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MD Court of Appeals rules on the nature of the right to anonymous speech on the Internet

Maryland Court of Appeals building in Annapolis

Maryland Court of Appeals building in Annapolis

From Saturday’s Washington Post:

The Maryland Court of Appeals reversed a lower court ruling and ordered that NewsZap.com, an online forum run by Independent Newspapers, does not have to disclose the identities of forum participants who engaged in an online exchange about the cleanliness of a Dunkin’ Donuts shop in 2006.

* * *

[T]he court used the case to recommend a strict, five-step process for judges to follow “to balance the First Amendment right to anonymous speech on the Internet with the opportunity on the part of the object of that speech to seek judicial redress for alleged defamation.”

The opinion of the Court, written by Judge Lynne Battaglia, set forth this 5-part test as follows:

Thus, when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an
order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

Seems like a logical decision. From Publius to Pacificus to “Anonymous, there is a long history in America of the use of pseudonyms. It will be interesing to see if the Supreme Court gets this case or others like it.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.