Protecting Blogger Anonymity in New York

In the twenty-three years since the New Jersey Appellate Division issued its seminal decision in Dendrite International v. Doe, appellate courts in most adjoining and nearby  states — Pennsylvania, Delaware and Maryland — have adopted at least most of the major features of the Dendrite standard.  But New York has been the outlier — no appellate court has addressed the question of how the First Amendment constrains the ability of a party claiming that anonymous speech about it is wrongful to secure judicial relief compelling identification of the speaker.

Last fall I blogged about a brief that we filed in support of an emergency motion for a stay, seeking to protect the anonymity of a blogger who writes at about a seamy corner of the economy, multi-level marketing schemes, with a particular focus in recent years on crypto-currency investment schemes. “GSB Gold Standard Corporation,” one of several corporate faces of an international crypto-currency scheme called “GS Partners,” had obtained an order compelling Google and GoDaddy to disclose the identity of BehindMLM. We entered the case after BehindMLM’s counsel appealed and filed a short motion for a stay pending appeal. Our reply brief was more elaborate, and in the meantime the securities commissions in several states had concluded their investigations of the GS Partners conspiracy and issued orders forbidding them to operate in their respective states. Our reply brief pointed to those rulings, which in effect confirmed everything BehindMLM had written about them. Happily, the stay was granted and a schedule for briefing was set.

Yesterday we filed our opening appellate brief. It has been a few years since my last opportunity to write a long enough brief – that is, using the word length allowed for a party’s opening or downside appellate brief – explaining why the Dendrite approach provides the best solution to the problem of reconciling the right to speak anonymously when the speech does no wrong and the right to seek judicial vindication of the legally protected interests with which actionable speech can interfere. I have, I believe, improved on that discussion as well as pointing to several reasons why GSB has fallen short of the required showings.

One issue that occurred to me late in the process of writing the brief is whether the fact that GS Partners claims not to be doing business in the United States bears on its ability to enforce the ruling in its favor. Might the fugitive disentitlement doctrine apply here? It was too late to investigate that question, and we did not address this issue in our appellate brief. However, if the Appellate Division agrees that, as we argued, GSB should be allowed to make a showing in support of discovery on remand, perhaps it would fair for the trial court to insist that Josip Heit testify in person about his claims of falsity.

Again, many thanks to Ray Beckerman, a longtime EFF cooperating attorney, and Jennifer Insley-Pruitt  (my Stone Pond connection!) and Luke Reilly of Dechert LLP for their invaluable roles in getting this brief in shape.

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