Copyright Law

Citizen Media Law Project and Berkman Cyberlaw Clinic Lead Amicus Effort to Protect Anonymous Online Speech in Illinois

By Sam Bayard

Yesterday, CMLP and a number of media and advocacy organizations asked an Illinois appellate court for permission to file an amicus curiae brief in Maxon v. Ottawa Publishing.  The brief urges the Illinois Appellate Court for the Third District to protect the rights of anonymous Internet speakers by imposing important procedural safeguards before ordering disclosure of their identities. 

Harvard Law School's Cyberlaw Clinic represented the amicus coalition with the help of local counsel Michael T. Reagan of Herbolsheimer Lannon Henson Duncan and Reagan PC.  Coalition members include Gannett Co., Inc., Hearst Corporation, the Illinois Press Association, Reporters Committee for Freedom of the Press, Public Citizen, and others.

The case involves pseudonymous comments posted on mywebtimes.com, the website for The Times, a local newspaper in Ottawa, Illinois published by the Ottawa Publishing Company.  Local business owners Donald and Janet Maxon served a pre-litigation petition for discovery on Ottawa Publishing seeking the identity of the anonymous commenters.  Ottawa Publishing opposed the request, and an Illinois trial court dismissed the Maxons' petition in October 2008, applying the test for protecting anonymous speech laid out in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001).

In the brief, amici urge the Illinois appellate court to affirm the trial court's choice of a heightened standard and join the consensus among courts nationwide by holding that a party must undertake reasonable efforts to notify the anonymous speaker of the request for disclosure and demonstrate that its underlying claim has legal and factual merit before the court will order disclosure of an anonymous Internet speaker's identity.  Amici also recommend that the appellate court follow Dendrite, Mobilisa, and Brodie in further balancing the equities, even after a preliminary showing on the merits has been made.

After thinking and writing informally about this issues for quite some time, it was a great pleasure to work on this brief, and we are very happy with the results.  Many, many thanks to Chris Bavitz at the Cyberlaw Clinic for his amazing work pulling everything together, to Michael Reagan for helping us navigate the minefield of local procedural rules, and to Harvard Law School clinical students Katherine L. Kriegman and Alexandra Davies for their assistance in researching and drafting the brief.  

You can read the Berkman Center's press release on the amicus filing here. 

Full post as published by Citizen Media Law Project on March 25, 2009 (boomark / email).