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.


Donations tax deductible
to the full extent allowed by law.