The arbitrary disregard of the Jacksonville Sheriff’s Department for Thomas A. Rich’s right to anonymity as the FBC Jax Watchdog blogger could not meet the standards set by the District of Columbia Court of Appeals last Thursday, or of other lower courts which have ruled on similar matters.
FBC Jax Watchdog’s anonymity was stripped away without prior notice in a still unsatisfactorily explained criminal investigation over which no charge was filed and which produced no court action. Although the DC case involved defamation[.pdf], the standards are nonetheless clear.
A subpoena associated with a well-pleaded claim and the opportunity to contest it are required to consider breach of online anonymity:
- Ensure that the plaintiff has adequately pleaded the elements of a defamation claim.
- Require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served.
- Delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash.
- Require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control.
- Determine that the information sought is important to enable the plaintiff to proceed with his/her lawsuit.
The consensus of the lower courts is that disclosure of an anonymous blogger’s identity requires painstaking court consideration. Lack of that is not excused by the dismissive statement[.pdf] of the Jacksonville, Fla., Sheriff John Rutherford.
The court also perceived the danger of relying on procedural labels like “prima facie” and “summary judgment” and distilled the most important common feature of the competing tests in this area — that a plaintiff must make at least a substantial legal and factual showing that his/her claim has merit before a court will unmask an anonymous or pseudonymous Internet speaker.
As The Reporters Committee for Freedom of the Press explained, the D.C. court “noted that states vary widely in what test a defamation plaintiff must meet before it can compel a third party to turn over the identity of an anonymous speaker. Virginia, for example, ‘requires only that the court be convinced that the party seeking the subpoena has a legitimate, good faith basis’ for its claims. But the D.C. court ruled that this lax test
‘may needlessly strip defendants of anonymity in situations where there is no substantial evidence of wrongdoing, effectively giving little or no First Amendment protection to that anonymity.’ “
When anyone’s First Amendment protection is trampled, we are all harmed.
We argued at the time that their decision was both self-destructive and disrespectful of their readers.
User response, which in cases like that is in general to leave and stay away until you come to your senses, had its way.