What standard must a court apply when a plaintiff seeks to use the subpoena power of the court to identify an anonymous speaker on the internet? There is not yet a consensus to this important question in Ohio, but earlier this week the First District--my home district, filled with good judges with whom I very rarely disagree--bucked the national trend by declining to apply the standard from Dendrite International v. Doe. In my opinion this case was wrongly decided, and does not adequately protect the constitutional right to anonymous speech. This is a subject in which I'm very interested; see here for video of my participation in a panel last week at the Ohio State Bar Association's Law and Media Conference.
Update: we have filed an amicus brief in support of Doe's jurisdictional appeal to the Ohio Supreme Court.
The case is Fisher v. Doe. Eric Fisher is a nurse anesthetist. In 2014 someone anonymously (pseudonymously, really) emailed Fisher's employer stating that Fisher had been fired from an earlier job in California due to substance abuse problems. Fisher filed a John Doe lawsuit in Hamilton County, and subpoenaed Google for information relating to a Gmail account from which the anonymous email came. Google apparently notified the subscriber of the subpoena, but did not receive an objection, and so it furnished responsive IP information. Fisher then used that information to further subpoena Verizon for subscriber information linked to that IP address. Verizon notified Doe, who moved to quash the subpoena.
Doe asked the court to apply Dendrite International v. Doe, a 2001 New Jersey appellate court case that established a test for unmasking anonymous internet speakers. Under Dendrite, a plaintiff must (1) provide adequate notice to the speaker, (2) quote the allegedly actionable language verbatim, (3) establish a prima facie case of defamation, and (4) show that the plaintiff's right to relief outweighs the speaker's constitutional right to speak anonymously. At least seven states have adopted Dendrite, including the Kentucky Supreme Court just last month, and at least two other state supreme courts have the question under submission. Several states have instead adopted a watered-down version of the Dendrite test, known as the Cahill test, named after the Delaware case that first articulated it; Cahill differs from Dendrite in that there is no balancing of the speaker's constitutional right to anonymity. The trial court denied the motion to quash primarily, it seems, on the grounds that Fisher had made out a prima facie case of defamation, and that Doe "ha[d] identified no compelling reason in maintaining [his] anonymity, which would outweigh [Fisher's right to seek redress against the speaker." It did not cite Dendrite, Cahill, or any other case.
The First District affirmed, and also declined to apply either Dendrite or Cahill, distinguishing them on the ground that those cases involved speech in a public forum, such as an internet message board. The court wrote that "The larger issues implicated in the out-of-state cases related to public forums are not implicated here. This is not a corporation or the government trying to stifle an individual's First Amendment rights or prevent open discourse. This is a standard tort case between two individuals. . . . It involves the same First Amendment issues and other defenses inherent in defamation/invasion-of-privacy and other tort cases, on which Ohio has well-settled law."
This really could not be more wrong. For one thing, the public manifestly has an interest in investigating a possible substance-abusing nurse anesthetist, and so communicating such information directly to an employer is classically qualifiedly privileged. For another thing, cases in the Dendrite line are not limited to public forum cases anyway. One such case is Mobilisa v. Doe, in which an anonymous emailer forwarded to a corporate board some racy communications from a company's CEO. Furthermore, even though the Fisher court purported to apply the same First Amendment principles evident elsewhere, it ignored well-established law, including US Supreme Court case law, such as Talley v. California or McIntyre v. Ohio Elections Commission, recognizing a constitutional right to anonymity.
The result in this case is all the more surprising given that the Cuyahoga County Common Pleas court recently applied Dendrite to quash a subpoena seeking to uncover the identity of a critical commenter at Cleveland.com. The appeal time on that decision has not yet run, but we may be looking at a district split here.
Ordinarily I would say that this case is an excellent candidate for review by the Ohio Supreme Court--indeed, Doe's attorneys have already indicated that they do intend to appeal it, and if they do then I expect that I will file an amicus brief on behalf of clients who have found themselves in Doe's situation--but for one interesting fact. It seems that during the pendency of the appeal in the First District, Fisher was in fact suspended by the nursing boards of California and Virginia, pursuant to an agreed disciplinary order that acknowledges his improper use of opioids. In other words, the communications giving rise to this case appear to have been substantially true. If that isn't protected speech within "the same First Amendment issues and other defenses inherent in defamation" law, then nothing is.
A final note. In the video linked to above, my fellow panel members and I discuss a draft anti-SLAPP bill that we have been working on for some time. That bill, in addition to including typical anti-SLAPP provisions, would codify the Dendrite test. I surely will keep you posted on what develops on that front.
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