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.

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

I.

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

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

2

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

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

II.

III.

A.

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

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

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

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

III.

B.

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

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

¹⁸ Id.

8

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

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

III.

C.

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

²³

Id. at *8.

²⁴

705 A.2d 1029 (Del. 1998)

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

11

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

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

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

[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

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

[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

(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

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

⁴²Id. at 760-761.

17

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 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 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

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⁴⁶Id. at 177.

⁴⁷ Id.

20

III.

E.

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

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⁴⁸Id. at 179.

21

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

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

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

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-

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⁵⁸See DEL. CONST. art. I, § 5, 9.

25

III.

F.

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

26

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

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

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

27

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

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

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⁶⁷Id. at 1268.

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

⁶⁹Id. at 980.

⁷⁰Id. at 981 (citations omitted).

29

III.

G.

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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

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

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⁷⁴Riley, 529 A.2d at 251.

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

⁷⁶Id.

31

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

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⁷⁷Id. at 21.

32

IV.

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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