Convertino v. DOJ: Federal Court Upholds Attorney-Client Privilege for Employee’s Private Communications to which Employer Had Access

Internet defamation law update: Courts around the U.S. regularly grant requests by plaintiffs to force publishers to disclose the identity of anonymous bloggers — albeit, often not until the plaintiff has jumped over some rather stringent procedural hurdles. However, in a recent case, a federal judge in Missouri denied such a request, on the grounds that the plaintiff’s need for the blogger’s testimony did not outweigh the blogger’s First Amendment right of anonymity. Sedersten v. Taylor, W.D.Mo., 6:09-cv-03031, Order Denying Motion to Compel (Dec. 9, 2009). This decision is not an outlier, but represents principles governing such cases that are recognized by most courts.

The U.S. Supreme Court has long recognized that anonymous speech is protected by the First Amendment. Talley v. California, 362 U.S. 60, 64 (1960). For example, in a case in which it invalidated an Ohio statute prohibiting anonymous political leafleting, the Court declared that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995).
The degree of protection provided speech is dependent, among other things, on its content.

Restrictions on the content of “core political speech” are subject to “exacting scrutiny” by the courts, and may only be upheld if they are “narrowly tailored to serve an overriding state interest.” Id., 514 U.S. at 347. Core political speech encompasses “debate over the qualifications of candidates, discussion of governmental or political affairs, discussion of political campaigns, and advocacy of controversial points of view.” Doe v. 2The Mart.com, Inc., 140 F.Supp.2d 1088, 1092 (W. D. Wash. 2001).

Restrictions on the content of non-core speech are subject to “normal strict scrutiny analysis.” Id., 140 F.Supp.2d at 1093. Under strict scrutiny, the government must assert a significant and compelling government interest, and the court must decide whether the legislation is sufficiently narrowly tailored to serve that interest. People with Disabilities v. Herrera, 580 F. Supp. 2d 1195, 1215 (D.N.M. 2008). Non-core speech would include most blog posts criticizing individuals or private companies.

Courts around the U.S. impose widely varying standards when dealing with requests to unmask the identity of an anonymous blogger in defamation cases. On the lighter end of the scale, some courts require a plaintiff merely to show he has a good faith basis to contend that he may be the victim of actionable conduct. On the heavier end of the scale, other courts require a plaintiff to support his defamation claim with facts sufficient to defeat a summary judgment motion. Others impose procedural hurdles, such as requiring efforts to notify the anonymous poster that he is the subject of a subpoena so the he can oppose, and requiring the plaintiff to show that the information sought is directly relevant to the plaintiff’s claims and unavailable from other sources.