This interesting little lawsuit that encompasses issues relating to free speech, first amendment rights, defamation, and the Citizen Participation Act, all began because of some derogatory statements posted on a newspaper website aimed at the son of a Buffalo Grove woman who was running for village trustee. The son initially posted anonymously in the comments section of the newspaper’s website in response to articles written about his mother before he was outed. I chose to write about it, because it involves issues common to our new world in cyberspace and builds on issues that I previously blogged about on June 14, 2010, found here: http://goo.gl/C7Pkn
The Petitioner/Plaintiff, Lisa Stone, was a candidate for Buffalo Grove Village trustee. On April 4, 2009, the Respondent-owned newspaper “The Herald” published a letter in support of Stone’s candidacy, which was made available on its website. In response to the letter and comments made by Stone’s minor child, John Doe posted a derogatory response about Stone’s qualifications for the office. Other exchanges were also made between John Doe and Stone’s son, but the one that caught the ire of the court was a response to UNCLEW’S suggestion that Hipcheck16 meet UncleW at his home to further discuss their differences. Hipcheck16 posted the following in response to UNCLEW’s invitation: Thanks for the invitation to visit you., but I’ll have to decline. Seems like you’re very willing to invite a man you only know from the internet over to your house- have you done it before, or do they usually invite you to their house? Minor’s mother filed a petition pursuant to S.Ct.R. 224, a special Illinois Supreme Court Rule, and one which our firm recently utilized, which enables litigants to file suit primarily to identify possible defendants. In this instance, Lisa Stone was utilizing S.Ct.R. 224 to ascertain John Doe’s identity in relation to alleged defamatory statements posted by him about the candidate’s son.
The trial court below entered an order permitting Stone to engage in limited discovery to ascertain the identity of Defendant Doe, a/k/a Hipcheck16. The Respondent in Discovery, Paddock Publications, Inc., responded to Stone’s initial discovery requests by only disclosing Hipcheck’s email and IP addresses. A reading of the first district’s opinion reveals that at some point during the course of the litigation it was discovered that the IP address belonged to a Comcast user or subscriber. Armed with this knowledge, Stone’s counsel requested a subpoena directed to Comcast, which the court granted, with instruction to Comcast that it inform the subscriber that he could contest the subpoena. Learning of the subpoena, Doe moved to quash it, in an effort to maintain his anonymity. The trial court denied Doe’s motion to quash, and Doe appealed arguing that the trial court erred by applying an improper standard in determining whether petitioner was entitled to discover his identity, and whether the challenged comments were immunized by the Citizen Participation Act and also protected first amendment speech. Essentially, Doe believed his First Amendment rights trumped plaintiff’s attempts to ascertain his identity, and that when weighing the competing interests of one’s constitutional rights to engage in anonymous speech, particularly political speech, versus an individual’s right to redress defamatory statements made against him, the plaintiff should be required to demonstrate a higher probability of success than would ordinarily be required in other cases not involving constitutional concerns. The first district agreed with Doe.
In its analysis, the first district concluded that Rule 224 “is intended to assist a potential plaintiff in seeking redress against a person who may be liable but the plain language of the rule also requires a petitioner to demonstrate the reason why the proposed discovery seeking the individual’s identity is ‘necessary’. The question [therefore] is what standard a petitioner must satisfy to show that the proposed discovery is necessary. In determining what is required by this language, we keep in mind that Rule 224 applies not only to petitioner’s potential defamation claim, but to any instance in which an unknown individual may be liable under any cause of action.” Nonetheless, the court said, it has a duty to construe the statute in a constitutional manner. Doe’s argument was that the court’s duty to weigh his constitutional rights to engage in anonymous speech against Petitioner’s obligation to show that the proposed discovery was necessary, in relation to this case, and others like it, required the court to be extra cautious.
In its analysis of these competing interests, the court cited earlier Illinois and United States Supreme Court cases discussing the role that anonymous speech has played throughout the course of our nation’s history. It noted that identification and fear of reprisal may deter even peaceful discussions regarding important public matters; that “’anonymity is a shield from the tyranny of the majority’”; that “an author is generally free to decide whether he wishes to disclose his true identity and his decision not to do so is an aspect of the freedom of speech provided in the first amendment”; that “discussion of public issues as well as debate regarding candidate’s qualifications are integral to the government established by our Constitution; and that society gives greater weight to the value of free speech than the danger that free speech will be misused.
Taking these principles into consideration, the court adopted the standard pronounced in the third district case of Maxon v. Ottawa Publishing Co. Maxon requires that before an anonymous speaker’s identity may be revealed, the plaintiff must demonstrate (1) that the Rule 224 Petition is verified; (2) that it states with particularity facts that would demonstrate a cause of action for defamation; (3) seeks only the identity of a potential defendant, rather than information necessary to demonstrate a cause of action for defamation; and (4) ‘‘is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant, i.e., the unidentified person is one who is responsible in damages to the petitioner”. Therefore, before the identity of the speaker will be revealed, the court will unilaterally require the Rule 224 petitioner to demonstrate that he could survive a 2-615 Motion to Dismiss without one having been filed by the respondent. If it is apparent to the trial court that the petitioner/plaintiff cannot demonstrate sufficient facts supporting his cause of action, the court should deny the request to reveal the identity of the speaker. The first district declined to impose a more onerous motion for summary judgment standard.
The court concluded Petitioner/Plaintiff’s cause of action was deficient, because it failed to meet the above requirements, and that Petitioner/Plaintiff had failed to allege sufficient facts to support his claim for defamation. To be actionable as defamation per se, the actual words themselves must demonstrate that the “harm is apparent and obvious on the face of the statement”. There are additional protections afforded speakers when first amendment concerns are present, which requires a showing that the actual statement is “factual”. In this case, the court was of the opinion that, “[E]ven if a sexual connotation can be read into Doe’s comment, his comment may represent nothing more than an admonishment that Jed’s conduct in inviting Doe to meet in person was unwise, not that Jed actually solicits or has been solicited for sex with anonymous men on the internet”; a statement entitled to innocent construction. The court was also of the opinion that the plaintiff had failed to allege facts and special damages sufficient to enable him to prevail on a per quod theory of recovery.
In summary, as was iterated in my last blog on this same subject, be careful what you say about others, especially in the online community where your words may be forever embedded in cyberspace; otherwise, you may too become forever married to an Illinois Attorney in years of protracted litigation over something silly you may wish you wouldn’t have said in the first place. In other words, “don’t be that guy”.
- 961 N.E.2d 380, 2011 Ill. App. Ct. 1st Dist.
- 2. owned by the Respondent Paddock Publications, Inc.
- Jed Stone, a/k/a Username UncleW
- Username Hipcheck16
- “Here we go again – another brainwashed adolescent who can’t form an opinion on their own. Lou- you’re probably not old enough to vote, and I’m certain all you know about this election is what your mommy told you. I’ll bet you’ve never been to a village board meeting and couldn’t find village hall even if they were giving away free iPods there. Do some of your own research on your wonderful candidate and you’ll quickly discover that she is NOT QUALIFIED to be a trustee. She knows little about finance, NOTHING about business or village operations and can’t seem to form a coherent thought- at least not ones that find their way out of her mouth. Your parents should teach you the importance of having good community leaders, and a lesson on independent thinking would probably be beneficial too. While you’re at it, perhaps you should work on that spelling and grammar stuff, as it seems to be an ongoing challenge for you, as well as other Stone supporters. Now go watch MTV and quit inserting yourself into conversations for which you’re not prepared. If you’re 16, go take your Rottweiler for a nice long walk. And don’t do heroin- it’s bad for you.”
- quoting Talley v. California, 362 U.S. 60, 65 (1960); People v. White, 116 Ill.2d 171, 177 (IL. 1987)
- citing McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995)
- citing McIntyre, 514 U.S. at 341-42
- citing McIntyre, 514 U.S. at 346
- citing McIntyre, 514 U.S. at 357
- 929 N.E.2d 666, 402 Ill.App.3d 704 (Ill. App. Ct. 3d Dist. 2010)
- quoting Maxon, 402 Ill.App.3d at 711
- According to the court, “ there are five categories of statements that are deemed to be defamation per se:(1) words imputing the commission of a criminal offense; (2) words that impute infections with a loathsome communicable disease; (3) words that impute an individual is unable to perform his employment duties or otherwise lacks integrity in performing those duties; (4) words that prejudice an individual in his profession or otherwise impute a lack of ability in his profession; and (5) words that impute an individual has engaged in fornication or adultery. (citing Tuite v. Corbitt, 224 Ill.2d 490, 501; 866 N.E.2d 114 (Ill. 2006)
- Stone, 961 N.E.2d at 391