Pennsylvania Appeals Court Rightly Embraces First Amendment Protections for Anonymous Online Speech

 Jan. 7, 2011 

Pennsylvania Appeals Court Rightly Embraces First Amendment Protections for Anonymous Online Speech

Statement of Paul Alan Levy, Attorney, Public Citizen

Note: Paul Alan Levy represented several of the anonymous critics throughout this case.

 The Superior Court of Pennsylvania’s ruling this week that a city council president should not be able to learn the identities of her anonymous online critics without meeting strict criteria is the right decision and is a standard that other courts should follow. 

 If someone wants to use a subpoena to identify his critics, he must first ensure that the critics have notice of the subpoena, then prove that the statements were false and harmful. And even then, the court should consider whether the anonymous critics’ interest in staying anonymous outweighs the plaintiff’s interest in pursuing the lawsuit, the court said.  

This ruling agrees with the approach taken by state appellate courts in such states as Maryland, New Jersey, New Hampshire and Arizona, while disagreeing with appellate rulings in such states as Delaware, Texas and the District of Columbia, which demand only evidence supporting the claim but not a balancing of the equities.

 Former Scranton, Pa., City Council President Judy Gatelli sought a court order requiring Joseph Pilchesky, the host of a message board on www.dohertydeceit.com, to reveal the identities of posters whom Gatelli accused of defamation, civil conspiracy and “engaging in a campaign of intentional emotional distress.” Lackawanna County Court of Common Pleas Judge Peter O’Brien ruled that Gatelli was entitled to unmask six of the message board’s posters. But Pennsylvania Superior Court’s Judge Robert A. Freedberg reversed the decision and sent the case back to trial court, ruling that until Gatelli could meet the above criteria, the posters could remain anonymous.

 This is a victory for free speech and ensures that plaintiffs cannot force courts to reveal their critics solely because they could afford to hire a lawyer.

 Future courts should continue to weigh both the interests of the plaintiff and the interest of the anonymous speaker to decide whether there are any special considerations – such as a danger of retaliation – or the particular gravity of the accusations, that warrant protecting the speaker from being identified or letting the lawsuit go forward on the equities of the case.

 The First Amendment grants rights to both free speech and to the press, standards that must apply to online content as well. Forcing anonymous critics to reveal their identities would have a chilling effect on free speech. Courts must be certain that the statements caused harm before shining light on their authors.
 To learn more about the decision in Pilchesky v. Gatelli, visit: http://pubcit.typepad.com/clpblog/2011/01/pennsylvania-appellate-court-embraces-first-amendment-protections-for-anonymous-speech.html.

 To read the brief Public Citizen filed in the Superior Court in the case, visit: https://www.citizen.org/sites/default/files/pichelsky_v_gatelli_appellate_brief.pdf.

 To read more about the case, visit: https://www.citizen.org/our-work/litigation/cases/pilchesky-v-gatelli-v-pilchesky-and-additional-does.

 George Barron of Wilkes-Barre, Pa., served as local counsel in the case.

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Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please visit www.citizen.org.