TX Supreme Court protects identity of anonymous blogger
A tricky evidentiary ruling will allow Google to keep secret the identity of a blogger accused of defamation.
As Hot Air’s Ed Morrissey once put it, “there is no jackass exception to the First Amendment.” Many bloggers toe the line between defamation and free expression, and enjoy their constitutional protections to the fullest; every once in a while, though, what started as an internet flame war ends up in the courts.
On Friday, the Texas Supreme Court ruled that Google does not have to release the identity of the anonymous blogger “Trooper” who used the internet to criticize Reynolds & Reynolds. The Ohio-based software company is attempting to discover Trooper’s identity “in anticipation of a suit.”
Via the ABA Journal:
The petition was brought by Reynolds & Reynolds, the Austin American-Statesman reports. The company argued that a disgruntled employee, writing under the pseudonym “Trooper,” posted confidential and defamatory statements about it on a blog site hosted by Google. “Trooper” submitted a sworn affidavit to the court that stated he did not live in Texas.
The decision overturns a trial court order that held Google must disclose the author’s identity. Reynolds & Reynolds [“Reynolds”] is seeking the information so it can sue the author for defamation and business disparagement, according to the article.
The problem with Reynolds & Reynolds’ petition was that they could not provide evidence to show that a court in Texas could exercise jurisdiction over “Trooper.”
Rule 202 of the Texas Rules of Civil Procedure allows a “proper court” to authorize a deposition to investigate a potential claim before a suit is filed. Reynolds, which has offices in Texas, is attempting to execute a Rule 202 petition under the jurisdiction of a district court in Harris County, Texas; their goal is to force Google during a deposition to disclose the true identity of Trooper so that they can prove that a Texas court can exercise personal jurisdiction.
Trooper, however, asserted though counsel during a special appearance that his only contact with Texas occurs when people in Texas read his blog. He argued that he does not have the minimum contacts required with Texas sufficient for a Texas court to exercise personal jurisdiction over him.
The Texas Supreme Court sided with Trooper’s argument—and reaffirmed the generally-held idea that to be a “proper court” means to have personal jurisdiction over a defendant—for several reasons. First, because loosening the rules requiring personal jurisdiction for Rule 202 petitions would deny defendants the protections they normally enjoy during lawsuits in which issues of jurisdiction are decided after the presentation of evidence. Additionally, Trooper couldn’t simply ignore the 202 proceedings and maintain his anonymity; if he did, he would run the risk of having that used against him during a future lawsuit in a court that could exercise personal jurisdiction.
Second, the Court was unwilling to run the risk of expanding the Rule 202 itself:
If a Rule 202 court need not have personal jurisdiction over a potential defendant, the rule could be used by anyone in the world to investigate anyone else in the world against whom suit could be brought within the court’s subject matter jurisdiction. The reach of the court’s power to compel testimony would be limited only by its grasp over witnesses. This was never contemplated in the procedures leading to Rule 202, from 1848 to 1999, nor was it the intent of Rule 202.
A trial court’s discretion under the rule cannot be the solution. While a court certainly has discretion to limit Rule 202 discovery, it must exercise that discretion with reference to guiding rules and principles. If a court need not have personal jurisdiction over the potential defendant, there is no limiting principle to guide a decision to allow or deny discovery with respect to some defendants and not others.
The Court concluded that the previous trial court exceeded its authority under Rule 202, and vacated the trial court’s ruling.
Whether or not Reynolds finds another way to discover the true identity of “Trooper,” this ruling will remain significant in the fight to protect anonymous bloggers and activists from sloppy prosecution.
You can read the opinion here.
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Comments
It should be understood that Bloggers are, by inherent nature, expressing their own OPINIONS.
It is a breath of fresh air that the Texas Supreme Court ruled to protect the anonymity of said blogger. Kudos to Google for making a stand in this specific case.
The degree of freedom that exists in a nation can be measured by how much its citizens can say (or type) what they’re thinking. Freedom has lost a lot of ground but this cause offers hope.
Thank you GOOG and TX Supremes for defending freedom.
Concerned citizens would be willing to tie their name to their OPINIONS more readily, if it was not confirmed that the IRS and other agencies are being used to punish citizens that expose the fascists and crooks. This is a precision guided weapon, wielded by a bunkered bureaucracy.
In the private realm, war via lawfare can destroy good people and their companies, for daring to speak the truth, or even for voicing ideas that do not conform to PC religious dogma.
The worst WMDs (fascist agencies, gaseous propaganda, an anti-America executive, boycotts of “unbelievers”, etc) are institutionalized and operational. They are actively suppressing our liberties, including our God given right to speak freely, as even emails are intercepted, and large enemy lists are kept and shared.
Thank God part of the judiciary still protects private opinion, public discourse. But four of nine supremes sing in favor of speech being a collective right, perhaps limited to that which has an end at communicating to government.
So four of nine seem to say individual speech that thinks government has gone rogue could be illegal, since it might incite riot (not the race industry consecrated Ferguson kind). So global warming deniers should be punished, since “the (free speech) consensus is in, time for talking is over.” After all, global warming is a higher priority than terrorism in this administration.
http://ace.mu.nu/archives/348321.php
today the writers of federalist/antifederalist papers could be sued and jailed.
way to many people think the 1st should only cover paid journalists working for businesses when in truth the opposite is true.
the aforementioned writers were not paid and, for the most part, did use their real names in their writings….their plogs (paper logs) if you will.
But even those that didn’t use their names were never thought to have been bereft of their right to free speech.
no court (that I know of, may be wrong) thought to cement its own viability by exceeding its authority and judging them.