As the title indicates, this post is about Deborah Thomson,
“a Florida attorney” who “brought a defamation suit against Doe, an anonymous
poster who wrote a negative review of Thomson on Avvo.com.” Thomson
v. Doe, 2015 WL 4086923 (Court of Appeals of Washington 2015). As usual, the Court of Appeals begins its
opinion by explaining exactly how and why the suit arose:
Deborah Thomson is a Florida attorney.
Avvo Inc. operates an online lawyer review and rating system. On May 21, 2014,
Thomson filed a pro se lawsuit in
Florida against Jane Doe, an anonymous individual who posted a review on
Thomson's Avvo profile. The review, posted by `Divorce client,’ stated:
`I am still in court five years after
Ms. Thomson represented me during my divorce proceedings. Her lack of basic
business skills and detachment from her fiduciary responsibilities has cost me
everything. She failed to show up for a nine hour mediation because she had
vacation days. She failed to subpoena documents that are critical to the
division of assets in any divorce proceeding. In fact, she did not subpoena any
documents at all. My interests were simply not protected in any meaningful way.’
Thomson v. Doe, supra.
The court goes on to explain that the Complaint Thomson
filed to initiate the civil suit
alleged that Doe was not a client and
that the post was designed to impugn Thomson's personal and professional
reputation. Thomson alleged four causes of action: defamation, defamation per
se, defamation by implication, and intentional infliction of emotional distress
(MED).
Thomson v. Doe, supra. Rule 3 of the Washington Rules of Civil
Procedure, which you can find here, states that someone initiates a civil suit
by filing a Complaint with the Court. And Rule 7, which you can find here, says
that the pleadings in a civil suit consist of the Complaint (filed by the
person who brings the suit) and the Answer (filed by the defendant(s) in the
suit). Thomson v. Doe, supra.
Getting back to the facts in the case, the court explains
that on
June 25, 2014, Thomson filed a subpoena
in King County Superior Court requesting from Avvo the anonymous poster's
identification. On July 3, Thomson received an e-mail from Joshua
King, Avvo's vice president of business development and general counsel.
Thomson v. Doe, supra. King told Thomson
`I've received your subpoena seeking
records on an anonymous review. Our policy on handling such subpoenas is to let
the reviewer know, so that they can move to quash if they want. They may also
provide me with more information about the representation, in which case we may
ask you to withdraw the subpoena.’
Thomson replied, `Thank you for letting
me know. . . . I am pretty certain I am aware who wrote it, so I am eager to
obtain the records.’
Thomson v. Doe, supra.
On July 8, King e-mailed Thomson,
`I have received a response. While I
can't give you the specifics, it included information sufficient for me to
believe the reviewer was a client of yours.’
`Given this information, I ask that you
withdraw the subpoena.’
Thomson v. Doe, supra. According to the opinion, Thomson then
“’responded, `Please be advised that I
will not be withdrawing my subpoena. Please provide the documents requested
therein.’”
Thomson v. Doe, supra.
The court goes on to explain that, on July 16,
Thomson moved to compel Avvo to comply
with the subpoena. She asserted that Doe's speech was libel and defamation.
Specifically, she alleged that each of the sentences in the Doe post was either
a false statement of fact or a combination of fact and opinion that was provably
false. She did not submit a declaration, affidavit, or any other evidence in
support of her motion.
Avvo opposed the motion, arguing that
Thomson failed to show that the post was defamatory and failed to provide
evidence of damages.
On July 28, the trial court denied
Thomson's motion to compel. It stated that Thomson `failed to make a prima facie showing re[garding her] defamation claim.’ Thomson appeals. Avvo and Doe each filed a response.
Thomson v. Doe, supra (alternation
in the original).
The Court of Appeals began its analysis of the issues in the
case by noting that
[t]he First Amendment protects the
right to speak anonymously. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995). This right applies equally to online speech. In re Anonymous
Online Speakers, 661 F.3d 1168 (U.S. Court of Appeals for the 9th Circuit 2011). However, defamatory speech does not enjoy the protections of the
First Amendment. Chaplinksy v. New Hampshire, 315 U.S. 568 (1942). Accordingly, when faced with a defamation claim, courts aim to strike a
balance between the right to protect one's reputation and the constitutional
right to free speech. See, e.g., Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749 (1985); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); New York Times Co. v.Sullivan, 376 U.S. 254 (1964).
Thomson v. Doe, supra.
And it went on to explain that
[t]o that end, the United States
Supreme Court has considered the type of speech at issue when determining the
appropriate standards to apply in defamation cases. For example, when a
defamed plaintiff is a public figure, the standard of fault is more stringent;
such a claim requires a showing of actual malice. See New York Times v.
Sullivan, supra; Curtis
Publishing Co. v. Butts, 388 U.S. 130 (1967). This heightened
standard reflects the constitutionally protected `”interchange of ideas for the
bringing about of political and social changes desired by the people.’” New
York Times v. Sullivan, supra (quoting Roth v. U.S., 354 U.S. 476 (1957)). By contrast, when the challenged speech involves a purely
private concern, `”[t]here is no threat to the free and robust debate of public
issues”’ and thus the First Amendment provides less stringent protection. Dun
& Bradstreet v. Greenmoss, supra (alteration in original) (quoting
Harley–Davidson Motorsports, Inc. v. Markley, 279 Or. 361, 568 P.2d
1359 (Oregon Supreme Court 1977)).
Thomson v. Doe, supra.
Next, the court identified the precise issue it was required
to resolve:
we are asked to determine whether the
trial court struck the proper balance in reviewing Thomson's motion to disclose
Doe's identity. To answer this question, we must address two issues: first,
whether the trial court applied the correct standard in reviewing a motion to
reveal an anonymous speaker's identity, and second, whether Thomson met that
standard.
Thomson v. Doe, supra.
It went on to outline the legal standard it should apply in
that analysis:
Whether the trial court applied the
correct legal standard is a question of law that we review de novo. Hundtofte
v. Encarnacioń, 181 Wash.2d 1, 330 P.3d 168 (Washington Supreme Court (2014) (Madsen,
J. concurring). If the correct legal standard was applied, we generally review
a trial court's denial of a motion to compel for an abuse of discretion. Lake
Chelan Shores Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co., 176
Wash.App. 168, 313 P.3d 408 (Washington Court of Appeals 2013).
This is because the trial court is `”better
positioned than another”’ to decide discovery issues. Wash. State
Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299,
858 P.2d 1054 (Washington Supreme Court 1993) (quoting Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384 (1990)); see also Amy v.
Kmart of Wash., LLC, 153 Wash.App. 846, 223 P.3d 1247 (Washington
Court of Appeals 2009).
However, when the trial court's ruling
involves libelous speech, the United States Supreme Court has indicated that
independent appellate review is proper. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984). This is because the constitutional
values at issue warrant review by judges—including appellate judges—rather than
the trier of fact:
`In such cases, the Court has regularly
conducted an independent review of the record both to be sure that the speech
in question actually falls within the unprotected category and to confine the
perimeters of any unprotected category within acceptably narrow limits in an
effort to ensure that protected expression will not be inhibited. Providing
triers of fact with a general description of the type of communication whose
content is unworthy of protection has not, in and of itself, served
sufficiently to narrow the category, nor served to eliminate the danger that
decisions by triers of fact may inhibit the expression of protected ideas.’
Bose Corp. v. Consumers Union,
supra.
Thomson v. Doe, supra.
The Court of Appeals then pointed out that
Bose thus suggests that
when a discovery motion—typically a matter of discretion—implicates the First
Amendment, the trial court is no longer better positioned to decide the issue
in question. See State Physicians Ins. Exch. & Ass'n v. Fisons
Corp., supra.
We acknowledge a distinction
between Bose and the present case. There, the Court reviewed
the finding of actual malice, one of the elements of the plaintiff's defamation
claim. Bose Corp. v. Consumers Union of U.S., Inc., supra. Here, we
review the denial of the plaintiff's motion to unmask the defendant, a
threshold question. Thus, unlike in Bose, the decision before
us does not involve the ultimate determination of whether the speech was
libelous and therefore unprotected. Nonetheless, a motion to reveal a speaker's
identity has First Amendment consequences. See McIntyre v. Ohio
Elections Comm'n, supra (acknowledging the constitutional right to anonymous
speech).
Accordingly, we hold that de novo
review is the proper standard of review when considering the trial court's
decision on a motion to reveal an anonymous speaker's identity.
Thomson v. Doe, supra.
The court then took up the issue as to
the requisite showing a defamation
plaintiff must make on a motion to unmask an anonymous defendant. This is an
open question in Washington. However, many other courts, both federal and
state, have considered this issue. . . . The two leading cases
are Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J.Super. 134, 775
A.2d 756 (New Jersey Superior Court 2001) and Doe No. 1 v. Cahill,
884 A.2d 451 (Delaware Supreme Court 2005).
In Dendrite, an
anonymous speaker posted messages on an online bulletin board criticizing Dendrite's
stock performance. Dendrite Int’l, Inc.
v. Doe No. 3, supra. Dendrite sued
the anonymous speaker and sought disclosure of the speaker's identity. Dendrite Int’l, Inc. v. Doe No. 3, supra.
The New Jersey intermediate appellate court set out a four-step process for
determining whether to compel disclosure of the speaker's identity:
`[T]he trial court should
first 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, and withhold action to afford the fictitiously-named defendants a
reasonable opportunity to file and serve opposition to the application. These
notification efforts should include posting a message of notification of the
identity discovery request to the anonymous user on the ISP's pertinent message
board.’
`The court shall also require the
plaintiff to identify and set forth the exact statements purportedly made by
each anonymous poster that plaintiff alleges constitutes actionable speech.’
`The complaint and all information
provided to the court should be carefully reviewed to determine whether
plaintiff has set forth a prima facie cause of action against the
fictitiously-named anonymous defendants. In addition to establishing that its
action can withstand a motion to dismiss for failure to state a claim upon which
relief can be granted . . ., the plaintiff must produce sufficient evidence
supporting each element of its cause of action, on a prima facie basis, prior
to a court ordering the disclosure of the identity of the unnamed defendant.’
Finally, assuming the court concludes
that the plaintiff has presented a prima facie cause of action, the court must
balance the defendant'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 defendant's identity to allow the plaintiff to
properly proceed.
Dendrite Int’l, Inc.
v. Doe No. 3, supra. The Dendrite court
stated that the test
`must be undertaken and analyzed on a
case-by-case basis. The guiding principle is a result based on a meaningful
analysis and a proper balancing of the equities and rights at issue.’
Dendrite Int’l, Inc.
v. Doe No. 3, supra.
The Court of Appeals then noted that Doe No. 1 v. Cahill,
supra,
the Delaware Supreme Court considered
the proper standard to apply when faced with a public figure plaintiff's
request to unmask an anonymous defendant. . . . The Cahill court
adopted a `modified Dendrite standard
consisting only of Dendrite requirements one and three: the
plaintiff must make reasonable efforts to notify the defendant and must satisfy
the summary judgment standard.’ Doe No. 1 v. Cahill, supra. In
concluding that summary judgment was the appropriate evidentiary standard,
the Cahill court expressed concern `that setting the standard
too low will chill potential posters from exercising their First Amendment
right to speak anonymously.’ Doe No.
1 v. Cahill, supra.
Dendrite Int’l, Inc.
v. Doe No. 3, supra. The Cahill court also found that “the
summary judgment standard would “more appropriately protect against the
chilling effect on anonymous First Amendment internet speech that can arise
when plaintiffs bring trivial defamation lawsuits primarily to harass or to
unmask their critics.” Dendrite Int’l,
Inc. v. Doe No. 3, supra.
The Court of Appeals also found that, pursuant to the U.S.
Court of Appeals for the 9th Circuit’s decision in In re Anonymous Online Speakers, supra.
Thomson v. Doe, supra.
The Anonymous Online
Speakers court held that the question “what is the nature of the speech at
issue?” is “crucial” when a court is “reviewing a motion to reveal an anonymous
speaker’s identity.” Thomson v. Doe, supra. It therefore held that when a court is engaged in this analysis, it “must
consider the nature of the speech when determining the evidentiary standard to
apply.” Thomson v. Doe, supra.
It then pointed out that commercial speech is entitled to
less protection, political speech requires that
[w]hile Doe's speech is not commercial,
warranting the lowest protection, it is also not political, warranting the
highest. Thus, Doe's speech is entitled to an intermediate level of protection.
Thomson v. Doe, supra.
The court then held that, in anonymous speech cases like
this, the plaintiff (Thomson) should be required to produce “supporting
evidence . . . before the speaker is unmasked.”
Thomson v. Doe, supra. It also held that
[u]nder that standard, Thomson's motion
must fail. As Thomson freely admits, she presented no evidence to support her
motion. Therefore, the trial
court properly denied Thomson's motion for failure to make a prima facie
showing of defamation.
Thomson v. Doe, supra.
You can, if you are interested, read more about the facts in
the case in the news story you can find here.
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