The Texas Court of Appeals for the Sixth Appellate District at Texarkana took an important step today toward protecting the rights of Internet bloggers in Texas to write anonymously. In an opinion issued by Justice Jack Carter in Essent v. Doe, the court of appeals joins a broad consensus of state and federal courts in insisting that plaintiffs present sufficient evidence to show they could win at trial before gaining access to information identifying anonymous speakers whom they wish to sue for wrongdoing. The case arose from a blog about the Paris Regional Medical Center in Paris, Texas, which included analysis of problems at the hospital (http://the-paris-site.blogspot.com ). Claiming a concern for patient privacy, Essent, the operator of the Medical Center, sued for defamation, and immediately sought discovery to identify the employees who, Essent claimed, were revealing confidential patient information in the course of criticizing abuses at the hospital. The Doe, represented by James Rodgers of the Moore Law Firm in Paris, sought to block discovery but District Judge Scott McDowell upheld the request. However, the Court of Appeals has now reversed and remanded the case to give the hospital a chance to submit evidence for consideration under the proper legal standard. In ruling, the court recognized that although Internet anonymity can be abused, the right to speak anonymously online is protected by the First Amendment. That right cannot be denied absent real evidence supporting the plaintiffbs claims of wrongdoing. Otherwise, the very threat of litigation will have a serious chilling effect on anonymous speech. The court also agreed with rulings in other states that declare an anonymous blogger has b standingb to oppose discovery even though the discovery demand is directed to a third-party Internet hosting service, and that a blogger has the right to appeal if their request for anonymity is denied. The decision is not a perfect one. Unlike last monthbs decision of the Arizona Court of Appeals in Mobilisa v. Doe, and the 2001 ruling of the New Jersey Appellate Division in Dendrite v. Doe, the Texas Court of Appeals did not add an explicit balancing step, under which, for example, the danger of retaliation against an employee whistleblower can be considered in deciding whether the plaintiff has put in enough evidence of wrongdoing. This case may well present a realistic possibility of such retaliation. So far as I have been able to determine, the balancing step was not proposed to the Texas court. Still, the requirement of presenting evidence provides an important measure of protection for employee whistleblowers and other anonymous critics of powerful corporations, political figures, and others. The opinion can be found on the web site of the Texas Court of Appeals at http://www.6thcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=9055 (We have not been involved in the Essent case, having learned about the appeal too late to submit our views as friend of the court) Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation ------------------------------------------- Archives: http://v2.listbox.com/member/archive/247/=now RSS Feed: http://v2.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com ----- End forwarded message ----- -- Eugen* Leitl <a href="http://leitl.org">leitl</a> http://leitl.org ______________________________________________________________ ICBM: 48.07100, 11.36820 http://www.ativel.com http://postbiota.org 8B29F6BE: 099D 78BA 2FD3 B014 B08A 7779 75B0 2443 8B29 F6BE