THE PARTIES:
Appellant - Independent Newspapers, or INI, which runs community papers and Web sites in Maryland, Delaware, Arizona and Florida.
Appellee - Zebulon J. Brodie, a real estate developer who also runs several businesses, including a Dunkin' Donuts in Centreville.
BACKGROUND: On March 20, 2006, someone using the online handle "CorsicaRiver" posted a derogatory comment about one of Brodie's businesses on an Eastern Shore-focused message board maintained by INI. The comment: "I wouldn't go to that Dunkin' Donuts of Brodie's anyway ... have you taken a close look at it lately? One of the most dirty and unsanitary-looking food-service places I have seen."
A user self-identified as Suze responded: "I haven't seen the inside of a DD in a while, but have you seen the outside? I drove the through not long ago and was completely and utterly SHOCKED at the amount of trash that is and sides of that building. It's apparent no one is cleaning the outside of the building and the wafting into the river that runs right alongside."
Two months later, Brodie filed a defamation lawsuit against INI and some Internet posters in Queen Anne's County Circuit Court. The judge dismissed INI as a defendant but ruled that the comments about Dunkin' Donuts could be considered defamatory and ordered the newspaper publisher to give up the posters' identities.
INI appealed.
ARGUMENTS:
INI: The court can't make it too easy for predators to unmask their critics, or too easy to hide behind a pseudonym. It should adopt a five-part test similar to that used in other jurisdictions before enforcing subpoenas requiring identity disclosure: (1) notify the posters so they can defend their anonymity, (2) require plaintiffs to specify which statements have violated their rights, (3) make sure the complaint has a cause of action against each defendant, (4) require plaintiffs to produce evidence supporting their claims, and (5) weigh the potential harm to plaintiffs if they can't proceed against the potential harm to defendants by losing their anonymity.
Brodie: Defamatory speech is not constitutionally protected; once a statement has been deemed potentially libelous, the writer should be revealed. Plaintiffs shouldn't have to prove their cases from the outset; that's too onerous. Moreover, they often need to know the identity of their defamers to produce evidence to support their claims.
DECISION: Expected in early 2009
