Court: New York Supreme Court, Appellate Division, Second Department
Date Filed: Dec. 22, 2021
Background: In November 2020, Robert F. Kennedy, Jr. filed a petition in Westchester County Supreme Court seeking a subpoena compelling Daily Kos to reveal the identity of an individual who authored a post on the digital media website under the pseudonym “DowneastDem.” The post recounted Kennedy’s speech at a Berlin rally against COVID-19 restrictions, and noted the presence of neo-Nazi and far-right extremist groups at the event. Kennedy sought the subpoena under a New York procedural rule in order, he claimed, to bring a defamation claim against the individual behind the DowneastDem account.
The trial court held that Kennedy had stated a defamation claim and, accordingly, granted his petition. Daily Kos appealed, arguing that Kennedy did not state a claim and that, in any event, the Second Department should join New York’s other appellate jurisdictions in applying a higher standard for pre-suit disclosure, requiring evidence in addition to adequate pleadings.
Our Position: The appellate court should reverse the lower court’s decision and adopt a heightened standard for unmasking anonymous internet speakers given the First Amendment’s strong protections for such speech.
- The court should clearly state a standard affording appropriate weight to the interests furthered by anonymous speech.
- The First Amendment provides ample protection for anonymous speakers on the Internet.
- New York law recognizes the value of anonymous speech.
- Media entities have a strong interest in protecting anonymous online speech.
- The court can account for the weighty interests in protecting anonymous speech by adopting a rigorous test, established in Dendrite International, Inc. v. Doe, that requires petitioners to establish a strong legal and factual basis for their claims.
- Under the Dendrite standard, Kennedy’s petition for pre-suit disclosure of DowneastDem’s identity should be rejected.
Christine Walz at Holland & Knight served as the media coalition’s local counsel for this friend-of-the-court brief.
Quote: “The First Amendment fully protects anonymous lawful communications on the Internet. And New York’s Constitution, as well as its anti-SLAPP and shield laws, reflect the state’s own strong public policy of protecting anonymous speakers. These speech protections are critical not only for individual speakers, but also for websites, including media entities, that host anonymous speech. Especially now, at a time when public figures are increasingly attempting to silence critics by targeting them with meritless (yet costly) lawsuits, such protections are crucial.”