Thomas O'Toole at TechLaw points us to an anonymous speech decision issued last week by a federal court in Pennsylvania.  In McVicker v. King, William McVicker subpoenaed Trib Total Media, publisher of the South Hills Record and YourSouthHills.com, for "information that would disclose the true identities" of the users of seven identified screen names. McVicker, the plaintiff in an employment discrimination case, sought the identities of the posters in order to impeach the testimony of city council members who made the decision to fire him.  The United States District Court for the Western District of Pennsylvania denied McVicker's motion to compel the newspaper to turn over identifying information. 

The case presents a different posture from most cases dealing with the First Amendment right to anonymous speech because McVicker wanted to unmask the posters in order to make them witnesses in his case, not to make them defendants (e.g.s, the Liskula Cohen saga, Swartz v. Does, Solers, Inc. v. Doe, and Independent Newspapers, Inc. v. Brodie).  Given this posture, the ordinary test for unmasking a commenter—whether the plaintiff has made "a substantial legal and factual showing that the claims have merit"—is not appropriate. 

The McVicker court's basic premise makes a lot of sense: "it is clear that a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party." McVicker, slip op. at 7.  This makes sense because the speaker is an innocent third party, not alleged to have violated the plaintiff's rights or engaged in unprotected speech in any way, so it seems fair to demand a stronger showing to overcome the speaker's choice of anonymity.

But, despite this starting point, the court ultimately adopted a test that doesn't look a whole lot more rigorous than the Doe-defendant standard.  If anything, it looks weaker.  The court asks:

whether (1) the subpoena seeking the information 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) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.

McVicker, slip op. at 10. Don't get me wrong; I'm not necessarily faulting the court.  The only real precedent out there adopts the same test. See Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001), and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008). And the 2TheMart.com court that crafted the test drew from reporters' privilege cases, an entirely rational source of inspiration given some of the parallels.

But there's no denying that this test looks rather permissive in comparison to the Doe v. Cahill or Dendrite International v. Doe standards we now commonly see adopted in Doe-defendant cases.  Plus note how it only considers the plaintiff's needs, not the defendant's interest in remaining anonymous, which is more compelling in these Doe-witness cases. I don't have an alternative test at my fingertips, but it seems like something worth pondering. 

Maybe the answer is that the courts should just be stringent in policing the requirements of the test. That's what the court did here, finding that the identities of the commenters and information in their possession were not necessary for McVicker to impeach the city council members effectively and that the same or similar information might be obtained through "normal, anticipated forms of discovery." McVicker, slip op. at 11. 

O'Toole's post mentions some additional points about the case that are worth noting: 

First, the court held that YourSouthHills.com had standing to assert the First Amendment rights of its commenters, following the Enterline case. This is not a huge surprise but it's potentially significant from a procedural perspective as more and more news sites see it in their interest to protect the vitality of their online communities by asserting the rights of users. 

Second, the court engaged in a bit of a lark, discussing how the YourSouthHills.com's privacy policy might have impacted the commenters' expectations of privacy, without really making clear how this affects the First Amendment analysis. O'Toole chides the court and another recent case for "plant[ing] the notion -- as they did -- that online intermediaries can expand or diminish via website terms the First Amendment right to engage in anonymous speech."  Well said, though to be fair the court appears to have addressed this issue more to dispense with one of McVicker's arguments than to suggest it was independently relevant to the First Amendment analysis.

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