Nov. 27, 2007

In Landmark Ruling, Arizona Appellate Court Upholds First Amendment Right to Speak Anonymously on the Internet

Court Adopts Reasoning Presented by Public Citizen

WASHINGTON, D.C. – In a landmark ruling issued today in the case of Mobilisa v. Doe, the Arizona Court of Appeals in Phoenix upheld the First Amendment right of online anonymity when it has not been abused. The court held that would-be plaintiffs suing an anonymous Internet speaker must both present evidence to support their claim and show that their interest in identifying the speaker outweighs the speaker’s interest in remaining anonymous.

Following the recommendation of Public Citizen and the Electronic Frontier Foundation (EFF) in a brief filed as amicus curiae, the majority opinion by Judge Ann Scott Timmer embraced the approach of New Jersey’s Superior Court, Appellate Division. That court, in its pioneering 2001 decision in Dendrite v. Doe,   required an explicit balancing of rights even after the plaintiff has shown that it has enough evidence to survive “summary judgment” – a request that the case be dismissed for lack of merit. The court followed the Dendrite analysis instead of the summary judgment standard used by the Delaware Supreme Court in its 2005 decision in Doe v. Cahill.

The case arose from an anonymous message sent to the management team of Mobilisa, a Seattle provider of wireless and mobile communication systems, chiding the company’s CEO for an e-mail to his mistress, a copy of which was forwarded along with the reproving message. Mobilisa sued the anonymous speaker, claiming that the underlying e-mail must have been obtained by hacking into Mobilisa’s computer system. Mobilisa then subpoenaed The Suggestion Box, an Arizona company that provided anonymous e-mailing services, to obtain the identity of the anonymous message sender.

The trial court followed the Cahill approach and required the plaintiff to present evidence sufficient to show that its suit for trespass to its computer system under state law and for violation of federal statutes protecting the privacy of electronic communications could survive a request that the case be dismissed for lack of merit. It then held that the evidence presented in response to that ruling was sufficient. The Court of Appeals agreed that the Cahill standard had been met but faulted the trial court for failing to take the necessary step of balancing the rights of the Mobilisa and Doe before ordering that the defendant’s identity be revealed. 

“The ability to speak or criticize anonymously online is an important tool for whistleblowers to expose misconduct or corruption by powerful companies or public figures,” said Paul Alan Levy, the Public Citizen attorney who was the principal author of the amicus brief and presented oral argument on behalf of amici curiae. “Speakers often have a good reason to remain anonymous when the targets of their criticism have the power to harm them.  This decision strikes the right balance to protect online anonymity when it has not been abused and prevent the threat of lawsuits from having a chilling effect on this important type of speech.”

Judge Timmer explained that an explicit balancing approach better accommodates the variety of claims that may be brought against anonymous defendants; the possibility that, in some cases, significant harm may be suffered by the anonymous poster who is identified; and the danger that identification will have a chilling effect on highly protected political speech. Because the trial judge did not reach the balancing stage, the appellate court sent the case back to the trial court to allow the trial judge to apply that part of the required test. The court of appeals did not indicate any view on the outcome of the balancing part of the test.

In a dissenting opinion, Judge Daniel Barker argued that once a plaintiff has presented enough evidence to survive a request to dismiss the case for lack of merit, there is no authority for withholding the identity of the anonymous speaker, which the plaintiff needs to proceed with the litigation. Judge Susan Ehrlich joined Judge Timmer’s majority opinion.

Corynne McSherry of the Electronic Frontier Foundation in San Francisco co-authored the amicus brief, and John Flynn of Dioguardi Flynn Jones in Scottsdale Arizona was co-counsel for Public Citizen and EFF.

VIEW the ruling and the amicus brief.

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