Copyright Law

Texas Judge Orders 178 Anonymous "John Does" Who Posted on Topix Be Revealed

By Arthur Bright

Once again, the right to anonymous speech is being tested, this time in Texas, where a judge has ordered news portal Topix.com to reveal the identities of 178 forum posters accused of defaming a Texas attorney and his wife.

The Clarksville Times reports that Mark and Rhonda Lesher were charged in April 2008 with the aggravated sexual assault of a former client of Mark's legal services.  The Times writes that despite the accusations, "a jury of 12 Collin County citizens needed just two hours to render a not guilty verdict" in the January trial, apparently on the basis of evidence presented by the Leshers' attorney indicating that the alleged victim had lied during her testimony.

But according to the Leshers' 365-page petition,"[a]lmost immediately following" the April 2008 allegations and throughout the nine months in which the criminal case was pending, they became the subject of ongoing, allegedly defamatory comments on Topix forums.  The Leshers claim 178 John Does authored some 1700-plus defamatory statements, accusing them of being criminals, being sexual deviants, carrying noxious diseases, and the like.  As a result, the Leshers are seeking actual, special, and pretty much every other kind of damages from the Does.

Here's where the constitutional issue come in: according to The Dallas Morning News, the trial judge in the Leshers' lawsuit ordered Topix to turn over the identities of the anonymous posters.  While court-ordered disclosure is by no means unheard of, courts in many jurisdictions have recognized a qualified First Amendment right to anonymous speech on the Internet: see New Jersey, Delaware, Arizona, California, and the District of Columbia, for example.  And while this right doesn't protect tortious speech, most courts have declined to order the unmasking of anonymous posters before the plaintiffs have shown that the speech is potentially libelous.  MediaPost cites the CMLP's own Sam Bayard:

"There's been case after case after case where judges are showing a lot of respect for anonymous speech on the Internet," said Sam Bayard, assistant director of the Citizen Media Law Project.

Making that determination would appear to involve evaluating the evidence against each commenter individually, Bayard said.

In fact, a Texas appellate court addressed the issue in December 2007 and concluded that, before obtaining disclosure of an Internet speaker's identity, a plaintiff must make a legal and factual showing that his/her claims have merit enough to outweigh the First Amendment right to speak anonymously.  See In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007) (agreeing that "[t]he Court must examine facts and evidence before concluding that a defendant's constitutional rights must surrender to a plaintiff's discovery needs"). 

Given that the Leshers only filed the lawsuit this month, it seems likely that they've given the judge little more evidence than the claims presented in their petition.  While the material in the petition is certainly unpleasant and arguably libelous, the Leshers admit that "listing each count individually will exceed 1,300 pages."  Unless the court has been reading non-stop, it appears unlikely that it's examined every count and determined that each one holds water.  As a result, the judge's order seems a cause for concern.

According to the Morning News, Topix has until March 6 to comply with the order.  Although the report doesn't indicate whether Topix plans to fight the order, the website's CEO, Chris Tolles, said, "We do not just give up people's privacy . . .  We're very, very careful about that."  It doesn't appear that the Does have weighed in yet either, but it's unlikely they're keen to have their identities revealed. 

(Arthur Bright is a second-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)

Full post as published by Citizen Media Law Project on February 13, 2009 (boomark / email).