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Court quashes subpoena to discover identity of anonymous bloggers after ruling that the bloggers’ statements are not defamatory — Somerset Development, LLC v. “Cleaner Lakewood”, 2012 WL 4370271 (N.J. Super. Ct. App. Div. Sept. 26, 2012)

This case shows how difficult it is to sue for statements made anonymously on the Internet.  The plaintiff (Zucker) is the developer of a real estate project in the New Jersey township of Lakewood.  Zucker learned through discussions with members of the Lakewood community that certain individuals anonymously posted statements on a blog hosted by Google’s Blogspot service.  Zucker sued the blog operator and the anonymous individuals who posted on the blog.  Zucker subpoenaed Google for information that would lead to the identification of the anonymous individuals.

The trial court quashed the subpoena, finding that the anonymous statements were not defamatory.  The Appellate Division upheld the quash order.  The court noted that Section 230 of the Communication Decency Act provides immunity to website operators who republish comments of others or block certain offensive materials.  As for the anonymous posters, the court noted that there is a general, but not absolute, right under the First Amendment to speak anonymously.  To balance the First Amendment right to speak anonymously against an individual’s right to protect its proprietary interests and reputation, the Appellate Division had set up a four-part test in Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001):

1.  The plaintiff must “undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application.”  Zucker satisfied this requirement by posting the subpoena on the blog under each offending post.

2.  The plaintiff must “identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.”  Zucker satisfied this requirement by highlighting the specific comments he alleged were defamatory in connection with posting the subpoena on the blog.

3.  The court must determine whether the plaintiff has established a prima facie cause of action against the anonymous defendants.   This is where Zucker’s effort to discover the identity of the anonymous poster gets stop cold.  One of the elements of a defamation claim is that the statements at issue must have “defamatory meaning.”  The anonymous posters had made statements like Zucker “short changed the taxpayers with millions”, “paved the way for the senior vote by stealing 6 million in tax dollars”, and “is behind all the anti hh propaganda going around[.]”  Other commenters called him a “rip off artist” and “under the table crook.”  As much as such comments were strongly-worded, the court ruled that expressions of opinion on matters of public concern and “rhetorical hyperbole” are not actionable.

4.  The plaintiff should file a request for discovery with the court, along with a statement justifying the specific discovery requested and identifying a limited number of persons or entities who are likely to produce identifying information about the anonymous defendant.  The court did not get to this prong of the test because Zucker could not meet the third prong.

The challenge presented by the Dendrite test, or at least in the way it was applied here, is that it pre-judges the merits of a case even before the plaintiff has a chance to serve the complaint on the anonymous defendant.  Take the court’s ruling on defamatory meaning, for example.  Yes, the question of whether a statement is capable of defamatory meaning is a matter of law for the court to decide.  But courts usually rule on the issue in deciding a motion to dismiss or motion for summary judgment.  Here, the court ruled that the plaintiff is a public figure (thus triggering the heavy “actual malice” requirement) and that the statements in question were not defamatory as a matter of law before the complaint was even served.  Under the Dendrite test, the plaintiff would have to successfully litigate those issues just to get the information they need to serve the complaint.  That seems a tad bit backwards.

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It’s time for updates to my post on the Hawaii case concerning censorship of user comments on the Honolulu Police Department’s Facebook fan page.  First, I’ve obtained a full copy of the complaint including the exhibits, which fleshes out the facts of the case.  According to the first two exhibits to the complaint, one of the plaintiffs (Christopher Baker) posted comments alleging that the HPD of violating the constitution and due process and criticizing the HPD and other government agencies for corruption and mismanagement.  In a separate comment thread, the HPD told another user: “comments depicting unlawful activity is a violation of the posting guidelines.  Your comment has been deleted.”  Baker responded with comments criticizing the HPD for “internet censorship” and exercising “internet nazi powers.”  An exchange between the HPD and Baker followed, and at some point the HPD told Baker: “@Christopher, you’ve had a history of using defamatory terms in your comments.  The posting guidelines are clear.  Dissenting opinions are appropriate but the use of defamatory comments such as ‘internet nazi powers’ are not.  Your comments have been deleted.”  Baker’s co-plaintiff (Derek Scammon) responded to the HPD’s deletion comment with his own: “So I take it that HPD doesn’t care much about allowing freedom of speech?  All the one-sided comments referring to posters who have been deleted seem a little forboding.  Does asking about deleted posts violate the posting guidelines?  I’d hate to get my post deleted for talking about posts that got deleted.”  Scammon separately engaged the HPD in a conversation on the HPD Page regarding the need for Honolulu residents to be allowed to carry concealed weapons.

Second, I’ve gotten copies of the motions for a temporary restraining order and preliminary injunction that were filed at the same time as the complaint.   The TRO motion was deemed moot at an August 22 status conference (the reason for this is unknown).  It is apparent, however, that the HPD is no longer banning certain users from commenting on the HPD Page.  Yesterday, the court held a status conference in which it deemed the preliminary injunction motion moot based on the HPD’s reversal of position and the agreement of the parties (the details of the agreement are not clear).  Another status conference is set for October 4.  We’ll follow the case and keep you posted.

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The government’s ability to moderate comments on its official Facebook page is challenged — Hawaii Defense Foundation, et al. v. City and County of Honolulu, et al., Civ. No. 12-00469 JMS/RLP

A lawsuit filed in the federal district court of Hawaii attracted attention nationally because it raises a novel question of Internet law: Do members of the public have a constitutionally protected right to post comments on a government-sponsored social media page?  Hawaii Defense Foundation, et al. v. City and County of Honolulu, et al. involves a Facebook page (the “HPD Page”) created by the Honolulu Police Department (“HPD”).  According to the complaint, the HPD Page purported to be the “official Facebook page of the Honolulu Police Department” and stated that it was created to be “a forum open to the public.”  The HPD Page prohibited speech that was obscene, sexually explicit, racially derogatory, defamatory, solicits or is an advertisement, and that suggests or encourages illegal activities.

The plaintiffs posted comments criticizing the HPD on the wall of the HPD Page  The HPD allegedly removed the plaintiffs’ comments and banned the plaintiffs from posting comments on the HPD Page in the future.  The plaintiffs sued the HPD under the First and Fourteenth Amendment, seeking declaratory judgment that the HPD violated their First Amendment right to freedom of expression and damages under section 1983 for violating their Fourteenth Amendment right to substantive due process.

The plaintiffs’ first theory for their First Amendment claim is that the HPD Page is a traditional public forum, and as such, censorship of their comments is unconstitutional.  The basis for this argument appears to be the HPD Page’s self-description as “a forum open to the public.”  This might not be enough to qualify the HPD Page as a traditional public forum.  In International Society for Krishna Consciousness v. Lee, the Supreme Court classified a traditional public forum as one that has “’immemorially … time out of mind’ been held in the public trust and used for purposes of expressive activity.”  An airport did not satisfy that criterion, the Court held.  It is doubtful that a social media page would fare any better.  Still, one could argue that a predominant purpose of social media since its inception has been to facilitate expressive activity among groups and individuals.  In that sense, social media has “traditionally” been a venue for public expression.

Perhaps knowing how challenging it is to meet the traditional public forum test, the plaintiffs advance the alternative theory that the HPD Page is a limited public forum.  This theory has a better chance of succeeding.  A limited public forum, known also as a designated public forum, is a venue that is not traditionally open to public expression, but if made available by the government for public expression, the government cannot discriminate against expression in that venue based on viewpoint. This test is a better fit for the HPD Page.  Although arguing that a government-occupied area in the social media space has “traditionally” been a venue for public expression would be difficult, it is much easier to argue that if a social media page that the government intentionally opens to public commenting – as the HPD Page allegedly does – the government may not then censor expression it dislikes.  That would be a classic example of viewpoint discrimination that is subject to the nearly fatal strict scrutiny test.

How the case will unfold likely will not be known for some time, as the case is still very much in its beginning stages.  But even before the court makes a single ruling in the case, Hawaii Defense Foundation has raised a slew of intriguing questions.  This is the first case I am aware of where the government allows public commenting on an online venue that it sponsors.  The government pages I have visited up to now only push information to the public.

Is it a good idea for government agencies to turn on the comments feature on their webpages or social media pages?  Customer engagement is one of the best reasons for maintaining a presence in the social media space.  From that perspective, the HPD should be given some credit for trying to use social media meaningfully by engaging its “customers”—i.e., the public it serves.  However, social media interaction has its dangers.  Online commenters can be an incendiary bunch, and can overrun an online forum with their abusive behavior.  Private website owners deal with this risk by reserving the right to moderate comments.  But if lawsuits like Hawaii Defense Foundation are successful, government agencies might not have a similar ability to filter comments to maintain civility.  Do the rewards of social engagement outweigh the risks of creating an online environment that might attract toxic behavior?

On the other hand, if government agencies are allowed to police online behavior, there is a danger that they might abuse such power.  I wonder, though, if the impact of government censorship on the marketplace of ideas is as pronounced in the online context as in the bricks-and-mortar world.  Even if a government agency were to impose content-based restricts to a site it sponsors, an individual could easily go online to engage in expression that would be banned on the agency’s site.  Anyone with an Internet connection can set up a personal blog without much trouble.  Posting anti-government comments is also fairly easy to do on social media sites like Facebook or Twitter.  One could post an online comment criticizing the government agency and link to the agency’s website or social media page in the post.  One could even use SEO techniques to increase the probability that one’s posts will show up on search results related to the government agency.

Ultimately, Hawaii Defense Foundation is fascinating because, like the recent cases regarding recognition of First Amendment protection for Facebook “likes” and tweets, it is another instance of the need to examine the applicability of First Amendment principles to the frontier of online expression.  What will the First Amendment look like on the Internet?  Stay tuned . . . or should I say, stay connected?

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A university may discipline a student for social media posts that violate academic rules based on the ethical code of the profession the student is studying to become part of — Tatro v. University of Minnesota, 2012 WL 2328002 (Minn. June 20, 2012)

When a student sues under the First Amendment for being disciplined by the school for his or her expression, a court will likely apply the line of cases stemming from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), or Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).  Tinker ruled that a school district may limit or discipline student expression if school officials reasonably conclude that the expression will “materially and substantially disrupt the work and discipline of the school.”  Hazelwood said that a school may exercise editorial control over the style and content of student speech in school-sponsored activities if their actions are “reasonably related to legitimate pedagogical concerns.”  But what if the student expression isn’t disruptive per se, and isn’t sponsored by the school, but contrary to the professional code of ethics the students are being trained to follow?  It isn’t unconstitutional for the school to discipline the student for such expression, the Supreme Court of Minnesota recently said.

Amanda Tatro worked on human cadavers as part of the anatomy lab work for the University of Minnesota’s mortuary science program in which she was enrolled.  Tatro agreed to abide by various rules as a condition of being granted access to the cadavers, including the code of professional conduct governing mortuary science students and anatomy lab rules.  The lab rules prohibited “blogging” about the anatomy lab or cadaver dissection.  The lab students were told during orientation that blogging included Facebook and Twitter.

Tatro posted a series of comments on her Facebook page about the human cadaver she was assigned to.  As a result of the comments, the university imposed sanctions against Tatro, including a failing grade in the lab course and placement on probation for the remainder of her undergraduate career.  Tatro sued the school for violations of her constitutional right to free speech.

The court first considered the Tinker and Hazelwood lines of cases, but concluded that neither applied.  The university disciplined Tatro not because her Facebook posts created a substantial disruption on campus or within the mortuary science program, but because the posts violated established rules that require respect, discretion, and confidentiality in connection with work on human cadavers.  The Tinker analysis was therefore inapplicable.  Hazelwood did not apply either because no one would reasonably consider the Facebook posts as speech that the university sponsored or promote.

The discipline was constitutional for a different reason, the court said.  Dignity and respect for the human cadaver is an established part of the professional conduct standards for the mortuary science profession.  The academic rules that Tatro violated were narrowly tailored to the objective of promoting such professional standards.  The rules permitted “respectful and discreet” discussion of cadaver dissection outside the lab in a private setting, but prohibited blogging about cadaver dissection or the anatomy lab, which could reach a wide audience.  Tatro’s Facebook posts, for example, could be seen by the hundreds of people who were “friends” with Tatro on Facebook, as well as “friends of friends.”

LegalTXT Lesson:  Academic programs that prepare students to work in a particular profession may be able to limit off-campus student expression that violates the ethical standards of that profession.  The limits must still be “narrowly tailored” to the interest in training students to uphold professional standards, however, which means blanket bans on student expression often will not pass muster.