by Paul Alan Levy
In Doe v. Coleman, a decision issued yesterday, the Kentucky Supreme Court overruled a decision of the state court of appeals which, considering the validity of a subpoena to identify defendants who had been sued for defamation based on comments about a local official, had held that the plaintiff officials’ conclusory affidavits attesting to the falsity of the anonymous comments were sufficient to meet the standards for enforcing such subpoenas set by Doe v. Cahill, the Delaware Supreme Court decision that the Court of Appeals had endorsed in a 2014 decision in the same case. Instead, the Supreme Court held that Kentucky courts are to follow the full standard adopted by the New Jersey Superior Court Appellate Division in Dendrite International v. Doe, which includes a balancing stage that weighs the relative interests of the plaintiff in securing redress and of the defendant in retaining his or her First Amendment right of speaking anonymously, given such considerations as the nature of the speech at issue and any special dangers to the defendant from being identified.
By my count, there are now seven states whose appellate courts follow the full Dendrite approach, four that follow the Cahill approach requiring evidence but not balancing, and one (Washington) that requires evidence but has reserved judgment on whether to adopt a balancing stage. The Supreme Courts in Michigan (where the preferred approaches of two separate court of appeals panels are in conflict) and Maine will be hearing oral argument on the issue this fall.
Details of the First Amendment Rulings
In its earlier decision, issued in 2014, the Court of Appeals had reversed a trial court decision enforcing a subpoena for the identification of several Internet users who had suggested that the plaintiff, Hickman, had engaged in shady transactions in his capacity as the head of the local airports authority. The Court held that Hickman had to present evidence that the statements about him were false. On remand, the trial court had accepted as sufficient evidence of falsity an affidavit that said, in highly conclusory terms “this is not true and is totally baseless”; the Court of Appeals upheld the enforcement of the subpoena.
The Kentucky Supreme Court reversed on this point, saying that to meet First Amendment standards and thus to support taking away the Doe defendants’ right to speak anonymously, the Dendrite standard requires affidavits that contain “factually based averments”; when the claim is for defamation, the affidavits must that show specifically in what way the statements at issue are false. This aspect of the ruling is significant even apart from the Court’s deliberate decision to embrace the Dendrite approach with an express balancing stage rather than the Cahill approach under which a prima facie showing is alone sufficient to overcome the First Amendment right to speak anonymously.
In light of these holdings, the Supreme Court remanded with instructions to deny discovery unless the plaintiff could meet the prima facie evidence standard with proofs of greater specificity. Then, if that part of the test is satisfied, then the trial court would be required to address the final balancing stage. The court also indicated that some parts of the allegedly defamatory comments would not support a defamation claim because they express “purely opinion, even though hurtful.”
There were also a concurring opinion and a dissent; both address the specific disposition of the case without directly addressing the choice between Cahill and Dendrite. The concurring justice disagreed with the imposition of an evidentiary standard requiring "specific evidence," but indicated that all of the criticisms at issue in the litigation were constitutionally protected expressions of opinion. Two dissenting justices expressed general dissatisfaction with the state of defamation law ("our culture is become increasingly saturated by malicious memes and other online chatter"), and with the majority's requirement of evidentiary specificity. The dissent also disagreed with the concurrence's position on nonactionable opinion. According to the dissent, the Supreme Court of the United States "essentially abrogated the opinion doctrine" in Milkovich v. Lorain Journal; and "[m]uch of what is said about public officials is probably defamatory; [witness] the 2016 presidential campaign as a prime example."
Attorney-client privilege protecting the client’s identity
The second part of the court’s opinion addresses a different attack on the Doe defendants’ immunity – plaintiff tried to compel Doe’s counsel to disclose their identities, and the trial court had rejected counsel’s argument that the identities were protected by the attorney-client privilege. In this regard, the Kentucky Supreme Court’s ruling was less felicitous: it held that insofar as the purpose of the representation was to protect the First Amendment right to remain anonymous, the clients’ communication of their identities to their lawyers was a confidential fact within the privilege. However, if, in the end, the First Amendment privilege was rejected, then the reason for extending attorney-client privilege would have been vitiated and the attorney could be required to furnish identifying information.
This part of the ruling seems wrong to me. The reason for the attorney-client privilege is to enable the client to make full disclosure to the lawyer so that the a lawyer can provide the most effective representation, and the privilege is not lost if the attorney loses the case. Why should that be any different when it is identifying information rather than, for example, details about the client’s possible connection to a crime or to tortious behavior, or the tawdry details of a client’s life that might have some bearing in wrongs that the client claims to have suffered? Losing the case does not generally mean that everything disclosed to the lawyer becomes fair game for discovery in the next piece of litigation to which those disclosures might be relevant.
This part of the ruling has its greatest possible impact in cases where the information available to the third=party that has been subpoenaed to identify the anonymous online speaker proves insufficient to lead to the identity of the defendant. In future Kentucky cases, anonymous defendants might be better served not retaining counsel to litigate their First Amendment right to remain anonymous if they think that the information subpoenaed might not lead to their identification. Or, perhaps, the defendants might need to hide their true identities from their lawyers, so the lawyers would be unable to provide convenient identifying information. The need to make such choices is not conducive to effective representation of clients in Dendrite cases.