THOMAS & BETTS CORPORATION, a Tennessee corporation,
Plaintiff,

v.

DOES 1 through 50,
Defendants.

Case No.: GIC 748128

The Hon. William C. Pate

Dept. 60

Complaint Filed: 05/12/2000

TABLE OF CONTENTS


PAUL ALAN LEVY, Pro Haec Vice (Pending)

ALAN B. MORRISON, Pro Haec Vice (Pending)

Public Citizen Litigation Group

1600 - 20th Street, N.W.

Washington, D.C. 20009

(202) 588-1000
 

CHARLES A. BIRD,

GREGORY D. ROPER

Luce, Forward, Hamilton & Scripps LLP

Attorneys for Doe "WatchingTNB"
 


TABLE OF CONTENTS

STATEMENT

A. Facts

B. Proceedings to Date

ARGUMENT

THIS LAWSUIT IS DESIGNED TO CHILL DEFENDANT?S FREE SPEECH, AND SHOULD BE DISMISSED UNDER THE ANTI-SLAPP STATUTE, SECTION 425.16

A. This Case Falls Within the Scope of Section 425.16.

B. Plaintiff Cannot Establish a "Probability of Success."

C. Plaintiff?s Third-Party Subpoena to Yahoo!, Seeking to Compel Disclosure of Identifying Information About Watching TNB, Constitutes a Separate

Violation of Her Constitutional Rights.

CONCLUSION


SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN DIEGO
 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE (CODE CIV. PROC., ?? 425.16)


Thomas & Betts Corporation ("TNB") filed this action to silence public discussion of its operations on the Internet. The defendants are several of the numerous employees, investors, and members of the public who have taken advantage of a public forum, maintained by Yahoo on the World Wide Web, to discuss the merits and flaws in the company's operations. In the past several months, TNB's stock has experienced two very steep drops in price, coincident with reports of reduced earnings announced in the company's own press releases. Instead of management's accepting responsibility for these swings in TNB's stock price, TNB seeks in this lawsuit to blame the messengers and suppress criticism. TNB seeks to identify its critics, including those who, as employees of TNB, have every reason to fear the extra-judicial consequences of TNB's use of the Court's processes to compel their identification. TNB also seeks to impose massive damages on its critics. Accordingly, in this motion, one of the John Does, whose statements on the Yahoo forum were entirely lawful and against whom this lawsuit is frivolous, moves to dismiss the action on the ground that it is purely designed to suppress protected speech, and thus is a Strategic Litigation Against Public Participation, i.e., a SLAPP suit..

STATEMENT

A. Facts

The Internet is a democratic institution in the fullest sense. It serves as the modern equivalent of Speakers' Corner in England's Hyde Park, where ordinary people may voice their opinions, however silly, profane, or brilliant they may be, to all who choose to listen. As the Supreme Court explained in Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 853, 870: "From a publisher's standpoint, it constitutes a vast platform from which to address and hear from a world-wide audience of millions or readers, viewers, researchers and buyers. . . . Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, . . . the same individual can become a pamphleteer." The internet is a traditional public forum, and full First Amendment protection applies to free speech on the internet. (Ibid.)

Knowing that people have personal and economic interests in the corporations that shape our world, and in the stocks they hope will provide for a secure future, and knowing, too, that people love to share their opinions with anyone who will listen, Yahoo! organized outlets for the expression of opinions on these topics. These outlets, called the Message Boards, are an electronic bulletin board system where individuals freely discuss major companies by posting comments for others to read and respond to.

Yahoo maintains a Message Board for every publicly traded company and permits anyone to post messages to it. The individuals who post messages there generally do so under a "handle" ? similar to the old system of CB's with truck drivers. Nothing prevents the individual from using his real name, but as inspection of the Message Board at issue in this case will reveal, usually the person chooses an anonymous nickname. These typically colorful nicknames protect the writer's identity from those who disagree with him or her, and encourage the uninhibited exchange of ideas and opinions. Such exchanges are often very heated and, as seen from the various messages and the responses on the Message Board at issue in this case, they are sometimes filled with invective and insult. Most, if not everything, that is said on the Message Board is taken with a grain of salt.

One of Yahoo's Message Boards is devoted to the plaintiff, TNB. TNB's web site reveals that it is a very large corporation ? in its most recent fiscal year, it had more than 21,000 employees, sales exceeding $2,500,000,000 and assets exceeding $2,600,000,000; it also has more than 250 facilities in 25 countries. Its press releases commonly recite that it is "a leading producer of connectors and components for worldwide electrical and electronic markets," and state that it makes upwards of 100,000 products. The opening message on Yahoo's TNB Board, dated December 23, 1997, states its purpose:

This is the Yahoo! Message Board about Thomas & Betts Corp (NYSE: TNB), where you can discuss the future prospects of the company and share information about it with others. This board is not connected in any way with the company, and any messages are solely the opinion and responsibility of the poster.

http://messages.yahoo.com/bbs?.mm=FN&action=m&board=4687568&tid=tnb&sid=... Exhibit 10.

Every page of message listings is accompanied by a similar warning that all messages should be treated as the opinions of the posters. Levy Declaration ? 9 and Exhibit 9.

According to the complaint, large numbers of investors turn to the Yahoo! Message Board as a source of news and information about TNB. As of the date this brief is written, 2500 messages have been posted on the Board. A casual review of those messages reveals an enormous variety of topics and posters. Investors and members of the public discuss the latest news about what products the company has sold and may sell, what new products it may develop, what other businesses TNB might buy, what other companies might buy TNB, what the strengths and weaknesses of TNB's operations are, and what its managers and employees might do better. To some extent, TNB employees also use the forum to discuss their problems with the company, whether TNB is meeting its obligations to its employees, and what the employees might do about it. Many of the messages praise TNB, some criticize it, and some are basically neutral. Most of the posts give every appearance of being highly opinionated.

One of the pseudonyms on the Message Boards is that of the defendant on behalf of whom this motion is filed, WatchingTNB. A review of the Message Board reveals that WatchingTNB has posted nearly fifty different comments to the Board, most of them supportive of TNB in response to criticisms made by various other posters. On occasion, WatchingTNB has complained about certain aspects of TNB, although it is hard to imagine any of the posts as being defamatory or in violation of any of the other legal duties set forth in the complaint. Review of WatchingTNB's messages also reveals that she works for TNB, specifically, as a salesperson for TNB's products, and that she has, over the years, invested a fair amount of her pension funds in TNB's stock. Thus, for a number of reasons WatchingTNB has a keen interest in TNB's financial well-being. However, there is nothing to indicate that WatchingTNB has anything to gain from fluctuations in TNB's stock prices.(1)

The complaint lists twelve screen names of persons whose messages are apparently the subject of this action (one of whom is Watching TNB). The complaint identifies three messages that allegedly contravene TNB's rights, but none of them was posted by WatchingTNB. In fact, apart from the fact that WatchingTNB is mentioned by name in the complaint, and that one message from WatchingTNB was attached to a subpoena sent to Yahoo seeking identifying information about WatchingTNB among other posters, plaintiff has done nothing to identify any posting by WatchingTNB that violates its rights, not to speak of explaining what was wrong about a WatchingTNB message.

The message attached to plaintiff's subpoena, whose background is explained below, reads as follows:

Platinum Pup? 1/25/00 11:05 pm.

by: watchingtnb Msg: 1138 of 2347

You gotta laugh ? sure to God there's some end in sight. Is there a consultant all this can be blamed on? Is anyone willing to speculate about the timing of the CFO announcement??

All for going back to the computer and distribution system in place 5 years ago raise your paw.

The origin of this message began on December 14, 1999, when TNB issued a press release announcing that its earnings per share could be as much as 40% lower than expected. It blamed this drastic change largely on difficulties experienced with a new Internet-based system for processing orders for TNB products. See Not. of Lodg., Exhibit 1. Not surprisingly, TNB's announcement spurred another drastic change ? the price of TNB's stock dropped sharply. On January 25, "Platinum_Puppy_99" posted a comment that referred to continued difficulty with the Internet order entry system. Message 1138, from Watching TNB, was a response to this message, suggesting that, surely, the problem would be solved at some point, and wondering who might get blamed for the problem. The message also made reference to TNB's January 24 announcement, Not. of Lodg., Exhibit 2, of the impending retirement of its Chief Financial Officer. Finally, the message suggested that TNB might have been better off had it not eliminated its old ordering system. To the extent that this statement contains any facts, it is apparent that the facts were true, and that each and every fact was based on the public record and not on any inside information.

B. Proceedings to Date

TNB commenced this action on May 12, 2000, by filing its complaint against fifty John Does. The complaint lists twelve screen names and asserts that "certain" of the messages posted by these persons violate TNB's rights in that they either are defamatory, or contain proprietary information, or contain derogatory information published for the purpose of driving down TNB's stock. The complaint quotes three messages, one from "jay54_72" that allegedly reveals insider information, and one each from "e_interested" and ""thomasnbeth" that are allegedly false and defamatory. Apart from these three messages, the complaint does not make specific allegations against any poster or specify which John Doe allegedly committed which wrong. TNB has made no attempt to notify the defendants of this lawsuit, even though TNB is perfectly aware that all of them participate in the Yahoo! Message Board and would have seen the complaint had it been posted there.

Instead of giving the anonymous posters the opportunity to respond on the merits, and indeed instead of waiting the twenty days following service of the complaint that is normally required before third party subpoenas may be issued, TNB filed an ex parte application for leave to serve a subpoena on Yahoo! That ex parte application quoted at length from several messages that TNB deemed offensive, but no message from WatchingTNB was cited in that application. Levy Declaration ? 7. On May 17, the Court authorized the issuance of a subpoena seeking "discovery of unnamed parties limited to the name and mailing address of the person who owns the actual account." A third party subpoena was issued to Yahoo! on May 19, seeking various forms of information (not just names and mailing addresses) about the owners of fourteen screen names, including WatchingTNB, and also including two names not identified in the complaint as having violated TNB's rights. Yahoo! then notified WatchingTNB (and the owners of the other screen names) that the subpoena had been served, and told them that Yahoo! was prepared to reveal information about them unless they notified Yahoo! that they were taking action to quash the subpoena.

WatchingTNB believes that none of her posts violate TNB's rights in any way, or reveals "inside" information, obtained in her capacity as an employee of TNB. However, she is keenly aware that, as an at-will employee, she may be discharged based on her comments regardless of whether the Court finds for her in every respect on the legal issues raised in the complaint. Moreover, although most of WatchingTNB's messages on the Message Board have been supportive of TNB as a company, from time to time she has chastised the management of the company for their disregard of their workers and for other mistakes. She is therefore concerned that the real purpose of this action is to obtain her name so that extra-judicial action can be taken against her.

Accordingly, WatchingTNB's counsel, Mr. Levy, contacted Yahoo! to advise that WatchingTNB would be moving to prevent enforcement of this subpoena. Levy Declaration ? 6. Mr. Levy also contacted plaintiff's counsel to try to identify any particular posts by WatchingTNB that plaintiff deemed improper, and to ask which count is pursued against her (counsel were unable to answer these questions). Id. ?? 7-8. WatchingTNB now files this special motion to strike under the SLAPP statute, which provides, inter alia, that all discovery is stayed by the filing of a motion such as this. (Code Civ. Proc., ? 425.16, subd. (g) [all future statutory references are to the Code of Civil Procedure unless otherwise specifically noted].)

ARGUMENT

THIS LAWSUIT IS DESIGNED TO CHILL DEFENDANT'S FREE SPEECH, AND SHOULD BE DISMISSED UNDER THE ANTI-SLAPP STATUTE, SECTION 425.16

A. This Case Falls Withing the Scope of Section 425.16.

California law protects against the use of the courts to discourage free speech. Claims that have this intended effect are known as SLAPP suits, or Strategic Litigation Against Public Participation. In 1992, the Legislature recognized that there was a "disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition," and found a strong public interest encouraging "continued participation in matters of public significance." (? 425.16, subd. (a).) In order to ensure that "this participation should not be chilled through abuse of the judicial process," the Legislature established a presumption against the maintenance of litigation arising from any act "in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue." (? 425.16, subd (b).) Once it is determined that such an issue is involved, the cause of action "shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Ibid.)

Examining Section 425.16, one court noted as follows:

SLAPP suits stifle free speech. They undermine the open expression of ideas, opinions and the disclosure of information. The marketplace of ideas, not the tort system, is the means by which our society evaluates [and validates] those opinions. The threat of a SLAPP action brings a disquieting stillness to the sound and fury of legitimatedebate. (Beilenson v. Superior Court (1996) 44 Cal. App. 4th 944, 956.)

Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 816 explains why the Legislature chose to create the anti-SLAPP remedy:

while SLAPP suits "masquerade as ordinary lawsuits" the conceptual features which reveal them as SLAPP's are that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. . . . Because winning is not a SLAPP plaintiff's primary motivation, defendants' traditional safeguards against meritless actions, (suits for malicious prosecution and abuse of process, requests for sanctions) are inadequate to counter SLAPP's. Instead, the SLAPPer considers any damage or sanction award which the SLAPPee might eventually recover as merely a cost of doing business. . . .By the time a SLAPP victim can win a "SLAPP-back" suit years later the SLAPP plaintiff will probably already have accomplished its underlying objective. Furthermore, retaliation against the SLAPPer may be counter-productive because it ties up the SLAPPee's resources even longer than defending the SLAPP suit itself. (Citations omitted.)

Since enactment, Section 425.16, subdivision (a) has been amended to provide that it "shall be construed broadly." The statute applies to "any other conduct in furtherance of the exercise ofthe constitutional right of free speech in connection with a public issue or an issue of public interest." (Ibid.; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106.) The courts have given special consideration to these SLAPP cases and have noted that "the early termination of [such a] lawsuit is highly desirable . . .. The public has an interest in receiving information on issues of public importance even if the trustworthiness of the information is not absolutely certain." (Baker v. Los Angeles Herald Examiner (1986) 42 Cal. 3d 254, 269.)

Although many SLAPP cases involved suits filed over statements made by citizens to zoning boards and in other kinds of official proceedings, in exercise of their right of petition for redress of grievances, the statute also extends to any exercise of free speech rights pertaining to public issues. Under subdivision (e) of the SLAPP statute, the communications that are protected against SLAPP suits include "(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the . . . constitutional right of free speech in connection with a public issue or an issue of public interest." The California Supreme Court has specifically ruled that a statement can be protected by section (e)(3) and (e)(4) even if the issue is not pending before a public body. (Briggs v. Eden Council for Hope and Opportunity, supra, 19 Cal. 4th at pp.1117-1118, 1123.)

The corporate performance and commercial activities of publicly held companies constitute "matters of public interest" for First Amendment purposes. (Paradise Hills Associates v. Procel (1991) 235 Cal. App.3d 1528, 1544-1545.) As such, the public enjoys broad, but not unlimited, latitude to discuss and present opinions regarding these topics. (Morningstar v. Superior Court (1994) 23 Cal. App. 4th 676, 695; Macias v. Hartwell (1997) 55 Cal. App.4th 669, 672-673, [SLAPP statute applies to leaflet in intra-union election]; Sipple v. Foundation for National Progress (1999) 71 Cal. App. 4th 226, 238; see also Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 822, fn.6 [defamation suit over advocacy of economic boycott by competing organization; Section 425.16 deemed applicable to "commercial speech"]; Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 650 [although case also involved right to petition, court specifically holds that the statutory term "matters of public interest" "include[s] activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals"].)

Thomas & Betts is a large corporation, a leader in its industry, with more than 57 million shares of stock, more than 21,000 employees, more than 100,000 products, and a presence throughout the country and indeed throughout the world. It invites public comment by maintaining an extensive web site and issuing dozens of press releases every year. The general public has a strong interest in its doings, and when its stock price collapses suddenly, the ensuing discussion among employees, investors, and other members of the public is surely a matter of public interest. Accordingly, the SLAPP statute is fully applicable when TNB brings suit to suppress such discussion.

B. Plaintiff Cannot Establish a "Probability of Success."

Once it is determined that WatchingTNB's participation in the Yahoo! Message Boards was an exercise of her freedom of speech with respect to a public issue, or an issue of public interest, TNB's complaint must be dismissed unless TNB can carry the burden of demonstrating a probability of success. No probability of success can be shown on the current record ? indeed, TNB has not specifically identified a single message from WatchingTNB that TNB claims violates any legal duty. And when asked by WatchingTNB's counsel which statements by WatchingTNB were at issue in this case, TNB's counsel were unable to give any answer.

TNB did attach one message from WatchingTNB to its subpoena to Yahoo!, but that message is scarcely defamatory or otherwise violative of TNB's rights:

You gotta laugh ? sure to God there's some end in sight. Is there a consultant all this can be blamed on? Is anyone willing to speculate about the timing of the CFO announcement??

All for going back to the computer and distribution system in place 5 years ago raise your paw.

This is certainly not defamatory, for several reasons. First of all, it is basically a statement of WatchingTNB's opinions, and not a statement of fact, and California law is crystal clear that there is no cause of action for defamation against a statement of opinion. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal. 3d 254, 259-260.) "In making the distinction [between fact and opinion], the courts have regarded as opinion any 'broad, unfocused and wholly subjective comment,' . . . such as that the plaintiff was a 'shady practitioner', . . . 'crook,' . . . or 'crooked politician.' . . .. Similarly, . . . this court found no cause of action for statements in a high school newspaper that the plaintiff was 'the worst teacher at FHS' and 'a babbler.' The former was clearly 'an expression of subjective judgment.' And the epithet 'babbler' could be reasonably understood only 'as a form of exaggerated expression conveying the student-speaker's disapproval of plaintiff's teaching or speaking style.'" (Copp v. Paxton (1996) 45 Cal. App. 4th 829, 837-838 [citations omitted].)

Under these standards, the message quoted above is plainly a statement of opinion. The message, responding to another message about the continuing problems with TNB's Internet order-processing system, expresses WatchingTNB's opinions that the problems will be resolved some day, that maybe someone can be blamed for the problems, and that the computer and distribution system that TNB previously used was better. In addition, the message calls on other posters to speculate about why TNB's Chief Financial Officer recently resigned, and perhaps could be read as implying an opinion that the resignation might be related to the order-processing system. None of this opinion can properly be made the subject of a defamation action. Moreover, the basic facts underlying these opinions ? that TNB has been having serious problems with its Internet order processing system, which had a severe effect on company earnings, that the CFO had submitted his resignation, and that TNB previously used a different ordering system ? are all well-established by TNB's own press releases, which are cited in the Statement of Facts above and attached to the accompanying Levy declaration.

Indeed, as a general matter, the presumption ought to be that casual statements about a company on a Yahoo! message board express opinions, rather than facts, just as courts have generally been reluctant to treat negative "stock tips" in financial publications, or commentary in financial newsletters, as defamatory statements of fact. (Biospherics v. Forbes (4th Cir. 1998) 151 F.3d 180, 184; Morningstar v. Superior Court, supra, 23 Cal. App. 4th at p. 693.) The same casual language, breezy tone, and appearance of being opinions instead of reported facts, that are found in an investment publications' "stock tips," are commonly found in message board postings as well. Indeed, the Yahoo! message boards contain routinely warn that "These messages are only the opinion of the poster, are no substitute for your own research, and should not be relied upon for trading or any other purpose." (Not. of Lodg., Ex. 9.) Such a disclaimer has been cited as a basis for denying a cause of action for defamation against an adverse financial rating. (Jefferson County School District v. Moody's Investor Services (D. Colo. 1997) 988 F.Supp. 1341, 1345.) The notion that most members of the public would treat the average message board posting as a reliable statement of fact on which to base major investment decisions is almost laughable; that is certainly true of the repartee in which WatchingTNB was engaged, in posts such as Message 1138.

Nor can Message 1138 be deemed to have revealed insider or proprietary information. To the contrary, to the extent that the message contains or implies any facts, those facts can be found on TNB's web site and in its own press releases. Defendant cannot be sued for revealing public information.

Finally, to the extent that the complaint alleges other torts, such as interference with contractual relations, the pleading requirements and defenses applicable to defamation actions cannot be evaded merely by placing a new label on what is, in essence, a defamation claim. (Blatty v. New York Times Co. (1986) 42 Cal. 3d 1033. Accord, Hustler Magazine v. Falwell (1988) 485 U.S. 46, 52-53, 56.) In Blatty, the California Supreme Court dismissed interference with economic advantage claims arising from an allegedly defamatory statement and enunciated the controlling rule:

Not only does logic compel the conclusion that First Amendment limitations are applicable to all claims, of whatever label, whose gravamen is the alleged injurious falsehood of a statement, but so too does a very pragmatic concern. If these limitations applied only to actions denominated "defamation," they would furnish little if any protection to free speech . . .: plaintiffs might simply affix a label other than "defamation" to their injurious-falsehood claims . . . and thereby avoid the operation of the limitations and frustrate their underlying purpose. (Blatty, 42 Cal.3d at p. 1044-1045) (citation omitted).

In summary, then, plaintiff cannot establish a probability of success with respect to any of its claims against WatchingTNB, and the complaint should therefore be dismissed.

C.Plaintiff's Third-Party Subpoena to Yahoo!, Seeking to Compel Disclosure of Identifying Information About WatchingTNB, Constitutes a Separate Violation of Her Constitutional Rights.

Not only is the complaint against WatchingTNB a SLAPP suit, but the third-party subpoena to Yahoo!, whereby plaintiff seeks to use judicial process to identify its Internet critics, constitutes an independent violation of those critics' right to speak anonymously. An individual's right to privacy includes the right to speak anonymously. (Rancho Publications v. Superior Court (1999) 68 Cal. App. 4th 1538.) "The right to speak anonymously draws its strength from two separate constitutional wellsprings: the First Amendment's freedom of speech and the right of privacy in Article I, section 1 of the California Constitution." (Id., at p. 1540-1541.)

It is well-established that the First Amendment protects the right to speak anonymously. The Supreme Court has repeatedly upheld this right. (Buckley v. American Constitutional Law Found. (1999) 119 S. Ct. 636, 645-646; McIntyre v. Ohio Elections Comm., (1995) 514 U.S. 334; Talley v. California (1960) 362 U.S. 60. These cases have celebrated the important role played by anonymous or pseudonymous writings over the course of history, from the literary efforts of Shakespeare and Mark Twain through the authors of the Federalist Papers. As the Supreme Court said in McIntyre,

[A]n author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, . . . the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

* * *

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. (McIntyre, 514 U.S. at 341-342, 356.)

These rights are fully applicable to speech on the Internet. The Supreme Court has treated the Internet as a public forum of preeminent importance, which places in the hands of any individual who wants to express his views the opportunity, at least in theory, to reach other members of the public hundreds or even thousands of miles away, at virtually no cost, and has held that First Amendment rights are fully applicable to communications over the Internet. (Reno v. American Civil Liberties Union, supra, 521 U.S. 844.) Several cases have upheld the right to communicate anonymously over the Internet. (ACLU v. Johnson (D.N.M. 1998) 4 F. Supp.2d 1029, 1033; ACLU v. Miller (N.D. Ga. 1997) 977 F. Supp. 1228, 1230; see also ApolloMEDIA Corp. v. Reno (1999) 119 S. Ct. 1450 aff'g (C.D. Cal. 1998)19 F. Supp.2d 1081 [protecting anonymous denizens of a web site at www.annoy.com, a site "created and designed to annoy" legislators through anonymous communications].)

The references in these cases to people who communicate anonymously, because they are afraid of economic retaliation, are not merely theoretical. Several anonymous posters in Yahoo!'s TNB Message Board, like WatchingTNB, identify themselves as TNB employees, and such employees could face retaliation from TNB. Once they are identified by Yahoo!, the plaintiff could take immediate extra-judicial action against them by firing them, even if the Court ultimately holds that each and every one of their statements on the Message Board was legally protected. Surely, the Court should not permit plaintiff to abuse the judicial process by bringing a frivolous action against one of its employees, using judicial process to identify her, and then using its economic clout to silence her, regardless of whether the suit is ultimately deemed lacking in merit.

Moreover, at the same time that the Internet gives individuals the opportunity to speak anonymously, it creates an unparalleled capacity to monitor every speaker and discover his or her identity. That is because the technology of the Internet is such that any speaker who sends an e-mail, or visits a website, leaves behind an electronic footprint that can, if saved by the recipient, provide the beginning of a path that can be followed back to the original sender. (See Lessig, The Law of the Horse (1999) 113 Harv. L. Rev. 501, 504-505.) Thus, anybody with enough time, resources and interest, if coupled with the power to compel the disclosure of the information, can snoop on communications to learn who is saying what to whom. As a result, many informed observers have argued that the law should provide special protections for anonymity on the Internet. (E.g., Post, Pooling Intellectual Capital: Thoughts of Anonymity, Pseudonymity, and Limited Liability in Cyberspace, 1996 U. Chi. Legal F. 139.)

Because compelled identification of anonymous speakers trenches on their First Amendment right to remain anonymous, the First Amendment creates a qualified privilege against disclosure. When deciding whether to compel the production of documents that would reveal the name of an anonymous source, the courts apply a three-part test, under which the person seeking to identify the anonymous speaker has the burden of showing that (1) the issue on which the material is sought is not just relevant to the action, but goes to the heart of its case; (2) disclosure of the source to prove the issue is "necessary" because the party seeking disclosure can prevail on all the other issues in the case, and (3) the discovering party has exhausted all other means of proving this part of its case. (Carey v. Hume (D.C. Cir. 1974) 492 F.2d 631; 1974); Cervantes v. Time (8th

Cir. 1972) 464 F.2d 986; Richards of Rockford v. PGE (N.D. Cal. 1976) 71 F.R.D. 388, 390-391.

The California courts apply a similar balancing test to determine whether to override the qualified privilege of speaking anonymously. "Courts carefully balance the 'compelling' public need to disclose against the confidentiality interests to withhold, giving great weight to fundamental privacy rights. Mere relevance is not sufficient; indeed, such private information is presumptively protected. The need for discovery is balanced against the magnitude of the privacy invasion, and the party seeking discovery must make a higher showing of relevance and materiality than otherwise would be required for less sensitive material." (Rancho Publications v. Superior Court, supra, 68 Cal. App. 4th at pp. 1549-1550.)

Federal District Judge Lowell Jensen recently applied these principles in a case where the plaintiff was seeking to identify John Doe defendants against which it had filed a lawsuit. (Columbia Ins. Co. v. Seescandy.com, (N.D. Cal. 1999) 185 F.R.D. 573.) The court required the plaintiff to make a good faith effort to communicate with the anonymous defendants and provide them with notice that the suit had been filed against them, thus giving them an opportunity to defend their anonymity. The court also compelled the plaintiff to demonstrate that it had viable claims against such defendants. (Id., at p. 579.)

Plaintiff did not meet either of these requirements. First, plaintiff has made no effort to notify the John Doe defendants of its claims against them. WatchingTNB learned of the lawsuit only from Yahoo!, which has recently adopted the policy of notifying its customers of attempts to identify them. It would have been simple for plaintiff to have posted the complaint itself on the TNB Message Board, so that each of the Doe defendants would have known the exact nature of plaintiff's claims and would have had the opportunity to appear in this Court to file a special motion to strike, as WatchingTNB has done, and to defend their right not to be identified. Nor has plaintiff filed a sufficiently specific complaint to permit the Court to conclude that it has viable claims against most of the anonymous posters that plaintiff TNB seeks to identify. As Judge Jensen stated in Seescandy, "a conclusory pleading will never be sufficient to satisfy this element." (185 F.R.D. at p. 579.) Surely, no viable claim has been shown against defendant WatchingTNB.

CONCLUSION

The special motion to strike should be granted, and the Court should deny enforcement of the subpoena to Yahoo!. In addition, defendant should be awarded her reasonable costs and attorney fees incurred in bringing this special motion to strike.

1. Reference to WatchingTNB using a feminine pronoun is simply a matter of convenience, and should not be taken to identify the actual gender of WatchingTNB.