Copyright Law

Swartz v. Does: Tennessee Court Protects Anonymous Speech Online

By Sam Bayard

Last Friday, a circuit judge in Nashville, Tennessee ruled from the bench that the First Amendment protects anoynymous Internet speech and adopted the Dendrite International v. Doe standard for balancing the speaker's First Amendment right against the would-be plaintiff's right to legal redress for actionable speech. The judge seemed swayed by the Maryland Court of Appeal's recent adoption of Dendrite in Independent Newspapers, Inc. v. Brodie, 2009 WL 484956 (Md. Feb. 27, 2009).   A video of the ruling is available on blip.tv:

The case, which I blogged about last February, is Swartz v. Does. The plaintiffs are Donald and Terry Keller Swartz, a prominent couple in Old Hickory, Tennessee, where they buy and restore real estate, manage rental properties, and operate a halfway house for recovering substance abusers. The Swartzes filed a John Doe lawsuit against the anonymous author of the Stop Swartz blog and two anonymous commenters.  Among other things, they claim that the anonymous blogger defamed them by falsely accusing them of arson.

The Swartzes subpoenaed Google/Blogspot seeking the identity of John Doe 1, the author of the blog.  After Google provided notice, John Doe 1 moved to quash the subpoena and asked the court for a protective order against further attempts to uncovery his/her identity.  The Swartzes opposed the motion, and both sides presented oral argument on Friday before the judge made his ruling.

I'm glad to see another court joining the growing consensus among federal and state courts that would-be plaintiffs must make at least a substantial legal and factual showing that his/her claim has merit before a court will unmask an anonymous or pseudonymous Internet speaker.  (See my post on Brodie for more details.) 

The court did not grant John Doe 1's motion to quash, however.  It gave the Swartzes permission to amend their complaint and instructed John Doe 1 to file a motion to dismiss.  The court indicated that the parties could present evidence at a full hearing on the motion to dismiss, at which point the court will balance John Doe's First Amendment interests against the strength of the Swartzes' prima facie case. 

Many thanks to Nashville Law for posting the video and tipping me off to this ruling. 

Full post as published by Citizen Media Law Project on March 16, 2009 (boomark / email).