Constitutional Law

Citizen Media Law Project Leads Amicus Effort Promoting Rights of Anonymous Speakers in Illinois

By David Ardia

In a case involving important First Amendment rights, the Citizen Media Law Project joined a number of media and advocacy organizations, including Gannett Co., Inc., Hearst Corporation, Illinois Press Association, Online News Association, Public Citizen, Reporters Committee for Freedom of the Press, and Tribune Company, in asking an Illinois appellate court to protect the rights of anonymous speakers online by imposing procedural safeguards before requiring that their identities be disclosed.

The amicus coalition, represented by Harvard Law School's Cyberlaw Clinic, submitted a "friend of the court" brief yesterday in the case of Maxon v. Ottawa Publishing. The case is before the Illinois Appellate Court for the Third District and involves pseudonymous comments posted on mywebtimes.com, the website for The Times, a local newspaper in Ottawa, Illinois published by Ottawa Publishing Company. Local business owners Donald and Janet Maxon served a pre-litigation petition for discovery on Ottawa Publishing seeking the identity of several 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, we 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. The brief highlights the long tradition of anonymous speech in the United States and the important role of anonymity in promoting an online marketplace of ideas.  We took no position on the merits of the plaintiffs' defamation claims -- rather, the brief urges that the Court balance the plaintiffs' interest in pursuing legitimate legal remedies against the rights of individuals to speak anonymously by putting the onus on the plaintiffs to demonstrate that their claims have merit.  The brief also recommends that the appellate court follow cases such as Dendrite, Mobilisa, and Brodie in further balancing the equities between the parties, before ordering disclosure.

You can read more about the case and about issues concerning anonymous speech on our website.  The entire brief is available here.

Full post as published by MediaShift Idea Lab on March 25, 2009 (boomark / email).