Protecting anonymous commenters
This is a condensed version of a white paper on available means of protecting the identities of anonymous commenters on news web sites, which will be published in the near future.
By opening their web pages to anonymous online commentary, news organizations have opened themselves to subpoenas seeking the commenters’ identities. Sometimes the subpoena is sought so the commenter, once identified, can then be sued for defamation. Sometimes a prosecutor or a defendant in a criminal trial would like to call the commenter as a witness, based on posts that suggest the commenter has relevant information of the crime. Sometimes prosecutors or defendants simply want to keep the commenters off the jury, based on their comments online.
Whatever the reason, news organizations have an interest in protecting the anonymous speech of those who post to their websites.
The emerging test setting forth guidelines for courts faced with requests to compel web sites to reveal identities of anonymous Internet speakers includes five factors: (1) the demanding party must make efforts to notify the anonymous commenter and allow a reasonable time for him or her to respond; (2) the demanding party must identify the exact statements made by the commenter; (3) the demand must set forth a prima facie cause of action, meaning it must present enough evidence for the demanding party, the prospective plaintiff in the libel claim, to win the case barring any defenses or additional evidence presented by the commenter; (4) the demanding party must bring forth sufficient evidence for each element of its defamation claim; and (5) the court must balance the speaker's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous commenter's identity.
This standard was developed in a 2001 New Jersey appellate case, Dendrite International Inc. v. Doe No. 3, and condensed in 2005 by the Delaware Supreme Court in Doe v. Cahill, which is favorable to anonymous commenters. The approach requires that a prospective plaintiff must produce sufficient evidence to establish the legal elements of defamation before they can uncover the identities of anonymous commenters. This threshold, as the Delaware high court noted in Cahill, discourages a “sue-first, ask-questions-later” strategy that would allow a plaintiff to unmask commenters by alleging specific defamation claims without evidence to back them up.
Using shield laws to protect anonymous commenters has produced mixed results.
The last decade has seen many cases where news organizations claim a reporter’s privilege to protect anonymous posters, even when reporters did not use the posters as a source. These cases have mostly been handled at the trial court level without much guidance from appellate courts (with a few notable exceptions), and states are split on whether their shield laws apply to anonymous posters. Therefore, there is no surety in claiming a reporter’s privilege for anonymous commenters, and, beyond that, news organizations may decide they don’t want to stretch the privilege that far.
There is little commonality among the seven states that have applied a shield law to anonymous commenters and the four states that have not.
Colorado, Florida, Montana, North Carolina, Oregon, Texas, and – to an extent – Illinois have all applied their shield laws to protect anonymous posters. Idaho, Indiana, Kentucky, and New Jersey have declined to extend their shield laws in such a manner. Trying to draw patterns among the cases is difficult. Commenters were protected in both civil and criminal cases and not protected in both civil and criminal cases. Commenters were protected – and not protected – when posting to both traditional and non-traditional news websites. The statutes that were interpreted to protect anonymous commenters offered both absolute and qualified privileges, as did the statutes that were interpreted not to protect commenters. The North Carolina court found that the journalist who posted the story, which was later commented on, “was acting as a ‘journalist,’ all within the meaning of the Shield Law.” The Idaho court, conversely, found that the journalist who wrote a blog post hosted on his newspaper’s website was not acting as a journalist but instead “as a facilitator of commentary and administrator of the Blog.”
Clearly, there is some room for interpretation, and it will be hard to achieve consensus on this topic until more appellate and state supreme courts weigh in.
Commenters as sources
Seven states have found that anonymous commenters are “sources” and that news organizations are engaged in the course of their business by receiving their information.
A trio of trial court decisions from Florida, Montana, and Oregon led the charge within about a month of each other in 2008. The first case was Doty v. Molnar from Montana, in which the plaintiff of a defamation lawsuit subpoenaed the Billings Gazette, seeking identifying information for a number of online pseudonymous posters. Montana’s shield statute offers absolute protection, so that no news entity “may be required to disclose any information obtained or prepared or the source of that information in any legal proceeding if the information was gathered, received, or processed in the course of his employment or its business.” The court concluded that the statute is “very broad” and therefore protects the newspaper from having to reveal the anonymous posters. The Montana Supreme Court later affirmed the decision without much discussion except to say there was no abuse of discretion. The Oregon case was Doe v. TS, and the Florida case was Beal v. Calobrisi.
Texas trial courts twice applied its shield law to protect anonymous commenters, both times in murder trials. Texas has a qualified privilege in civil cases but an absolute privilege in most criminal cases where the information sought is from a confidential source, as in the cases here. Both courts issued cursory, one-page orders granting the motions to quash, but the newspaper’s attorney in Martinez and news reports in Coe indicate that the judges relied, at least in part, on the state’s shield law.
In another murder trial, a court in North Carolina quashed a subpoena seeking an anonymous commenter’s identity from the Gaston Gazette. North Carolina offers “a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.” In Colorado, a defendant sought the identity of a pseudonymous poster to The (Colorado Springs) Gazette, hoping the individual could help in his defense of a trespassing charge. The judge quashed the subpoena based on the arguments raised by counsel, which included a shield law defense.
Finally, an Illinois trial court issued a perplexing decision that essentially found an anonymous commenter cannot be considered a “source” under the shield statute but then applied the statute anyway and protected the identities of three of the five subpoenaed commenters.
It is worth noting briefly that, while a New York court has not decided whether to apply its shield law to online commenters, in two prior cases, New York courts have held that the state’s shield law protects anonymous letters to the editor. In Davis, a New York family court held that a letter writer transmitted information to the newspaper confidentially, and that it was obtained “in the course of gathering news for publication.” In Oak Beach Inn, an appellate court held that the letter to the editor contained “news” because it contained accusations of a company’s allegedly unsafe conditions, and therefore the shield law protected the anonymous writer’s identity.
There is little that all of these cases have in common, but several of them required an analysis of who is a covered journalist or news entity; who is a “source”; and, if required by the statute (which was most often the case), whether the source’s information was obtained during the course of newsgathering or as part of the reporter’s employment. These courts chose a broad interpretation of their shield statutes, finding that comments posted online after a news story was written – but which continue the dialogue on issues of public interest – are protected under the reporter’s privilege.
Four states have held that posting comments to a story after it has been published does not qualify for protection under a shield law. The New Jersey Supreme Court held that a blogger who herself posted on a message board could not claim a reporter’s privilege, because she was not affiliated with a news organization or acting as a journalist by posting her comments, some of which cited confidential sources. A Kentucky trial court declined to apply the state’s shield law to a subpoena for a poster’s identity. Kentucky’s absolute privilege is extremely broad, but a Kentucky court held that an anonymous comment posted after the story was written cannot qualify for the privilege. An Indiana appellate court chose not to apply the state’s shield law to protect an anonymous commenter accused of defamation for statements he made on the Indianapolis Star website. The court determined that an anonymous commenter could not possibly be a source in the traditional sense because the comment was posted after the story was written.
An Idaho trial court had a slightly different reason for denying shield law protection to anonymous commenters: it found that the employee who managed the newspaper’s blog was not “acting as a reporter.” It is not terribly surprising that the Idaho court chose not to apply a reporter’s privilege considering Idaho does not have a shield statute and has been reluctant to recognize a privilege at common law.
Should news organizations use shield laws?
Regardless of whether a news organization can claim a reporter’s privilege to protect anonymous commenters, the question remains whether they should. There are convincing reasons on both sides of the argument. News organizations should consider whether claiming a reporter’s privilege for anonymous commenters advances their interests.
On the one hand, claiming a reporter’s privilege for anonymous speech supports an evolving concept that news in the digital age does not end when the ink dries on the page. News reporting is fluid, and posting an article online does not conclude the newsgathering phase but begins it. Not all anonymous commenters make worthwhile contributions to the dialogue, but many offer new information, insights, and commentary that advance the story.
A New York appellate court in 1983 wrote:
[M]any people read the letters to the editor column for the same reasons they read any other news column in the paper – to learn what is happening around them, and the reactions of other people to these events. The beneficial purposes served by the Shield Law would be unnecessarily restricted by removing the letters to the editor column from its aegis.
The same can be said of online commentary, the modern-day equivalent of letters to the editor. Commenters contribute to the discourse on matters of public interest in their own right.
The purpose of a reporter’s privilege can be reconciled with shielding anonymous commenters, as well. Journalists are protected from having to reveal their sources because people would otherwise be unwilling to come forward and share stories of public importance without a guarantee of anonymity. So, too, are anonymous commenters unlikely to provide information in the comments section of news stories if their identities could easily be revealed.
Yet there are a number of reasons why news organizations may want to limit their use of the reporter’s privilege to protect online commentary. The journalism profession has always urged caution when using anonymous sources in news stories. After The New York Times suffered the scandal of reporter Jayson Blair inventing anonymous sources who didn’t exist, the Times redrafted its policy in 2004 to tighten its standards and allow anonymous sources only “as a last resort.” As a result, the use of anonymous sources by Times reporters decreased by half between 2004 and 2007. Considering the profession’s desire to reduce its reliance on anonymous sources, it may not make sense to have the newsroom shrinking its association with them and the legal department expanding it.
Another potential problem is the barrier it can create for truly meritorious defamation claims, because the news organizations themselves are not liable for defamatory postings of their readers under Section 230 of the Communications Decency Act. This could in turn prompt state legislatures to cut the potency of their shield laws. In the 1983 case where a New York court held that the shield law protects anonymous letters to the editor, the judge found it significant that the plaintiffs “can still of course pursue their [defamation] action against the [newspaper].” The newspaper could protect the anonymous letter writer from being sued, but it could not itself escape liability for printing the allegedly defamatory statements. But that is no longer the case for speech online because of Section 230. First Amendment anonymous speech doctrine suitably protects anonymous commenters while at the same time allowing plaintiffs to unmask speakers if they can sufficiently show a meritorious cause of action. But some states’ shield laws that offer absolute privilege will not allow any claims, meritorious or otherwise, to breach that barrier. Legislatures are not likely to let this stand. At best, they will rewrite their shield laws to clarify that anonymous commenters are not covered; at worst, they will downgrade absolute privileges to qualified privileges or otherwise diminish the privilege.
 John Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005); Dendrite Intern., Inc. v. Doe No. 3, 775 A.2d 756 (N.J. App. Div. 2001); see also Ashley I. Kissinger & Katharine Larsen, Shielding Jane and John: Can the Media Protect Anonymous Online Speech, Comm. Law., July 2009, at 5-9 (explaining how the various unmasking standards have been used across the country to quash subpoenas seeking anonymous commenters’ identities).
 Colorado Springs v. Bruce, No. 09M3247 (Colo. Springs Mun. Ct. Oct. 27, 2009); Beal v. Calobrisi, No. 08-CA-1075 (Fla. Cir. Ct. Oct. 9, 2008), available at http://www.newsroomlawblog.com/uploads/file/Beal_v__ Calobrisi.pdf; Alton Telegraph v. Illinois, 37 Media L. Rep. 2084 (Ill. Cir. Ct. 2009), available at http://www.dmlp.org/sites/citmedialaw.org/files/2009-05-15-Alton Telegraph Decision.pdf; Doty v. Molnar, No. DV 07-022 (Mont. Dist. Ct. Sept. 3, 2008), available at http://www.dmlp.org/sites/citmedialaw.org/files/2008-09-03-Hearing and Oral Ruling on Billings Gazette Motion to Quash.pdf, aff’d, 317 P.3d 204, 2013 WL 4478215 (Mont. 2013); North Carolina v. Mead, No. 10 CRS 2160 (N.C. Super. Ct. Aug. 16, 2010), available at http://www.newsroomlawblog.com/uploads/file/Order – NC v_ Michael Lane Mead.PDF; Doe v. TS, No. CV08030693 (Or. Dist. Ct. Sept. 30, 2008); Texas v. Coe, No. 1227878 (Tex. Dist. Ct. June 15, 2010) (on file with the author); Texas v. Martinez, No. 17042-B (Tex. Dist. Ct. June 19, 2009) (on file with the author).
 Jacobson v. Doe, No. CV-12-3098 (Id. Dist. Ct. July 10, 2012), available at http://bit.ly/1opZCUm; Ind. Newspapers Inc. v. Junior Achievement of Cent. Ind., Inc., 963 N.E.2d 534 (Ind. Ct. App. 2012); Clem v. Doe, No. 08-CI-1296 (Ky. Cir. Ct. Madison County Mar. 26, 2010); Too Much Media, LLC v. Hale, 20 A.3d 364 (N.J. 2011).
 Mead, No. 10 CRS 2160, at 2.
 Jacobson, No. CV-12-3098, at 7.
 Doty, No. DV 07-022; Doty v. Molnar, 317 P.3d 204, 2013 WL 4478215, at ¶ 4 (Mont. 2013).
 Mont. Code Ann. § 26-1-902 (2009).
 Doty, No. DV 07-022, at 29.
 Doty v. Molnar, 317 P.3d 204, 2013 WL 4478215 (Mont. 2013).
 Doe v. TS, No. CV08030693 (Or. Dist. Ct. Sept. 30, 2008).
 Beal v. Calobrisi, No. 08-CA-1075 (Fla. Cir. Ct. Oct. 9, 2008), available at http://www.newsroomlawblog.com/uploads/file/Beal_v__Calobrisi.pdf.
 Jason A. Martin, Mark R. Caramanica, & Anthony L. Fargo, Anonymous Speakers and Confidential Sources: Using Shield Laws When They Overlap Online, 16 Comm. L. & Poly’ 89, 109–10 (2011).
 N.C. Gen. Stat. § 8-53.11(b) (1999).
 Mot. of Third Party Witness Steve Pope to Quash Subpoena Duces Tecum, in Colorado Springs v. Bruce, No. 09M3247 (Oct. 21, 2009) (on file with the author) (explaining that the poster claimed to have seen the defendant collecting signatures at a Costco, which apparently would have helped his trespassing defense).
 Alton Telegraph v. Illinois, 37 Media L. Rep. 2084 (Ill. Cir. Ct. 2009).
 Davis v. Davis, 386 N.Y.S. 2d 992, 994 (Fam. Ct. 1976).
 Oak Beach Inn Corp. v. Babylon Beacon, Inc., 92 A.D.2d 102, 104 (N.Y. App. Div. 1983).
 Too Much Media, LLC v. Hale, 20 A.3d 364, 371–72 (N.J. 2011).
 Clem v. Doe, No. 08-CI-1296 (Ky. Cir. Ct. Madison County Mar. 26, 2010).
 Clem, No. 08-CI-1296, at 3.
 Ind. Newspapers Inc. v. Junior Achievement of Cent. Ind., Inc., 963 N.E.2d 534 (Ind. Ct. App. 2012).
 Ind. Newspapers, 963 N.E.2d at 547.
 Jacobson v. Doe, No. CV-12-3098, at 7 (Id. Dist. Ct. July 10, 2012), available at http://bit.ly/1opZCUm.
 See Debora Kristensen, Idaho, in Reporter’s Privilege Compendium, Reporters Comm. for Freedom of the Press, at 3, available at https://www.rcfp.org/rcfp/orders/docs/privilege/ID.pdf.
 See, e.g., Doty v. Molnar, No. DV 07-022, at 17 (Mont. Dist. Ct. Sept. 3, 2008), available at http://www.dmlp.org/sites/citmedialaw.org/files/2008-09-03-Hearing and Oral Ruling on Billings Gazette Motion to Quash.pdf (quoting the Billings Gazette editor as saying, “The on-line story comments have become an integral and necessary part of the Gazette business of gathering and disseminating news and information”).
 Oak Beach Inn Corp. v. Babylon Beacon, Inc., 92 A.D.2d 102 (N.Y. App. Div. 1983).
 See, e.g., AP News Values & Principles, Associated Press, http://www.ap.org/company/news-values (last visited Aug. 30, 2014) (“[W]e always strive to identify all the sources of our information, shielding them with anonymity only when they insist upon it and when they provide vital information – not opinion or speculation; when there is no other way to obtain that information; and when we know the source is knowledgeable and reliable.”); Anonymous Sourcing, NPR Ethics Handbook, http://ethics.npr.org/tag/anonymity/ (last visited Aug. 30, 2014) (“Unidentified sources should rarely be heard at all and should never be heard attacking or praising others in our reports.”).
 Clark Hoyt, Op-Ed., Culling the Anonymous Sources, N.Y. Times (June 8, 2008), http://www.nytimes.com/2008/06/08/opinion/08pubed.html.
 47 U.S.C. § 230.
 Oak Beach Inn, 92 A.D.2d at 104.
 See Ind. Newspapers Inc. v. Junior Achievement of Cent. Ind., Inc., 963 N.E.2d 534, 548 (Ind. Ct. App. 2012) (arguing that the combination of shield laws and Section 230 immunity “could leave legitimately injured plaintiffs without a legal remedy”) (quoting Kissinger & Larsen, supra note 1); Aaron Mackey, Two Recent Cases Highlight Tension in Applying Shield Law to New Media, News Media & L. (Summer 2011), available at http://bit.ly/1wXymGJ (quoting a Hawaii media lawyer who expressed concern over a Hawaii newspaper’s use of the shield law to protect anonymous commenters – for a subpoena that was later withdrawn – because it could make already nervous lawmakers even more hesitant to support renewal of the shield bill).