motion_to_quash

9 1 2 3 4 5 Cindy A. Cohn,Bsq. (StateBar No. 145997) Gwen A. fflDZo, Esq.(StateBar No. 209562) ELECTRONIC fRONTIER FOUNDAnON 454 Shotwell Street SanFrancisoo,CA 94110 Tel~honc: (415) 436-9333xlO8 FacsImile: (415) 436-9993 David Greene (SUte BarNo. 160107) FIRST AMENDMENT PROJECT 1736 Franklin St, Ninth Floor Oakland, CA 94612 f:EO FfLEC: ., ".", ',I t n ',I "i\:" 1 PH a.: ,: I,'. 't' -.'. ,'..',.,;---:;:;_1"11. ., 1 I..' " ".",:('~ 01:' , $~!."( CC~:.: ..1,,' I " '. ,. , 1'.::'""' '.'T ~ .\ ~LI ' ' \, ' ,-" ~. ",I, "~t'l~ 'i ' : ~.. (,' 6 7 8 Telephone:(.510)208-7744 facsimile: (510) 208-4562 9 10 11 12 13 14 15 Attomeysfor Defendant JOHNDOE SUPERIORCOURT OF THE STATE OF CALIFORNIA IN AND FOR mE COUNTY OF SANTA CLAM UNLIMITED JURISDICTION E. v AN CULLENS. No. CV 814664 Plaintiff, FUTHORITIES IN SUPPORT_O~ ~ND:A.NTts MOTION TO QUASH §UBPOENA C.C.P. §418.10 ~MORANDYM OF~~S ~ v. JOHN DOE, 1~ 17 18 ! Defendant. ! ~ 19 20 21 Date: A~117. 2003 Time: 9:00Lm. Dept: 2, Hon.William]. Blf\li]1g .22 23 2. 2S 26 ~~ s 27 28 - NBtI4O~M OFPOINTS AND AUTHO~ I!'l SurPOJ.TOF ' \~\&.. ~.d DBIIeIt)ANT'S MO'nON TO QUASH Su.POlNA £666~tvt Ol 9S89L~ ~J.5 ~I~;:! ~;:! 9S:91 ~ PAGE.a? l.1 ~ 1 2 TABLE OF CONTENTS I. INTRODUcnON II. FACIUAL ..1 3 4 A. B. The Parties Yahoo's Message Boards on the Internet BACKGROUND 1 2 3 5 6 7 c. D. ill. A The Westell and ADCT Message Boards Doe'sParticipationIn The Public DiscussionOn The Westell and ADCT Message Boards 4 ...5 8 9 LEGAL BACKGROUND The First Amendment Establishes The Right To Speak Anonymously In Chat Rooms And On Message Boards On The Internet 5 Does' Motion to Quash Should Be Granted Because there Is No Compelling Need for Defendant's Identity that Outweighs Defendant's First Amendment Rights 6 Cullens Cannot Demonstrate That He Has A Compelling Interest in Obtaining Doe's Identity That Outweighs Doe's First Amendment Right to Speak Anonymously 8 10 11 12 13 B. c. 14 IS 16 17 18 1. 2. Libel Actions Under lllinois Law are Strictly Limited by the First Amendment and the lllinois Constitution 8 Cullens's Lawsuit is Obviously Without Merit becausethe Statementwas not "of and Concerning" Cullens and May Reasonablybe Given an Innocent, Nondefamatory Construction 8 Cullens's Lawsuit Against Doe is Obviously Without Merit BecauseDoe's Statements Are Privilegedunderillinois Law 11 Cullens's Lawsuit Against Doe is Obviously Without Merit BecauseDoe's Statements Are Rhetoricaland Do Not Imply the Existenceof a ProvablyFalseFact 11 15 3. 4. 19 20 21 22 23 24 25 26 27 IV. CONCLUSION. 28 TABLE OF AUTHORITIES 2 Cases Archibald v. Belleville News Democrat,54111.App.2d (1964) 38 Aroonsakul v. Shannon, 279 lli.App.3d 345 (1996) Barry Harlem Com. v. Kraff. 273 ill.App.3d 388 (1995) 3 4 5 6 7 9 9 , ,..10 13 8,9 5 , 10 182 (1999) Cir. 1998) BioSDherics. Inc. v. Forbes. Inc., 151 F.3d 180 Bryson v. News America Publications,174Dl.2d 77 (1996) Buckley Y. American Constitutional Law Found.. Inc.. 525 U.S. Cartwri2ht v. Garrison. 113 Dl.App.3d 536 Catalano v. Pechous, 83 1ll.3d 146 (1980) (1983) 8 Q 10 1 (4th 9 1,6 ChaDski v. CoDle~ Press. 92 m.2d 344 12 13 14 IS Columbia Insurance Comnanvv. Seescand~.com. F.R.D. 573 (N.D. Ca!. 1999) 185 Dendrite International.Inc. v. Doe. No.3. 775 A.2d 756 (N.J. App. 2001) Dodds v. ABC. Inc., 145 F.3d 1053 (9th Cir. 1998) (1982) 1 12 4 ...13 Dollens v. Vukovich and Zionts. No. OlC2826(N.D. Dl, Dubinskv v. United Arlines MasterExecutiveCouncil, 303 Dl.App.3d317 (1999) Greenbelt PublishinQ:Association v. Bresler. 398 U.S. 6 (1970) 16 17 18 19 20 13 10 , Grisanziov. Rockford Newsnapers. Dl.App.3d914 (1985) 132 Homerin v. Mid-Illinois Newsnmers, 245 lli.App.3d 402 (1993) ... HoDewell v. Vitullo, 299 1ll.App.3d 513 (1998) 9,10 12 6 8,13 ..4 21 22 Immunomedics.lnc.v. Doe, 775 A2d 773 (N.J. Sup.Ct App. Div. 2001) Canada, caseno. 02-0151-MISC-WHA 23 In re Yagman,55 F.3d 1430(9thCir. 1995) In re Westell Technolo~es. Inc.. Securities Lit No. 00C6735 24 25 (N.D.ll1.) 12 JeffersonCounty SchoolDistrict v. Moodys Investor'sServices.Inc., 988 F. Supp. 1341(D. Colo. 1997) 15 McIntvre v. Ohio Elections Comm'n. 514 U.S. 334 (1995) 26 27 5 11 28 Milkovich v. Lorain JournalCo.. 497 U.S. (1990) n MOTION TO QUASH SUBPOENA 1 2 3 4 5 6 7 10 , 676 (1994) Mittleman v. Witous, 135 Dl.2d 220 (1989) 11 Moriartv v. Greene. 315 1ll.App.3d 225 (2000) 13 5 8,9 11 , 12 Momin2star. Inc. v. SuDerior Court, 23 NAACP v. Alabama ex reI. Patterson, 357 Cal.App.4th U.S. 449 New York Times v. Sullivan. 376 U.S. 254 (1964) Newell v. Field Ent~rises, 91 1ll.3d735 (1980) PhantomTourine:.Inc. v. Affiliated Productions, 953 F.2d 724 (1stCir. 1992), Renov. American Civil Liberties Union, 521 U.S. 844 (1997) Richards of Rockford. Inc. v. Pacific Gas & Electric Co.. 71 F.R.D. 388 (N.D. Ca!. 1976).. Schaffer v. Zekm~ 196 lli.App.3d 727 (1990) 8 9 (1958) 2 13 9 , 9, 13 10 11 12 Schivarelli v. CBS. Inc., 333 lll.App.3d 755 Statev. DiGui~ 152 Dl.2d 104 (1992) Talley y. Califomi~ 362 U.S. 60 (1960) TeDDer v. CoRley Press. 308 lll.App.3d 718 (1999) (2002) 8 5 13 14 15 16 17 1 5 of Staton, 122 S.Ct. 2080 (2002) Watchtower Bible and Tract Society y. Other Authorities Restatement (Second) of Torts §611 , Village 11 18 19 20 21 22 Law Review Articles and Treatises JoshuaR. Funnan, C bersmearor C er-SLAPP: Anal in Defamation Suits A ainst Online JohnDoesas Strate~c LawsuitsA2ainst Public Particination,25 SeattleU. L. Rev. 213 (2001) 6 23 24 25 26 27 28 1 2 I. INTRODUCTION 3 4 5 6 Peopleshouldbe able to participateonline without fear that someone who wishesto harassor embarrass them can file a frivolous lawsuit and therebygain the power of the court'sorder to discovertheir identities. Columbia Insurance ComDanv v. Seescandy.com,185 F.R.D. 573, 578 (N.D. Ca!. 1999) (discussingFirst Amendmentlimitations on allowing discovery to reveal an anonymous defendant's identity). Movant John Doe! is an anonymous poster to two Internet message boards who madetwo statements critical of a publicly-tradedcompanycurrently run by Plaintiff Cullens. In an effort to prevent Doe from further posting his opinions about the companyon the Internet, Cullens has filed a manifestly meritless libel suit against Doe in lllinois and now asks this California court to force disclosureof his identity. Doe brings two motions in response, one to quashthe subpoenaand a second,a special motion to strike under California's Anti-SLAPP statute. Both seek to protect Doe's First Amendmentright to speak anonymouslyon the Internet. Since both motions draw on the same factual and legal backgroundsand the same portions of lllinois defamation law, we will only provide them once in this Motion to Quash(and not in the Motion to Strike) in order to avoid repetition and savepaper. II. A. The Parties 7 8 9 10 11 12 13 14 15 16 17 18 19 FACTUALBACKGROUND Plaintiff Cullens is Presidentand Chief Executive Officer of Westell, an lllinois company. Cullens has suedDoe in lllinois state court alleging one causeof action for libel per se. E. Van Cullens v. John Doe. No. 2003LOOOlll (18thJudicial Circuit, Du PageCounty, lllinois). A b"ue and correct copy of the Complaint is attached the Declarationof Cindy A. Cohn file herewith as to Exhibit A (Cohn. Decl.)? Cullens has issued a California subpoenato online service provider Yahoo! Inc. ("Yahoo") seekingto have Yahoo reveal the identity and all other information Yahoo 1 Plaintiff refers to Defendant as John Doe. Doe here adopts that moniker but this is not intended to be a representation of Defendant's actual gender. 2 On March 17,2003, the lllinois Court issued an extension of time until May 12, 2003, for Doe to respond to the lllinois lawsuit in order to allow this Court time to consider this Motion to Quash and for Cullens to substantiate his claim of $50,000 in damages. 20 21 22 23 24 25 26 27 28 MOTION 10 QUASH SUBPOENA 1 2 hasaboutJohn Doe. Cohn. Decl.t Exh. B.3 The lawsuit arisesfrom two postingsDoe madein two discussions held on Yahoo message boards. B. Yahoo's Messa2eBoards on the Internet 3 4 5 The United States SupremeCourt has repeatedlyrecognized the Internet's potential to support democraticinstitutions and serveas the ideal "town square." The Internet allows people otherwise without accessto significant resourcesto voice their opinions - profound, profane, or proselytizingthough they may be - to all who wish to readthem. As the SupremeCourt explained in Reno v. American Civil Liberties Union. 521 U.S. 844, 853 (1997), "[t]rom the publisher'spoint of view, [the Internet] constitutesa vastplatfonn from which to address hearfrom a worldwide and audienceof millions of readers,viewers, researchers, and buyers." "Through the use of chat rooms, any personwith a phone line can becomea town crier with a voice that resonates farther 6 '7 8 9 10 11 12 13 than it could from any soapbox. Through the use of Web pages, becomea pamphleteer.tlM.at 870. the same individual can 14 15 So that thesetown criers and pamphleteers and their interestedaudiencescan find each other, Yahoo! has createdelectronicbulletin boards,or "MessageBoards," covering a variety of board exists for every publicly-traded company in the U.S. These message topics. A message boardspermit any user to post commentsand opinions and read the postings of others.To sign up for a messageboard, a person need give Yahoo! only her birthday, zip code, gender and an alternatee-mail address.But the posteris free to post messages under any moniker. Anonymity on these messageboards facilitates free expression, particularly where controversialtopics are discussed.Anonymity, by shieldingthe writer from those who might take issue with her comments,encourages free-flowing conversationson these messageboards and fosters a dialogue that includes a wide range of sometimesheatedexchanges, encompassing the infonned, the opinionated,the speculative, caustic,and the invective. Indeed,althoughnothing the preventsan individual from using her real name, most people chooseto post messages under a pseudonym. 3 Note that the subpoena seeksidentifying infomlation aboutDoe plus "any and all recordsof any type whatsoever relating, referring, concerningor identifying" Doe. Subpoena ~8. at 2 MOTION TO QUASH SUBPOENA 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 One aspectof the message boardthat makesit very different from almost any other form of published expressionis that any personwho disagreeswith somethingthat is said on a message board for any reason- including the belief that a statement contains false or misleading infomlation about herself - can respondto the statement immediately,at little or no cost, and that response will have the same prominence as the offending message. 6 7 c. The Westell and ADCT Messa!!eBoards Doe here postedone message the Yahoo Westell message on board and one on the Yahoo message board devoted to ADC Telecommunications ADCT"). The opening messageon the (" Westell and ADCT message boards each explains the ground rules for discussion. The Westell board says: This is the Yahoo! Message Board aboutWestell (Nasdaq:WSTL), where you can discussthe future prospectsof the company and share information about it with others. This board is not connectedin any way with the company, and any messages solely the opinion andresponsibilityof the poster. are Every page of messagelistings on both boards is accompaniedby a similar warning that all messages shouldbe treatedasthe opinionsof the poster: Reminder: This board is not connected with the company. These messagesare only the opinion of the poster, are no substitute for your own research, and should not be relied upon for trading or any other purpose. 8 9 10 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Many membersof the public regularly contributeto the Yahoo message boardsto discuss the companies. As of the date this brief is filed, over 39183 messages have been posted on the Westell board and over 69596 messages have been posted on the ADCT board. These speakers address enonnousvariety of topics. Investorsand members the public discussthe latestnews an of about what products the companieshave sold and may sell, what new products it may develop, what the strengthsand weaknesses the companies'operationsare, what competitorsare doing of and what managersand employeesmight do better. Many of the messages praise the company, many criticize it, and someare neutral. The postersfrequently correct, upbraid, insult and praise eachother aswell. 1/1 28 HI 3 MOTION TO QUASH SUBPOENA D. 2 !>_oe'sPa.!:ticiD~tion In The Public Discussion On The Westen and ADCT Messa2e Boards 3 4 5 The two messages issue in this caseare both dated January 15, 2003. On the Westell at Board Doe posted,in a message with the subjectline "WSTL's crookedmanagement": You guys are dreaming. . . Have you forgottenthe multi-million dollar lawsuitsthat are still pending againstWSTL when former CEO Zionts orchestrated cook-thea book scheme. Obviously you guys weren't on board then. You simply can't trust the management this company. Put your moneyin ADCT and you'll do okay. of On the ADCT Board Doe postedwith the subjectline "Look at WSTL": WSTL sucks. Their management crooked. Multi-million dollar lawsuits pending is from Enron-like management Marc Zionts. STAY AWAY from this loser of Cohn. Decl., Exh. A, pp. 7-8. Plaintiff Cullens is not identified in either message.The messages refer only generically to Westell's "management." The only individual mentioned is Westell's fonner CEO, Marc Zionts. The lawsuits to which Doe refers were real; then-pendingshareholder class action lawsuits basedupon a claim of mismanagement: re Westell Technologies.Inc., In SecuritiesLit No. OOC6735 (N.D. lli.) and Dollens v. Vukovich and Zionts. No. OlC2826 (N.D. Dl.).4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Cullensdid not attemptto rebut Doe'sstatements the Yahoo board. He madeno attempt on to explain that currentmanagement was trustworthy or explain why the lawsuits were unfounded. Instead,he simply filed a personallawsuit repletewith conclusoryallegationsthat thesestatements were defamatoryper se as to him as an individual and have causedhim "damageand injury to his reputation"in excess $50,000. Cohn.Decl., Exh. A, page5. of 21 22 23 24 25 26 27 IH III 4 Westell itself describedthe lawsuits as alleging that defendantsmade "false and misleading statements 2000 regarding forecastsfor the secondquarter of 2001." On February 20, 2003, in long after Doe's postings,Westell issueda pressreleaseannouncingthat it paid $3.95 million to settle the case along with adopting "certain governance and communications procedures." . e.g. Cohn. Decl., Exh. C (preliminary decisions See in both cases). 4 MOTION TO QUASH SUBPOENA 28 m. 2 3 4 5 LEGALBACKGROUND A. ~he Fir~t ~!!]en~l!!ent Es_tablishesThe Ri2ht To Soeak Anonvmouslv In Chat Rooms And On Messa2e Boards On The Internet The U.S. SupremeCourt has repeatedlyupheld, in diverse contexts,the First Amendment right to speak anonymously. 5 The California Supreme Court too has acknowledged the 6 7 8 9 10 11 12 constitutional right to speakand associate anonymouslybasedon both the liberty of speechand privacy provisions of the California Constitution. Britt v. SuperiorCoY1:.t, Cal.3d 844, 852-57 20 (1978). Theseprotectionshavebeenextended anonymous to speechonline. "The free exchange of ideas on the Internet is driven in large part by the ability of Internet users to communicate anonymously. If Internet userscould be strippedof that anonymity by a civil subpoena enforced under the liberal rules of civil discovery,this would have a significant chilling effect on Internet communicationsand thus on basic First Amendmentrights." Doe v. 2TheMart.com. Inc.. 140 F.Supp.2d 1088, 1093 (W.D. Wash. 2001). AccordColumbiaIns. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Ca!. 1999). A lessprotectiveapproach would allow lawsuitsthat have little merit, like the presentone, to be used solely for the purposeof piercing the veil of anonymity. Indeed,"[t]he primary purposeof many of thesesuits is not to pursuea defamationcauseof action, however, but to reveal the identity of the poster and quiet criticism." Joshua R. Furman, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 C ersmearor C er-SLAPP:Anal in DefamationSuits A ainst Online John Does as Strate .c 5~ WatchtowerBible and Tract Societvv. Villa2e of Staton. 122 S.Ct. 2080, 2089 (2002) ("The 28 decision to favor anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism,or merely by a desire to preserveas much of one's privacy as possible"); Bucklev v. American Constitutional Law Found.. Inc.. 525 U.S. 182, 199 (1999) (holding that statute requiring, inter alia, that initiative-petition circulators wear name badges violates First Amendment); McIntvre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995) (holding that anonymous pamphleteering "an honorabletradition of advocacyand of dissent"and is that anonymity is "a shield from the tyranny of the majority"); Talley v. Californi~ 362 U.S. 60, 64-65 (1960) (holding anonymity protected under the First Amendment because forced "identification and fear of reprisal might deter perfectly peacefuldiscussionsof public mattersof importance");NAACP v. Alabamaex reI. Patterson, 357 U.S. 449, 460-61,463 (1958) (describing how the fear of retribution exerts a powerful chilling effect on one's ability to exerciseher First Amendmentrights). 5 MOTION TO QUASH SUBPOENA 1 Lawsuits AszainstPublic Partici~ation,25 SeattleU. L. Rev. 213, 217 (2001). Courts have set tough standardsby which to evaluatesubpoenas that compel production of anonymousInternet speakers' identities,to ensurefirst amendment rights arenot abrogated. B. ~oe~' _Mo~io!} to Quash Should Be Granted Because there Is No ComDellin!! ~~e_dfor Defendant's Identitv that Qutwei!!hs Defendant's First Amendment Ri!!bts 2 3 4 5 6 7 8 9 10 To insure that Doe's First Amendment rights are adequately protected, a subpoena issued under the authority of this Court that might strip a speaker of anonymity triggers exacting constitutionalscrutiny. RanchoPublicationsv. Su!Jerior Co:urt.68 Cal.App.4th 1538, 1547-51,81 Cal.Rptr.2d 274, 276-78 (1999) (quashing a subpoenathat sought the names of anonymous advertiserswho had criticized a community hospital). Specifically, the need for the discovery of Doe's identity must be balancedagainstthe magnitudeof the privacy invasion. ~~ 11 12 at 1549. A well-reasoned,rigorous test has been adoptedby other courts around the country that have confrontedthe issue of anonymousonline speechin recent years. Although the law in this relatively new area is still coalescing,courts have consistentlyconcludedthat First Amendment principles are best protectedby setting heavy burdensupon litigants who seekto use the court's subpoena power to compelproductionof anonymous speakers' identities. A recentfederaldecision determinedthat allowing such a subpoena stand is only appropriatein the "exc~tional case" to where a "compelling need for the discovery sought outwei~ the First Amendmentrights of the 13 14 15 16 17 18 19 20 anonymous speaker." Doe v. 2themart.com. 140 F.Supp.2d 1088, 1095 (W .D. Wash 2001) (emphasisadded) (£i!ing Columbia Ins. Co. v. Seescandy.com, F.R.D. 573, 578 (N.D. Ca!. 185 1999); Immunomedics.Inc. v. Doe, 775 A.2d 773 (N.J. Sup. Ct. App. Div. 2001) (affirming motion to quash). Cohn.Decl., Exh. D. A compelling need for the information does not exist where the underlying litigation is weak.~ Dendrite International.Inc. v. Doe. No.3. 775 A.2d 756,760 (N.J. App. 2001) 760 ("the 21 22 23 24 25 court must balancethe defendant's First Amendmentright of anonymousfree speechagainstthe strengthof the prima facie casepresented"). Cohn.Decl.,Exh. E. In suchcases, risk is high the that the underlying litigation servesonly as a tool for the disclosureof the Doe's identity. ~ Missouri ex reI. ClassicIII Inc. v. Ely. 954 S.W.2d650, 659 (Mo. App. 1997)("If the caseis weak, 26 27 28 .6 MOTION TO QUASH SUBPOENA 1 2 then little purpose will be servedby allowing such discovery, yet great hann will be done by revelationof privileged information. In fact, there is a dangerin sucha casethat it was broughtjust to obtain the names.") Cohn. Decl., Exh. F. The seminal case setting forth First Amendment restrictions upon a plaintiffs ability to compel an ISP to reveal an anonymous defendant's identity is Dendrite. Cohn. Decl., Exh. E. In Dendrite, Dendrite formally sued four anonymous posters on the Yahoo messageboard relating to 3 4 5 6 7 8 Dendrite, alleging that some were current or former employeeswho had violated confidentiality agreements, and that some had defamedthe company. Two of the Does moved to quash the subpoena. Recognizing"the well-established First Amendmentright to speakanonymously,"the New Jerseyappellatecourt imposeda heavy burden on any plaintiff seekingto reveal the identity of anonymous defendants: We hold that . . . the trial court should first require the plaintiff to undertakeefforts to DQ!ift the anonymouspostersthat they are the subject of a subpoena. . .These . notification efforts should include DOstin2 messa2e notification of the identity a of discoveryrequestto the anonymous useron the {Sf's ~ertinentmessage board. The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that nlaintiff alleges constitutes actionable s~ech. The complaint and all infonnation provided to the court should be carefully reviewed to detennine whether the plaintiff has set forth a nrima 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 nlaintiff must nroduce sufficient evidence SUDDOrtinQ 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. 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 Finally, assumingthe court concludesthat the plaintiff has presenteda prima facie causeof action, the court must balancethe defendant's First Amendment right of ~onvmo~ free sDeech aQ:ainst stren2thof the Rrima facie caseRresented the and the necessityfor the disclosureof the anonymousdefendant's identity to allow the plaintiff to properly proceed. !d.at 760-61(emphasisadded). Applying thesemultiple safeguards protect First Amendmentrights, the Dendrite court to carefully examinedthe complained-ofstatements and concludedthat Dendrite "failed to provide this Court with ample proof from which to conclude that John Does 3 and 4 have used their constitutional protectionsin order to conduct themselvesin a manner which is unlawful or that would warrantthis Court to revoketheir constitutionalprotections." 14.at 764. 26 27 28 7 MOTION TO QUASH SUBPOENA 1 Similarly, in a caserecently decidedin Federal District Court in San Jose,Judge Alsop, after reviewing the relevant caselaw,required the following: (1) that prior to seeking assistance from the court, it made a diligent effort to obtain the desiredinformation by other means;and (2) that the offending statements actionable;and (3) that the statements are have in fact causedthe company actual damage." In re Discoyerv Order Issued by the SuDerior Court. Province of Quebec. District of Montreal. Canada. case no. 02-0151-MISC-WHA at 5:16-18 (hereinafter 2 3 4 s 6 7 8 9 10 "N~ox"). Cohn.Decl.,Exh.F. c. ~ul!en~ ~an!!ot Demonstrate That He Has A Comoellin!! Interest in Obtainin!! Uoe's Identitv That Outwei!!hs Doe's First Amendment Ri!!ht to Soeak Anonymously It is clear that when this test is applied, Cullens has not made, and cannot make, an adequate showing that his needto know Doe's identity outweighsDoe's First Amendmentrights. Cullens's cannotdemonstrate compellingneedto learn Doe's identity because causeof action a his for libel per seis obviously without merit for severalreasons. 1 Libel Actions!lnd~ Illinois Law are Strictly Amendment and the Illinois Constitution Limited bX the First 1 12 13 14 15 16 All actions basedon the disseminationof injurious falsehoodsare strictly limited by the First Amendmentto the U.S. Constitution, and are also limited by the parallel provisions in the stateconstitutions. New York Times v. Sullivml, 376 U.S. 254 (1964). The free speechprovision in the lllinois Constitution, article 1, section4, is in somecontextsinterpretedas providing even more protection for speakersthan the First Amendment. State v. DiGuid~ 152 1ll.2d 104, 122 (1992). Cohn. Decl., Exh. G. It is obvious, however, in this case that the Complaint is defective and the action has little likelihood of successunder even common law principles. 17 18 19 20 21 22 23 24 25 2. Cullens's Lawsuit is ObviouslXWithout Merit becausethe Statementwas not "of and ConceminK' Cullens and Max Reasonablx be Given an Innocent.Nondefamato[X Construction 26 27 In Dlinois, a statement considered is libelous if it tendsto causesuchhanDto the reputation of another that it lowers that person in the eyes of the community or deters third personsfrom associatingwith him. Bason v. NewsAmericaPublications, 74 m.2d 77, 87 (1996). Cohn. 28 1 2 3 4 5 Decl., Exh. H. A statement libelous per se,that is libelous on its face, if, amongother factors,it is imputes the commission of a criminal offense to the plaintiff or imputes the lack of ability or integrity of the plaintiff in the perfOmtance his or her professionalduties. of ~ at 88. Such statements are so obviously and materially hannful to the plaintiff that no proof of actual injury is required. IQ. at 87. However,the statement must be "of and concerning"the plaintiff. Schivarelli v. CBS. Inc.. 333 Dl.App.3d 755, 765 (2002); Aroonsakul v. Shannon,279 lll.App.3d 345, 350 (1996) ; Schaffer v. Zekman. 196 Dl.App.3d 727, 732 (1990).6 Cohn. Decl., Exhs. I, J, K, That is the statementmust be identifiably about the plaintiff. Schivarelli. 333 Dl.App.3d at 765. Statements that do not identify the plaintiffby nameare not libelous to the plaintiff unless,as a matter of law, the statement capableof being reasonably is understood a third party asreferring to the plaintiff. by Aroonsakul. 279 1ll.App.3d at 350. It is not enoughthat the plaintiff believesthe statements were about him; it must be alleged that others actually believed the statementswere about him Archibald v. Belleville News Democrat,54 Ill.App.2d 38, 42 (1964). Cohn. Decl., Exh. L. Thus in Schivarelli, the action was dismissedbecauseit was not obvious from the report that the allegedly libelous statements pertainedto the plaintiff businesses. Schivarelli, 333 Dl.App.3d at 765-66. And in Schaffer, a toxicologist at the medical examiner'soffice was not permitted to maintain a libel action arising from a report that alleged mishandling by the medical examiner's office despite the fact that he was interviewed in the report and depicted while the allegedly libelous statements were broadcast. 196 1ll.App.3dat 732 Illinois also recognizesa modified form of the common law "innocent constructionrule." Chaoski y. Cooley Press.92 ill.2d 344, 352 (1982). Cohn.Decl., Em. M. Under this rule, a plaintiff may not maintain a libel per se action if the statement, when consideredin context, may reasonablybe interpretedas "referring to someoneother than the plaintiff." 14.; Homerin v. Midillinois New~apers, 245 ill.App.3d 402, 405 (1993). Cohn. Decl., Exh. N. The rule bars a libel per se action if such an innocent constructionis reasonable; does not matter that there may be it 6 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 The "of and concerning"requirementis also of constitutional dimension. New York Times v. 28 Sullivan, 376 U.S. at 288-89. 9 MOTION TO QUASH SUBPOENA 1 2 3 4 5 6 other constructions that are equally or more reasonableunder which liability could attach. Mittleman v. Witous. 135m.2d 220, 231 (1989). The innocentconstructionrule hasbeenusedto prohibit libel per se actionsin situationsfar less "innocent" than the one pleadin the Complaintin this action. In Homerin. the court dismissed the libel per se action basedon the publication of a political cartoonthat caricatured,but did not otherwise identify, the plaintiff becausethe plaintiff had failed to allege that readers of the publication reasonably understood cartoonto refer to him. 245 lli.App.3d at 405, In Grisanzio the v. Rockford News~a!>ers, ffi.App.3d 914,919 (1985) (Cohn. Decl., Exh. P), the article referred 132 to a restaurantwhere illegal activity took place but did not refer to the owner of the restaurantby name. In fact the article specifically namedthe personswho were committing the allegedly illegal acts. The court applied the innocent constructionrule to bar the restaurantowner's libel per se action. 14. And in B~ Harlem Com. v. Kraff. 273 Dl.App.3d388, 390-91 (1995) (Cohn. Decl., 7 8 9 10 11 12 13 14 15 Exh. Q), the court applied the rule to bar an action based on statementsthat referred to advertisements a medical procedureeven though the plaintiff was the only practitioner of that for procedurewho advertised. The illinois Court of Appeal's decision in Cartwri~t v. Garrison. 113 ill.App.3d 536 16 17 18 19 20 (1983)(Cohn.Decl., Em. R), is directlyon point. In Cartwright,the court foundthat a school district superintendent could not maintain a libel per se action againstthe publisher of an article that alleged misdeedsby the school "administration." The court found that the article could be reasonably read to refer to other administrators besides the plaintiff and thus the plaintiff superintendent could not maintain a defamationaction. M. at 541 Indeed, Cullens's Complaint against Doe is defective under both of these common law requirements. The statementswere clearly not "of and concerning" Cullens. Doe's statements about Westell's "management"are clearly analogousto the statements about the "administration" madein Cartwright. Thesestatements could be reasonably readto refer to other managers, say, for example,Zionts, the one Doe specifically names,and not Cullens. Indeed, the only reasonable readingof the statements context is that they refer to Zionts and the management place at the in in time of his misdeeds. Cullens doesnot plead in the Complaint that othersreasonablybelieved the 10 MO11ON TO QUASH SUBPOENA 21 22 23 24 25 26 27 28 1 2 3 4 5 6 statements pertainto him personally.Even if he did, suchan allegationcannotbe maintainedas to a matterof law. 3. Cullens's Lawsuit A2ainst Doe is Obviouslv Without Merit Because Doe's Statements Privile2edunderlllinois Law Are An additional common law principle also severely limits the libel per se action as pled. Illinois has adoptedthe privilege for reportsof official proceedings found in Restatement (Second) of Torts §611. Catalanov. Pechous,83 1ll.3d 146 (1980). Cohn.Decl., Exh. S. This privilege provides that those who report fairly and accurately on judicial proceedingsenjoy a qualified immunity from liability. TeoDer Co~le~Press.308 Dl.App.3d718 (1999) (Cohn. Decl., Exh. T); v. 7. 8 9 10 II 12 Newellv. Field Ent~rises, 91 lli.3d 735(1980). Cohn.Decl.,Exh.U. This is exactlywhatDoe was doing: reporting to the messageboards on the shareholderactions filed against Westell's management. Thus, Cullens will have to demonstrate that the defendantpublished the statements with the specific intent to harm Cullens's,not the company's,reputation in order to prevail. He will not be able to do so. 13 14 IS 4. 16 17 18 19 20 21 22 23 Cullens's Lawsuit A2ainst Doe is ObviouslXWithout Merit BecauseDoe's Statements Are Rhetorical and Do Not 1m12IX Existenceof a Provablx the FalseFact Furthennore,Cullens's action againstDoe cannot succeed because Doe's statements about Westell's "management" were not actionablefactual statements. Ratherthey are statements pure of opinion, the factual basesfor which are disclosedwithin the samecommunication. No action for libel canbe basedon suchstatements underlllinois law. Under illinois law, a statement opinion is not defamatory"unlessthe opinion implies the of existenceof undisclosedfacts or disclosesincorrect or incompletefacts." Mori~ v. Greene.315 Ill.App.3d225,234(2000)(£i!ingMilkovichv. LorainJowna1~~.497 U.S. 1,20 (1990».There are severalreasons why Doe's statements not actionableunderthis standard. Cohn. Decl., Exh. are 24 25 26 27 v. First, Doe disclosedthe factual basis for his conclusionsthat Westell's management was "crooked" and "cannotbe trusted." It is clear from his statements he baseshis conclusionson that the revealedfacts regardingthe performance Westell's previousCEO Zionts and the shareholder of 28 11 MonON TO QUASH SUBPOENA lawsuits that resultedfrom his actions. In such situations,the readersare "free to acceptor reject 2 3 4 5 6 the author's opinion basedon their own independent evaluationof the facts." In re Yagman, 55 F.3d 1430, 1439 (9thCir. 1995). Seealso Dodds v. ABC. Inc., 145 F.3d 1053, 1067-68(9thCir. 1998); Phantom Tourin2. Inc. v. Affiliated Productions,953 F.2d 724, 730-31 & n.13 (1- Cir. 1992)(characterizing suchstatements "pure opinion"). as Second,the characterizations Westell's management being "crooked" and "not to be of as 7 8 trusted"madein the contextof the Yahoo!message boardsare clearly the kinds of rhetorical hyperbole that cannot as a matter of law be defamatory.If Cullens is able to clear each of the hurdles alreadydescribedabove,an lllinois court will apply a threepart test to determinewhether or not Doe's statements reasonablyimplies the existenceof a provably false fact. Ho~ewell v. Vitullo. 299 Dl.App.3d 513, 518-19 (1998). Cohn. Decl., Exh. W. First the court will "consider whetherthe languageof the statement a preciseandreadily understood has meaning,while bearing in mind that the first amendmentprotects overly loose, figurative, rhetorical, or hyperbolic language, which negates impressionthat the statement the actuallypresentsfacts." ~ 9 10 11 12 13 14 15 16 Second, the court will consider "whether the general tenor of the context in which the statementappears negatedthe impressionthat the statement factual content." has ~ Third, the court will consider 17 18 19 20 21 "whetherthe statement susceptible being objectively verified astrue or false." ~ is of Applying this test the Honewell court concludedthat the statement"fired becauseof his incompetence"was nonactionableopinion. The fact of Hopewell's firing was not disputed.The court acknowledged that the term "incompetence," althougheasilyunderstood, was nevertheless so broad in scopeand lacking in detail that it did not have a preciseand readily understoodmeaning such that it could be defamatory. "There are numerousreasonswhy one might conclude that anotheris incompetent;one persons idea of when one reaches thresholdof incompetence t the will vary from the next person's. Without the contextand contentof the statement limit the scopeof to 'incompetent,' we cannot say that there is a precise meaning relating to the alleged defamatory statement,"~ at 519-20, The word "crook," a foml of which is at issuehere,was found by anotherlllinois appellate court to suffer from the sameimprecisionas "incompetence." DubinskYv. United Arlines Master 12 MOTION TO QUASH SUBPOENA 22 23 24 25 26 27 28 ExecutiveCouncil, 303 ill.App.3d 317, 329-30(1999). Cohn. Decl., Exh. X. "Richards' statement 2 that Dubinsky was a 'crook' was not actionablebecause was not made in any specific factual it context. One cannotrely on an assumptionthat those who heard the statementwere completely apprisedof all the developments the in controversyso as to createa definitive factual context Schivarelli, at 762 (2002) (holding that the statement 3 4 5 6 for useof the word 'crook.'" 14. ~ ~ accusingthe plaintiff of "cheatingthe city" wasnonactionable opinion). Cohn Decl., Exh. I. When the test is applied to Doe's statements, is obvious that a court will reachthe same it decision. The phrases "crooked" and "not to be trusted" arethe type of rhetorical languagethat the First Amendmentwas designedto shield from liability. They do not imply the ex.istence any of specific facts. Rather,like "incompetence"and "crook," they are so broad in their meaningsthat they could encompass whole rangeof subjectivebeliefs. Furthermore,applying the third part of a the lllinois test,the termsarenot objective,provably falseterms. The second prong of the Dlinois test bears special attention. The general tenor of the Yahoo! messageboards is one of fiery and invective rhetoric~not reasonedfactual exposition. Indeed,many forums in which publicly-tradestocksare casuallydiscussed similarly inherently are subjective. In such situations, courts place a heavy burden on the plaintiff to prove that the statements actionable.~ are .7 8 9 10 1 12 13 14 15 16 17 18 19 BiosDherics. v. Forbes. Inc. Inc.. 151F.3d 180,184(4th Cir. 1998) (holding that the context and tone of stock tips indicated that article contained constitutionally protectedsubjectiveviews, not factual statements giving rise to defamationliability); Morning§tar. Inc. v. Suuerior Co~ 23 Cal.App.4th 676, 693 (1994) (holding that plaintiff could not state a 20 21 22 cause of action for libel or interferencewith prospectiveeconomic advantagebased on loose, figurative, or hyperbolic language in commentary about a mutual fund); accord Greenbelt PublishiniZ Associationv. Bresler.398 U.S. 6, 14 (1970) ("even the most careless readermust have perceivedthat the word ["blackmail"] wasno more than rhetoricalhyperbole,a vigorous epithet."). Internet message boards have a well-establishedreputation for being for a for fiery and figurative rhetoric rather than objective facts. In Nymox, the Doe accusedcorporatemanagement of deliberatelyfalsely claiming that a rival company"hasbeenkilling hwnan volunteersduring the 23 24 25 26 27 28 course this studyby injectingthemwith HN." Nmox at 5:26-6:6.CohnDecl.,Exh.F. The of 13 MOTION TO QUASH SUBPOENA 1 court acknowledgedthat if the messages were false they were defamatoryper se. Still it noted: "The context, as well as the content, of the statementmust be considered. The statementwas posted anonymously on an Internet messageboard. The tenor of the submitted postings would lead the ordinary reader to regard their contents skeptically." !S;!.at 6:18-20. And in Global Telemedia 2 3 4 5 6 Int'l. Inc. v. Doe 1. 132 F.Supp.2d1261(C.D. Cal. 2001), which consideredallegedly defamatory statements posted anonymouslyto a financial message board, the court observedthat "to put it mildly, thesepostings . . lack the fonnality andpolishtypically foundin documents which a in readerwould expect to find facts."? !d. at 1267. The Court emphasized that the posters "use[ d] exaggeration, figurative speech broad generalities"and that "[t]he reasonable and readerlooking at the hundredsand thousands postingsabout the companyfrom a wide variety of posters,would of not expectthat [the poster] was airing anything other than his personalviews of the companyand its prospects." 14. at 1268. Basedon this context, the court reasonedthat "while [the poster's] sentimentsare not positive, the statementcontainsexaggerated speechand broad generalities,all indicia of opinion. Given the tone, a reasonable readerwould not think the posterwas stating facts about the company,but rather expressingdispleasurewith the way the company is run." 14. at 1270. The court concludedthe statements were protectedopinion and dismissedthe lawsuit with prejudiceunder California'santi-SLAPPstatute. ~ 7 8 9 10 11 12 13 14 15 16 11 ill. at 1271 18 Indeed, the Yahoo messageboards expressly warn that "[t]hese messagesare only the opinion of the poster, are no substitutefor your own research,and should not be relied upon for trading or any other purpose." Sucha disclaimerhas been cited as a basis for denying a causeof action for defamationagainstan adversefinancial rating. 19 20 21 22 23 24 25 26 27 ~ JeffersonCoun!x School District v. 7 The postings that the Global Telemediacourt reviewed demonstrate broad range of the expression that hasbeenprotectedin the contextof a message board: . . "you have beenscrewedout of your hard earnedmoney here its time to talk abouta lawsuit" 28 "I haveneverwitnessedsuchblatantmis-management, thesepeoplehold our money and they dictate after they lie how it will be used ..greatest joke on the boards." ~. at 1268-69. 14 MOTION TO QUASH SUBPOENA 1 Moodv's Investor'sServices. Inc., 988 F. Supp. 1341,1345(D. Colo. 1997). Thus evenif Doe had misstatedany facts aboutthe lawsuit or the company'soperations, the misstatements were unlikely to be taken as truthful given the nature of Yahoo message boards. 2 3 4 The notionthat mostmembers the public would treatthe average of message boardpostingas a reliable statement fact on which to basemajor investmentdecisions,or to form an opinion about of the officers of a major company,is almostlaughable;that is certainly true of the reparteein which many of the posterson message boardstendto be engaged. 5 6 7 8 9 10 IV. CONCLUSION If the John and JaneDoes of the Internetare not afforded First Amendmentprotection,the threat of their identities being revealedwill impose a devastatinglychilling effect on speakers of modestmeansand little understanding the law. The result will be that comparativelywealthy of corporationsand their management be ableto usethe subpoena will power of the court as a tool for silencing their critics. Facedwith losing their anonymity, millions of "speakers"and "critics" on the Internet will no longer participatein public message boardsbecauseof the risk that they will losetheir anonymity. BecauseCullens cannot shown a compelling interest in obtaining Doe' identities, and cannot demonstratethat any such interest outweighs Doe' First Amendment right to speak anonymously, Motion to Quashthe subpoena the shouldbe granted. 11 12 13 14 15 16 17 18 19 20 21 22 DATED: March 17,2003 By CindyA. hn, Esq.(SBN.145997) ELECTRO IC FRONTIER FOUNDAnON 454 Shotwell Street SanFrancisco,CA 94110 Telephone: (415) 43~9333 xl08 Facsimile: (415) 43~9993 23 24 25 Attorneysfor Defendant JOHN DOE 26 27 28 1~ MonoN TO QUASH SUBPOENA