Dec. 12, 2007
Court Ruling Protects Right of Bloggers to Remain Anonymous
Statement of Paul Alan Levy, Attorney With Public Citizen*
The Texas Court of Appeals for the Sixth Appellate District at Texarkana took an important step today toward protecting the rights of Internet bloggers in Texas to write anonymously. In an opinion issued by Justice Jack Carter in Essent v. Doe, the court of appeals joins a broad consensus of state and federal courts in insisting that plaintiffs present sufficient evidence to show they could win at trial before gaining access to information identifying anonymous speakers.
The case arose from a blog about the Paris Regional Medical Center in Paris, Texas, which included analysis of problems at the hospital (). Claiming a concern for patient privacy, Essent, the operator of the Medical Center, sued for defamation, and immediately sought discovery to identify the employees who, Essent claimed, were revealing confidential patient information in the course of criticizing abuses at the hospital. The Doe, represented by James Rodgers of the Moore Law Firm in Paris, sought to block discovery but District Judge Scott McDowell upheld the request. However, the court of appeals has now reversed the case and sent it back to the lower court for further consideration.
In ruling, the appellate court recognized that although Internet anonymity can be abused, the right to speak anonymously online is protected by the First Amendment. That right cannot be denied if no real evidence exists supporting the plaintiff’s claims of wrongdoing. Otherwise, the very threat of litigation will have a serious chilling effect on anonymous speech. The court also agreed with rulings in other states that declare an anonymous blogger has “standing” to oppose discovery even though the discovery demand is directed to a third-party Internet hosting service, and that a blogger has the right to appeal if their request for anonymity is denied.
The decision is not a perfect one. Unlike the Arizona Court of Appeals’decision last month in Mobilisa v. Doe, and the 2001 ruling of the New Jersey Appellate Division in Dendrite v. Doe, the Texas Court of Appeals did not add an explicit balancing step, under which, for example, the danger of retaliation against an employee whistleblower can be considered in deciding whether the plaintiff has shown enough evidence of wrongdoing. This case may well present a realistic possibility of such retaliation. So far as we have been able to determine, the balancing test was not argued to the Texas court.
Still, the requirement of presenting evidence provides an important measure of protection for employee whistleblowers and other anonymous critics of powerful corporations, political figures and others.
READ the opinion.
Public Citizen was not involved in the Essent case, but its attorneys have argued many important cases involving anonymous Internet speech, including Dendrite, Mobilisa and Doe v. Cahill. LEARN MORE.
*Paul Alan Levy runs the Internet Free Speech program at Public Citizen.