Internet Critic of Delaware Politician Has Right to Anonymity, Court Rules

Oct. 5, 2005

Internet Critic of Delaware Politician Has Right to Anonymity, Court Rules

Message Board Poster Criticized Smyrna Town Council Member’s Job Performance

WASHINGTON, D.C. – In a victory for free speech on the Internet, the Delaware Supreme Court reversed an order today enforcing a subpoena to identify a citizen who anonymously posted criticism of a member of the Smyrna Town Council.

The court recognized the enormous chilling effect that such subpoenas can have on constitutionally protected speech and the need for a strong legal standard to ensure that identification is ordered only in cases in which the plaintiff has a real likelihood of proving that the speech is wrongful. At the same time, the court’s decision ensured that those who are harmed by defamatory statements online will have the ability to seek recourse.

The case involved an Internet critic, known in court documents as John Doe No. 1, who posted two messages on the Smyrna/Clayton Issues Blog (web log) in September 2004. The messages stated that Patrick Cahill, a member of the Smyrna Town Council, had diminished leadership skills, energy and enthusiasm, and referred to Cahill’s “character flaws,” “mental deterioration” and “failed leadership.” John Doe No. 1, known as “Proud Citizen” on the blog, also stated, “Gahill [sic] is … paranoid.”

On November 2, Cahill and his wife sued John Doe No. 1 and three other anonymous critics, claiming that John Doe No. 1 had accused Cahill of suffering from “mental defects and diseases” and that the misspelling of his name implied he was “engaging in extramarital, homosexual affairs.” Without notice to the critics, the Cahills sought to identify the critics through a subpoena to the Internet access provider, which notified the four critics of the subpoena.

John Doe No. 1 attempted to nullify the subpoena, arguing the disclosure would violate his First Amendment right to criticize a public official anonymously, but the trial court denied the motion. John Doe No. 1 appealed.

Public Citizen, which has been a strong defender of First Amendment rights on the Internet, urged the court in a “friend of the court” brief filed in early August to allow John Doe No. 1 to remain anonymous. Blogs provide individuals such as Cahill the opportunity to immediately respond at no cost to postings they believe are false or misleading, noted Paul Alan Levy, a Public Citizen attorney who argued the case in the Delaware Supreme Court. Further, courts have ruled that subpoenas seeking the names of anonymous speakers can chill free speech, and those courts have upheld the right to communicate anonymously over the Internet.

“This is the first state Supreme Court to squarely decide the standards to govern John Doe subpoena cases,” said Levy. “The court’s determination to require sufficient evidence before a critic is outed will go a long way toward reassuring citizens that they remain free to anonymously criticize public officials.”

Norman Monhait of Wilmington, Delaware, and Lawrence Hamermesh of Wilmington, Delaware, served as local counsel. The American Civil Liberties Union, the Electronic Frontier Foundation and the American Civil Liberties Union of Delaware also joined the August friend of the court brief.

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