December 9, 2008 5:40 PM

Baker Hostetler on Internet Anonymity Case

Posted by Zach Lowe

Newspapers usually fight to make public every bit of information they possibly can. Now, one newspaper company is on the other side in a critical First Amendment case in Maryland, and has hired Baker & Hostetler to argue its case.

In the case in question, state courts have so far ruled in favor of Zebulon Brodie, member of a well-known Maryland family who clicked onto an Internet forum run by Independent Newspapers in 2006 to find some pretty unflattering comments about a Dunkin' Donuts shop he owns. Specifically, the anonymous commenters were complaining about trash piling up outside the shop and dirty conditions inside.

This apparently enraged Brodie, who filed a defamation suit against both the newspaper company and the individual posters. His first request: that the identities of the anonymous forum posters be revealed. A judge at the Maryland circuit court for Queen Anne's County dismissed the defamation claims against the newspaper (the Communications Decency Act bars such actions) but agreed that Brodie was entitled to the identities of his critics.

Baker & Hostetler's team, led by partners Mark Bailen and Bruce Sanford (the latter a First Amendment heavyweight who's repped both the New York Times and Esquire in libel actions) appealed to the state's Court of Special Appeals. They argued the case on Monday.

The Baker team's position is that that First Amendment protections for anonymous speech mean that Brodie has to overcome severe hurdles compared with plaintiffs making run-of-the-mill discovery requests.

In court papers (available here), the team claims that Brodie (who has local counsel) must show he has a decent chance of winning a defamation case before he learns the names of his critics. Bailen says that would be difficult, since he considers the critics' statements to be opinions--perhaps even hyperbole--that may be safe from defamation claims. But even if a judge considers them fact-based statements, Bailen says, Brodie should have to prove they are factually incorrect--that his Dunkin' Donuts is obviously not a mess.

The issue is one of first impression in Maryland, but a few different states, including New Jersey and Delaware, have reached varied standards for protecting anonymous Web speakers from being outed as part of a defamation claim, according to Bailen and his team's court papers. The most oft-cited standard comes from a New Jersey case that sets the bar high for plaintiffs.

The Maryland case stirs up memories of the infamous AutoAdmit case involving two female Yale Law School students who claim 39 anonymous defendants defamed them on the gossip site. The posters threatened to rape the women, claimed one had a sexually transmitted disease, and posted LSAT scores for the women that turned out to be inaccurate. That case is pending at U.S. District Court in Connecticut; attorneys for two of the defendants whose names are now known have called for the case to be dismissed. The women have settled with three other anonymous defendants, says Mark Lemley, a professor at Stanford Law School who is also of counsel at Keker & Van Nest in the Bay Area. Lemley is handling the case along with David Rosen, a professor at Yale Law School.

Bailen says the Maryland case is distinct from the Yale matter because the comments in the AutoAdmit case may actually be defamatory, because whether someone has a sexually transmitted disease is a fact-based allegation.

"We are not saying the right to free anonymous speech is absolute," Bailen says.

 

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