It seems like just yesterday I was noting some progress in the courts in protecting online anonymous speech. Then today I came across this article by Douglas Lee about how the Illinois Court of Appeals rejected the Dendrite and Cahill standards in a case where anonymous online posters accused individuals of bribing public officials:
It’s cases like Maxon v. Ottawa Publishing Company that test what we’re willing to accept in the name of free speech.
In Maxon, Donald and Janet Maxon asked Ottawa, Ill., to change its ordinances so as to allow bed-and-breakfast establishments in residential areas. The local newspaper covered the city’s consideration of the request, and several readers posted comments on the issue on the newspaper’s Web site. To post a comment, a person had to register only with an e-mail address. Registrants did not have to give the newspaper their real names and could post comments under pseudonyms or screen names that did not reveal their identities.
Mary1955, FabFive from Ottawa, and birdie1 commented on the bed-and-breakfast issue frequently, expressing their opposition to the Maxons’ request and their displeasure with the city officials considering it. At one time or another, all three suggested the Maxons had bribed some of the officials.
The Maxons responded by filing a petition for discovery, a procedure under Illinois Supreme Court Rule 224 that allows parties to learn the identity of potential defendants before filing suit. In this case, the Maxons sought from the newspaper all information that would allow them to identify the three posters.
The trial court, relying on decisions from courts in New Jersey and Delaware, denied the petition, ruling that courts must take special precautions to protect the anonymity of Internet posters.
The Maxons appealed the trial court’s ruling to the Illinois Appellate Court, and on June 1 that court reversed. In a 2-1 decision, the court refused to follow Dendrite and Cahill, holding that the test applied in those cases misguidedly offered anonymous Internet speakers more protection from defamation claims than the law provided speakers who identified themselves.
Moreover, the court said, no reason exists to balance “the rights of the speaker to anonymity against the rights of a would-be plaintiff.” While acknowledging that “certain types of anonymous speech are constitutionally protected,” the court said “it is overly broad to assert that anonymous speech, in and of itself, warrants constitutional protection.”
Rather, the court held, anonymous Internet speakers enjoy the same protections from defamation claims as identified speakers — but not more. “[O]nce the petitioner has made out a prima facie case for defamation, the potential defendant has no first-amendment right to balance against the petitioner’s right to seek redress for damage to his reputation, as it is well settled that there is no first-amendment right to defame.” Therefore, “given that there is no constitutional right to defame, we find no need for the additional procedural requirements articulated in the Dendrite-Cahill test.”
Read more on the First Amendment Center.