Sedersten v. Taylor: Court Refuses Request to Unmask Anonymous Blogger who Was Not a Party to a Suit
Internet defamation law update: Courts around the U.S. regularly grant requests by plaintiffs to force publishers to disclose the identity of anonymous bloggers -- albeit, often not until the plaintiff has jumped over some rather stringent procedural hurdles. However, in a recent case, a federal judge in Missouri denied such a request, on the grounds that the plaintiff's need for the blogger's testimony did not outweigh the blogger's First Amendment right of anonymity. Sedersten v. Taylor, W.D.Mo., 6:09-cv-03031, Order Denying Motion to Compel (Dec. 9, 2009). This decision is not an outlier, but represents principles governing such cases that are recognized by most courts.
The U.S. Supreme Court has long recognized that anonymous speech is protected by the First Amendment. Talley v. California, 362 U.S. 60, 64 (1960). For example, in a case in which it invalidated an Ohio statute prohibiting anonymous political leafleting, the Court declared that "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of speech protected by the First Amendment." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995).
The degree of protection provided speech is dependent, among other things, on its content.
Restrictions on the content of "core political speech" are subject to "exacting scrutiny" by the courts, and may only be upheld if they are "narrowly tailored to serve an overriding state interest." Id., 514 U.S. at 347. Core political speech encompasses "debate over the qualifications of candidates, discussion of governmental or political affairs, discussion of political campaigns, and advocacy of controversial points of view." Doe v. 2The Mart.com, Inc., 140 F.Supp.2d 1088, 1092 (W. D. Wash. 2001).
Restrictions on the content of non-core speech are subject to "normal strict scrutiny analysis." Id., 140 F.Supp.2d at 1093. Under strict scrutiny, the government must assert a significant and compelling government interest, and the court must decide whether the legislation is sufficiently narrowly tailored to serve that interest. People with Disabilities v. Herrera, 580 F. Supp. 2d 1195, 1215 (D.N.M. 2008). Non-core speech would include most blog posts criticizing individuals or private companies.
Courts around the U.S. impose widely varying standards when dealing with requests to unmask the identity of an anonymous blogger in defamation cases. On the lighter end of the scale, some courts require a plaintiff merely to show he has a good faith basis to contend that he may be the victim of actionable conduct. On the heavier end of the scale, other courts require a plaintiff to support his defamation claim with facts sufficient to defeat a summary judgment motion. Others impose procedural hurdles, such as requiring efforts to notify the anonymous poster that he is the subject of a subpoena so the he can oppose, and requiring the plaintiff to show that the information sought is directly relevant to the plaintiff's claims and unavailable from other sources. See our post of August 24, 2009.
In cases in which the plaintiff has sought the identity of an anonymous blogger who authored a defamatory post, plaintiffs have generally been able to surmount these hurdles. However, in cases where plaintiffs have sought the identity of an anonymous blogger whose statements were not at issue in the case -- a non-party witness -- courts have sometimes refused to grant disclosure. See, e.g., Doe v. 2The Mart.com, Inc., 140 F.Supp.2d at 1095-98.
Here, Sedersten v. Taylor is a police brutality case, in which Sedersten seeks millions in damages for beatings he allegedly suffered at the hands of Taylor, a Springfield, Missouri police officer. In September 2009, the Springfield News-Leader published an article on the Internet discussing a decision by the local prosecutor's office to drop charges against Taylor. In response to this article, an anonymous blogger, writing under the pseudonym "bornandraisedhere," wrote as follows:
"Yep, its Darrel Moore [the prosecutor] doing his finest work. Here is Taylor who did 10 years of good service for the city and then goes serves our country. He tries to get help for some problems when he gets back but goes unheard and is put back on the streets. The he make a mistake and lets his emotions get the best of him. His whole career is over. Then the alleged victim is unwilling to testify by Moore and his staff still wants to use him as an example. All in the meanwhile one of the prosecutors family members get numerous felony counts of selling drugs dropped. Way to run that office."
The plaintiff sought to uncover the identity of this anonymous blogger, apparently believing that the blogger had information showing that the City of Springfield should have known about the defendant's dangerous proclivities.
The Court refused this request. The Court noted that strict scrutiny is applied to restrictions on political speech. This consideration was "particularly relevant" because the blogger's comments directly questioned and criticized the actions of government officials. The Court further noted that where an anonymous blogger is a non-party, disclosure of his identity is only appropriate where there is a compelling need for the discovery.
The Court found that there was no compelling need here. While the blogger might have been able to provide evidence that the City knew or should have known of Taylor's dangerous tendencies, the plaintiff appeared to already have evidence to prove this -- from Taylor's personnel files. Because the evidence sought from the blogger was not necessary for the plaintiff's case to go forward, the plaintiff's need for evidence did not outweigh the blogger's free speech rights.
The result in this case was the result of an unusual fact pattern. In the typical internet defamation case involving an anonymous blogger, a court will generally permit disclosure of the blogger's identity -- if the plaintiff jumps through the right hoops. For more details, see our blog post of November 2, 2009.
David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
