Commercial Litigation and Arbitration

Newspaper Has Standing to Object to Subpoena to Protect Privacy of Anonymous Posters to Its Website — The Privacy Right of Anonymity

From McVicker v. King, 2010 U.S. Dist. LEXIS 18864 (W.D. Pa. Mar. 3, 2010):

Presently before the Court is the MOTION TO COMPEL RESPONSE TO SUBPOENA directed to non-party Trib Total Media, Inc.... For the reasons that follow, the Motion to Compel Response to Subpoena will be denied. ***

On April 14, 2009, Plaintiff, William L. McVicker, filed the instant lawsuit in which he alleges that Defendants, the Borough of Jefferson Hills (the "Borough") and certain Borough Council members (the "Individual Defendants"), unlawfully terminated his employment with the Borough in violation of Title VII, the Age Discrimination in Employment Act, the First Amendment, the Fourteenth Amendment's Equal Protection Clause, and the Pennsylvania Human Relations Act. ***

The instant motion relates to a number of anonymous blogs which were posted on the "" website, an interactive discussion board on the Internet owned by Trib Total Media, Inc. The blogs were made during the period of May 1, 2008 until June 8, 2008, a time period which Plaintiff contends is in "very close proximity to the time when the Plaintiff reasonably believes that Defendants were about to take an adverse employment action against him." A number of people using "" were engaged in ongoing discussion of the activities of the government of Jefferson Hills Borough through the referenced anonymous blogs.

On January 22, 2010, Plaintiff served a Subpoena Duces Tecum on Trib Total Media, Inc., in which he sought the disclosure of certain materials submitted to Trib Total Media, Inc., by the users of seven (7) specified screen names on the "" message boards, including information that would disclose the true identities of those users. On January 29, 2010, through its attorney, Trib Total Media informed Plaintiff that it objected to the subpoena and would not produce any documents pursuant to the subpoena unless ordered by the Court. ***

The United States Supreme Court has consistently held that "an author's decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment." [Citations omitted.] This First Amendment protection extends to speech via the Internet. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (finding that Supreme Court precedent "provide[s] no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet]"). As one district court has stated, "[t]he Internet is a particularly effective forum for the dissemination of anonymous speech." Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp.2d 556, 562 (S.D.N.Y. 2004) (copyright infringement action for the downloading and distribution of music via peer-to-peer file copying networks).

However, anonymous speech on the Internet, like speech from identifiable sources, does not have absolute protection. Courts have ordered disclosure of identifying subscriber information in circumstances involving copyright infringement ... and where the anonymous speaker allegedly made defamatory statements and disclosed confidential insider information online. ***

Neither the United States Supreme Court nor any federal appellate court has considered in a published decision the proper calculus for balancing the conflicting rights of an anonymous online speaker and an allegedly injured party. In the absence of such guidance, federal and state trial courts have developed a range of standards that plaintiffs must satisfy in order to obtain information related to the anonymous speaker's identity. See Enterline v. Pocono Medical Center, 2008 WL 519236 (M.D. Pa. 2008) (applying four-part test); Doe I v. Individuals, 561 F. Supp.2d 249, 2554-55 (D. Conn. 2008) (setting forth a seven-factor test); Doe v. Cahill, 884 A.2d 451, 460 (Del. 2005) (holding disclosure may only be obtained if plaintiff comes forward with "facts sufficient to defeat a summary judgment motion"); Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231, 245 (Ct. App. 2008) (collecting and analyzing cases); Dendrite Int'l Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) (requiring plaintiff to "set forth a prima facie cause of action").

However, it is clear that a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party. See, 140 F. Supp.2d at 1095 ("[N]on-party disclosure is only appropriate in the exceptional case where the compelling need for the discovery sought outweighs the First Amendment rights of the anonymous speaker.").

There have been very few cases in which the anonymous poster is sought simply as a witness - that is, where the poster is alleged to possess information relevant to the case and is not sought as a potential party. ***

... The trend among courts which have been presented with this question is to hold that entities such as newspapers, internet service providers, and website hosts may, under the principle of jus tertii standing, assert the rights of their readers and subscribers. In fact, the district court in Enterline expressly held, as a matter of first impression, that a newspaper had standing to assert the constitutional rights of anonymous posters to its website.... The Enterline court concluded that "the relationship between [the newspaper] and readers posting in the [n]ewspaper's online forums is the type of relationship that allows [the newspaper] to assert the First Amendment rights of the anonymous commentators."... The court further held that (1) "the anonymous commentators to the [newspaper] website face practical obstacles to asserting their own First Amendment rights" because doing so would require revelation of their identities; (2) the newspaper itself "displays the adequate injury-in-fact to satisfy Article III's case or controversy requirements;" and (3) the newspaper "will zealously argue and frame the issues before the Court." ***

This Court agrees with the decision and reasoning employed by Judge A. Richard Caputo in Enterline and, therefore, finds that Trib Total Media clearly has third-party standing to assert the First Amendment rights of individuals anonymously posting to its website.

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