Illinois Supreme Court Orders Identification of Anonymous Critic

by Paul Alan Levy

In a decision issued yesterday in Hadley v. Subscriber Doe a/k/a Fuboy, the Illinois Supreme Court affirmed lower court rulings that an anonymous commenter who responded to a local newspaper article by calling a local politician a “Sandusky waiting to be exposed,” making particular reference to the fact that he could see a local elementary school from his front door, had to be identified in response to a verified petition for disclosure under a state court rule (Rule 224).  The case stands as a useful reminder that there are legal limits to online accusations, even those found in the wild comment sections of some newspapers.

The court mentioned the Dendrite / Cahill approach to this issue only in passing in the course of describing the reasoning of the lower courts, which had pointed to an earlier case, Stone v. Paddock Publications and Maxon v. Ottawa Publishing Co., which had, in turn, said the First Amendment interests protected in other states using a constitutional analysis could be protected in Illinois because Illinois is a fact pleading state, requiring more detail than the traditional rule of Rule 8 of the Federal Rules of Civil Procedure, and because the Illinois Court Rule 224 requires a verified petition.  On this theory, these courts decided that once a verified petition has been found to pass a motion to dismiss standard, the protections are equivalent to the summary judgment standard articulated in Cahill.  The Illinois Supreme Court decided that the lower courts' reasoning was correct.

I have not yet seen either the underlying complaint in the Hadley case, or the Doe’s appellate reply brief (assuming that one was filed), but in Doe’s opening brief, at least, the Doe never argued for the adoption of the Dendrite  /  Cahill rule requiring the submission of evidence of falsity (and of other elements of the plaintiff’s cause of action).  The brief only mentioned Dendrite and a few other cases in passing (at page 20), as supporting the general proposition that “party claiming to have been injured by an anonymous statement must demonstrate that he has a substantial and viable claim.” 

The brief goes on to identify the Illinois court rule as properly serving that purpose, but argues that the Doe’s references to Hadley were figurative statements of opinion rather than being actionably false statements of fact.  The Illinois Supreme Court firmly rejected that argument, even applying Illinois’ very speech protecting innocent construction rule.

Without seeing the petition itself, it is impossible to say whether its averments are sufficiently clear and direct (and on personal knowledge) to be equivalent to the sort of affidavits that routinely pass inspection under the DendriteCahill line of cases.  It may well be that the Doe never argued that the plaintiff has to present evidence of falsity because the verified petition in that case was sufficient on that score.  In any event, from what I have been able to found so far, it does appear that the modes of analysis demanded in those cases were never argued to the Illinois Supreme Court.

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