A Tennessee state court ruled earlier this month that plaintiffs Donald and Terry Keller Swartz are entitled to discover the identity of the anonymous blogger behind the Stop Swartz blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities. In his decision, Judge Thomas W. Brothers adopted a legal standard highly protective of anonymous online speech, but found that the Swartzes had come forward with sufficient evidence in support of their claims of wrongdoing to outweigh the anonymous blogger's right to anonymity.

The Swartzes sued the anonymous blogger back in February 2008 for defamation and invasion of privacy and subpoenaed Google, the parent company of the Blogger hosting service used by Stop Swartz.  The John Doe defendant moved to quash the subpoena, and in a March 2009 hearing (video available) the court indicated that it would follow the requirements of Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and granted a temporary protective order pending resolution of the First Amendment issues. (See my previous post for details.)

In his October decision, Judge Brothers revisited the question of "what standard should be applied to balance the First Amendment interests of John Doe #1 with the defamation and privacy concerns of [the Swartzes."  The court reaffirmed that Dendrite strikes the appropriate balance and gave explicit guidance on how to apply the test (in marked contrast to the Maryland Court of Appeals in Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009)):

The Court concludes that the Dendrite test is the best method of determining whether a plaintiff is entitled to pierce a defendant's shield of anonymity.  The Court further finds that this factual showing must be made by affidavit, deposition, or sworn statement, and that mere allegations of fact are insufficient.  As the Solers and Krinsky courts have noted, the labels of "summary judgment" or even "prima facie" are potentially confusing.  By adopting the Dendrite analysis, the Court does not focus on the terminology, but rather the requirement that a plaintiff make a substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant's identity. 

Slip op. at 8. Admirably cutting through the semantic differences between standards, the court isolated the critical requirement — "a substantial legal and factual showing that the claims have merit" — and thereby joined the growing consensus among federal and state courts that have addressed the issue.  See, e.g., Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int'l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005).

What's especially interesting about this case is that it provides a window onto how trial courts can apply the Dendrite standard and how plaintiffs can satisfy it. The court held a hearing in August 2009, in which the Swartzes presented live testimony for the judge.  Although the court expressed a willingness to accept a sworn affidavit under pseudonym, John Doe presented no proof.  (A video of the hearing is available in two parts here and here, but unfortunately the sound quality is not great.)  In his decision, Judge Brothers pointed out exactly what evidence persuaded him:

• The Swartzes submitted and displayed copies of the blog posts in question, and testified that they were available for several months (satisfying the publication requirement for a defamation claim);
• The Swartzes "testified that the allegations of arson, improper management of rehabilitation facilities, exploitation of recovering substance abusers, inferior construction work, negative effect on home prices, and being 'run out of East Nashville' are all false" (satisfying the falsity requirement);
• The Swartzes testified that they "experienced actual damages from the allegedly defamatory statements, including loss of business, harm to their reputations, emotional distress, and the costs of having to hire a security expert to inspect their home" (providing evidence of damages).

See slip op. at 9-10. The court was less clear on how the Swartzes showed that the anonymous blogger acted recklessly or negligently in publishing the allegedly defamatory statements, but this is not surprising given the difficulty of establishing fault without knowing the identity of the defendant.  See Mobilisa, 170 P.3d at 720; Krinksy, 72 Cal. Rptr. 3d at 245 n.12; Cahill, 884 A.2d at 464. The court's analysis of the invasion of privacy claim was also more cursory, but it's clear that Judge Brothers relied on live testimony to establish the requisite factual showing of merit.

Despite this victory, it looks like the Swartzes won't get immediate satisfaction.  Judge Brothers granted the John Doe defendant's request for interlocutory appeal, which presumably stays his order permitting disclosure of the blogger's identity.  The court found that "appellate court review would prevent irreparable injury, prevent needless and protracted litigation, and facilitate the development of a uniform body of law." Slip op. at 12.  I don't know whether the appellate court has to grant the appeal, but if it does we'll benefit from a more authoritative ruling from Tennessee, hopefully one that stays with the national consensus on the law, regardless of how it comes out on the particular facts of the case.

You can follow developments in the case through our database entry, Swartz v. Does. Thanks to Nashville Law for sending me the court's decision and posting all the cool videos.

(Photo courtesy of Flickr user Koen Cobbaert, licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic license.)