Dangerous Ruling Emerges in Anonymity Case in Circuit Court of Cook County

On November 9, 2009, Circuit Court of Cook County Judge Jeffrey Lawrence issued a ruling in Stone v. Paddock Publications, Inc. that permitted the disclosure of an anonymous speaker’s identity. In the opinion, the Court addressed arguments related to the Illinois Citizen’s Participation Act (“CPA”) (the Illinois version of Anti-SLAPP [Strategic Lawsuit Against Public Participation] statutes) and the constitutional protections of anonymous speech.

In the petition, Lisa Stone alleges that an anonymous individual made wrongful statements about her son online. In fact, Lisa Stone campaigned for public office. A forum discussed her campaign and election to become a trustee for the Village of Buffalo Grove. Many of the statements were critical of her. Her 15-year old son posted comments to the forum defending her mother. Specifically, he invited one particular individual to come to his home and make the same statements in person. The individual responded by questioning the wisdom of inviting strange men to his home. For this statement, Lisa Stone filed a petition for presuit discovery seeking the anonymous individual’s identity.

Putting aside the CPA arguments for the moment, the constitutional analysis in the opinion is wholly wanting. The Court relies upon the procedural posture of the case (a petition for pre-suit discovery) to argue that the Court cannot address the merits of any potential claims because no complaint and no claims have been filed. Thus, the Court never addresses the validity of the underlying claims and statements giving rise to the alleged need to unmask the anonymous speaker.

Had the Court done so, it would have necessarily concluded that the potential defamation and privacy claims have no merit. For, the context clearly demonstrates that the anonymous speaker did not intend the meaning Lisa Stone applies to his or her statements. As such, the statement could not give rise to a defamation or false light claim because on its face no reasonable person would believe the statements and the alleged meaning to be true. Indeed, an innocent construction is clearly evident. And:

even if statements fit into a recognized defamation per se category, the plaintiff will not recover if the statements can reasonably be given an innocent construction. Bryson, 174 Ill. 2d at 90 [Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 220 Ill. Dec. 195, 672 N.E.2d 1207 (1996)]. As our supreme court recently explained:

“The innocent construction rule requires courts to consider a written or oral statement in context, giving the words, and their implications, their natural and obvious meaning. If, so construed, a statement ‘may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff, it cannot be actionable per se.’ ” Bryson, 174 Ill. 2d at 90, quoting Chapski v. Copley Press, 92 Ill. 2d 344, 352, 442 N.E.2d 195, 65 Ill. Dec. 884 (1982).

Further, the fact that an allegedly defamatory statement is capable of an innocent construction is insufficient to bar recovery for defamation per se. Bryson, 174 Ill. 2d at 93. Rather, the allegedly defamatory statement must be given its natural and obvious meaning and must be interpreted as it was used, according to the ideas it was intended to convey to the listener. Bryson, 174 Ill. 2d at 93.

Stratman v. Brent, 291 Ill. App. 3d 123, 134 (Ill. App. Ct. 2d Dist. 1997).

Instead of addressing the statements, the Court argues that the procedural posture precludes it from addressing such issues. By making such an argument, the Court completely dismisses the developing standard to be applied when determining whether to disclose the identity of an anonymous speaker.

Indeed, three substantial opinions issued in the last three years have crystallized the standard to be applied in determining whether to disclose an anonymous speaker’s identity. Dendrite Int’l, Inc. v. John Doe No. 3, 775 A.2d 756, 760-61 (N.J. App. 2001) developed a five-factor test that most commentators construe as requiring a party seeking disclosure to provide notice to the anonymous speaker, demonstrate the claims would survive summary judgment, and demonstrate that the interests weigh in favor of disclosure.

Doe v. Cahill, 884 A.2d 451 (Del. 2005) attempted to synthesize Dendrite into two requirements: notice to the anonymous individuals and demonstration that the claims would survive summary judgment. The Cahill court believed that the balancing specified in Dendrite was inherently in a summary judgment standard. In Mobilisa v. Doe, et al., 217 Ariz. 103, 170 P.3d 712 (Ariz. Ct. App. 2007) the Court of Appeals of Arizona agreed in principle with Cahill but brought back the balancing component of Dendrite. Thus, under Mobilisa, even if a party can demonstrate its claims would survive summary judgment, the Court must still balance the interests of all parties involved.

Had the Court applied the Dendrite, Cahill or Mobilisa standard, the Court would have had to at least preliminarily address the merits of the claims to determine whether the Plaintiff or Petitioner would have survived a motion for summary judgment. That is, in the Stone matter, are there questions of fact as to whether the statements happen to be defamatory or cast a party in a false light? Does the Petitioner have evidence to support her interpretation or does an innocent construction exist?

In the Stone matter, the Court would not be invading the province of the jury in making such a determination. Indeed, the Illinois Supreme Court has held:

The preliminary determination of whether a statement is capable of a reasonable innocent construction is a question of law to be resolved by the court in the first instance. Whether the statement was in fact understood to be defamatory is a question for the jury if the initial determination is resolved in the plaintiff’s favor.

Tuite v. Corbitt, 224 Ill. 2d 490, 509 (Ill. 2006) (citing Chapski v. Copley Press, 92 Ill. 2d 344, 347, 442 N.E.2d 195, (1982)).

As noted above, the Court would have had to conclude the claims have no merit. But, alas, the Court avoids adopting, much less discussing, the summary judgment standard that has become the accepted standard that most balances the interests of all parties involved. Indeed, the Court merely mentions Dendrite in passing and completely ignores Cahill and Mobilisa.

Even if the Court had employed a motion to dismiss standard, the Petitioner Stone could not survive such scrutiny. For, an innocent construction interpretation can be made on a motion to dismiss.

In an effort to adopt some standard to support its ruling, the Court does cite Doe I v. Individuals, 561 F. Supp.2d 249 (D. Conn. 2008) from the District of Connecticut. However, in doing so, it fails to even follow the standard espoused therein. Again, the Court states that it cannot address the final element of the Doe I standard calling for a determination of whether the claims have merit. Again, the Court relies upon the procedural posture of the Stone litigation. In making this argument and relying upon such reasoning, the Court ignores substantial federal constitutional jurisprudence and allows the Plaintiff to end-run around constitutional protections to which anonymous speakers have long been entitled.

By this ruling, the Court effectively provides a means by which a party can avoid the application of scrutiny to a party’s (potential) claims that would necessarily be required if one filed a complaint against the anonymous party. In essence, the Court states that one can avoid a constitutional analysis by filing a petition for presuit discovery. (Stated differently, the federal Constitution applies to complaints but not petitions for presuit discovery.) Given that a party filing a petition for presuit discovery often avoids providing notice to the anonymous speaker and that, assuming the anonymous speaker did obtain notice, such a petition requires the anonymous party to intervene (as opposed to being a proper party), the Stone opinion makes for dangerous precedent and fertile ground for abuse of the judicial system.

This cannot be. And, for this reason, this attorney has long argued that the petition for presuit discovery is not the appropriate vehicle to seek the identity of an anonymous speaker and to adequately protect the interests of all parties. Unfortunately, courts allow petitions for presuit discovery in anonymous speech cases.

Arguably, though I am not convinced, the distinction would be an academic one if the same standard (preferably the summary judgment standard adopted in Dendrite-Cahill-Mobilisa) were applied to complaints and petitions for presuit discovery. But, as is obvious from the Stone opinion, the standard that would necessarily be applied to a complaint is not consistently (if at all) applied to petitions for presuit discovery.

No one is arguing that a Plaintiff possess all of the evidence necessary to prove a case prior to obtaining an anonymous speaker’s identity. Rather, at the very minimum, a Plaintiff must have enough evidence (if nothing but the statements themselves and an affidavit affirming the alleged falsity thereof) to make an argument that viable claims exist which would survive scrutiny.

In this case, I will acknowledge the Court’s effort to strike a “balance” between the parties’ interests by limiting the disclosure to the Plaintiff and a process server. However, with all due respect, the Court misses the point. Disclose to the Plaintiff? Is that not the Petitioner’s whole objective? Countless opinions and commentators have consistently pointed out the use (and abuse) of the legal system by employers to unveil the identities of anonymous speakers who seek only to determine whether the speaker is an employee or former employee against whom it can retaliate outside of the court system.

By releasing the identity of the anonymous speaker to the Petitioner, the Court appears to completely miss and ignore the critical issues before it.

The Stone opinion has placed in the Plaintiff the determination of whether sufficient justification exist to reveal the identity of the anonymous speaker. There it should not lie. The Court needs to step up and employ the appropriate standard and analysis to determine whether the interests of the Plaintiff outweigh the constitutionally protected rights of the anonymous speaker.

I am disappointed in the opinion. And, having litigated these issues throughout the United States, I am disappointed the opinion emerged in my own backyard.

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