Oct. 23, 2007
Railroad Company Can’t Force Message Board Host to ID Posters, Public Citizen Tells Court
BNSF’s Subpoena Derails Free Speech, Lacks Evidence of Harm and Fails to Follow Basic Procedural Rules
WASHINGTON, D.C. – A Texas railroad company is way off track in thinking it can force an Internet provider to uncover the names of posters on an industry message board, Public Citizen said in a brief filed today in the Superior Court of Los Angeles County, Calif.
Public Citizen opposed Burlington Northern Santa Fe Railway’s (BNSF) motion to compel Network54, a California-based Internet host, to reveal the identity of two posters on its “United Underground Railroad Message Board.”
In the brief filed today on behalf of Network54 and one of the posters, Paul Alan Levy, an attorney for Public Citizen and lead counsel in the case, argued that BNSF’s motion to compel be denied on the basis of First Amendment protections.
The two communications in question, which mock labor relationships within the railroad industry, were posted on “United Underground Railroad Message Board,” an unofficial site popular among railroad workers hosted by Network54. Public Citizen maintains that because the postings are a parody and not defamatory, they are protected free speech. Furthermore, Network54’s own First Amendment rights allow it to keep the names of its users anonymous
In BNSF Railway Co. vs. Network54, the railroad company, claiming that it needs the names to pursue a defamation case, issued a subpoena in Fort Worth, Texas, to compel Network54 to identify the posters. Network54, however, is based in California. Los Angeles Superior Court Judge Gregory Alarcon pulled the switch on BNSF at the first hearing, dismissing its petition for pre-litigation discovery because of procedural flaws.
In its motion to compel compliance with the subpoena, BNSF is now arguing it needs the information not to sue the two John Doe posters, but to decide whether it should sue them. Either way, California law doesn’t permit discovery for the purpose of identifying defendants in a possible suit that has not yet been filed, Public Citizen said in its brief. Network54 has posted the subpoena, and related legal correspondence, on the message board but is refusing to identify posters who wrote about BNSF. However, the board’s climate already has showed signs of a chilling effect, as BNSF-related messages have dwindled.
Public Citizen opposes the motion to compel on the grounds that BNSF has not fixed the procedural flaws or presented any evidence that harm done to the company outweighs the posters’ First Amendment rights. Furthermore, BNSF is seeking discovery not permitted by California law and jeopardizes the established right to anonymous free speech without any evidence that the protected speech is defamatory, false or any way actionable.
“The reaction to these posts on the message board itself suggests that nobody took these parody posts seriously except railroad supervisors who apparently have no sense of humor,” said Levy. “The right of anonymous speech demands protection against frivolous claims of defamation like this one.”
Local counsel for Network54 and John Doe is Yvonne Renfrew, a Los Angeles lawyer.
READ Public Citizen’s brief.
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