by Paul Alan Levy
In a decision issued yesterday morning, the Virginia Court of Appeals parted company with appellate decisions in eleven other states and held that the First Amendment allows a court to compel the identification of a company’s anonymous online critics even though the company has done no more than claim that it “suspects” that the statements were false, and then represent that the suspicion is based on an “investigation” of its customer database.
Until recently, there was broad unanimity among state courts, following the analysis of New Jersey’s Appellate Division in Dendrite International v. Doe, or the analysis of the Delaware Supreme Court in Doe v. Cahill, about the substance of the analysis governing a would-be plaintiff that hoped to identify online critics so that it could sue them for defamation, or for other tortious speech. These states recognize that the First Amendment protects the right to speak anonymously, that overcoming such First Amendment right requires a compelling state interest, and whether as a matter of First Amendment obligation or as a matter of state procedural rules, that the interests favoring enforcement of the subpoena cannot prevail unless the court is presented with evidence supporting the allegation that the speech was tortious or otherwise illegal.
Coupled with the somewhat conflicting results recently reached by two different panels of the Michigan Court of Appeals over the past few months (in the Thomas Cooley Law School and Ghanam cases), that unanimity no longer exists, although the majority rule still requires an evidentiary showing of merit before a Doe can be identified.