Illinois Appellate Court Sets Standard for Protection of Anonymous Speech
An Illinois appellate court has denied a local political candidate’s bid to uncover the anonymous author of internet comments that she claimed denigrated her minor son. The case has wide impact for online privacy under Illinois law.
The right to speak anonymously, both in advocacy and in dissent, has a long tradition in this country. The Federalist Papers were published in 1787-88 under the pseudonym “Publius,” possibly in order to protect the real authors (Alexander Hamilton, James Madison, and John Jay) from fear of reprisal. As an aspect of free speech, the right to anonymity, even if it stems merely from the speaker’s desire to preserve one’s privacy, has been recognized and protected in several important U.S. Supreme Court cases. There is concern that laws requiring identification of authors would tend to restrict freedom of expression. But a natural tension exists between the right to speak anonymously and the right of others to recover damages for speech that falsely advertises, comprises fraud, defames someone, or is otherwise wrongful. The ability to keep one’s identity hidden can also be exploited to evade responsibility for hate speech, disparagement, or IP violations.
In the present age of blogs, message boards, re-postings, and digital monitoring, one of the hallmarks of many communications in cyberspace today is their anonymity. Online speech is thus often in the forefront of current conflicts between free speech and the desire to expose the author of actionable speech.
In Illinois, Supreme Court Rule 224 allows the filing of a pre-lawsuit petition for a court order to discover the identity of those who may be responsible in damages. The Illinois Appellate Court, First District, recently issued an opinion reversing a trial judge who had ordered the disclosure of the identity of an individual online poster who had allegedly made libelous statements on a newspaper’s website. The case provides welcome clarification over the standard to be used in some civil cases to unmask anonymous speakers. Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386 (Nov. 17, 2011).
The petitioner, Lisa Stone, was a candidate for local political office in 2009. The respondent’s newspaper, the Daily Herald, had published an article about her candidacy. It also posted the piece to its website and allowed the public to post comments about it using fictitious names. A reader, using the username “Hipcheck16,” posted a comment about petitioner’s minor son on the board that she asserted was defamatory per se. Stone filed a Rule 224 petition on behalf of her son to discover Hipcheck16’s real identity. After the user’s IP (Internet Protocol) address was learned, a subpoena was issued against the internet service provider, Comcast. The user then filed motions (as John Doe) seeking to quash the subpoena and asserting that disclosure of his identity would jeopardize his First Amendment rights. Those motions were denied, and “John Doe” appealed.
The appellate court addressed two primary issues. First, what standard should apply under Rule 224 in ruling on petitions to unmask anonymous speakers in defamation cases, and second, were the challenged comments in this particular case defamatory at all. These two issues were intertwined, as discussed below.
Rule 224 Standard
Regarding the proper standard, Rule 224 itself requires that the verified petition for discovery must set forth “the reason the proposed discovery is necessary.” The court adopted the holding of a 2010 Illinois Third District appellate court opinion, Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704 (2010), to set the standard for when discovery of the identity of a potential defendant is “necessary” in a defamation case. Before ruling on a Rule 224 petition in such a case, the court must ensure that: (1) the petition is verified; (2) it states with particularity facts that would demonstrate a cause of action for defamation; (3) it seeks only the identity of a potential defendant, and not information necessary to demonstrate the cause of action; and (4) a hearing is held to determine whether the petition sufficiently states a cause of action for defamation against the potential defendant. 2011 IL App (1st) 093386, ¶ 17, citing Maxon, 402 Ill. App. 3d at 711.
The last of these requirements essentially means that the petition must allege facts (Illinois is a fact pleading, not notice pleading, state) sufficient to withstand a motion to dismiss under Section 2-615 of Illinois’ Code of Civil Procedure. However, the potential defendant is not required to file such a motion to dismiss. Rather, sufficiently stating a proper cause of action for defamation is part and parcel of the Rule 224 petitioner’s burden to show that the discovery is “necessary.” 2011 IL App (1st) 093386 at ¶ 18. The court deemed this overall standard to be sufficient to prevent petitioners from using Rule 224 to “effectively chill or eliminate the right to speak anonymously.” Id. at ¶ 16.
Defamation
As to the defamation issue, the court concluded that Stone could not establish that the online statements were defamatory under Illinois law, and thus the Rule 224 petition failed, under the standard described above, for failure to state a cause of action. The court cited Illinois case law holding that, in certain contexts involving public officials, public figures, or media defendants, allegedly defamatory statements are protected by the First Amendment absent a showing that the statements are factual. The court extended this factual assertion requirement to this case as well, even though it involved private parties. The court then determined that no reasonable person could find the challenged statement at issue to be factual.
Moreover, even if the statement were to be considered an assertion of fact, the court found that it would be subject to Illinois courts’ “innocent construction” rule. Under that doctrine, a statement is not actionable as per se defamatory if, taken in context, the statement does not denote criminal or unethical conduct and has a meaning broader than that ascribed to it by the plaintiff. The court found the allegedly defamatory statement could be so construed, and was thus protected.
The final result in Stone was that the court held that the petitioner was unable to satisfy the applicable standard for her Rule 224 petition, and therefore was not entitled to discover John Doe’s identity.
In reaching this conclusion, the court added a few final comments which some might find quite apt, at least in the defamation context:
“[W]e cannot condone the inevitable fishing expeditions that would ensue were the trial court’s order to be upheld. Encouraging those easily offended by online commentary to sue to find the name of their ‘tormenters’ would surely lead to unnecessary litigation and would also have a chilling effect on the many citizens who choose to post anonymously …. Putting publishers and website hosts in the position of being a ‘cyber-nanny’ is a noxious concept that offends our country’s long history of protecting anonymous speech.” Id. at ¶ 35.