“Sometimes, negative things just need to be said.”

Doe v. Hickman, 2015-SC-000408-MR (Sept. 22, 2016)

Anonymous internet commentators find a safe house in Kentucky. On September 22, 2016, a divided Kentucky Supreme Court refused to unmask the identity of two anonymous internet commentators named as defendants in a defamation lawsuit. In Doe v. Hickman, 2015-SC-000408-MR (Sept. 22, 2016), Bill Hickman, chairman of the Pike County Airport Board, filed suit against two anonymous users of the website Topix claiming they posted defamatory statements about his public work. Hickman subpoenaed Topix and another internet provider seeking the identity and address of John Does 1 and 2; Topix and the internet providers did not respond; John Does 1 and 2 moved to quash. The trial court denied the motion to quash and the anonymous commentators filed petition for writ of prohibition with appellate court. The appellate court looked to Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Supp. Ct. App. Div. 2001), and Doe v. Cahill, 884 A.2d 451 (Del. 2005) for guidance on when the identity of an anonymous speaker may be uncovered as part of a defamation lawsuit. The appellate court adopted a hybrid standard based on these cases and remanded to the trial court. Applying the hybrid standard, the trial court ordered disclosure of the identities of the plaintiffs. John Does 1 and 2 again filed a petition for writ, which was denied; they appealed to the Kentucky Supreme Court.

The Kentucky Supreme Court reversed the appellate court’s denial of the Does’ petition for a writ of prohibition, and remanded the case to the appellate court to issue the writ. The court also ordered further proceedings at the trial court pursuant to the court’s clarified standards. Specifically, the court found that “the appropriate test is the four-step process outlined in Dendrite, as supported by the analysis in Cahill.” “[W]e must ‘strike a balance between the First Amendment right to anonymous speech and the right of those harmed by anonymous speech to seek legal redress.’ The four steps of Dendrite provide the best process to strike that balance.”

Following are the four steps required to unmask an anonymous commentator under Hickman‘s adoption of Dendrite:

  1. plaintiff must make reasonable efforts to notify the anonymous speakers that their identity is being sought, and give them a reasonable opportunity to object;
  2. plaintiff must identify and set forth the exact alleged defamatory statements;
  3. the court must carefully review the entire record to determine whether the plaintiff has stated a prima facie cause of action sufficient to withstand a motion to dismiss for failure to state a claim and, in addition, whether the plaintiff produced sufficient evidence supporting each element of the cause of action
    1. “supporting facts are necessary to confirm a claim of falsity”
    2. “plaintiff does not have to offer evidence of actual malice at this point”
    3. “a bare denial is not sufficient”; and
  4. the court must balance the anonymous free speech rights against the strength of the prima facie case presented.

The court stressed that the fourth factor is essential to a complete analysis. “[E]ven after a prima facie showing has been made in such cases, the court must still balance whether the overall extent of the defamation is so great that it outweighs the protection of the anonymous public speech before ordering the identities disclosed.” (Emphasis added.)

The implications of Hickman are significant. While the U.S. Supreme Court has found that anonymous speech is protected under the First Amendment, and internet speech is on equal footing with any other speech, the Court has yet to address the parameters for discovering the identity of an anonymous public speaker – leaving that question to the states. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995); Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997); Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 197-199 (1999). To date, few states have considered the issue; though, the progeny of Dendrite, Cahill, and Hickman suggest that the emerging trend is to protect anonymous sources and preserve “one of the most sacrosanct of freedoms” – free speech.