When a trial court judge responds to an amicus brief by reversing her published position on outcome of a motion, and begins her opinion with an expression of gratitude to “Public Citizen for its excellent and informative brief,” its author cannot help feeling a bit of glow. But Magistrate Judge Beeler’s opinion in Macao Music Group v. Does brings the Northern District of California back into sync with courts across the country that have applied the Dendrite standard for balancing the rights of plaintiffs with genuine claims for relief against tghe First Amendment right of online critics to remain anonymous when they have done no wrong.
I discussed this case here a couple of weeks ago, noting that the magistrate judge considering a subpoena to identify the anonymous owners of two Twitter accounts had departed from the Dendrite rule, first adopted by the Northern District of California in Highfields Capital Management and then followed in several subsequent cases. After Twitter kept the enforcement of the subpoena at bay by asking the judge to clarify the standard that she meant to apply, we filed an amicus brief arguing for the importance of the standard and pointing out a variety of reasons to believe that, at least on the current record, the standard for stripping the Does of their free speech rights.
Deciding Which Court Hears the Motion
The “Corrected Order on Subpoenas” begins by addressing a new issue that is raised by the 2013 amendments to the Federal Rule 45, which creates the option for district courts issuing subpoenas in aid of cases pending in other districts to send litigation over the enforcement of those subpoenas back to the forum district (here, the Western District of Washington). Following the Advisory Committee Note and a handbook prepared by respected local federal judge William Schwarzer, Judge Beeler suggested that such transfers are disfavored because they impose extra burdens on non-parties being subpoenaed, and that transfer should be denied unless the proponent of transfer shows “exceptional circumstances.”
Judge Beeler’s Application of the Highfields Capital Standard
On the merits, Judge Beeler agreed that the Highfields Capital standard was the one that should apply, but she ignored the various reasons we had put forward for avoiding any discussion of the state-law claims on the ground that the federal-law claims were too insubstantial to support the existence of federal jurisdiction. Rather than addressing the lack of any affidavits establishing falsity of the Does’ statements, Judge Beeler visited the W.D. Wash’s web site and located the exhibits identifying the tweets at issue. She concluded that although there was one tweet which, on its face, could be read as implying that Behringer employees promote “domestic violence and misogyny,” she also followed the bitly URL in the tweet to understand the context for that phrase. She found that it was for one of Macao’s own videos, comically promoting the plaintiff’s own products with a scene in which an angry spouse tries to shoot her husband for ignoring her due to his obsession with plaintiffs' product, but then falls dead from the ricochet. For a busy federal judge to dig so deeply into the basis for an ex parte motion for discovery so that she can assess whether the First Amendment should be overridden is certainly admirable.
This is another case in which the balancing stage of Highfields Capital proved decisive, which is heartening for advocates like me who argue that courts should take that poart of the analysis seriously, even if it is my view that, considering the jurisdictional flaws and the lack of any affidavit establishing falsity, it should not have been necessary to reach that stage of the analysis.
There were a few usages in the opinion that I found a bit offputting. The court described the tweets as “commercial criticism”; when I first saw that phrase I was worried that the judge was wandering down the mistaken path of the Virginia Court of Appeals in Hadeed Carpet Cleaning v. Doe by assuming that criticism of a business is necessarily commercial speech and hence less protected by the First Amendment. In context, though, considering her discussion of the Ninth Circuit’s decision in In Re Anonymous Online Speakers, which suggested that even the Doe v. Cahill line of cases presents too high a standard to govern the anonymity of commercial speakers, I read the decision as using “commercial criticism” as shorthand for criticism of commercial actors, much as the Supreme Court treated a Consumer Reports review of Bose speakers as non-commercial speech in a defamation case.
Whence from Here
Although Judge Beeler responded in an appropriate manner to the criticism of her initial decision advanced in our amicus brief, federal judges are generally too overwhelmed by their huge caseloads of adversary litigation to make it realistic to expect most judges to pay such close attention to the basis for ex parte motions for discovery to identify anonymous speakers. To be sure, Twitter deserves great credit for keeping the issue alive by asking for reconsideration – more than most ISP’s do although, Yelp, too, has been known to oppose subpoenas where the plaintiff has not made a real showing of falsity (Yelp has used my pro bono services in a few potentially precedent setting cases, but I know of other cases where it has objected using fully paid counsel). But there are far too many such subpoenas to make that a realistic means of addressing these cases.
As I see it, the districts where these cases arise with frequency – courts like the Northern District of California and, indeed, the Western District of Washington, where many ISP’s are located – ought to think about developing pro bono panels of lawyers who are willing do address ex parte motions, either as amici or as guardians ad litem following the lead of Judge Godbey in the Northern District of Texas in the Mick Haig case. Just as pro bono panels are needed for civil rights cases involving plaintiffs too poor to afford lawyers, they are needed in cases where absent defendants cannot effectively defend their rights because the motions brought to identify them are ex parte.
Meanwhile, I understand the Macao Music Group, which did not respond quickly to our proposed amicus brief, may be filing a motion for MORE reconsideration of Judge Beeler’s decision.