Site operator successfully challenges subpoena which sought to unmask anonymous commenters

Enterline v. Pocono Medical Center, 2008 WL 5192386 (M.D. Pa. December 11, 2008)

A federal court in Pennsylvania has denied a motion demanding that a website operator turn over the identity of persons who commented anonymously in response to an article posted on the website. The court held that the website had standing to assert the free speech rights of the anonymous speakers, and that the First Amendment barred the unmasking where the information sought was available from other sources.

Plaintiff Enterline sued defendant Pocono Medical Center for sexual harassment and retaliation. On October 9, 2008, the local newspaper, The Pocono Record, published an article about the lawsuit. Several people left comments to the article, some of them claiming personal knowledge of facts possibly relevant to the case.

Enterline sent a subpoena to the newspaper seeking the identity of the anonymous commenters. When the newspaper wouldn’t respond, Enterline filed a motion to compel response to the subpoena. The newspaper responded by asserting a number of arguments. Among those arguments was that disclosure of the anonymous commenters’ identities would violate those persons’ First Amendment right to speak anonymously.

Siding with the newspaper, the court denied the motion.

The court first evaluated whether the newspaper website operator even had standing (i.e., the legal right) to assert the anonymous commenters’ First Amendment right. To answer this question in the affirmative, the court found that:

• Practical obstacles prevented the anonymous commenters from asserting rights on their own behalf. The anonymity was the very right at stake. To defend that right, the commenters would have to be identified (setting aside for a moment the question of whether the commenters could appear as Doe defendants). The evaporation of that anonymity would lead to practical difficulties, as they had indicated they worked at the hospital or otherwise had personal connections with the litigants.
• The anonymous commenters had sufficient injury-in-fact to satisfy the constitutional “case or controversy” requirement. Looking to such cases as RIAA v. Verizon, 257 F.Supp.2d 244 (D.D.C. 2003), the court agreed with the website operator, concluding that the relationship between the website and its readers was the type of relationship allowing it to assert the First Amendment rights of the anonymous commentators.
• The website operator could reasonably be expected to properly frame the issues and present them with the necessary adversarial zeal. There was little discussion on this point, as the plaintiff did not contest that the website operator would be an adequate advocate to assert the First Amendment rights of the anonymous visitors.

Finding that the website operator had standing to assert the rights of its anonymous commenters, the court next considered whether the identification of the anonymous speakers would violate the First Amendment. To evaluate this question, the court applied the factors set out in Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Wash. 2001).

The court found that:

• The subpoena was not brought in bad faith or for an improper purpose,
• The information sought related to a core claim of the plaintiff,
• The information was directly and materially relevant to the claim,

but that

• Information required to prove the plaintiff’s claims was available from other sources. Several of the anonymous commenters stated that they were, for example, co-workers of the plaintiff or of the doctor against whom the plaintiff complained. The information these anonymous posters had could be uncovered through other discovery

This case is significant inasmuch as it could be applied to a case where a blogger or any other social media website operator is asked to turn over information that would identify its anonymous users. The decision outlines the framework that a blogger would have to use to show it has the right to argue on behalf of its anonymous visitors. The case then lays out (with the help of the 2TheMart.com decision) what must be shown after that initial threshold is crossed.

Photo of the Poconos courtesy Flickr user Nicholas T under this Creative Commons license.