. That's not an attack on Europe, and plenty has happened elsewhere before and since, including here, but those pilgrims who got on uncertain ships with all their worldly goods to seek a better life had experienced, or had relatives who had experienced, what it means to stand up for what you believe and knew what it can cost a man in an intolerant regime.

So when they got here, anonymous pamphleteering was a very popular method of publishing one's ideas, and I doubt the Revolutionary War could have happened without anonymous speech. How do you influence others if every time someone opens his mouth, he is jailed, executed, or humiliated or tortured into obedient silence?

The Federalist Papers were written anonymously, for example. One of the writers who used a pen name to contribute to the Federalist Papers, James Madison, often called the Father of the Constitution, went on to become President of the United States. Ben Franklin wrote anonymously sometimes too. It's an American tradition, as American as apple pie. The prudent founding fathers coped with difficult times and intolerance with practical methods designed to protect a man's ability to keep speaking safely. The whole point of the Federalist Papers was to get readers to support the Constitution, and it worked.

So, anonymous speech in the US holds an honored place, some Slashdot readers notwithstanding. The very First Amendment to the Constitution says that the government has no authority to establish what is "proper" speech or to make people say things they don't believe or want to say. It was a revolutionary idea at the time, breaking completely with the European tradition.

Why did the founding fathers think this issue of anonymity was so vital they composed the First Amendment to protect speech? Here's how the Electronic Privacy Information Center Archive answers, and I'm happy to say a thoughtful reader posted this on Slashdot:

"Anonymity is a shield from the tyranny of the majority ... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society."

From this one quotation alone, you can probably understand why I allow anonymous comments on Groklaw, despite the few that sometimes abuse it. The First Amendment applies to the government, but one can broadly apply the principle. People talk about their rights to say whatever they wish, but the true right is the right to speak honestly without being viciously attacked for it. That is the historic American tradition of free speech, that you can express your true beliefs, and there is no penalty for doing so.

The Constitution stands between the unpopular idea and any governmental entity wishing to punish anyone espousing that unpopular idea. The idea the founding fathers had is this: in a democracy, everything depends on an educated population, on a dynamic marketplace of ideas, and so protecting free expression was considered so vital, it was made a foundation legal value. They were sick of persecution and pressure to think or say anything but what they really did think or really want to say.

That foundation value comes under fire, naturally, from time to time, because some folks like to muscle other people, unfortunately. Sometimes, they use the courts to try to do that, which you'll see in this ruling, is well known to the courts. The court's job is to weigh the equities between the plaintiff and the defendant, or as the judge in this case put it, "Accordingly, we must adopt a standard that appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation." Above all else, the court's job is to hold inviolate Constitutional principles, and in this case the judge did so.

He had the opportunity to do so because one of the four accused, Proud Citizen, was willing to stand tall and defend his First Amendment right to anonymous speech. The case does not say, of course, that it is acceptable to defame. There is no First Amendment right to do so, and the ruling explains where the line is. The ruling does say that if you accuse someone of defamation, unless you have evidence to support your allegation, you can't abuse the legal system or use the courts by filing silly or trivial lawsuits just to threaten or intimidate or unmask the identify of a critic. You can file them, but they won't get very far.

Please note that I broke with my usual habit of putting all the footnotes at the end. In this case, the ruling is so long and complex, I thought it was more helpful to put footnotes on the page they are found on in the original.

*******************************

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOHN DOE NO. 1,

Movant Below,
Appellant, v.

PATRICK CAHILL and
JULIA CAHILL,

Plaintiffs Below,
Appellees.

____________________________

No. 266, 2005

Court Below: Superior Court
of the State of Delaware in and
and for New Castle County

C.A. No. 04C-011-022

____________________________

Submitted: September 7, 2005
Decided: October 5, 2005

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and
RIDGELY, Justices, constituting the court en banc.

Upon appeal from the Superior Court. REVERSED and REMANDED to
the Superior Court with instructions to DISMISS.

David L. Finger of Finger & Slanina, LLC, Wilmington, Delaware for appellant.

Robert J. Katzenstein (argued) and Robert K. Beste, III of Smith, Katzenstein & Furlow, LLP, Wilmington, Delaware for appellees.

Paul Alan Levy (argued) and Allison M. Zieve of Public Citizen Litigation Group, Washington, DC; Norman M. Monhait of Rosenthal Monhait Gross & Goddess, P.A., Wilmington, Delaware; Lawrence A. Hamermesh of Widener University School of Law, Wilmington, Delaware, for amici curiae.

STEELE, Chief Justice:

1

The defendant-appellant, John Doe No.1, anonymously posted allegedly defamatory statements about the plaintiff-appellee, Cahill, on an internet blog. Cahill brought a defamation action. Seeking to serve process on Doe, Cahill sought to compel the disclosure of his identity from a third party that had the information. A Superior Court judge applied a good faith standard to test the plaintiff’s complaint and ordered the third party to disclose Doe’s identity. Doe appeals from the Superior Court’s order. Because the trial judge applied a standard insufficiently protective of Doe’s First Amendment right to speak anonymously, we reverse that judgment.

I.

On November 2, 2004, the plaintiffs below, Patrick and Julia Cahill, both residents of Smyrna, Delaware, filed suit against four John Doe defendants asserting defamation and invasion of privacy claims. This appeal involves only one of the John Doe defendants, John Doe No. 1 below and “Doe” in this opinion. Using the alias “Proud Citizen,” Doe posted two statements on an internet website sponsored by the Delaware State News called the “Smyrna/Clayton Issues Blog” 1 concerning Cahill’s performance as a City Councilman of Smyrna. The “Guidelines” at the top of the blog stated “[t]his is your hometown forum for

---------------

1 Available at http://newsblog.info/0405 (statements at issue are no longer available on the website).

2

opinions about public issues.” The first of Doe’s statements, posted on September 18, 2004, said:
If only Councilman Cahill was able to display the same leadership skills, energy and enthusiasm toward the revitalization and growth of the fine town of Smyrna as Mayor Schaeffer has demonstrated! While Mayor Schaeffer has made great strides toward improving the livelihood of Smyrna’s citizens, Cahill has devoted all of his energy to being a divisive impediment to any kind of cooperative movement. Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration. Cahill is a prime example of failed leadership – his eventual ousting is exactly what Smyrna needs in order to move forward and establish a community that is able to thrive on its own economic stability and common pride in its town. 2

The next day, Doe posted another statement:

Gahill [sic] is as paranoid as everyone in the town thinks he is. The mayor needs support from his citizens and protections from unfounded attacks.... 3

These were the only two internet postings attributed to Doe or mentioned in the Cahills’ complaint.

Pursuant to Superior Court Rule 30, the Cahills sought and obtained leave of the Superior Court to conduct a pre-service deposition of the owner of the internet blog, Independent Newspapers. After obtaining the IP addresses associated with the blog postings from the blog’s owner, the Cahills learned that Comcast

----------------------

2Compl. ¶ 7 (emphasis added).

3Id. at ¶ 8 (emphasis added).

3

Corporation owned Doe’s IP address. An IP address is an electronic number that specifically identifies a particular computer using the internet. IP addresses are often owned by internet service providers who then assign them to subscribers when they use the internet. These addresses are unique and assigned to only one ISP subscriber at a time. Thus, if the ISP knows the time and the date that postings were made from a specific IP address, it can determine the identity of its subscriber.

Armed with Doe’s IP address, the Cahills obtained a court order requiring Comcast to disclose Doe’s identity. As required by Federal Statute4, when Comcast received the discovery request, it notified Doe. On January 4, 2005, Doe filed an “Emergency Motion for a Protective Order” seeking to prevent the Cahills from obtaining his identity from Comcast. The Superior Court heard argument on the motion on January 7. Following the argument, the trial judge invited supplemental briefing and both Doe and the Cahills submitted additional argument.

On June 14, 2005, the trial judge issued a memorandum opinion denying Doe’s motion for a protective order. The Superior Court judge adopted a “good faith” standard for determining when a defamation plaintiff could compel the disclosure of the identity of an anonymous plaintiff. Under the good faith

------------------------

4 47 U.S.C. 551(c)(2) requires a court order to a cable ISP and notice to the ISP subscriber before an ISP can disclose the identity of its subscriber to a third party.

4

standard, the Superior Court required the Cahills to establish: (1) that they had a legitimate, good faith basis upon which to bring the underlying claim; (2) that the identifying information sought was directly and materially related to their claim; and (3) that the information could not be obtained from any other source. Applying this standard, the Superior Court held that the Cahills could obtain Doe’s identity from Comcast. 5 Doe filed an interlocutory appeal, which we accepted on June 28, 2005.

II.

In this case, Doe claims that the trial judge incorrectly applied a good faith standard when he denied the motion for a protective order. A claim that a trial court applied an incorrect legal standard raises a question of law that we review de novo. 6

III.

A.

The internet is a unique democratizing medium unlike anything that has come before. The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate. Unlike thirty years ago, when “many citizens [were] barred from meaningful participation

------------------------

5Memorandum Opinion, C.A. No. 04C-11-022, June 14, 2005 at 19.

6 Epstein v. Matsushita Elec. Indus. Co. (In re MCA, Inc. S'holder Litig.), 785 A.2d 625, 638 (Del. 2001) (citing Ison v. E.I. Dupont De Nemours & Co., 729 A.2d 832, 847 (Del. 1999)).

5

in public discourse by financial or status inequalities and a relatively small number of powerful speakers [could] dominate the marketplace of ideas” 7 the internet now allows anyone with a phone line to “become a town crier with a voice that resonates farther than it could from any soapbox.” 8 Through the internet, speakers can bypass mainstream media to speak directly to “an audience larger and more diverse than any the Framers could have imagined.” 9 Moreover, speakers on internet chat rooms and blogs can speak directly to other people with similar interests. A person in Alaska can have a conversation with a person in Japan about beekeeping in Bangladesh, just as easily as several Smyrna residents can have a conversation about Smyrna politics.

Internet speech is often anonymous. “Many participants in cyberspace discussions employ pseudonymous identities, and, even when a speaker chooses to reveal her real name, she may still be anonymous for all practical purposes.” 10 For better or worse, then, “the audience must evaluate [a] speaker’s ideas based on her words alone.” 11 “This unique feature of [the internet] promises to make public

--------------------

7Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 896 (2000).

8Reno v. ACLU, 521 U.S. 844, 896-97 (1997).

9Lidsky, supra note 7, at 895 (citations omitted).

10Id.

11Id. at 896.

6

debate in cyberspace less hierarchical and discriminatory” than in the real world because it disguises status indicators such as race, class, and age.12

It is clear that speech over the internet is entitled to First Amendment protection.13 This protection extends to anonymous internet speech.14 Anonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering. As the United States Supreme Court recently noted, “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.”15 The United States Supreme Court continued, “[t]he right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.” 16

It also is clear that the First Amendment does not protect defamatory speech. “[I]t is well understood that the right of free speech is not absolute at all times and

------------------------

12Id.

13Reno v. ACLU, 521 U.S. 844 (1997) (There is “no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”).

14See, e.g., Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1097 (W.D. Wash. 2001) (“[T]he constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.”).

15McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995).

16Id.

7

under all circumstances.” 17 Certain classes of speech, including defamatory and libelous speech, are entitled to no Constitutional protection. “It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” 18 Accordingly, we must adopt a standard that appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation.

III.

B.

In this case, this Court is called upon to adopt a standard for trial courts to apply when faced with a public figure plaintiff’s discovery request that seeks to unmask the identity of an anonymous defendant who has posted allegedly defamatory material on the internet. Before this Court is an entire spectrum of “standards” that could be required, ranging (in ascending order) from a good faith basis to assert a claim, to pleading sufficient facts to survive a motion to dismiss, to a showing of prima facie evidence sufficient to withstand a motion for summary judgment, and beyond that, hurdles even more stringent. The Cahills urge this Court to adopt the good faith standard applied by the Superior Court. We decline to

-----------------

17 Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942).

18 Id.

8

do so. Instead we hold that a defamation plaintiff must satisfy a “summary judgment” standard before obtaining the identity of an anonymous defendant.

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. A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics. The revelation of identity of an anonymous speaker “may subject [that speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes.” 19 Plaintiffs can often initially plead sufficient facts to meet the good faith test applied by the Superior Court, even if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final decision. After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or retribution.

-------------------------

19 Lidsky, supra note 7 at 890.

9

Indeed, there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has noted, “[t]he sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money.” 20 “The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him.” 21 This “sue first, ask questions later” approach, coupled with a standard only minimally protective of the anonymity of defendants, will discourage debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked.

The parties inform us that we are the first State Supreme Court to address this issue, particularly in the context of a case involving political criticism of a public figure. In the past, this issue has most frequently been presented in cases where publicly traded companies have sued anonymous internet posters for statements that allegedly defamed those companies. In In re Subpoena to AOL 22, a Virginia trial court adopted the good faith standard for determining whether to grant a defamation plaintiff’s discovery request seeking to unmask the identity of an anonymous defendant. Indeed, in this very case, the Superior Court derived its

----------------------

20Id. at 872.

21 Id. at 859.

22 In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372, 2000 Va. Cir. LEXIS 220 (Va. Cir. Ct. 2000), rev’d on other grounds, 542 S.E.2d 377 (Va. 2001).

10

standard from the AOL opinion. The AOL Court held that a trial court should order a non-party ISP to provide information concerning the identity of an anonymous subscriber only (1) when the court is satisfied by the pleadings or the evidence supplied to that court (2) that the party requesting the subpoena had a legitimate, good faith basis to contend that it may be the victim of actionable conduct and (3) the subpoenaed identity information is centrally needed to advance that claim. 23 In our view, this “good faith” standard is too easily satisfied to protect sufficiently a defendant’s right to speak anonymously. As one of our recent decisions, Ramunno v. Cawley, 24 illustrates, even the more stringent motion to dismiss standard, the middle option in the spectrum of standards from which we may choose, falls short of providing sufficient protection to a defendant’s First Amendment right to speak anonymously.

III.

C.

Long-settled doctrine governs this Court’s review of dismissals under Rule 12(b)(6). 25 Under that doctrine, the threshold for the showing a plaintiff must make

--------------------

23

Id. at *8.

24

705 A.2d 1029 (Del. 1998)

25Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998).

11

to survive a motion to dismiss is low. Delaware is a notice pleading jurisdiction. 26 Thus, for a complaint to survive a motion to dismiss, it need only give “general notice of the claim asserted.”27 A court can dismiss for failure to state a claim on which relief can be granted only if “it appears with reasonable certainty that the plaintiff could not prove any set of facts that would entitle him to relief.” 28 On a motion to dismiss, a court’s review is limited to the well-pleaded allegations in the complaint. 29 An allegation, “though vague or lacking in detail” can still be wellpleaded so long as it puts the opposing party on notice of the claim brought against it. 30 Finally, in ruling on a motion to dismiss under Rule 12(b)(6), a trial court must draw all reasonable factual inferences in favor of the party opposing the motion. 31

In Ramunno, this Court unanimously reversed the Superior Court’s decision to dismiss a plaintiff’s libel suit for failure to state a claim based “solely on pleading rules.” 32 Ramunno was a typical libel case in that the plaintiff, who was

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26VLIW Tech., L.L.C. v. Hewlett-Packard Co., 840 A.2d 606, 611 (Del. 2003).

27 Ramunno, 705 A.2d at 1034 (citing Solomon v. Pathe Communications Corp., 672 A.2d 35, 38 (Del. 1996)).

28 Id. (citing Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).

29 Id. (citing In re Santa Fe Pac. Corp. Shareholder Litig., 669 A.2d 59, 65 (Del. 1995) (citing In re Tri-Star Pictures, Inc. Litig., 634 A.2d 319, 326 (Del. 1993)).

30 VLIW Tech., 840 A.2d at 611.

31 Ramunno, 705 A.2d at 1034 (citing Solomon, 672 A.2d at 38) (other citations omitted).

32 Id. at 1031.

12

not a public figure, knew the defendants’ identities. In his complaint, the plaintiff alleged that one defendant made certain false descriptions of the plaintiff’s property holdings in a letter to the Mayor of Wilmington, a copy of which went to The News Journal. 33 The Superior Court granted that defendant’s motion to dismiss, partly on the grounds that the description in the letter was substantially true. 34 Overturning the trial court, we noted that:
[w]e [did] not necessarily disagree with the substance of [the trial court’s] finding. The trier of fact might very well find that the error was immaterial and that the controversy itself is trivial. Indeed, on a summary judgment record or at trial, the defendants may be successful in portraying this dispute as silly. 35

Nevertheless, we held that the Superior Court had erred in dismissing the complaint because it failed to draw every reasonable factual inference in favor of the plaintiff, as required by existing precedent. 36

This is not to suggest that the Ramunno decision was wrongly decided, for it was not. Ramunno clarified how courts of this state must apply the Rule 12(b)(6) standard. We cite Ramunno only to illustrate that even silly or trivial libel claims can easily survive a motion to dismiss where the plaintiff pleads facts that put the

-------------------------

33Id. at 1032.

34 Id. at 1036.

35 Id. (emphasis added).

36 Id.

13

defendant on notice of his claim, however vague or lacking in detail these allegations may be. Clearly then, if the stricter motion to dismiss standard is incapable of screening silly or trivial defamation suits, then the even less stringent good faith standard is less capable of doing so.

In a case like Ramunno where the plaintiff knows the defendant’s identity, no constitutional harm comes from allowing a silly or trivial claim to survive a motion to dismiss; the trial court can easily dispose of these cases on a motion for summary judgment. In a case like the one at bar, however, substantial harm may come from allowing a plaintiff to compel the disclosure of an anonymous defendant’s identity by simply showing that his complaint can survive a motion to dismiss or that it was filed in good faith. As we intimated in Ramunno, a summary judgment proceeding can dispense with weak or even “silly” libel cases before trial (but even then only after significant expense and anxiety to the parties). Applying a summary judgment standard to a public figure defamation plaintiff’s discovery request to obtain an anonymous defendant’s identity will more appropriately protect against the chilling effect on anonymous First Amendment internet speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass or to unmask their critics.

14

Another court has addressed this issue and reached the same conclusion. In Dendrite Intl., Inc. v. Doe37 , an intermediate New Jersey appellate court adopted a standard more stringent than either the motion to dismiss or the good faith standard. Dendrite involved a corporate defamation plaintiff seeking to obtain the identity of an anonymous defendant who posted comments about the corporation on an internet message board. The Dendrite court held that to decide whether to grant discovery to a plaintiff, a court should carefully review the complaint, and all information provided to the court in addition to the complaint, to determine if the plaintiff has set forth a prima facie cause of action against the fictitiously named anonymous defendants.38 The court went on to say:
[i]n addition to establishing that its action can withstand a motion to dismiss for failure to state a claim for which relief can be granted pursuant [to New Jersey court rules], the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.39

Applying its standard to the facts of the case before it, the Dendrite Court held that:

[a]lthough [the corporation’s] defamation claims would survive a traditional motion to dismiss for failure to state a cause of action, we conclude the motion judge appropriately reviewed [the corporation’s]

-----------------------

37775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).

38Id. at 760.

39Id.

15

claim with a level of scrutiny consistent with the procedures and standards we adopt here today, and therefore the judge properly found [the corporation] should not be permitted to conduct limited discovery aimed at disclosing [Doe’s] identity. 40

We conclude that the summary judgment standard is the appropriate test by which to strike the balance between a defamation plaintiff’s right to protect his reputation and a defendant’s right to exercise free speech anonymously. We accordingly hold that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion. We do not, however, specifically adopt the holding in Dendrite. As originally set forth, the Dendrite test has four parts. It requires a plaintiff:

(1) to undertake efforts to notify the anonymous poster that he is the subject of a subpoena or application for an order of disclosure, and to withhold action to afford the anonymous defendant a reasonable opportunity to file and serve opposition to the application. In the internet context, the plaintiff’s efforts should include posting a message of notification of the discovery request to the anonymous defendant on the same message board as the original allegedly defamatory posting;

(2) to set forth the exact statements purportedly made by the anonymous poster that the plaintiff alleges constitute defamatory speech; and

(3) to satisfy the prima facie or “summary judgment standard.” 41

------------------

40Id. at 771.

41Id. at 760.

16

Finally, after the trial court concludes that the plaintiff has presented a prima facie cause of action, the Dendrite test requires the trial court to:
(4) balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie, case presented and the necessity for the disclosure of the anonymous defendant’s identity in determining whether to allow the plaintiff to properly proceed. 42

We retain the notification provision in theDendrite test. Thus, to the extent reasonably practicable under the circumstances, the plaintiff must undertake efforts to notify the anonymous poster that he is the subject of a subpoena or application for order of disclosure. The plaintiff must also withhold action to afford the anonymous defendant a reasonable opportunity to file and serve opposition to the discovery request. Moreover, when a case arises in the internet context, the plaintiff must post a message notifying the anonymous defendant of the plaintiff’s discovery request on the same message board where the allegedly defamatory statement was originally posted.

The notification provision imposes very little burden on a defamation plaintiff while at the same time giving an anonymous defendant the opportunity to respond. When First Amendment interests are at stake we disfavor ex parte discovery requests that afford the plaintiff the important form of relief that comes from unmasking an anonymous defendant. While in this case a Federal Statute

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42Id. at 760-761.

17

required that Comcast notify Doe of Cahill’s discovery request, in future cases this type of statute may not exist. Accordingly, regardless of the medium in which the allegedly defamatory statement is published, the plaintiff must undertake reasonable efforts to notify the anonymous defendant of the discovery request and must withhold action to allow the defendant an opportunity to respond.

While the first prong of the Dendrite test adds a layer of protection to a defendant’s First Amendment right to speak anonymously in addition to the showing required under the summary judgment standard, we do not think that the second and fourth prongs of the Dendrite test are necessary. The second requirement, that the plaintiff set forth the exact defamatory statements, is subsumed in the summary judgment inquiry. To satisfy the summary judgment standard a plaintiff will necessarily quote the defamatory statements in his complaint. The fourth Dendrite requirement, that the trial court balance the defendant’s First Amendment rights against the strength of the plaintiff’s prima facie case is also unnecessary. The summary judgment test is itself the balance. The fourth requirement adds no protection above and beyond that of the summary judgment test and needlessly complicates the analysis. Accordingly, we adopt a modified Dendrite standard consisting only of Dendrite requirements one and three: the plaintiff must make reasonable efforts to notify the defendant and must satisfy the summary judgment standard.

18

III.

D.

The Cahills argue that the Delaware Constitution gives great weight to the importance of affording remedies to recompense damage to one’s reputation and, accordingly, we should adopt a good faith standard for deciding discovery requests to unmask anonymous defendants in defamation cases. We disagree. As we noted recently in Kanaga v. Gannett Co., 43 two sections of the Delaware Bill of Rights are applicable in a case that involves the balancing of the First Amendment right to speak and an individual’s right to protect his reputation: Article I, Section 5 and Article I, Section 9. The relevant portion of Section 5 provides:
The press shall be free to every citizen who undertakes to examine the official conduct of persons acting in a public capacity; and any citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. 44

Similarly, Section 9, the so-called “remedies” or “open courts” clause, provides in relevant part:

[a]ll courts shall be open; and every man for an injury done him in his reputation, person, movable or immovable possessions, shall have remedy by the due course of law, and justice administered according to the very right of the cause and the law of the land, without sale, denial, or unreasonable delay or expense.... 45

-----------------------

43687 A.2d 173 (Del. 1996).

44DEL. CONST. art. I, § 5., (emphasis added).

45DEL. CONST. art. I, § 9. (emphasis added).

19

In Kanaga we interpreted these clauses to establish a “strong state constitutional basis for remedies to recompense damage to one’s reputation.” 46 Accordingly, “the protection afforded to reputations by the Delaware Constitution weighs heavily in the balance of the analysis involving constitutionally protected speech.” 47 Although those provisions of the Delaware Constitution “weigh in the balance” of our analysis in the case at bar, that weight is not conclusive. We are required to weigh against those provisions the fact that this case, unlike Kanaga, involves a public figure and political speech. Moreover and more importantly, as noted above, we must also weigh the fact that allowing a defamation plaintiff to unmask an anonymous defendant’s identity through the judicial process is a crucial form of relief that if too easily obtained will chill the exercise of First Amendment rights to free speech. Kanaga did not address these important values; it is, therefore, distinguishable.

In Kanaga we addressed the issue of when allegedly defamatory speech could qualify as “opinion” and thereby become entitled to protection under the First Amendment. We noted that a statement of opinion “would be actionable if it implies the allegation of undisclosed defamatory facts as the basis for the

------------------------

46Id. at 177.

47 Id.

20

opinion.” 48 Kanaga offers little, if any, guidance on how to effect a balance between one individual’s right to protect his reputation and another’s right to engage anonymously in speech protected by the First Amendment. Given those countervailing concerns, we are unable to conclude that the Delaware Constitution’s reference to protecting one’s reputation strongly supports setting the showing a plaintiff must make to unmask an anonymous defendant at the low thresholds of the good faith or motion to dismiss standards. A summary judgment standard more appropriately balances a defamation plaintiff’s right to protect his reputation and a defendant’s right to speak anonymously.

III.

E.

Although a good faith or motion to dismiss standard sets the bar too low to protect a defendant’s First Amendment right to speak anonymously on the internet, a summary judgment standard does not correspondingly set the bar too high for a defamation plaintiff seeking redress for reputational harm to obtain relief. What follows are our reasons for reaching this conclusion.

In deciding a motion for summary judgment, “a trial court shall examine the factual record and make reasonable inferences therefrom in the light most favorable to the nonmoving party to determine if there is any dispute of material

------------------

48Id. at 179.

21

fact.” 49 “[I]f from the evidence produced there is a reasonable indication that a material fact is in dispute or if it appears desirable to inquire more thoroughly into the facts in order to clarify application of the law, summary judgment is not appropriate.” 50 Thus, to obtain discovery of an anonymous defendant’s identity under the summary judgment standard, a defamation plaintiff “must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question.” 51 In other words, the defamation plaintiff, as the party bearing the burden of proof at trial, must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within the plaintiff’s control.

Under Delaware law, a public figure defamation plaintiff in a libel case must plead and ultimately prove that: 1) the defendant made a defamatory statement; 2) concerning the plaintiff; 3) the statement was published; and 4) a third party would understand the character of the communication as defamatory. 52 In addition, the public figure defamation plaintiff must plead and prove that 5) the statement is false 53 and 6) that the defendant made the statement with actual malice. 54 Finally,

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49AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., 871 A.2d 428, 444 (Del. 2005).

50Id.

51Colgain v. Oy-Partek Ab (In re Asbestos Litig.), 799 A.2d 1151, 1152 (Del. 2002).

52Read v. Carpenter, 1995 WL 945544, *2; 1995 Del. Super. LEXIS 251 (Del. Super. 1995).

53Philadelphia Newspapers v. Hepps., 475. U.S. 767 (1986).

22

“[p]roof of damages proximately caused by a publication deemed libelous need not be shown in order for a defamed plaintiff to recover nominal or compensatory damages.” 55

The first element is perhaps the most important. Whether or not a statement is defamatory is a question of law. 56 In answering this question, Delaware courts must determine: “first, whether alleged defamatory statements are expressions of fact or protected expressions of opinion; and [second], whether the challenged statements are capable of a defamatory meaning.” 57 Because this question is one of law, a judge can just as easily make the determination under a summary judgment standard as under a motion to dismiss standard or a good faith standard. The judge will have before him the allegedly defamatory statements and can determine whether they are defamatory based on the words and the context in which they were published. In short, insofar as the question is one of law, the summary

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54New York Times v. Sullivan, 376 U.S. 254 (1964).

1Spence v. Funk, 396 A.2d 967, 970 (Del. 1978). Doe and the amici curiae, in this case argue extensively that we should change Delaware libel law to require that a libel plaintiff must plead and prove damages. This is contrary to the settled law of libel. As we noted in Spence “[t]he general rule is that any publication which is libelous on its face is actionable without pleading or proof of special damages.” We see no reason to change this rule here.

56Riley v. Moyed, 529 A.2d 248, 251 (Del. 1987).

57Id.

23

judgment standard imposes no heavier burden than would any other standard with respect to the first element.

The second element of a libel claim requires that the plaintiff show that the allegedly defamatory statement concerns the plaintiff. In most cases, this will be apparent from the face of the statement. In cases where it is not facially apparent, to satisfy this element the plaintiff can, by affidavit or verified complaint, offer particular facts that establish that the statement refers to him. For example, additional factual averments might be necessary when the allegedly defamatory statement refers to the plaintiff by a nickname.

The plaintiff should also have easy access to proof that the statement was published. He can produce a computer print-out of the statements made over the internet or simply direct the court to the specific website where the statements were made should they still be available.

With respect to the fourth element of a libel claim, the plaintiff can present third party affidavits demonstrating a third party’s understanding of the statements as defamatory. Similarly, to establish the fifth element of the public figure defamation claim, which requires some proof that the statement is false, the plaintiff can offer his own factually based averment that the statements are false.

Finally, we are mindful that public figures in a defamation case must prove that the defendant made the statements with actual malice. Without discovery of

24

the defendant’s identity, satisfying this element may be difficult, if not impossible. Consequently, we do NOT hold that the public figure defamation plaintiff is required to produce evidence on this element of the claim. We hold only that a public figure plaintiff must plead the first five elements and offer prima facieproof on each of the five elements to create a genuine issue of material fact requiring trial. In other words, a public figure defamation plaintiff must only plead and prove facts with regard to elements of the claim that are within his control.

Given that the plaintiff will have easy access to proof of five of the six elements of a defamation claim, it is not overly burdensome to require the plaintiff to submit a verified complaint or affidavits to substantiate that claim. In short, under the summary judgment standard, scrutiny is likely to reveal a silly or trivial claim, but a plaintiff with a legitimate claim should be able to obtain the identity of an anonymous defendant and proceed with his lawsuit. Delaware trial judges will then still provide a potentially wronged plaintiff with an adequate means of protecting his reputation thereby assuring that our courts remain open to afford redress of injury to reputation caused by the person responsible for abuse of the right to free speech. 58

Besides the legal remedies available to a plaintiff wronged by internet defamation, the potential plaintiff has available a very powerful form of extra-

----------------------

58See DEL. CONST. art. I, § 5, 9.

25

judicial relief. The internet provides a means of communication where a person wronged by statements of an anonymous poster can respond instantly, can respond to the allegedly defamatory statements on the same site or blog, and thus, can, almost contemporaneously, respond to the same audience that initially read the allegedly defamatory statements. The plaintiff can thereby easily correct any misstatements or falsehoods, respond to character attacks, and generally set the record straight. This unique feature of internet communications allows a potential plaintiff ready access to mitigate the harm, if any, he has suffered to his reputation as a result of an anonymous defendant’s allegedly defamatory statements made on an internet blog or in a chat room. 59

III.

F.

In adopting the summary judgment standard to govern situations where a defamation plaintiff seeks to obtain the identity of an anonymous defendant, we do not rely on the nature of the internet as a basis to justify our application of the legal standard. That is, we make no distinction between communications made on the internet and those made through other traditional forms of media in determining the standard to be applied. Thus, whenever a defamation plaintiff seeks to unmask

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59Indeed, in this case, it appears that Cahill responded to some of his critics on the same internet blog.

26

an anonymous defendant, we apply the summary judgment standard regardless of the chosen medium of publication. While as a form of communication the internet is not legally distinct and warrants no special protection above and beyond what traditional forms of communication receive, it is worth noting that certain factual and contextual issues relevant to chat rooms and blogs are particularly important in analyzing the defamation claim itself.

Ranked in terms of reliability, there is a spectrum of sources on the internet. For example, chat rooms and blogs are generally not as reliable as the Wall Street Journal Online. 60 Blogs and chat rooms tend to be vehicles for the expression of opinions; by their very nature, they are not a source of facts or data upon which a reasonable person would rely. At least three courts have recently made this observation. Addressing the issue as it related to statements made in a chat room about the performance of a specific publicly traded company, the Court in Rocker Mgmt., LLC v. John Does 1 through 20, 61 noted that the messages tended to be “replete with grammar and spelling errors; most posters do not even use capital letters. Many of the messages are vulgar and offensive, and are filled with

---------------------

60Available at http://online.wsj.com/public/us.

612003 U.S. Dist. LEXIS 16277, *5 (N.D. Cal. 2003).

27

hyperbole.” The court continued, “in this context, readers are unlikely to view messages posted anonymously as assertions of fact.” 62

Another federal court has similarly noted, “[u]nlike...traditional media, there are no controls on the postings. Literally anyone who has access to the internet has access to the chatrooms.” 63 Moreover, “the statements were posted in the general cacophony of an internet chat-room in which about 1,000 messages a week are posted....” 64 “Importantly, the postings are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents....To put it mildly, these postings...lack the formality and polish typically found in documents in which a reader would expect to find fact.” 65 The court concluded that the general tone, context, style and content of the postings “strongly suggest that they are the opinions of the posters.” 66 Accordingly, the “reasonable reader, looking at the hundreds and thousands of postings about the

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62 Id.

63Global Telemedia Int'l, Inc. v. Doe 1, 132 F. Supp. 2d 1261, 1264 (C.D. Cal. 2001).

64Idat 1267.

65 Id.

66 Id.

28

company from a wide variety of posters, would not expect that [the defendant] was airing anything other than his personal views....” 67

In SPX Corp v. Doe68 the court granted a defendant’s motion to dismiss a defamation claim. In so doing the court analyzed four factors: “(1) the specific language used; (2) whether the statement is verifiable; (3) the written context of the statement; and (4) the broader social context in which the statement is made.”69 In addressing the fourth factor, the court noted:

Statements appearing in such locations as forum and commentary newspaper sections, or other venues often associated with "cajoling, invective, and hyperbole", are more likely opinion.... Here, the Defendant's statements were posted on an Internet message board. Such message boards are accessible to anyone of the tens of millions of people in this country (and more abroad) with Internet access, and no one exerts control over the content. Pseudonym screen names are the norm. A reasonable reader would not view the blanket, unexplained statements at issue as "facts" when placed on such an open and uncontrolled forum. Indeed, Yahoo! places a disclaimer which appears on the copies of the postings submitted with the Complaint:

Reminder. This board is not connected with the company. These messages are only the opinion of the poster...70

--------------------------

67Id. at 1268.

68253 F.Supp. 2d 974 (N.D. Ohio 2003).

69Id. at 980.

70Id. at 981 (citations omitted).

29

Apart from the editorial page, a reasonable person reading a newspaper in print or online, for example, can assume that the statements are factually based and researched. This is not the case when the statements are made on blogs or in chat rooms. “When one views...allegedly defamatory statements in context – both the immediate context and the broader social context – it becomes apparent that many of the allegedly defamatory statements cannot be interpreted as stating actual facts, but instead are either ‘subjective speculation’ or ‘merely rhetorical hyperbole.’”71

III.

G.

Having adopted a summary judgment standard, we now apply it to the facts of this case. Normally an appellate court does not decide summary judgment motions in the first instance. A trial judge’s decision to grant or reject summary judgment, however, is a matter of law72 that we review de novo.73 Accordingly, because we are deciding only a legal question on the same paper record, and given the social interest in the prompt resolution of this dispute, we decide the issue without remanding this case to the trial court.

------------------------

71Lidsky, supra note 7 at 939 (citations omitted).

72Del. Super. Ct. Civ. R. 56(c).

73 Plummer v. Sherman, 861 A.2d 1238, 1242 (Del. 2004).

30

In deciding whether or not a statement is defamatory we determine, “first, whether alleged defamatory statements are expressions of fact or protected expressions of opinion; and [second], whether the challenged statements are capable of a defamatory meaning.”74 In this case, Doe made two potentially defamatory statements:
1) Anyone who has spent any amount of time with Cahill would be keenly aware of ... [his]character flaws, not to mention an obvious mental deterioration;

2) Gahill [sic] is ... paranoid.

Applying a good faith standard, the trial judge concluded, “it is enough to meet the ‘good faith’ standard that the Cahills articulate a legitimate basis for claiming defamation in the context of their particular circumstances.”75 He continued “[g]iven that Mr. Cahill is a married man, [Doe’s] statement referring to him as “Gahill” might reasonably be interpreted as indicating that Mr. Cahill has engaged in an extra-marital same-sex affair. Such a statement may form the basis of an actionable defamation claim.”76 We disagree. Using a “G” instead of a “C” as the first letter of Cahill’s name is just as likely to be a typographical error as an intended misguided insult. Under the summary judgment standard, no reasonable

-----------------------

74Riley, 529 A.2d at 251.

75Memorandum Opinion, C.A. No. 04C-11-022, June 14, 2005 at 20.

76Id.

31

person would interpret this statement to indicate that Cahill had an extra-marital same-sex affair. With respect to Doe’s other statements, the trial judge noted:
Again, the context in which the statements were made is probative. [Doe’s] statements might give the reader the impression that [Doe] has personal knowledge that Mr. Cahill’s mental condition is deteriorating and that he is becoming “paranoid.” Given that Mr. Cahill is a member of the Smyrna Town Council, an elected position of public trust, the impression that he is suffering from diminished mental capacity might be deemed capable of causing harm to his reputation, particularly when disseminated over the internet for all of his constituents to read. 1

We agree that the context in which the statements were made is probative, but reach the opposite conclusion. Given the context, no reasonable person could have interpreted these statements as being anything other than opinion. The guidelines at the top of the blog specifically state that the forum is dedicated to opinions about issues in Smyrna. If more evidence of that were needed, another contribution to the blog responded to Doe’s second posting as follows: “Proud Citizen, you asked for support, I don’t think you are going to get it here. Just by reading both sides, your tone and choice of words is [that of] a type of person that couldn’t convince me. You sound like the person with all the anger and hate...”

At least one reader of the blog quickly reached the conclusion that Doe’s comments were no more than unfounded and unconvincing opinion. Given the context of the statement and the normally (and inherently) unreliable nature of

----------------------------

77Id. at 21.

32

assertions posted in chat rooms and on blogs, this is the only supportable conclusion. Read in the context of an internet blog, these statements did not imply any assertions of underlying objective facts. Accordingly, we hold that as a matter of law a reasonable person would not interpret Doe’s statements as stating facts about Cahill. The statements are, therefore, incapable of a defamatory meaning. Because Cahill has failed to plead an essential element of his claim, he ipso facto cannot produce prima facie proof of that first element of a libel claim, and thus, cannot satisfy the summary judgment standard we announce today. Doe’s statements simply are not sufficient to give rise to a prima facie case for defamation liability.78

IV.

For these reasons, we REVERSE the judgment of the Superior Court and REMAND the case to the Superior Court with instructions to DISMISS the plaintiff’s claim with prejudice.

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78We do not hold as a matter of law that statements made on a blog or in a chat room can never be defamatory. We hold only that in order to recover, a plaintiff having a defamation claim based on a statement made in an internet chat room or on a blog must prove that a statement is factually based and thus capable of a defamatory meaning. See Kanaga, 687 A.2d at 179 (“[A] statement of opinion would be actionable if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.”)

33


  


The First Amendment Right to Anonymous Speech - DE Ruling as Text | 231 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off-Topic here
Authored by: overshoot on Saturday, October 15 2005 @ 11:50 PM EDT
Please preview, make links clicky (instructions at bottom of comment form)

[ Reply to This | # ]

Corectioms Hear
Authored by: Tufty on Sunday, October 16 2005 @ 12:01 AM EDT
Keep em tidy


---
There has to be a rabbit down this rabbit hole somewhere!
Now I want its hide.

[ Reply to This | # ]

The First Amendment Right to Anonymous Speech - DE Ruling as Text
Authored by: Anonymous on Sunday, October 16 2005 @ 12:04 AM EDT
It is interesting to note that there was a campaign wanting anonymouse posting
banned just before a certain case with a lot of John Does in appeared!

[ Reply to This | # ]

This should have an interesting impact on the RIAA practice of unmasking "victims"
Authored by: Ed Freesmeyer on Sunday, October 16 2005 @ 12:08 AM EDT
so they can extort money via their "support center" without a
case....

I like this ruling and think it may be fun to watch what happens with RIAA cases
in the near future...

[ Reply to This | # ]

Free Speech
Authored by: The Mad Hatter r on Sunday, October 16 2005 @ 12:44 AM EDT


It's one of the wonders of the North American continent that we have two strong
democracies. Not perfect democracies, but strong democracies.

If I think that George Bush, Al Gore, John Chretien, Stephen Harper, or Jack
Layton is an idiot I can say so. I can say so to their face if I want.

The further protection afforded to the ability to make anonymous comments by
this ruling is fantastic. It is always easier to shot the messenger than to do
the right thing, and this case is a good example. If the plaintiff could have
scared John Doe into removing the post, the plaintiff won, and it wouldn't be
necessary to change his own behavior.

This is why the "yourproductnamehereSUCKS.com" web sites are also
protected. The ability to complain about injustice, whether real or percieved is
an important function of an "Open Society".





---
Wayne

telnet hatter.twgs.org

[ Reply to This | # ]

Thanks!
Authored by: stevem on Sunday, October 16 2005 @ 12:49 AM EDT
Thanks Pamela,

that was most fascinating. And somewhat topical!
:-)


Cheers!

- SteveM

[ Reply to This | # ]

PJ, I can't help but notice this
Authored by: moosie on Sunday, October 16 2005 @ 02:27 AM EDT
From the article about Benjamin Franklin you cited:

"Printers are educated in the belief that when men differ in opinion, both
sides ought equally to have the advantage of being heard by the public; and that
when Truth and Error have fair play, the former is always an overmatch for the
latter."

This describes you tee. Thanks for what you do. I, for one appreciate what you
do more than you can know.

- Moosie.



---
"I can make you feel, but I can't make you...think" - Jethro Tull

[ Reply to This | # ]

And where does this leave Yahoo?
Authored by: paul_cooke on Sunday, October 16 2005 @ 02:32 AM EDT
they fell over backwards to give the chinese authorities the information they
wanted about a blogger

---
Use Linux - Computer power for the people: Down with cybercrud...

[ Reply to This | # ]

The text of the Constitution
Authored by: Anonymous on Sunday, October 16 2005 @ 02:56 AM EDT

This line of thinking is probably entirely off-topic, but here I go:

I am not a laywer (or an American) so thank you for the background information on the First Amendment. I agree with the need to protect anonymous speech, but I must say I am confused by the assertion that anonymous speech is protected. The text of Amendment I makes no specific mention of anonymity (but I suppose that preventing people from speaking anonymously could be seen to abridge the freedom of speech).

Somewhat drifting off topic, but another right that confuses me is privacy - the text of the consitution does not specifically mention it, but the courts have established that it exists.

My question boils down to this: How important is the text of the Constitution itself? Or, do you need to learn to "read between the lines"?

[ Reply to This | # ]

Turning our thoughts back to our original lofty premeses
Authored by: Anonymous on Sunday, October 16 2005 @ 03:32 AM EDT
PJ,

Thanks for this particularly precious gem. And thank the Supreme Court of
Deleware. To know that such highly principled law is being practice is enough
to put a heart back into a man and enough to recharge that man with the good
faith of those most seminal American ideals: life, liberty, and the pursuit of
happiness, for if we don't have time for them, then all our tents are striken
and all of us are mediocrity bound.

[ Reply to This | # ]

The rest of the world?
Authored by: Winter on Sunday, October 16 2005 @ 04:09 AM EDT
Seeing anonimous criticism protected to a certain level in the US is
encouraging. It does raise the question how this is handled in other democracies
with internet access. More specifically, India (~1 billion people), South
America (~500 million), EU (~400 million people), Japan (120 million), South
Korea (60 million?).

In the EU freedom of speech is, I believe, ultimately a case for the supreme
court for human rights (this is wider than the strickt EU). All members are
required to protect freedom of speech. I don't know the exact legal formulation.
The widely published formulation in the faltered European Constitution obviously
didn't make it. And I do not know the old formulation.

The EU system mostly seems to work. In general, (north) European countries tend
to lead the charts in freedom of speech. However, it is difficult to get
information about how the situation really is in individual countries. There
might be bad countries too.

I know that defamation claims against critics often go spectacularly wrong. Eg,
trying to jail a journalist because of her writings is normally head-line news
and I know of no cases where this succeeded in the end. However, as written
above, due to language problems (on average, somewhat less than a language per
country) it is difficult to get information from all parts.

On-line anonimity is a whole different matter. Privacy laws are strong in the
EU. In general it is even prohibited to send data to the US because of it's bad
privacy laws. In my country, there are ISP's that do not divulge identities
without a supreme court order on principle. Others roll over much faster. The
RIAA/BSA front offices have extreme difficulty in getting names. However, there
seems to be no right to anonimity.

I am really curious how the situation is in, eg, India and Japan, or Brazil.

Rob

---
"news is what someone, somewhere, wants to
suppress; everything else is advertising" Anonymous Journalist

[ Reply to This | # ]

The First Amendment Right to Anonymous Speech - DE Ruling as Text
Authored by: egan on Sunday, October 16 2005 @ 05:37 AM EDT
Bravo, Pamela!

This is in my opinion one of the most eloquent and important comments you've
ever posted here on Groklaw. When Groklaw is reviewed by law schools and
historians, I'm sure this will be among the highlights, required reading. You
are a Constitutional law heroine, PJ.

Best,
egan

[ Reply to This | # ]

Free Speech and First Amendment protection
Authored by: Anonymous on Sunday, October 16 2005 @ 06:24 AM EDT
This topic of Free Speech brings up some other very important questions. First,
who exactly is protected by the First Amendment? In this I mean, is a person who
posts on any blog or message board that is publicly accessible, as long as they
are not being obscene, protected on any topic or issue? To add more
clarification to this question, is a person who posts in regarding the company
they work for, regarding a company policy, who doesn't agree with this company
policy, protected?

Next, how far does First Amendment protection extend? For an example, on a
posting board, which is publicly accessible, regarding such things as a private
company's Internet game/community. For example I'll use the ever popular
Everquest or Ultima Online to set the stage. If someone begins a thread or posts
to a thread, and the company or board moderators find that the thread doesn't
meet with their standards, or expresses issues which the company doesn't want
the public to know about, such as policies the company has been shown to apply
to situations in their virtual world, or how they are handling issues which the
players (citizens of the virtual world) still consider enough to bring to the
attention of the public, what limits are there regarding the company or
moderators to either locking or deleting such posts or entire threads? Does the
First Amendment protect against the silencing of ideas and opinions in such a
setting?

Basically, does the First Amendment merely protect regarding political speech,
or does it extend farther to other forms of public speech?

I'd be interested to hear PJ's views and opinions on such things.

[ Reply to This | # ]

Terror
Authored by: Anonymous on Sunday, October 16 2005 @ 06:51 AM EDT
When you think about it, Free Speech [from our oft-championed, "Free as in
speech, not as in beer" references] exists as one of a core set of tenets
that define our society.

Another is the right of free association.

A third would be the presumption of innocence.


Today, all three of the above come under increasing pressure. For example, in
the UK [where this poster resides] there is something of a tradition of a
peaceful rally, or march, to enable regular citizens to register their concerns.
In recent years, under the guise of dealing with thugs and anarchists, police
officers and security services have been issued not just with riot batons and
sheilds, but with video cameras, helicopters and CCTV. It is now impossible to
participate in a protest march without having your identity captured and
recorded.

In other words, though not committing any crime [most such marches are
peacefully organised in cooperation with the athorities] the participants are
treated as though they were in the act of committing a crime, short of being
arrested or charged. As a result of such intimidation, such protest marches are
few in number and rarely receive publicity or support.


Free association is equally pressured. An example:

Suppose you lived in the English countryside not far from a local public house
[or bar, for my American cousins ;o)]. Even though you do not drink alcohol, you
frequent the pub to socialise with friends. This is a perfectly
"normal" activity that would not attract any undue attention to you as
a private citizen. But now suppose that same bar was used as a meeting place by
a group of activists opposed to fox hunting and blood sports and who followed
peaceful protests by dragging highly scented trails across hunt areas to fool
hunting dogs.

If this were the case, there is a much higher chance that your visits to the
same public house would be monitored, even if the hunt protest group broke no
laws. I chose this example deliberately, since noone in the UK has yet been
killed by a hunt protestor, but many thousands die at the hands of drink-drive
motorists.

It is all too easy for an association [how we love to spin the phrase,
"guilt by association", without understanding what we're saying!] to
be misused. Where do you draw the line? If the law says that driving at 51mph in
a 50mph limit is illegal, then facts are relatively easy to prove. But what if I
know someone who knows someone who broke the law? Am I guilty? Does it depend on
the crime? Speeding? Drugs? Terrorism? Did your answer change depending on the
crime? Is that acceptable? Can we have one burden of proof for one crime and one
criminal and demand a different one for another? Think about it.


The third and final example I quoted at the outset was the presumption of
innocence. Where does this live in a modern world? Today a number of our rights
are being eroded around us and this is perhaps the most frightening loss.

Today it is not possible [to the best of my knowledge] for any UK Police Force
to start investigating an individual unless they have a "reasonable
suspicion" that the person has been involved in a criminal act [note that
in some cases this can include the planning of other crimes]. So before the
internet, the authorities could not order your postal mail intercepted unless
they had reasonable cause and a court order. That's all changed. Today it is
possible for a wide range of government organisations to routinely intercept
electronic communications with virtually no practical oversight from an
independant authority. The text I am typing into this page will be logged
against my dynamic IP address. My ISP's records have to be retained by law and
all this can be back-tracked to me. Even my email has to be intercepted. I have
broken no laws [you'll have to trust me on that one] and yet my activities on
the internet are intercepted and monitored as though I had committed a crime.
The presumption of innocence - on the internet at least - has been lost. Somehow
I find the fact that we seem to have taken that one "lying down"
absolutely terrifying.

Which brings me to my final and most important point.



As our societies creak and groan under these adjustments to our civil liberties,
as the changes are introduced in small, incremental steps, one after another,
very few of us bother to step back, look at this, and wonder which direction we
are going in, and why.

I am old enough to remember the days of the Cold War, when citizens in the west
were told how lucky they were to be able to move about their countries freely,
without having to carry papers and identification and to be stopped and searched
by security forces. Today governments of the west want to forcibly introduce ID
cards [in the case of the UK against the will of the majority] and enact a whole
set of other restrictions on individuals.

Today the UK government is trying to introduce mandatory ID cards for the
population, despite a cost running in to billions and the admission from the
government ministers concerned that the cards will not cut terrorism [on which
basis they were proposed] since terrorists can forge or steal them to meet their
requirements. So why have them? If If ID cards cannot be used to track the
criminal element effectively, who can they be used to track and monitor? Ah yes.
Just the regular, law abiding citizens? Never mind the billions in cost, that's
just money. Focus instead on your rights. They are priceless.


There used to be a time when the law upheld the wishes of the majority. As SCO,
Microsoft and others have so usefully taught us, these days it is too easy for
large and powerful companies [and remember that a company is one
"individual" in the eyes of the law] have turned things around until
the law can be used to *suppress* the wishes of the majority.

It doesn't matter if it's copyright law or patent law. If it's unjust then it's
bad law. The US Constitution begins [if I recall correctly], "We, the
People..." and in a balanced world the rights of that majority must be
protected. Somehow we seem to lose sight of that.

And that is something I find terrifying.

[ Reply to This | # ]

What's wrong with the other Judges?
Authored by: Anonymous on Sunday, October 16 2005 @ 08:22 AM EDT
What is worrying is that the first TWO courts came to the
opposite conclusion. Third time lucky!

Were they not doing their job properly, or do they
deliberately make "wrong" decisions in order to bump the
case up higher levels to get an established precedent ?
It's expensive for the defendant if that's the case.

It seems wrong that a plaintiff isn't "required to
establish a prima facie case" in other situations either,
before wasting large amounts of court's and defendant's
time and money. But that's been commented on often enough
with regard to SCO v IBM.

[ Reply to This | # ]

The First Amendment Right to Anonymous Speech - DE Ruling as Text
Authored by: Anonymous on Sunday, October 16 2005 @ 09:14 AM EDT
This should be required reading in every high school civics class.

BT

[ Reply to This | # ]

The First Amendment Right to Anonymous Speech - DE Ruling as Text
Authored by: Anonymous on Sunday, October 16 2005 @ 09:49 AM EDT
As much as I or anyone might wish for such a thing to be in the Constitution, I
don't recall seeing a right to anonymity spelled out or even hinted at in the
First Amendment. [checks the document] Nope, I still don't see it. Where did
they find it?

If you think there should be one, that would seem to be a matter for
Constitution v2.28.

[ Reply to This | # ]

The First Amendment Right to Anonymous Speech - DE Ruling as Text
Authored by: LarryVance on Sunday, October 16 2005 @ 09:58 AM EDT
I wonder if there is an extension of this ruling. If a person posts something
on a blog in an anonymous fashion and that post is removed in order to silence
that opinion or is removed because it is considered religious or political in
nature, can the anonymous poster then pursue restoration of that free speech?

There are several instances when I have posted things (semi-anonymously) that
have been removed because they did not conform to somebody elses opinion or
standards. If it is such that freedom of speech is a constitutionally protected
right and that blogs are considered a venue for that constitutional right, then
why should anybody have the right to remove those posts unless they are found to
be illegal?

---
http://allstateinsurancesucks.com/

[ Reply to This | # ]

Democracy vs Constitutional Republic
Authored by: Anonymous on Sunday, October 16 2005 @ 10:00 AM EDT
"At the close of the Constitutional Convention in Philadelphia on September
18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin
emerged from the long task now finished, asked him directly: "Well Doctor,
what have we got, a republic or a monarchy?" "A republic if you can
keep it" responded Franklin."

One important distinction that is common nowadays is the promotion of Democracy
over Republic. If you ever read about the Athenian experiment with Democracy or
the French Revolution you do not want a Democracy. The US is a Republic to
ensure the protection of the individual over the majority. The promotion of
Democracy over Republic is why the Constitution is becoming less and less
sound.

<a href="http://tinyurl.com/46tb5">

[ Reply to This | # ]

No free speech in private sector, and "taxpayer consent"
Authored by: Anonymous on Sunday, October 16 2005 @ 10:08 AM EDT
Yes, this is an encouraging ruling, but readers, both foreign and domestic,
shouldn't get the idea that the U.S. is a mecca for unfettered speech. There are
limits here, and they don't apply just to defamation.

-- Your private employer can fire you if you say something s/he disagrees with.

-- A privately hosted forum like Yahoo! can block access to your speech. The
blogger himself can prohibit dissent to his opinions on his own site.

-- Public libraries are being censored in what they can have, on the grounds
that some taxpayers have refused to consent to the content. In my city, a Gay
Pride display was taken down on orders of the county commmission because
religious groups objected to it. Would blacks agree to allow the public library
to show "Ku Klux Klan Pride" materials? What would Jews think of a
Nazi display? You can think of your own circumstances. Can gay people prohibit
"heterosexual pride" displays in libraries?

The "taxpayer consent" argument, and also "free speech
zones," are becoming increasing factors in censorship in the U.S. If you
can't show it in a library, can you say it on a street corner? Or within a
certain distance of an incumbent president or visiting leader?

The trend of speech in the U.S., has been eroding, in my view, from the
Founders' original intent of doing no actual harm to the idea that you are not
allowed to offend anyone. The Delaware ruling returns to the Founders' intent.

[ Reply to This | # ]

The First Amendment: Judges can cruise anonymously, too
Authored by: webster on Sunday, October 16 2005 @ 10:19 AM EDT
This is as strong as a decision can get. It is written by the Chief Judge, it
is unanimous, and it is "en banc", i.e. all the judges.

Imagine if you could pierce anonymity easily, find out what the judges have been
doing online personally, and use it to predict or force recusals in various
cases. Judges have to rely on anonymity or they could never go online. It is a
very crucial right to privacy as well as free speech.

Anyone who has ever done something anonymous, including online names, would be
all for this. Historic, anonymous pamphleteering has served our personal,
private and political electronic wanderings with a strong precedent. If judges
have to be free --and anonymous, so must we.

---
webster
>>>>>>> LN 3.0 >>>>>>>>>

[ Reply to This | # ]

As American as apple pie ? (somewhat OT)
Authored by: The_Pirate on Sunday, October 16 2005 @ 12:10 PM EDT
Sorry PJ, but whenever that phrase keeps popping up, it keeps annoying me. Even
though it's a small thing.

Apple pie was _not_ invented in our old colonies!

I seems, as far as i'm able to find out, that Apple Pie origins in Bohemia, or
rather more in the borderlands between what is now Poland, Germany and the Ceská
and Slovenská republics.

Here in Denmark we like it too. Just to vary it a bit, we prefer it as Apple
Cake. You need:
- 1 Kg of sweet apples
- 1 dl. water
- 1 vanilla stick
- about 100 gr. white sugar
- 150 gr. Macaroons
- 2½ dl whipping cream

Peel the apples, remove stem flower and core, and cut them to smallish bits. Cut
the vanilla stick open. Boil the apple bits (under lid) to mush with the water
and the vanilla. Add sugar to taste. Remove the vanilla stick, and let the mush
cool down.

Crush the macaroons to crumbs (They are called 'Makron' in Danish. It caused
some amusement here, when we found out that the terrifying monster in Quake2 was
named after a little, oversweet cake:) If you cannot get macaroons, you can make
a similar mixture with about 5 dl dried breadcrumbs, mixed with 8 tablespoons of
sugar and a teaspoon of cinnamon. Amounts doesent quite match this recipy.

Make layers of crumbs and apple mush in a bowl. Start and end with crumbs. Crumb
layers about half a centimeter, apple layers one centimeter thick.

Whip the cream, and use it on top of the cake.

I hope you enjoy it. And, it's season now. But be a bit careful. It's not
exactly slimming...

[ Reply to This | # ]

The First Amendment Right to Anonymous Speech - DE Ruling as Text
Authored by: Anonymous on Sunday, October 16 2005 @ 12:26 PM EDT
I must admit that I find things American and the Constitution is particular
sometimes hard to fathom. Thank you PJ for doing an 'Alistair Cooke' on this
aspect of the First Amendment. I look forward to your next piece on the Second
Amendment.

This case is somewhat hard to fathom so I tried the Sherlock Holmes approach:
list all the possibilities and eliminate them one by one and the one that
cannot be eliminated is the solution. Here is my list of possibilities.

1)Cahill brought the case because of his declining mental abilities and
paranoia. [There is insufficient evidence to determine this one way or the
other]

2)Cahill brought the case because the claims are not true and he wants to
maintain his reputation. [The objection to this is that if he brings the case
people will think that he is suffering from declining mental abilities and
paranoia]

3)Cahill does not intend to sue anyone but suspects that Proud Citizen is
someone in his own office or family over whom he has some authority (or at least
is in a position where Cahill can make life unpleasant for him). [Evidence for:
it is unlikely that a mere IP address will point to a particular person but if
it pointed to the household of an employee say, then that information would be
sufficient for his purposes.]

4)Cahill actually knows who Proud Citizen is and that it is a person in such a
position that he cannot afford to have his identity revealed; could be a judge,
the mayor, a fellow party member for example. [Evidence for: the post is quite
literate for a blog and may, in conjunction with other posts, be sufficient to
identify Proud Citizen]

5)Cahill is actually a closet homosexual and associates with other closet
homosexuals. Cahill suspects that Proud Citizen is a member of this group and
that he is gradually working up to 'outing' Cahill. Cahill needs to know who
Proud Citizen is to warn him off (or Proud Citizen will be 'outed' himself).
[Evidence for: use of certain words; Proud, Gahill, and ousted]

I have only been able to eliminate one of the five, namely (2). This also
happens to be the only one that Cahill would be prepared to put forward as the
actual reason for bringing the case. One down four to go. Can anyone eliminate
any more or even add others?

As I have eliminated the only possibility that could not be construed as
libellous, this post is being sent by carrier pigeon.

[ Reply to This | # ]

A typo? Really?
Authored by: Rudisaurus on Monday, October 17 2005 @ 03:29 PM EDT
Proud Citizen did write "Gahill" but the judge said, quite correctly, that it could be just a typo: "Using a 'G' instead of a 'C' as the first letter of Cahill’s name is just as likely to be a typographical error as an intended misguided insult."

Sorry, but this stretches the bounds of plausibility. If 'G' and 'C' were located immediately adjacent to one another on the keyboard, I might buy this line of argument -- but they're not. On a normal QWERTY keyboard, they're separated by being on different lines with 2 other keys, 'F' and 'V', interposed between them. It's still possible for it to be a simple typo made by a nearsighted 2-finger typist, of course, but IMHO it's improbable and certainly not "just as likely" unless the identity and physical limitations of the typist are known to the assessor.

[ Reply to This | # ]

The First Amendment Right to Anonymous Speech - DE Ruling as Text
Authored by: Anonymous on Monday, October 17 2005 @ 04:23 PM EDT
PJ,

There were three new stories I had not seen before when I first accessed the
web site today, plus last week's Peter Salus installment, which I had not yet
had a chance to read and look forward to. When I saw the subject of this entry,
I knew I had to read it first, because it was important!!!!

Thank you for posting it. I think the only time it might become more important
is if it should get to the US supreme court.

Perhaps you or one of your friends can elaborate on how this decision might
affect court action in other states, since the Delaware court was speaking in
reference to US Constitutionally guarenteed protections of free speech.

[ Reply to This | # ]

The US reverting to Medieval style
Authored by: darkonc on Monday, October 17 2005 @ 05:35 PM EDT
Europe, you'll recall from your school days, had a long history of persecuting religious and political minorities, including by such things as torture, and on a larger scale, religious wars.

When I look at Bush's so-called "law on terror", I see a big step in that direction -- Far too many powerful entities have framed this as a fight between Islam and 'the west' (read: Christianity).

Going to a mosque seems like enough to place a cloud of uncertainty over someone, and being dark skinned with "a jacket too heavy for the season" is enough justification to get 4 bullets to the head in a London 'tube station.

When what's -his name (McVeigh) blew up Oklahoma, they didn't go after blondes, christians, scotsmen or even ex-marines. When the IRA were blowing up random blocks of London, they didn't go shooting every red-head who carried a picknic basket in the city.

This time, however, we have a minority, with little political clout This makes them far too easy target for political opportunists who want to use them as an excuse for trampling our human and civil rights.

FYI: In real life, I'm a christian with a jewish sounding name who looks like an arab, and sounds like an american. There are now very few places where I can feel fully safe from arbitrary persecution.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Russell Beattie writes about Anonymity
Authored by: qu1j0t3 on Monday, October 17 2005 @ 11:46 PM EDT
Maybe this has been posted earlier in the thread, but in case not, this posting is a good read on the topic:
...if you’ve read my blog at any time in the past, you know I’ve hated these sorts of anonymous comments with a passion. But there was a reason for this - I equated anonymity with cowardice and had decided to paint all anonymous posters with the same brush. But my opinions are now being refined quite a bit. This is what I’m trying to communicate with this post. ...

I think what I’m learning is that most people default to anonymity first, and have to be coaxed into expressing themselves personally afterwards. Yes, there’ll always be the people like myself who can’t wait to stand up in front of the class and tell everyone what they think, the vast majority would probably rather sit in their seats and let their feelings be known in a less public manner. This makes empirical sense no? We’ve all seen it. It’s human nature. ...

To me, complete anonymity in a forum is one of those counter-intuitive ideas that don’t seem to make sense, but obviously works if implemented correctly.

Russell quotes Shiichan anonymous BBS home page:

  • Registration keeps out good posters. Imagine someone with an involving job related to your forum comes across it. This person is an expert in her field, and therefore would be a great source of knowledge for your forum; but if a registration, complete with e-mail and password, is necessary before posting, she might just give up on posting and do something more important. People with lives will tend to ignore forums with a registration process.
  • Registration lets in bad posters. On the other hand, people with no lives will thrive on your forum. Children and Internet addicts tend to have free time to go register an account and check their e-mail for the confirmation message. They will generally make your forum a waste of bandwidth.
  • Registration attracts trolls. If someone is interested in destroying a forum, a registration process only adds to the excitement of a challenge. One might argue that a lack of registration will just let "anyone" post, but in reality anyone can post on old-type forum software; registration is merely a useless hassle. Quoting a 4channeler:

    Trolls are not out to protect their own reputation. They seek to destroy other peoples' "reputation" ... Fora with only registered accounts are like a garden full of flowers of vanity a troll would just love to pick.

  • Anonymity counters vanity. On a forum where registration is required, or even where people give themselves names, a clique is developed of the elite users, and posts deal as much with who you are as what you are posting. On an anonymous forum, if you can't tell who posts what, logic will overrule vanity. As Hiroyuki, the administrator of 2ch, writes:

    If there is a user ID attached to a user, a discussion tends to become a criticizing game. On the other hand, under the anonymous system, even though your opinion/information is criticized, you don't know with whom to be upset. Also with a user ID, those who participate in the site for a long time tend to have authority, and it becomes difficult for a user to disagree with them. Under a perfectly anonymous system, you can say, "it's boring," if it is actually boring. All information is treated equally; only an accurate argument will work.

  • ---
    I have a semicolon and I'm not afraid to use it.

    [ Reply to This | # ]

    The First Amendment Right to Anonymous Speech - DE Ruling as Text
    Authored by: Anonymous on Wednesday, October 19 2005 @ 05:22 PM EDT
    The authors of the First Amendment couldn't possibly have been unaware of the
    potential for for making anonymous statements; as PJ says above, they were
    prolific writers of anonymous statements themselves. The internet is new in some
    ways, but in others, it is nothing at all special. For anonymous speach, it is
    no different from knowing a tight-lipped and brave newspaper publisher. The
    difference is that this publicity is available not only to the well-connected,
    but to anyone who has a computer and a bit of money. What I see as legally
    interesting is that people are now making anonymous statements through
    intermediaries (such as Comcast) who they don't personally know and trust.

    [ Reply to This | # ]

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