Newspaper won't have to disclose identities of posters

Samantha Fredrickson | Reporter's Privilege | Feature | January 7, 2009

Another newspaper has prevailed in a court battle over the identities of people who commented anonymously on its Web site.

A federal judge in Pennsylvania held last month that The Pocono Record did not have to reveal the identities of several people who commented anonymously on an article the paper wrote about a sexual harassment lawsuit filed against the Pocono Medical Center.

The newspaper received a subpoena sent by the plaintiff, hospital employee Brenda Enterline, who wanted the information to help her win the lawsuit. Enterline argued that the comments on the Web site were made by people who had personal knowledge of the situation at the hospital, and could help her prove that she had been in a hostile work environment.

Recently, courts in Montana, Oregon and Florida have held in similar cases that their states' shield laws protect newspapers from having to out people who comment on their sites.

In one of the first federal court opinions on the topic, Judge Richard Caputo’s ruling in Pennsylvania did not address whether a reporter’s privilege would keep the identities secret.

Instead, Caputo focused on two other issues: First, the court knocked down Enterline’s argument that the newspaper did not have standing to challenge the First Amendment violation of anonymous speech on behalf of the commenters. If the writers were to assert their own rights in court, their identities would have to be revealed, Caputo reasoned, thus negating their fight to remain confidential. But the court held that it is proper for the newspaper to ask the court to keep their identities a secret.

Second, the court balanced the right to anonymous speech with Enterline's right to pursue her lawsuit. The court held that because Enterline could get the information she sought from other sources, the right of the speakers to remain anonymous outweighed her interest in their identities.

“The Court does not believe that this is an exceptional case where the compelling need for the discovery sought outweighs the First Amendment rights of the anonymous speaker,” Caputo wrote.