EFF Amicus Brief in Kesler v. Doe (Oct. 25, 2001)
Can SLAPP end anonymity fishing expeditions?
County Superior Court
COURT OF APPEAL OF THE STATE OF CALIFORNIA
DOE a.k.a MEZZZMAN,
APPEAL FROM THE JUDGMENT OF THE SUPERIOR
OF THE COUNTY OF ORANGE
DAVID C. VELASQUEZ, JUDGE PRESIDING
CURIAE BRIEF IN SUPPORT OF
JOHN DOE A.K.A. MEZZZMAN
Francisco, CA 94110
436-9333 x 108 (Tel)
for Amicus Curiae
People should be able to participate online without fear
that someone who wishes to harass or embarrass them can file a
frivolous lawsuit and thereby gain the power of the courts
order to discovery their identities. Columbia
Insurance Company v. Seescandy.com (N.D. Cal. 1999) 185 F.R.D.
573, 578 (discussing standards for allowing discovery to reveal a
Defendants identity in a domain name dispute). This case asks
whether and how Californias anti-SLAPP statute can be used to
deter those who bring unfounded litigation in order to learn the
identities of and silence their critics.
STATEMENT OF AMICUS CURIAE
The Electronic Frontier Foundation (EFF) is a
non-profit, member- supported civil liberties organization working to
protect rights in the digital world. EFF actively encourages and
challenges industry, government and the courts to support free
expression, privacy, and openness in the information society.
Founded in 1990, EFF is based in San Francisco. EFF has members all
over the United States and maintains one of the most-linked-to Web
sites (http://www.eff.org) in the world.
EFFS INTEREST IN THIS CASE
EFF believes that free speech is a fundamental human right and
that free expression is vital to society. The vast web of electronic
media that now connects us has heralded a new age of communications,
a new way to convey speech. New digital networks offer a tremendous
potential to empower individuals in an ever over-powering world.
While EFF is mindful of the serious issues that may arise when
information, ideas and opinions flow free, EFF is dedicated to
addressing such matters constructively while ensuring that
fundamental rights are protected.
Thus, EFFs interest in
this case. The EFF has represented individuals involved in seven
different Doe litigations and has advised many others,
both in California state courts and in various state and federal
courts nationwide. We believe that, unless protective steps are
taken, including the appropriate application of Californias
anti-SLAPP law, these cases threaten to silence and intimidate
legitimate Internet speakers. In the current case, the Superior
Courts unnecessarily infringed on freedom of speech by failing
to recognize Appellants postings as statements of opinion in
the context of the often free wheeling, unvarnished discussions that
exist on the Internet. The Court below also failed to recognize the
need to preserve the anonymity of online speakers in order to
encourage open debate.
Additionally, given the growing
problem of John Doe cases aimed at breaching the anonymity of
Internet speakers, and the uncertainty about the legal standards
applicable, Amici urge the court to adopt a test that can be used by
these parties and others in this District to evaluate the application
of Californias anti-SLAPP law to such situations. Given the
First Amendment issues at stake here, alleviation of the current
uncertainty in this area of the law can give much needed clarity and
breathing room to speakers.
AUTHORITY TO FILE THIS AMICUS BRIEF
EFF has filed a motion for leave to file this brief under
California Rule of Court 14(c). Prior to filing that motion, EFF
left several telephone messages for the attorneys for Respondent
requesting consent. We finally received a response on October 22,
wherein counsel for Respondent stated that he needed to contact his
client. Appellants have given consent.
I. STATEMENT OF FACTS
The Internet is a democratic institution in the fullest sense. It
serves as the modern equivalent of Speakers Corner in Englands
Hyde Park, where ordinary people may voice their opinions, however
silly, profane, or brilliant they may be, to all who choose to
listen. As the Supreme Court explained, [f]rom a publishers
standpoint, it constitutes a vast platform from which to address and
hear from a world-wide audience of millions or readers, viewers,
researchers and buyers
. Through the use of chat rooms, any
person with a phone line can become a town crier with a voice that
resonates farther than it could from any soapbox. Through the use of
web pages, . . . the same individual can become a pamphleteer.
Reno v. American Civil Liberties Union, (1997) 521 U.S. 844,
853, 870. Thus, the Supreme Court held that the Internet is a fully
protected medium of expression. Id.
A.Yahoo Message Boards
In line with the Supreme Courts observations about the
nature of the Internet, Yahoo has organized public outlets for the
expression of opinions about every publicly traded company in the
U.S. These are based upon the idea that people have personal and
economic interests in the corporations that shape our world, and in
the stocks they hope will provide for a secure future. They also
recognize that people love to share their opinions with anyone who
will listen. These outlets, called message boards, are an electronic
bulletin board system where individuals freely discuss publicly
traded companies by posting comments for others to read and respond
Individuals who post messages on Yahoo message boards generally do
so under a handle similar to the old system of
CBs with truck drivers. Nothing prevents an individual from
using his real name, but, as an inspection of any message board will
reveal, most people choose anonymous nicknames. These typically
colorful monikers protect the writers identity from those who
disagree with him or her, and encourage the uninhibited exchange of
ideas and opinions. Such exchanges are often very heated and, as
seen from the various messages and responses on the message board at
issue in this case, they are sometimes filled with invective,
hyperbole and insult. Most, if not everything, said on message
boards is taken with a grain of salt.
An important aspect of the message board that distinguishes it
from almost any other form of published expression is that, because
any member of the public can use a message board to express his point
of view, a person who disagrees with something that is said on a
message board for any reason including the belief that a
statement contains false or misleading statements about himself
can respond to those statements immediately at little or no cost, and
that response will have the same prominence as the offending message.
A message board is thus unlike a newspaper, which cannot be required
to print a response to its criticisms. Miami Herald Publg.
Co. v. Tornilllo (1974) 418 U.S. 241.
Corporations and individuals can reply immediately to criticisms
on a message board, providing facts or opinions to vindicate their
positions, and thus, potentially, persuading the audience that they
are right and their critics wrong. And, because many people
regularly revisit the same message boards, the response is likely to
be seen by much the same audience as the original criticism; hence
the response reaches many, if not all, of the original readers. In
this way, the Internet provides the ideal proving ground for the
proposition that the marketplace of ideas, rather than the courtroom,
provides the best forum for resolution of disagreements about the
truth of disputed propositions of fact and opinion.
B.The Metalclad Message Board.
One of Yahoos message boards is specifically devoted to
Metalclad Corporation. Plaintiff Kesler is the President and Chief
Executive Officer of Metalclad. The opening page of Yahoos
Metalclad message board explains the ground rules:
This is the Yahoo! Message Board about [Metalclad], where you can
discuss the future prospects of the company and share information
about it with others. This board is not connected in any way with the
company, and any messages are solely the opinion and the
responsibility of the poster.
Each and every page of message listings
that follows is then accompanied by a similar
warning that all messages should be
treated as the opinions of the poster, and taken with a grain of
Reminder: This board is not connected with the company. These
messages are only the opinion of the poster, are no substitute for
your own research, and should not be relied upon for trading or any
Many members of the public regularly turn to the Yahoo message
board as one source of information about Metalclad. To date, over
5300 messages have been posted on the Metalclad board, covering an
enormous variety of topics and posters. Investors and members of the
public discuss the latest news about the company, what new businesses
it may develop, the strengths and weaknesses of the companys
operations, and what its managers and employees might do better.
Many of the highly opinionated messages praise Metalclad and its
management, some criticize it and some are neutral.
In order to sign up for a message board, individuals must give
Yahoo their birthday, zip code, gender and an alternate e-mail
address. In addition, in order to have a regular Yahoo e-mail
address (which the Speakers do), Yahoo gathers a name, address,
occupation and industry from each user.
Appellant Mezzzman is one of the many members of the public who
have visited the Yahoo message board for Metalclad and participated
in the discussion. At issue in this case are three short postings by
Appellant dated May 11, 2000 (Motion to augment the record, Ex. B, at
Exhibit N), June 9, 1999 (Id., Exhibit O) and June 10, 1999
(Id., Exhibit P). As far as amici are aware, Respondent
Kesler has never sought to exercise his right to reply to Mezzzmans
comments on the message board, either to correct the factual errors
he now alleges or present his side of the debate. Instead, he
brought this legal action and sought to require Yahoo to reveal the
identity of Mezzzman.
C. Importance of This Case.
This motion presents the Court with the issue of what standard
should be applied to determine when Californias anti-SLAPP
statute can be applied in response to an attempt to silence critical
anonymous speech on a matter of public importance. While few courts
have addressed this question, it is becoming a crucial one,
particularly in light of the increasing number of cases where those
who have been criticized on the Internet are seeking to use court
processes to unmask and silence their critics. While Yahoo has not
revealed the number of these requests it receives, records from the
Circuit Court in Loudoun County, Virginia, the home of America Online
suggest the scope of this issue. As of April 1999, 70 of the 107
applications filed with the court since that January were directed to
AOL information. Indeed, serving warrants on AOL is almost a
full-time job for the Sheriffs process server. Stephen
Dinan, Search Warrants Keep AOL Busy, Wash. Times (April 27,
1999) at C4.
A.California Anti-SLAPP Statute.
This case arises out of Defendants exercise of free speech
rights and falls squarely within Californias legislative
prohibition on so-called strategic lawsuits against public
participation, or SLAPP suits. Californias
anti-SLAPP statute provides for prompt dismissal of lawsuits that
cast a pall on otherwise protected speech. Matson v. Dvorak
(1995) 40 Cal.App.4th 539, 547-48, 46 Cal. Rptr. 2d 880. Code of
Civil Procedure § 425.16 provides, inter alia, that:
(b)(1) A cause of action against a person arising from any act of
that person in furtherance of the persons right of petition or
free speech under the United States or California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.
This statute codifies the Legislatures
finding that it is in the public interest to encourage
continued participation in matters of public significance, and that
this participation should not be chilled through abuse of the
judicial process. To this end, this section shall be construed
broadly. Id. at section 425.16 (a) (emphasis supplied).
The moving party need only show it was engaged in free speech
activities with respect to an issue of public significance. Section
425.16. The expressive and petition activities that give rise to the
action need not be communicated directly to a government body and it
is not required that the expression actually be constitutionally
protected under the First Amendment as a matter of law. Wilcox
v. Superior Court (1994) 27 Cal.App.4th 809, 820. Defendant need
only make a prima facie showing the statute applies to [it].
Id. at 819.
Section 425.16 defines an act in furtherance of a persons
right of petition or free speech in connection with a public issue
to include, inter alia:
(3) any written or oral statement or writing made in a place open to
the public or a public forum in connection with an issue of public
interest; (4) any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public
CCP § 425.16(e)(4).
Once defendants establish that CCP § 425.16 applies, the
burden shifts to the plaintiff to establish that there is a
probability that the plaintiff will prevail on the claim. CCP
Once the party moving to strike a complaint pursuant to subdivision
(b) of section 425.16 has made a prima facie showing that the lawsuit
arises from an act by the defendant in furtherance of his right of
petition or free speech under the United States or California
Constitution in connection with a public issue, the plaintiff must
establish a probability that he will prevail on the
merits of the complaint. [§ 425.16, subd.(b).] To establish
such a probability, a plaintiff must demonstrate that the complaint
is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited. [Citation.] Whether the
plaintiff has done so is a question of law [.]
Matson, 40 Cal.App.4th at 548.
Accord, Wilcox, 27 Cal.App.4th at 823. This
requirement is clear. The plaintiff must meet his burden through
competent admissible evidence within the personal knowledge of
the declarant, with reference to the familiar standards applied to
evidentiary showings on summary judgment motions. . . . An overly
lenient standard [of review] would be inappropriate, given that the
statute is intended to provide a fast and inexpensive unmasking and
dismissal of SLAPP suits. Ludwig v. Superior Court
(1995) 37 Cal.App.4th 8,16, [43 Cal.Rptr. 2d 350].
B.Appellant Met His Initial Burden under § 425.16.
1.The Yahoo Message Board is A Public Forum under Californias
The Yahoo message board is a vehicle for communicating a message
about public matters to a large and interested community. As such,
it is a public forum under §425.16. As the Fourth
District held recently:
Read in the context of the entire statutory scheme, a public
forum includes a communication vehicle that is widely
distributed to the public and contains topics of public interest,
regardless of whether the message is uninhibited or
Damon v. Ocean Hills Journalism Club
(2000) 85 Cal. App. 4th 468, 478. In Damon, this included a
newsletter distributed to 3,000 members of a residential community,
despite the fact that it was not balanced and served as a mouthpiece
for a small group of homeowners who generally would not permit
contrary viewpoints. Id. at 476. More than the small,
controlled newsletter in Damon, the Yahoo message board is
open to the public and allows postings by any viewpoint. Yahoo
retains control to prevent violations of its Terms of Service, but
within those boundaries, the discussion is not hindered or
controlled. All opinions are allowed and all have equal footing.
Mezzzman posted his opinions on the Yahoo message board for
Metalclad. Thus, he plainly established that he was engaged in free
speech activities with respect to an issue of public significance in
a public forum.
2.Mezzzmans Speech Concerned Issues of Public Interest.
As part of his prima facie burden, Mezzzman must show that his
remarks concerned an issue of public interest.
§425.16(e)(3). It is well settled that this public
interest includes not only government matters, but also private
conduct when a large, powerful organization impacts the lives
of many individuals. Macias v. Hartwell (1997) 55
Cal.App.4th 669, 674. In Macias, campaign statements made
during an election in a union of 10,000 members qualified as a public
interest. In Damon, the topic concerned the manner of
governance for 3,000 members of a private homeowners community. See
also Sipple v. Foundation for National Progress (1999) 71
Cal.App. 4th 226, 238-240 (statements that a nationally known
political consultant had physically and verbally abused his former
wives determined to be a matter of public interest); Nicosia v. De
Rooy (N.D. Cal. 1999) 72 F.Supp.2d 1093, 1110 (critical
statements about biographer of Jack Kerouac deemed to involve a
matter of public interest).
Here, the speech concerns the activities of a large, publicly
traded company, with reported revenues of over $11 million
and a significant number of shareholders, both direct and indirect.
Metalclad has sought the pubic eye because of its dispute with
Mexico, with coverage on the front page of the Business section of
the New York Times as recently as October 19, 2001.
Metalclad apparently believes its general activities and financial
health are a matter of public interest as well, since it has issued a
press release discussing its quarterly profits.
In all, the company has issued five press releases since May 2001,
each of which lists Mr. Kesler as the contact person and identifies
him as the company president. Several of the releases contain quotes
from Mr. Kesler about the company.
Thus, Metalclads financial health and activities are an issue
of public interest.
C.Respondent Did Not Meet His Burden of Establishing a
Probability of Prevailing on Their Claims.
As noted above, once a defendant makes a prima facie showing under
§425.16 that the lawsuit arises from speech covered by the
statute, the burden shifts to Plaintiffs to establish a probability
of prevailing on their claims. The test is similar to the
standard applied to evidentiary showings in summary judgment motions
pursuant to Code of Civil Procedure §437(c) and requires that
the showing be made by competent admissible evidence within the
personal knowledge of the declarant. Church of Scientology
v. Wollersheim, supra, 42 Cal.App.4th at 654.
First, Plaintiffs must show that the matters complained of were
published, i.e. that the statements were communicated to
third persons who understood their defamatory meaning. See
Witkin, Summary of California Law (9th ed. 1988), Vol. 5, §476,
pp. 560-561. The publication of messages on a Yahoo message board
appears to meet this element.
Second, Plaintiffs must affirmatively show that the statements at
issue are false. Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d
525, 552-3 (truth is an absolute defense against civil liability for
defamation). Moreover, because the statements at issue pertain to a
matter of public concern, the burden rests squarely on Plaintiff to
prove falsity. Philadelphia News, Inc. v. Hepps (1986) 475
U.S. 767, 787-788; see Brown v. Kelly Broadcasting Co. (1989)
48 Cal.3d 711, 747. Plaintiff must in addition show that statements
contained or implied a false factual assertion about
them. Moyer v. Amador Valley Joint Union High School District
(1990) 225 Cal.App.3d 720, 724-725. Statements that cannot
reasonably [be] interpreted as stating actual facts about an
individual because they are expressed in loose,
figurative or hyperbolic language, and or the context and tenor
of the statements negate the impression that the author
seriously is maintaining an assertion of actual fact about the
plaintiff are not provably false, and as such, will not provide a
legal basis for defamation. Milkovich v. Lorain Journal
(1990) 497 U.S. 1, 21.
Third, Plaintiff must show that the statements at issue are
defamatory, that is whether they involve a false and
unprivileged publication . . . which exposes [them] to hatred,
contempt, ridicule, or obloquy, or which causes [them] to be shunned
or avoided, or which has a tendency to injury [them] in [their]
occupation. Civil Code §43.
Respondent here has not met these evidentiary burdens.
1.Respondent Has Failed to
Demonstrate that Mezzzmans Three Statements are Demonstrably
False Statements of Fact.
First, two of the three postings by Mezzzman at issue here appear
to be truthful. These arise from Mezzzmans statement that Mr.
Kesler made a misrepresentation to him (Motion to Augment
the Record, Ex. B, at Exhibit O), and later a statement that his
opinion was based on their dreadfull and deceiptfull [sic]
history (Id. at Exhibit Q). Specifically, these two
statements arise from Mezzzmans contention that Kesler had told
Mezzzman that he would not authorize a reverse stock split unless
NASDAQ required Metalclad to do so and that, nonetheless, a stock
split was authorized in early June, 1999, before any such requirement
was issued by NASDAQ. The statements are dated June 9 & 17,
Mr. Kesler does not deny that he made such a statement to Mezzzman
or anyone else. More importantly, the exhibits to Mr. Keslers
declaration appear to support the truth of Mezzzmans statement
-- that there was no pending NASDAQ requirement at the time of the
stock split. As of June 9 and 17, 2001, the document received by
Metalclad from NASDAQ was dated April 12, 1999 and stated:
In light of the potential dilution of common shares due to the
conversion of debentures and warrants, as outlined above, there are
no assurances that a reverse stock split of up to 10 to 1 will
adequately remedy the bid price requirement.
[CT 110]. Nonetheless, the stock split
was sought by Mr. Kesler and granted on June 2, 1999. [CT 119-120].
The letter from NASDAQ stating that Metalclad had submitted a
suitable plan is dated July 14, 1999, over a month after Mezzzmans
statement. [CT 122-124]. Regardless of whether these statements are
actually truthful, certainly on this record Plaintiff has not met his
burden to demonstrate that they were false at the time they were
2.Respondent has not Met His Burden To Show that Mezzzmans
Statements Were Not Subjective Opinion in the Context of the
Free-Wheeling Internet Message Board.
Additionally, Kesler asserts, it is defamatory per se to
charge that a person is a crook or a thief, (citing
Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 829). [CT 65:
13-14]. This is plainly not the current state of California law,
which requires a more nuanced investigation into the context in which
such claims were made. In the recent case of Rosenaur v. Scherer
(2001) 88 Cal.App.4th 260, 278-282, the Court held that claims
that an opponent was a thief and a liar were held
protected by the First Amendment and not defamatory. The Rosenaur
court collected the current jurisprudence on the topic, noting
that no defamation claim existed for 1) characterizing a developers
negotiating position as blackmail; 2) describing a fund
advertisement as Lies, Damn Lies and Fund Advertisements;
3) accusing an opponent of ripping off the California
taxpayer; and 4) accusing another of enter[ing] into a corrupt
relationship. Id. (citations omitted.)
Here, Plaintiff complains specifically about Mezzzmans
statement that it stinks when the reason you lost is because
youve been cheated! (Motion to Augment the Record at Ex.
B, at Exhibit P) and that Metalclad has a dreadful and
deceitful history [sic], [Id.] and the following:
Im still not sure even if MTLC [Metalclad] won [the NAFTA
litigation] whether the shareholders would benefit given all the
hands skimming of the top and then the dilution that will in fact
take place when the Shaar Fund converts into common shares.
[Id. at Ex. B, at Exhibit N].
Taken in context, none of these, or the others highlighted by
Respondent below contains provably false assertions of fact. All are
expressions of subjective judgment. As Justice Swager observed in
Copp v. Paxton (1996) 45 Cal.App.4th 829, 837-38 (citations
omitted): The issue of whether a communication was a statement
of fact or opinion is a question of law to be decided by the Court.
In making the distinction, the courts have regarded as opinion any
broad, unfocused and wholly subjective comment, such that
the plaintiff was a shady practitioner, crook,
or crooked politician.
The conclusion that Mezzzmans statements are protected
opinion or rhetoric is also supported by the forum and context in
which they were made. That is, in the general cacophony of an
Internet newsgroup, part of an on-going free-wheeling and
highly animated exchange about the company, where the
postings are full of hyperbole, invective, short-had phrases and
language not generally found in fact-based documents. Global
Telemedia International v. Doe 1 aka BUSTEDAGAIN40 (C.D. Cal.
2001) 132 F.Supp.2d 1261, 1267, 1269-1270 (holding critical comments
about plaintiff in Internet chat room, including that it screwed
investors out of their money and lied to them, to be non-actionable
opinion and rhetoric).
3.Respondent Has Failed to Meet His Burden to Demonstrate Actual
Finally, Respondent fails to demonstrate actual monetary damage as
a result of Mezzzmans postings. While at common law
compensatory damages for defamation-related injuries were available
without evidence of loss, the United States Supreme Court has held
that the First Amendment prohibits an award of presumed damages for
false and defamatory statements involving matters of public concern.
See Gertz v. Robert Welch (1974) 418 U.S. 323, 350. Under
Gertz, a public figure plaintiff must produce competent
evidence of actual injury to state a constitutional claim for
defamation. Id. Here, as noted supra at pages 10-11,
Mr. Kesler has served as the public face for Metalclad, with every
press release stating that he is the key contact at the company and
several of them featuring quotes from him. In fact, Mr. Kesler has
not denied that he is a public figure. Thus, he was clearly required
to demonstrate actual monetary damage and his failure to do so
should, under settled law, bar support granting of a motion under
D.Protection of Anonymous Speech.
1.Anonymous Speech is Protected by the First Amendment and
The requirement that the Plaintiff demonstrate the strength of his
claim is underscored by the role of anonymity in Mezzzmans
speech. There is no question that the First Amendment protects not
only the right to speak, but also the right to speak anonymously.
Indeed, the Constitution and the Bill of Rights were framed by
authors who debated its virtues anonymously (or pseudonymously) in
the letters published later as the Federalist Papers. And the First
and Fourth Amendment were born of the colonists experience with
the sedition laws of England which forbade anonymous writing and
which allowed warrantless invasion of any home to root out the true
identity of anonymous authors. Nelson B. Lasson, The History and
Development of the Fourth Amendment to the United States
Constitution, 37-50 (1937).
The Supreme Court has repeatedly upheld this right. Buckley v.
American Constitutional Law Found. Inc. (1999) 525 U.S.
182, 197-200; McIntyre v. Ohio Elections Commn. (1995)
514 U.S. 334; Talley v. California (1960) 362 U.S. 60. These
cases reflect the important role of anonymous writing in our
[A]n author is generally free to decide whether or not to disclose
his or her true identity. The decision in favor of anonymity may be
motivated by fear of economic or official retaliation, by concern
about social ostracism, or merely by a desire to preserve as much of
ones privacy as possible. Whatever the motivation may be, . .
. the interest in having anonymous works enter the marketplace of
ideas unquestionably outweighs any public interest in requiring
disclosure as a condition of entry. Accordingly, an authors
decision to remain anonymous, like other decisions concerning
omissions or additions to the content of a publication, is an aspect
of the freedom of speech protected by the First Amendment.
* * *
Under our Constitution, anonymous pamphleteering is not a pernicious,
fraudulent practice, but an honorable tradition of advocacy and
McIntyre, 514 U.S. at 341-42, 357
(footnote omitted). See also Lamont v. Postmaster General
(1965) 381 U.S. 301, 307 (finding unconstitutional a requirement that
recipients of Communist literature notify the post office that they
wish to receive it, thereby losing their anonymity); Talley,
362 U.S. at 64-65 (holding unconstitutional a state ordinance
prohibiting the distribution of anonymous handbills); ACLU of
Georgia v. Miller (N.D. Ga. 1997) 977 F. Supp. 1228 (striking
down a Georgia statute that would have made it a crime for Internet
users to falsely identify themselves online). The
California Constitution protects the same right. Rancho
Publications v. Superior Court (1999) 68 Cal. App. 4th 1538,
1540-41 (The right to speak anonymously draws its strength from
two separate constitutional wellsprings: the First Amendments
freedom of speech and the right to privacy in Article I, section I of
the California Constitution). Consequently, the causes of
action alleged in the complaint hav[ing] as their gravamen the
alleged injurious falsehood of a statement . . . must satisfy the
requirements of the First Amendment. Blatty v. New York
Times Co. (1986) 42 Cal. 3d 1033, 1045.
Because involuntary identification of anonymous speakers
encroaches on their First Amendment right to remain anonymous, the
First Amendment creates a qualified privilege against disclosure.
Forced identification of anonymous speakers on the Internet would
create a chilling effect on the speech not only of the persons whose
identity is revealed, but on many other persons as well. The
free exchange of ideas on the Internet is driven in large part by the
ability of Internet users to communicate anonymously. Doe
v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1093 (W.D. Wash.
2001). Without such an ability, people may no longer participate in
public message boards. If Internet users could be stripped of
that anonymity by a civil subpoena enforced under the liberal rules
of civil discovery, this would have a significant chilling effect on
Internet communications and thus on basic First Amendment rights.
2TheMart.com, 140 F. Supp. 2d at 1093.
California state courts have applied a similar First Amendment
privilege to protect the privacy rights of individuals who wish
to promulgate their information and ideas in a public forum while
keeping their identities secret. Rancho Publications,
supra, 68 Cal. App. 4th at 1545. In Rancho
Publications, the Fourth District Court of Appeal quashed a
subpoena issued by a hospital in a defamation action. The subpoena
sought to compel a newspaper to disclose the names of anonymous
authors of nondefamatory advertorials critical the hospital based
upon its belief that the authors were actually the Defendants or
affiliated with them.
After first noting the long line of federal and state case law
recognizing the qualified constitutional privilege to block
civil discovery that impinges upon free speech or privacy concerns of
the recipients of discovery demands and innocent third parties as
well (Rancho Publications at 1547), the Court
articulated the balancing test as adopted by California State Courts:
Courts carefully balance the compelling public need to
disclose against the confidentiality interests to withhold, giving
great weight to fundamental privacy rights. . . The need for
discovery is balanced against the magnitude of the privacy invasions,
and the party seeking discovery must make a higher showing of
relevance and materiality than otherwise would be required for less
Id. at 1549. Applying that test
to the facts before it, the Court noted that the reason the hospital
sought the names was a belief that the persons who wrote the
advertorials may have also written or been affiliated with the
writers of other, defamatory writings that were at issue in the
2.Recent Cases Anonymous Internet Speech Support the Conclusion
that Close Judicial Scrutiny Is Required.
The recent set of cases concerning the use of civil subpoenas to
unmask Internet speakers demonstrates a growing judicial concern with
the use of the civil litigation process to deter Internet speech. In
2TheMart, the Federal District Court in Seattle, Washington
established the appropriate standard for evaluating the merits of a
civil subpoena that seeks the identity of an anonymous Internet user
who is not a party to the underlying litigation. Id.
The 2TheMart standard is a balancing test involving four
factors, which ask whether: (1) the subpoena . . . was issued
in good faith and not for any improper purpose, (2) the information
sought relates to a core claim or defense, (3) the identifying
information is directly and materially relevant to that claim or
defense, and (4) [adequate] information . . . is unavailable from any
other source. Id.
This test for subpoenas seeking
the identity of third parties is consistent with a test recently
applied where the plaintiff was seeking to identify defendants in a
trademark action. Columbia Ins. Co. v. Seescandy.com (N.D.
Cal. 1999) 185 F.R.D. 573. The court required the plaintiff to make
a good faith effort to communicate with the anonymous defendants and
provide them with notice that the suit had been filed against them,
thus giving them an opportunity to defend their anonymity. The court
also compelled the plaintiff to demonstrate that it had viable claims
against such defendants. Id. at 579. This demonstration
included a review of the evidence in support of the trademark claims
made against the anonymous defendants.
Here, the California anti-SLAPP law allows a defendant to raise
the critical issue of the validity of Plaintiffs claims before
a subpoena is issued to his online service provider seeking his
identity. Given the clear Constitutional issue of protecting his
anonymity in addition to protecting his speech, judicious application
of the anti-SLAPP law to such situations can help prevent a situation
in which a Defendant is forced to bring a Motion to Quash (which is
usually needed on much shortened time). More importantly, though,
through its attorneys fees provisions, it can serve to dissuade
those who might resort to use of the civil litigation process to both
identify and silence their critics. This, in the end, is the goal of
the anti-SLAPP law.
Based upon the foregoing, Amici
respectfully request that the Superior Court file:///c|/documents and
cases/kessler_v_doe/amicus_final.htmldecision be overturned and that
the Defendants Special Motion to strike be granted.
Dated: October 25, 2001
Cindy A. Cohn (Cal.
454 Shotwell Street
San Francisco, CA
Tel: (415) 436-9993 x
Fax: (415) 436-9333
I. STATEMENT OF FACTS 4
A.Yahoo Message Boards 4
B.The Metalclad Message Board. 6
C. Importance of This Case. 7
II. ARGUMENT 8
A.California Anti-SLAPP Statute. 8
1.Defendants Burden 8
2.Plaintiffs Burden 9
B.Appellant Met His Initial Burden under § 425.16. 10
1.The Yahoo Message Board is A Public Forum under Californias
Anti-SLAPP Statute. 10
2.Mezzzmans Speech Concerned Issues of Public Interest. 11
C.Respondent Did Not Meet His Burden of Establishing a Probability
of Prevailing on Their Claims. 12
1.Respondent Has Failed to Demonstrate that Mezzzmans Three
Statements are Demonstrably False Statements of Fact. 14
2.Respondent has not Met His Burden To Show that Mezzzmans
Statements Were Not Subjective Opinion in the Context of the
Free-Wheeling Internet Message Board. 15
3.Respondent Has Failed to Meet His Burden to Demonstrate Actual
D.Protection of Anonymous Speech. 17
1.Anonymous Speech is Protected by the First Amendment and
Californias Constitution. 17
2.Recent Cases Anonymous Internet Speech Support the Conclusion that
Close Judicial Scrutiny Is Required. 20
ACLU of Georgia v. Miller,
977 F. Supp. 1228 (N.D. Ga.
Albertini v. Schaefer,
97 Cal. App. 3d 822 (1979) 15
Blatty v. New York Times Co.,
42 Cal. 3d 1033 (1986) 18
Brown v. Kelly Broadcasting Co.,
48 Cal. 3d 711 (1989) 13
Buckley v. American Constitutional Law Found. Inc.,
U.S. 182 (1999) 17
Church of Scientology v. Wollersheim,
42 Cal. App. 4th 628
Columbia Insurance Company v. Seescandy.com,
573 (N.D. Cal. 1999) 2, 21
Copp v. Paxton,
45 Cal. App. 4th 829 (1996) 16
Damon v. Ocean Hills Journalism Club,
85 Cal. App. 4th 468
Doe v. 2TheMart.com Inc.,
140 F. Supp. 2d 1088 (W.D. Wash.
2001) 19, 20
Gertz v. Robert Welch,
418 U.S. 323 (1974) 17
Global Telemedia International v. Doe 1 aka BUSTEDAGAIN40,
F. Supp. 2d 1261 (C.D. Cal. 2001) 16
Hejmadi v. AMFAC, Inc.,
202 Cal. App. 3d 525 (1988) 12
Lamont v. Postmaster General,
381 U.S. 301 (1965) 18
Ludwig v. Superior Court,
37 Cal. App. 4th 8 (1995) 10
Macias v. Hartwell,
55 Cal. App. 4th 669 (1997) 11
Matson v. Dvorak,
40 Cal. App. 4th 539 (1995) 8, 9
McIntyre v. Ohio Elections Commn.,
514 U.S. 334
(1995) 17, 18
Miami Herald Publg. Co. v. Tornilllo,
418 U.S. 241
Milkovich v. Lorain Journal,
497 U.S. 1 (1990) 13
Moyer v. Amador Valley Joint Union High School District,
Cal. App. 3d 720 (1990) 13
Nicosia v. De Rooy,
72 F. Supp. 2d 1093 (N.D. Cal.
Philadelphia News, Inc. v. Hepps,
475 U.S. 767 (1986) 13
Rancho Publications v. Superior Court,
68 Cal. App. 4th
1538 (1999) 18, 19, 20
Reno v. American Civil Liberties Union,
521 U.S. 844
Rosenaur v. Scherer,
88 Cal. App. 4th 260 (2001) 15
Sipple v. Foundation for National Progress,
71 Cal. App.
4th 226 (1999) 11
Talley v. California,
362 U.S. 60 (1960) 18
Wilcox v. Superior Court,
27 Cal. App. 4th 809 (1994) 9
California Civil Code § 43 13
California Civil Procedure Code
§ 425.16 8, 9, 10,
§ 426.16(a) 8
§ 425.16(b) 9
§ 425.16(e)(3) 11
§ 425.16(e)(4) 9
California Rule of Court 14(c) 3
Stephen Dinan, Search Warrants Keep AOL Busy, Washington
(April 27, 1999) at C4 8
Nelson B. Lasson, The History and Development of the Fourth
Amendment to the United States Constitution, 37-50 (1937) 17
B.E. Witkin, Summary of California Law (9th ed. 1988),
Vol. 5 12