Brief filed: Fisher v. Doe

In October I criticized the First District's decision in Fisher v. Doe because it declined to adopt and apply the Dendrite test, which provides rules for when an anonymous speaker can be unmasked. Doe has appealed the decision to the Ohio Supreme Court, and today Tom Haren and I filed an amicus brief in support of jurisdiction, on behalf of our client Alexandria Goddard. Alex was the blogger who earned fame (or, perhaps, notoriety) in 2012 for investigating and blogging the social media posts made by students attending a party at which two Steubenville High School football players raped a teenaged girl.

Our brief can be read here. In it Tom and I urge the Court to recognize that both the Ohio and US Constitutions protect the rights to speak anonymously and remain anonymous, and that the Dendrite test is best suited to protecting those constitutional rights, while still allowing for meritorious claims to proceed. Most importantly, Dendrite requires plaintiffs to make a showing of merit before unmasking the anonymous speaker. Any rule that allows unmasking before a demonstration of the existence of a meritorious claim improperly prioritizes a common law claim (defamation) over a constitutional right (anonymity).

The plaintiff's response to the jurisdictional briefs is due in January.

Update: the Court has declined jurisdiction in the case.

Does Dendrite International apply in Ohio?

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.

No stay in criminal contempt case

In today's case announcements, the Court denied a motion to stay imposition of a five-day sentence for indirect criminal contempt. The contemnor, Crysta Pleatman, had raised due process and First Amendment defenses to the contempt charge, both of which were rejected by both the trial court and the First District.