Delaware high court says First Amendment covers Internet postings.

Calling anonymous Internet speech "the modern equivalent of political pamphleteering," the Delaware Supreme Court has ruled that an Internet service provider (ISP) does not have to reveal the name of a person who used the service to post anonymous criticism of a local politician on a Web site. (Doe v. Cahill 884A.2d 451 (Del. 2005).)

Paul Alan Levy, a lawyer with Public Citizen Litigation Group who represented the anonymous poster, said the ruling "is extremely significant because this is the first state supreme court to squarely decide which standards should govern John Doe subpoena cases."

The opinion rests on a staunch endorsement of free speech rights and says any attempt to bypass the First Amendment must meet a high standard of proof that the speech is harmful. The court found that a lower court erred in applying only a "good faith" standard.

"Instead, we hold that a defamation plaintiff must satisfy a 'summary judgment' standard," wrote Chief Justice Myron Steele for the court. "We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment fight to speak anonymously."

In September 2004, John Doe visited the "Smyrna/Clayton Issues Blog," a Web site dedicated to community issues in that part of Delaware and sponsored by the Delaware State News. Under the pseudonym "Proud Citizen," Doe posted messages saying that Patrick Cahill, a Smyrna city councilman, was "paranoid" and "a prime example of failed leadership" and that he had "an obvious mental deterioration."

Two months later, Cahill and his wife, Julia, filed suit against Doe for defamation and invasion of privacy. They obtained a court order requiring Comcast, Doe's ISP, to disclose his name. Doe filed for an emergency protective order. In June 2005, a lower court denied his motion, saying the plaintiffs had met a "good faith" standard for their claim, and ordered Comcast to disclose Doe's identity.

The high court said the "good faith" standard was too low a bar, because it would allow easy forms of retaliation by targets of criticism.

"After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extrajudicial self-help remedies," Steele wrote. "More bluntly, the plaintiff can simply seek revenge or retribution.... This 'sue first, ask questions later' approach, coupled with a standard only minimally protective of defendants, will discourage debate on important issues of public concern."

Levy said the fear of retaliation was valid, citing, for example, a West Virginia man who posted anonymous criticisms of his longtime employer on a Yahoo site, using his home computer during nonwork hours. Upon learning his identity, the company fired him. He is suing his former employer, saying the company and its lawyers improperly used the courts for the purpose of retaliation.

In another case, a Chinese journalist posted anonymous criticisms of his country's government over Yahoo. The Chinese government obtained a subpoena compelling disclosure from Yahoo, and the journalist is now in prison. "This is not theoretical danger," Levy said. "It is real danger."

Civil rights groups--including the American Civil Liberties Union of Delaware and the Electronic Freedom Foundation--filed amicus briefs in the case and called it an important victory for free speech on the Internet.

In reaching its decision, the court cited an earlier case, Dendrite International, Inc. v. Doe, in which a New Jersey court adopted an even stricter standard for defamation cases. (775A.2d 756 (N.J. Super. Ct. App. Div. 2001).)

Dendrite laid out a four-part test requiting the plaintiff to attempt to notify the anonymous poster that he or she may be the subject of a subpoena; set forth the exact wording that the plaintiff considers defamatory; and satisfy a prima facie or summary judgment standard of evidence. It also requires a trial court to "balance the defendant's First Amendment rights against the strength of the prima facie case."

The Delaware court did not adopt all of the Dendrite tenets. In particular, it declined to require the balancing test, saying, "The summary judgment test is itself the balance. The fourth requirement adds no protection above and beyond that of the summary judgment test and needlessly complicates the analysis."

Because of this, Levy called the Cahill decision "good, but not perfect. It is very good in that it has very strong language recognizing the importance of the First Amendment. There is great language in it about freedom of speech and the right to criticize politicians."