by Paul Alan Levy
A new Virginia case presents one of the less-frequently-litigated issues in the realm of the First Amendment right to speak anonymously — when the identity of an anonymous blogger (or other Internet speaker) can be demanded not so that she can be served with a summons in a lawsuit alleging that her speech violated the plaintiff’s rights (the so-called Dendrite issue that I have often discussed on this blog), but rather so that the blogger can provide useful evidence bearing on somebody else's liability.
This case arises from a defamation suit pending in the northern Virginia suburbs, in which a high school principal filed suit against the then-chair of the Prince William County Board of Education and a couple of his local political supporters. The school board chair, a man named Ryan Sawyers, criticized the principal (Michael Bishop) and tried to get him removed; the chairman at first prevailed on a motion to deny an extension of the principal’s contract, but ultimately the majority of the board changed their votes; indeed, there was an effort to recall Sawyers, who ended up resigning from the Board before his term expired. A local political blogger called “Sheriff of Nottingham PWC” chimed in on the controversy, making the efforts against Bishop one of her many bases for attacking Sawyers.
One of the three defamation defendants, Guy Morgan, issued a subpoena to Google seeking to identify Sheriff of Nottingham PWC, who sought help protecting her anonymity. I was initially not inclined to take the case, but the responses from Morgan’s lawyers to my inquiries about why they had served the subpoena led me to conclude that their only reason was to punish the blogger for expressing views and opinions that they found obnoxious. And besides, it presented an important legal issue of first impression in Virginia.
These “superlawyers” admitted that they had no claim that Sheriff had defamed anybody on her blog; they said that Bishop was claiming in his suit that he had lost his job, and that they needed to depose Sheriff to learn the basis for Sheriff's blog post saying that the principal had retained his job (a fact that is reflected on the high school’s web site). They also said they needed to take Sheriff’s deposition because her blog had referred to Bishop as a “popular and effective principal,” and they claimed that they needed the jury to hear Sheriff testify about why she had said this because, they claimed, it would show that their allegedly defamatory criticisms had not actually harmed Bishop’s reputation.
The lawyers also told me that they would be glad to agree to a protective order limiting the extent to which Sheriff’s name would be revealed, but when I pointed out that a protective order would do no good if Sheriff were testifying at trial (which would have to be in public), they suddenly changed their tune and said that they only wanted to take Sheriff’s deposition rather than presenting trial testimony. This final exchange persuaded me that the lawyers were just making up reasons as they went along, and only wanted to identify Sheriff because they did not like what Sheriff had to say about the defendants. (The entire email exchange is attached to our motion to quash).
Our brief supporting a motion to quash argues that subpoenas seeking to identify anonymous online speakers in order to obtain evidence to be used in litigation to which the speaker is not a party is governed by the 2theMart test, named after an early case litigated by the Electronic Frontier Foundation and the ACLU’s Washington affiliate in federal court in Seattle. The 2theMart decision borrowed heavily from the standard applied by most courts around the country to decide whether a journalist can be compelled to identify her sources, looking to whether the subpoena was issued in good faith, whether the subpoena seeks evidence that pertains directly to one of the core claims or defenses in the litigation, and whether the party serving the subpoena needs the identifying information badly enough that they cannot make the proofs that they claim to need in some way that does not require taking away anonymity.
Our co-counsel barred in Virginia in this case are with Baker & Hostetler, which really brings my work on the issue of online anonymity full circle, because it was Megan Gray, then a young associate in that firm's Los Angeles office, who was the first to specialize in this issue back around 1999; her briefs provided some of the basic language that I was able to adapt in briefing Dendrite, Cahill, and the other early cases that set the national pattern in this area.