Several recent court rulings provide a lesson in contrasts concerning protection accorded to allegedly defamatory online speech. As state and federal courts grapple with issues ranging from the right of anonymous speakers to conceal their identities to the ability of bloggers to claim protection under journalist shield laws, the state of defamation law as applied to online expression remains uncertain. State courts continue to consider defamation issues for the traditional media as well, with one Minnesota TV station facing liability for more than $1 million in damages.
D.C. Court of Appeals Shields Anonymous Speaker from Defamation Claim
On Jan. 12, 2012, the D.C. Court of Appeals issued an opinion delineating the right to anonymous online defamatory speech. The court ruled that a trade organization was not obligated to disclose the identity of a tipster who alleged that a software company engaged in copyright infringement. Software & Information Industry Association v. Solers, Inc., 36 A.3d 398 (D.C. 2012).
The case centered upon the Software & Information Industry Association (SIIA), a software industry trade association that maintained a “Corporate Anti-Piracy System” allowing anonymous tipsters rewards in exchange for reporting verifiable corporate piracy. “John Doe” sent a report to SIIA in March 2005, asserting that Solers, a software development company, was using copies of SIIA-member software products in excess of the number of licenses purchased for the software. SIIA responded by sending a letter to Solers threatening litigation and demanding that the company conduct an internal audit to detect unlicensed software. After complying with SIIA’s instructions and concluding that it “possessed no unlicensed software,” Solers filed a complaint in the Superior Court for the District of Columbia against the pseudonymous “John Doe,” alleging defamation and tortious interference with “prospective advantageous business opportunities.” Solers issued a subpoena the following day requiring SIIA to disclose all information related to John Doe’s identity. SIIA refused, noting that throughout the two decades of its program’s existence it has never disclosed the identity of anonymous informants. It filed a motion to quash the subpoena, basing its actions on John Doe’s First Amendment right to anonymous speech.
In this initial iteration of the case in 2009, the District of Columbia Court of Appeals concluded that Solers’ complaints “sufficiently state[d] claims for defamation and tortious interference.” However, the court adopted a protective standard for anonymous speech and held that a plaintiff “must do more than simply plead his case” in order to justify subpoenas seeking the identity of defendants. “Before enforcing a subpoena for identifying information, a court must conduct a preliminary screening to ensure that there is a viable claim that justifies overriding an asserted right to anonymity,” the court said. As part of this screening, the court of appeals established a five-step framework for courts to consider when evaluating a defendant’s right to anonymity. This framework requires trial courts to “(1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.” Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) (“Solers I”). (For further discussion of this iteration of the Solers case, see “Subpoenas to Unmask Anonymous Internet Users Continue to Challenge News Media and Courts,” in the Summer 2009 issue of the Silha Bulletin.)
On remand to the Superior Court for the District of Columbia, the trial court determined that “the company to this day has never articulated how its reputation has been damaged....” and that the Solers, by its own admission, was unable to “identify evidence proving departed customers and additional lost business opportunities.” Nevertheless, the court enforced the subpoena following the court of appeals’ 2009 finding that Solers had sufficiently pleaded claims.
SIIA once again sought review by the District of Columbia’s highest court, which found that enforcing the subpoena in this instance “would mean that a corporate plaintiff may overcome a speaker’s First Amendment right to anonymity with little more than an allegation of defamation and its own decision to expend money in response.” The court held that Solers failed to identify damages beyond internal expenses suffered as a consequence of the alleged defamation, which meant that the fourth factor of Solers I’s five-part test was not satisfied. The Superior Court’s judgment was thus reversed. Supporters of SIIA praised the decision, with the group’s chief litigation counsel Scott Bain asserting that “[t]he decision is important to the rights of whistleblowers because it is an important safeguard to ensure this kind of activity isn’t chilled” in a Jan. 18, 2012 interview with the Reporters Committee for Freedom of the Press (RCFP). In a press release the same day as the decision, Bain said that the decision “sets a solid First Amendment precedent that will benefit SIIA, other associations, and publishers here in D.C., and is a persuasive roadmap for other jurisdictions.”
Christopher Barnett of the Southlake, Texas intellectual property and technology firm Scott & Scott, LLP wrote in a Jan. 12, 2012 blog post on the firm’s website that while the D.C. Court of Appeals’ decision is not binding precedent outside of the District of Columbia, “it nevertheless is persuasive and could make it difficult for motivated companies to move forward with tort claims against anonymous audit informants,” except possibly in instances where businesses could show that the likely informant was an employee subject to a non-disclosure or confidentiality agreement.
Indiana Court of Appeals Allows Newspaper to Protect Anonymous Commenters
Responding to what it described as “an issue of first impression,” the Indiana Court of Appeals reversed the order of the Marion Superior Court compelling discovery of the identity of an anonymous commenter on the website of The Indianapolis Star. The former chief executive officer of Junior Achievement of Central Indiana, Jeffrey Miller, brought suit on March 31, 2010, against the newspaper, alleging that comments posted on its website by the user “DownWithTheColts” were defamatory. The comments responded to a 2010 Star article that investigated Junior Achievement’s finances and reported that the organization faced “questions about missed payments to contractors on a building project” and $764,000 in “unaccounted-for grant money.” The anonymous comments stated that the newspaper needed to “look at the [former] president of JA and others on the [Enterprise foundation] board. The ‘missing’ money can be found in their bank accounts.” Miller subpoenaed the paper, seeking to identify who registered the account “DownWithTheColts” in order to sue for what he characterized as “malicious defamation.” The newspaper argued in defense that the First Amendment right to anonymous speech prevented it from having to turn over the identity of the account.
In overturning the lower court’s order to disclose, the appeals court first considered whether “DownWithTheColts” was “the source of any information” and thus within the purview of the state’s reporter’s shield law. Determining that the newspaper did not use information provided by the commenter in any way during the newsgathering process, the court declined to apply the shield law.
In its opinion, the Indiana Court of Appeals cited Silha Professor of Media Ethics and Law and Silha Center Director Jane Kirtley to illustrate the consequences of a newspaper’s decision to allow anonymous commenting. The court drew from Kirtley’s 2010 Minnesota Law Review Article Mask, Shield, and Sword: Should the Journalist’s Privilege Protect the Identity of Anonymous Posters to News Media Websites? to note that while anonymous commenting has become commonplace and may facilitate robust discussion, the development has encouraged “moronic, anonymous, unsubstantiated and often venomous [speech].” Also quoted from the article was an argument by Edward Wasserman, the Knight Professor of Journalism Ethics at Washington and Lee University, that “anonymous posters are nothing like confidential sources” because “the identities of the posters are ‘truly unknown,’ and ‘no one even tries to verify the information from the anonymous poster.’” Mask, Shield, and Sword: Should the Journalist’s Privilege Protect the Identity of Anonymous Posters to News Media Websites?, 94 Minn. L. Rev. 1478, 1488 (2010).
The court further said that although it “did not want defamatory commenters to hide behind the First Amendment protection of anonymous speech,” it must “balance the prospect of too readily revealing the identity of these anonymous commenters.” The court adopted a modified version of the standard created in the 2001 case of Dendrite International, Inc. v. Doe No. 3, which requires plaintiffs seeking anonymous posters’ identities to notify them via the website in question that they are subject to a subpoena, identify the exact statements believed to be defamatory and produce prima facie evidence to support every element of the cause of action. Because Indiana’s defamation law requires all plaintiffs to prove actual malice, the court modified the Dendrite test to require the plaintiff to produce prima facie evidence to “support only those elements of their cause of action not dependent on the commenter’s identity.” If all three of these factors are satisfied, the trial court is then required to “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 to allow the plaintiff to properly proceed.” The case was remanded to the trial court to apply the modified Dendrite test to the facts and determine if Miller had satisfied requirements necessary to reveal the commenter’s identity. Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
Both sides in the case found positive aspects in the court’s ruling. Speaking to the Star in a Feb. 21, 2012 article announcing the decision, Miller’s counsel Kevin W. Betz focused on the determination that the identities of anonymous posters are not protected by the state’s shield law. Betz characterized the decision as saying that “protecting online commenters with the Shield Law is a bad idea, and it can injure journalism. …Jeff and Cindy Miller deserve the thanks of everyone who values their good reputation.” Paul Alan Levy, attorney for Washington-based Public Citizen advocacy organization, instead emphasized the ruling’s vindication of a First Amendment right to remain anonymous. “With this decision, Indiana joins the growing consensus in state and federal courts around the country that [the balancing test] is the best way to reconcile the free speech rights of anonymous Internet speakers against the interest of plaintiffs who have been wronged by online speech,” Levy commented to the Star.
Star Editor and Vice President Dennis Ryerson underscored the importance of protecting sources’ identities. “Without that protection, people may not feel free to talk to us,” Ryerson said, including “people who communicate to us on our websites.” In re: Indiana Newspapers Inc. v. Junior Achievement of Central Indiana, Inc., 963 N.E.2d 534 (Ind. Ct. App. 2012).
Oregon District Judge Declines to Grant Journalist Status to Accused Montana Blogger
The determination of what forms of online expression constitute journalism was once again brought into question when an Oregon federal district court declined to grant a blogger protection under the state’s reporter’s shield law on Nov. 30, 2011. The ruling, however, did not turn exclusively on the distinction between blogging and journalism, but rather the way the defendant invoked the Oregon shield law.
On Jan. 14, 2011, Obsidian Finance Group, LLC filed a defamation lawsuit in the U.S. District Court for the District of Oregon against Montana blogger Crystal Cox. A self-described investigative blogger, Cox operates a number of websites that include “obsidianfinancesucks.com,” where she publishes criticisms of the investment firm and Kevin Padrick, its senior principal. Among the statements singled out by Obsidian in its complaint were allegations that Padrick had committed “fraud against the government,” paid off the media and politicians, and a post by Cox asking “Did Oregon attorney Kevin Patrick hire a hitman to kill me?”
In an order filed July 7, 2011, District Judge Marco A. Hernandez dismissed the plaintiffs’ request for summary judgment, concluding that “under the totality of the circumstances, the statements at issue are not actionable assertions of fact, but are constitutionally protected expressions of opinion” shielded by the First Amendment. Hernandez noted that the statements were “replete with scattershot, hyperbolic accusations untethered to factual data,” and were “not sufficiently factual to be susceptible of being proved true or false.”
Plaintiffs filed a memorandum opposing the grant of summary judgment on July 22, 2011, including additional blog posts omitted from their original request. Judge Hernandez subsequently issued an order on Aug. 23, 2011, where he concluded that a Dec. 25, 2010 post on “bankruptcycorruption.com,” could cause “reasonable readers” to “reach differing conclusions about whether the statements contain or imply an assertion of objective facts.” In refusing to grant summary judgment and dismiss the defamation claim, Judge Hernandez wrote that “as to this post, and in particular as to the statements made regarding tax fraud, a different reader could reasonably understand the statements to imply provable assertions of fact.” Cox maintained that the reason this post was more factual than the others was that she had an inside source leaking her information, and sought to prevent its disclosure under Oregon’s shield law.
The case subsequently went to trial, where Judge Hernandez held that Cox was not protected by Oregon’s reporter’s shield law. The shield law, O.R.S. 44.520(1), provides that no person “connected with, employed by or engaged in” any “medium of communication” shall be required to disclose any confidential source of information. Noting that the statute’s provision that “‘Medium of communication’ has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system,” Judge Hernandez found that Cox’s blog did not fit in any of these categories, but declined to address the language expanding the definition beyond the enumerated examples. Most importantly, however, Judge Hernandez held that Cox’s expression was not covered by the statute because asserting the existence of an anonymous source of factual statements in a defamation action effectively allows a defendant to use the privilege as both a “sword and shield,” a tactic expressly prohibited by the shield law. This strategy would have allowed Cox to claim that a source was consulted in writing the blog post, shielding her from negligence liability, while simultaneously refusing to disclose the source’s identity. Obsidian Finance Group, LLC v. Cox, 2011 WL 5999334 (D. Or. Nov. 30, 2011).
Despite Cox’s assertions that as a blogger she qualified as “media,” the court found that she had failed “to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.” Judge Hernandez offered a list of seven factors that would demonstrate journalistic activity, concluding that Cox did not qualify as “media” because she had failed to present “evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting ‘the other side’ to get both sides of a story.”
Further, Cox was not entitled to seek shelter from defamation even under Supreme Court precedent such as Gertz v. Robert Welch, Inc., a case holding that under the First Amendment, a private plaintiff need only show negligence before he may recover compensatory damages from a media entity. This contrasts with the higher standard of “actual malice,” a finding that a statement was made with knowledge of its falsity and reckless disregard for the truth, which must be shown before a public plaintiff may prevail on a defamation claim against a media entity. Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H (D. Or. Nov. 30, 2011). Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Cox was thus found liable, and a jury ordered her to pay $2.5 million to Obsidian and Padrick.
The decision reignited a debate by bloggers and news publications over who is a journalist. Writing for Citizen Media Law Project, Eric. P. Robinson noted in a Dec. 12, 2011 blog post that Judge Hernandez was correct to observe that no court has found bloggers to be journalists and blogs to be media in the context of seeking a negligence standard for a defamation determination. However, Robinson pointed out that cases making these determinations in situations involving shield laws and reporter’s privilege do exist. Robinson wrote that “it is unreasonable … to expect there to have already been an Oregon case holding that a blog or web site was ‘media’ for the Gertz rule regarding the plaintiff’s burden of proof in cases against media defendants… . [T]he Internet … is still too new, and appellate decisions involving the web are still too few (though growing), for that issue to have already been litigated.” Robinson’s commentary can be found at http://www.citmedialaw.org/blog/2011/no-sky-not-falling-explaining-decision-oregon.
In an interview for the New York Times’ “Media Decoder” blog on Dec. 8, 2011, Bruce Sanford, a First Amendment lawyer at the Washington D.C. office of Baker Hostetler law firm, suggested that the case underlined the fact that many shield laws were drafted prior to the advent of blogging. “Media law fashioned for the traditional press of the 1960s needs a considerable amount of renovation to apply to 21st-century digital communications.… Those state shield laws obviously need some updating.” In an online story for Forbes on Jan. 2, 2012, David Coursey wrote of a similar concern, taking issue with Hernandez’ seven-step test by noting that “economics of web publishing and ease of blogging make editing and separate fact-checking a luxury that many, maybe most, online publications cannot afford.” Instead, Coursey suggests that the line between bloggers and journalists “is best decided by giving benefit of the doubt to the journalist.”
Cox underlined the significance of the verdict in an interview with Seattle Weekly on Dec. 6, 2011, saying that “This should matter to everyone who writes on the Internet.” In a motion for a new trial filed on Jan. 4, 2012, Cox’s new counsel Eugene Volokh and Benjamin Souede argue that clear precedent contradicts the Oregon District Court’s conclusion that Gertz’s protections only apply to members of the media. Further, they contend that the plaintiffs should be treated as public figures, meaning “actual malice” must be shown before Cox may be liable
Minnesota Television Station Faces $1 Million Liability in Wake of Defamation Ruling
In what may be the largest defamation award in the state’s history, a Dakota County, Minn. jury imposed a $1 million compensatory damages judgment consisting of $100,000 in lost earnings, and $900,000 in reputational damages, against local broadcaster KSTP-TV for a news story it ran in March 2009. Susan Anderson, a Hudson, Wis. doctor of naturopathy, sued the television station for airing a news story alleging that her attempts to wean a patient, Cheryl Blaha, from anti-anxiety medication resulted in a suicide attempt. Naturopathy is a form of alternative medicine, practiced by holistic healers and based upon the relief that bodily functions are regulated by “vital energy” or “vital sources.” The source of the station’s story was Blaha herself, who according to a Nov. 8, 2011 Minneapolis Star Tribune story claimed in interviews with KSTP reporter Jennifer Griswold to have attempted suicide following Anderson’s actions. Anderson contradicted this reporting by asserting that medical records indicated that Blaha’s own medical doctor reduced the medication, and noting the lack of proof of a suicide attempt.
KSTP attorney Paul Hannah argued that the damages award was unparalleled in past Minnesota defamation cases. Anderson’s attorney, Patrick Tierney, contended that the station “created a report instead of reporting on something,” and that “KSTP bought Blaha’s story hook, line and sinker, and that’s what this case is about.” Tierney said that the jury’s finding of actual malice, a finding that the statement was made with knowledge of its falsity and with reckless disregard of the truth, would make it very difficult to get the award overturned or reduced. Nevertheless, Hannah said the station will challenge the size of the damage award, and according to the AP, will argue on appeal that it was not negligent and reported both sides of the story.
Emotional Distress Verdict Upheld Against Truthful Minneapolis Blogger
Minneapolis blogger John Hoff, author of “The Adventures of Johnny Northside” blog, is appealing a jury’s verdict awarding plaintiff Jerry Moore $35,000 for lost wages and $25,000 for emotional distress. The verdict was upheld by Hennepin County District Court Judge Denise Reilly on Aug. 22, 2011, rejecting Hoff’s motion for judgment as a matter of law, and stemmed from a blog posting by Hoff that accused Moore of being connected with a “high-profile fraudulent mortgage.” The story resulted in Moore’s termination from his position with the University of Minnesota’s Urban Research and Outreach/Engagement Center the following day.
The jury found that what Hoff posted was true and therefore not libelous, but concluded that the statement “tortiously interfered” with Moore’s employment and resulted in lost wages and reputational damage. (For further discussion of the jury verdict, see “Outrageous Speech, ‘Trash Torts’ and the First Amendment” in the Winter/Spring 2011 issue of the Silha Bulletin). The $60,000 award was affirmed by Judge Reilly, who wrote that Moore provided “direct and circumstantial evidence” that the blog posting led to his termination by the University.
Hoff’s attorney, Paul Godfread, filed an appeal to the Minnesota Court of Appeals on Jan. 30, 2012. An amicus brief, prepared by the Minneapolis office of law firm Faegre Baker Daniels LLP, argued that under Minnesota law, claims of tortious interference cannot be premised upon true statements, and that in this case, the jury found Hoff’s statements to be true. Further, the brief argues that Moore’s closing argument blurred the distinction between defamation and tortious interference claims. Finally, the brief contends that the trial judge failed to conduct an “independent examination of the whole record” and was instead too deferential to the jury’s findings of fact. Joined by Minnesota chapter of the Society of Professional Journalists, the Reporters Committee for Freedom of the Press, and Silha Center for the Study of Media Ethics and Law, the brief asks the court to “apply the same rules to publicly accessible online statements that it would to a print or spoken version of the same material.” Oral argument is scheduled for May 23, 2012.
Colorado Repeals Criminal Libel Law
On April 13, 2012 Colorado Governor John Hickenlooper signed a bill to repeal the state’s criminal libel law, effective Sept. 1, 2012. According to a March 22, 2012 Associated Press (AP) article, the bill passed the Senate unanimously and was approved by a House committee on March 22, 2012. The law made it a felony to “knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule.”
The AP reported that Colorado’s law had been used seven times in the past two years, but wrote that “in some cases, the original charge was changed to something else like harassment.” Noting that most states do not punish libel criminally, the AP wrote that lawmakers supporting the repeal believed the law stifled free speech through serious punishments like prison time.
Noteworthy among the cases brought under Colorado’s law was that of Thomas Mink, who was accused of criminal libel by a University of Northern Colorado professor in November 2003 following Mink’s publication of a satirical online newsletter, The Howling Pig. Police searched Mink’s home and confiscated his computer and writings, but the district attorney’s office closed the file in early 2004 after deciding it could not constitutionally prosecute Mink under the criminal libel statute. The Silha Center, together with the Student Press Law Center, filed an amicus brief in Mink’s appeal to the 10th Circuit alleging that then-Deputy District Attorney Susan Knox violated his Fourth Amendment protection from unreasonable search and seizure and his First Amendment freedom of expression. The 10th Circuit reversed and remanded on appeal in July 2010, concluding that Mink had plausibly alleged that Knox violated his clearly established constitutional rights. Mink v. Suthers, 613 F.3d 995 (10th Cir. 2010).
On remand, Judge Lewis Babcock of the U.S. District Court for the District of Colorado ruled in Mink’s favor in July 2011, writing that “no reasonable prosecutor could … believe that it was probable that publishing such statements constituted a crime warranting the search and seizure of Mr. Mink’s property.” The eight-year legal battle was finally settled on Dec. 12, 2011. (For a full discussion of Mink’s case against Knox, see “Update: Colorado Prosecutor Violated Student Editor’s Rights with Criminal Libel Search Warrant” in the Summer 2011 issue of the Silha Bulletin).
Advocacy group International Freedom of Expression Exchange (IFEE) released a statement on April 19, 2012 supporting Colorado’s repeal, writing that the organization “strongly opposes treating defamation as a criminal offence and believes that civil remedies are … sufficient to achieve justice when defamation is alleged.” IFEE’s Acting Deputy Director, Anthony Mills, said that “criminal defamation laws today serve all too often to obstruct scrutiny of the actions of those holding power and to deprive the people of the information they need to make decisions that will affect their lives for years to come.”
Mikel J. Sporer
Silha Research Assistant