Public Citizen Tests Piercing Online Anonymity

Anti-vaxxer RFK Jr.’s feelings were hurt when it was asserted that the audience at a rally in Germany at which he spoke, run by a group called Querdenken, weren’t just “very fine people,” but neo-Nazis. It was fairly widely reported, including the usual suspects like the New York Times and Wall Street Journal.

The rally and his speech were widely covered in the mainstream media, which reported that his rally was heavily attended by neo-Nazis  and that a variety of antisemitic and neo-Nazi factions  had been involved in organizing the event. Kennedy was infuriated by this coverage of the audience to whom he had become connected by speaking at the rally.  His position is that any neo-Nazis were at some other rally on the same day, and that Querdenken is a fine group unsullied by neo-Nazi or anti-Semitic ties. Our expert witness says otherwise.

There was also a post about it in the left-wing Daily Kos by someone using the pseudonym DowneastDem.

Kennedy took no action against the New York Times, Wall Street Journal and others who took note of these connections. Instead, he directed his ire at what, I assume, he viewed as a defenseless target: DowneastDem, an otherwise obscure blogger on the Daily Kos who generally writes about German and Maine politics. This blogger wrote a post entitled “Anti-Vaxxer RFK JR. joins neo-Nazis in massive Berlin ‘Anti-Corona’ Protest,” linking in turn to an eyewitness account in a major Berlin newspaper whose sub-headline mentioned the participation of neo-Nazis (English translation here).  Kennedy responded by having a lawyer post a heated comment in the form of an open letter, denying the accuracy of the blog post and demanding that it be taken down immediately.

They didn’t take down the post, so RFK Jr., represented by Boise Schiller, sought pre-suit discovery in Westchester County, New York, Supreme Court to obtain the identity of DowneastDem. Justice Mary Smith granted the application.

The Second Department has explained that “[a] petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted where the petitioner has alleged facts fairly indicating that he or she has some cause of action” (Matter of Konig v, 112 AD3d 936, 936 [2d Dept 2013]). Thus, a petitioner is entitled to obtain the identity of prospective defendants where a petitioner has alleged facts, which state a cause of action (see Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592, 592 [2d Dept 2002]).

What’s notable about this ruling isn’t that it presents any novel issue for pre-action discovery per se, even if the putative defendant’s connection to Westchester seems to defy long-arm jurisdiction, but that it fails to distinguish between pre-action discovery under ordinary circumstances, such as where the identities of unknown defendants are otherwise public but merely not known as yet by the plaintiff, from intentionally anonymous writing. The former is just a matter of not knowing. The latter implicates the First Amendment right to anonymous speech.

Paul Alan Levy of Public Citizen took up the cause for the Kos and Downeast Dem to argue that the court used the wrong test.

We decided to defend DowneastDem’s anonymity, invoking the Dendrite analysis that our litigation in New Jersey and elsewhere has promoted, and hoping to establish the Dendrite approach as the issue went up on appeal in New York for the first time. The Dendrite issue was squarely presented for appeal because. as in Dendrite itself, there was no admissible evidence supporting the discovery and the trial judge had decided that no evidence was needed.

What’s surprising is that this isn’t the first time this issue has arisen in New York, generally, or Westchester County, in particular. Going back as far as 2009, Westchester County Court Judge Rory Bellantoni adopted the Dendrite test in determining whether to order the disclosure of an anonymous blogger. The court ordered disclosure and the anonymous blogger’s identity was revealed. As the outcome of that case demonstrated, even the Dendrite test wasn’t adequate to the task, as the action was subsequently dismissed by anti-SLAPP motion.

Justice Smith held that RFK Jr. made a sufficient showing for disclosure, even though the respondent raised legal and factual issues that put that showing in serious doubt.

Here, the petition alleges sufficient facts, which fairly indicate that he has a claim for defamation and is thus entitled to pre-action discovery limited to obtaining the identity of prospective defendants. Respondent has raised a number of factual issues and legal arguments, which may provide a defense, in whole or in part, in any future litigation. These
factual issues and legal arguments, however, do not provide a basis to deny the relief sought in the petition.

Under Dendrite, a prima facie showing would be required, with sufficient admissible facts to prove each element of the cause of action, including malice where a public figure like RFK Jr. was the plaintiff.

As Levy notes, there is an element to this action that’s disturbing, as Boise Schiller doesn’t go after the “big boys,” the New York Times or the Wall Street Journal, which essentially published the same story as written by some obscure pseudonymous blogger at the Daily Kos. It smacks of bullying, beating up the little guy who can’t defend himself, rather than punching at his own height or higher.

Nor has Kennedy filed a defamation action against the large media entities that also reported that he spoke at an event to which neo-Nazi parties and groupings had successfully summoned their members. He is proceeding only against someone whom he likely expected would have less resources for defense than the large media entities that reported much the same information.

There is a very real concern about the ability of anonymous people on the internet to post seriously bad and false stories while hiding behind rocks. Being a strong defender of the First Amendment, including the right to post anonymously, does not mean that defamation isn’t real or that anonymity should never be pierced. But the question of what showing should be required, routine generic allegations or a prima facie case, remains an issue.

While it’s unclear how Dendrite would work to make a prima facie showing of malice without knowing the identity of the writer, are generic claims of defamation good enough to strip a writer of his First Amendment right to publish anonymously? It doesn’t help that they’re trying to beat up on the goofy Daily Kos while leaving the NYT alone.



13 thoughts on “Public Citizen Tests Piercing Online Anonymity

  1. Bryan Burroughs

    Seems like there ought to be some showing of ability to prevail. Not sure how hard the requirement should be, as I suppose there might be situations where knowledge of the poster is necessary to prove elements of the suit. But even in those cases, there should still be ample evidence in the post(s) for the crux of the action. If you can’t provide that, I’m hard-pressed to say that you should be able to permanently unmask someone, giving the chilling effect such an action has, not only for the posting community at large, but also for that particular poster’s future efforts.

  2. Mike

    Per NY law, is it possible to remain anonymous and succeed in an anti-SLAPP?

    IOW, could DowneastDem file the motion prior to being unveiled or is it an order of operations thing?

    Just slapp me down if these are too many questions without sending you money 🙂

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