# Mobilisa, Inc. v. Doe

> Court of Appeals of Arizona · November 27, 2007 · 217 Ariz. 103

URL: https://www.frixlaw.com/law-library/cases/9789120

## Case

- **Full name:** MOBILISA, INC., a Washington Corporation, Plaintiff/Appellee, v. John DOE 1 and the Suggestion Box, Inc., Defendants/Appellants
- **Court:** Court of Appeals of Arizona
- **Decided:** November 27, 2007
- **Citations:** 217 Ariz. 103; 518 Ariz. Adv. Rep. 25; 170 P.3d 712; 36 Media L. Rep. (BNA) 2007; 2007 Ariz. App. LEXIS 225
- **Precedential status:** Published
- **Opinion:** Dissent by Barker
- **Judges:** Timmer, Barker, Ehrlich
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9789120

## How later opinions describe it (automated extraction)

- describing an intimate email sent from plaintiffs protected computer system that was the focus of the lawsuit’s trespass to chattels claim

## Opinion text

BARKER, Presiding Judge,
dissenting.
¶ 411 agree with much of what the majority has set forth. My disagreement is focused primarily on the majority’s adoption of a balancing test that takes place after the plaintiff has already established a genuine issue of material fact on each element of the claim, other than identity. Supra ¶¶ 23-28. Because I disagree that this balancing should take place after a plaintiff has met this standard, and this difference is outcome determinative in this case, I respectfully dissent.
I.
¶ 42 Anonymous speech is entitled to First Amendment protection. Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 199 , 119 S.Ct. 636 , 142 L.Ed.2d 599 (1999). These protections apply whether or not the speech occurs in an electronic form propelled by the internet. Reno v. American Civil Liberties Union, 521 U.S. 844, 870 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997). However, the fact that speech is entitled to protection does not necessarily mean that the First Amendment will preclude liability against the speaker for the particular speech at issue. Virginia v. Black, 538 U.S. 343, 358 , 123 S.Ct. 1536 , 155 L.Ed.2d 535 (2003) (“The protections afforded by the First Amendment, however, are not absolute....”). As Justice Holmes famously observed, “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. U.S., 249 U.S. 47, 52 , 39 S.Ct. 247 , 63 L.Ed. 470 (1919).
¶ 43 What Justice Holmes’ analogy makes clear is that if a person has a cause of action based on speech, and the First Amendment does not prohibit the action, the party is free to pursue it. That same principle applies to anonymous speech on the internet. Those who are wronged by anonymous speech still have a right to seek legal redress, if the First Amendment does not prohibit the cause of action being pursued. The issue then becomes what standard should be employed to determine when there is enough evidence of a valid claim such that a John Doe defendant’s identity should be revealed.
¶ 44 As the majority correctly points out, there is a decided lack of consensus among the jurisdictions that have considered this issue as to the proper standard that should be used to determine when an anonymous speaker — being sued as a defendant — should be unmasked. Supra ¶¶ 12-16. There are no Arizona cases that address this issue. Despite this lack of consensus and case law, however, most courts agree on at least two primary concerns, which almost every test addresses to some degree.
¶ 45 First, nearly all courts agree that the party seeking disclosure should have the burden of making all reasonable efforts to notify the anonymous speaker. E.g., Doe v. Cahill, 884 A.2d 451, 460 (Del.2005); Dendrite Int’l, Inc. v. Doe, 342 N.J.Super. 134 , 775 A.2d 756, 760-61 (2001). This requirement is meant to approximate the “notice and opportunity to be heard” component of due process by giving the anonymous speaker the opportunity to defend his or her anonymity and present justifications for its preservation. I have no quarrel with this factor, which the majority adopts. Supra ¶ 22.
¶46 Second, nearly all courts agree that something more than the general standard of discoverability, or even a general relevance standard, is required before the veil of anonymity may be pierced. 13 Since the unmask *116 ing itself may well be the “real” remedy sought, it is important to make this standard difficult enough that only those with legitimate claims may unmask the anonymous speaker. Otherwise, this process could easily be abused by individuals whose true goals are “extrajudicial self-help remedies” such as “revenge or retribution.” 14 Cahill, 884 A.2d at 457 . Merely alleging facts that would state a claim based on speech not protected by the First Amendment does little to protect the rights of those speaking anonymously. The test must be difficult enough to protect and encourage useful anonymous speech, while still providing some form of redress for those who are truly harmed by it. Id. at 464 (“[A] plaintiff with a legitimate claim should be able to obtain the identity of an anonymous defendant and proceed with his lawsuit.”) (emphasis added).
¶ 47 Some courts have found this balance by adopting a motion to dismiss standard. Lassa v. Rongstad, 294 Wis.2d 187 , 718 N.W.2d 673 (2006), reconsideration denied, 297 Wis.2d 325 , 724 N.W.2d 207 (2006), and cert. denied, — U.S. -, 127 S.Ct. 2251 , 167 L.Ed.2d 1090 (2007). Other courts have adopted variations on this theme by adopting other requirements beyond the summary judgment standard, in which “the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie ease presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.” Dendrite, 775 A.2d at 760-61 .
¶ 48 I agree with the majority that the motion to dismiss standard can prove too easy in notice pleading states like Arizona, where all that is required to survive a motion to dismiss is “a short and plain statement of the claim showing that the pleader is entitled to relief.” Ariz. R. Civ. P. 8(a)(2); see Cahill, 884 A.2d at 458 (explaining that since Delaware is a notice-pleading state, “the threshold showing a plaintiff must make to survive a motion to dismiss is low.”). Differing from the majority, I agree with the line of cases adopting the summary judgment standard, meaning that the plaintiff must put on a case that is sufficiently strong to withstand a motion for summary judgment before the unmasking may occur. Supra ¶ 23 (adopting the summary judgment standard set forth in Cahill, 884 A.2d at 460 ). As Cahill notes, this standard, with its heightened requirement, appropriately balances the First Amendment rights of an anonymous speaker against the need to preserve a remedy for those who are truly harmed by anonymous speech.
¶ 49 The majority adopts what I will refer to as the summary judgment-plus standard, promulgated in Dendrite. My disagreement with the majority opinion is narrow. Specifically, I have no disagreement with an additional balancing, in which the necessity for disclosure is weighed against any number of factors, when the anonymous speaker is someone other than the defendant. However, when the anonymous speaker is the party-defendant, and the party-plaintiff has (1) created a genuine issue of material fact on (2) a claim that survives the First Amendment, I do not believe the Constitution permits taking away the party-plaintiffs right to seek redress. The elimination of such a claim is the only purpose that a balancing test serves, if both these requirements have already been met.
¶ 50 As Cahill points out, a form of balancing has already taken place. Were it not for *117 the weight given to First Amendment rights at issue, discovery is and would be permitted “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Ariz. R. Civ. P. 26(b)(1) (emphasis added). Even if the information sought is not admissible, it remains discoverable under this standard as long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Thus, substantial deference has already been given to the First Amendment right.
¶ 51 I know of no constitutional authority that would create protection for speech after a party-plaintiff has established a genuine issue of fact on the elements of a claim that is not protected by the First Amendment. The majority analogizes to preliminary in-junctive relief. Respectfully, I do not think the analogy is apt for an anonymous speaker who is the defendant, as contrasted with an anonymous speaker who is only a third-party witness. As to an alleged defendant, there are dramatic differences between failing to satisfy a balancing test in a preliminary injunction setting as contrasted with seeking to obtain the speaker’s identity to preserve a separate cause of action.
¶ 52 Specifically, in the preliminary injunction context, plaintiffs whose temporary injunctions are denied are not foreclosed from pursuing relief in a trial on the merits. See Ariz. R. Civ. P. 65. For example, an individual who is denied a preliminary injunction to prevent a defendant from trespassing may still have a trial on the merits to determine whether injunctive relief should be granted. See id. The balancing required for a preliminary injunction does not take away the prospect of any relief — only the timing of the relief. Shoen v. Shoen, 167 Ariz. 58, 63 , 804 P.2d 787, 792 (App.1990) (preliminary injunctions are not favored as they affect the status quo “pending a trial on the merits ”) (emphasis added). Denial of a preliminary injunction only precludes pre-trial relief.
¶ 53 On the other hand, when an anonymous speaker is the defendant, if plaintiff is not allowed to learn the identity of the speaker, there is no other opportunity for relief. The party-plaintiff cannot proceed to a hearing or trial on the merits as there is no defendant to answer and (potentially) hold liable. The balancing effectively denies the relief; it does not just affect the timing as is the case with a preliminary injunction. There is no constitutional provision that permits this post-summary judgment balancing, after a party-plaintiff has created a triable issue of fact on each element of the claim, 15 to deprive a party-plaintiff from seeking redress for its losses caused by the actionable speech.
¶ 54 The majority also asserts that balancing is required because we must consider a multitude of potential factors and balance “the parties’ competing interests on a case-by-case basis.” Supra ¶ 25. That is exactly how we decide motions for summary judgment: on a case-by-case basis, applying the facts and the law unique in each particular claim. Orme School v. Reeves, 166 Ariz. 301 , 802 P.2d 1000 (1990). For instance, the majority references that “the superior court would not be able to consider factors such as the type of speech involved.” Supra ¶ 25. I respectfully disagree. Some types of speech, such as political expression, are entitled to the “broadest protection” of the First Amendment. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 , 115 S.Ct. 1511 , 131 L.Ed.2d 426 (1995). Others, such as commercial speech, receive less protection. Central Hudson Gas & Electric Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557, 562-63 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980). The standard as to which types of speech will be protected by the First Amendment, and which will not, are issues that any court must decide in determining whether a party’s claim can survive summary judgment. Thus, to the extent the standard differs for different types of speech — and it does differ — that will be appropriately considered as part of the required analysis in determining whether the summary judgment standard has been met.
*118 ¶ 55 To return to the analogy drawn by Justice Holmes, when there is a genuine issue of material fact that someone yelled fire in a crowded theater and caused a panic, an injured party-plaintiff is entitled to learn the identity of the speaker whether it was a live voice in the theater or came via an anonymous email message. See Schenck, 249 U.S. at 52 , 39 S.Ct. 247 . No further balancing is required.
¶ 56 Here, as the majority correctly points out, there is a genuine issue of fact on each element of the plaintiffs claim. The summary judgment standard is satisfied. Accordingly, the trial court’s order requiring disclosure of the defendant’s identity should be affirmed.
. The general standard for discovery is lower than the relevance standard applied in the courtroom. "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Ariz. R. Civ. P. 26(b)(1). However, even if the information sought is not admissible and relevant according to that standard, it remains discoverable as long as it "appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The only limitations on this rule are that the methods must not be "unreasonably cumulative or duplicative, or obtainable from some other source that is either more convenient, less burdensome, or less expensive”; the party must not have already had ample opportu *116 nity to obtain the same information; and the discovery must not be "unduly burdensome or expensive, given the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation." Id.
. See Jennifer O’Brien, Putting a Face to a (Screen) Name: The First Amendment Implications of Compelling ISPs to Reveal the Identities of Anonymous Internet Speakers in Online Defamation Cases, 70 Fordham L.Rev. 2745, 2772 (May 2002) ("[L]awsuits are being brought by both private individuals and corporations in an effort to determine the true identity of the anonymous speakers and enact their own extra-judicial remedies.”); Lyrissa Barnett Lidsky, Authorship, Audiences, and Anonymous Speech, 82 Notre Dame L.Rev. 1537, 1595 (April 2007) (“If all it takes is an allegation of defamation to uncover a defendant’s identity, the right to speak anonymously is very fragile indeed, because it is easy for a plaintiff to allege defamation any time he comes in for harsh criticism online.”).
. In fact, if we are to be establishing a "single test,” applicable to all cases, supra ¶ 21, Arizona's constitution expressly protects party-plaintiffs' causes of action. Ariz. Const, art. 18, § 6 (“The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9789120. Public record. Not legal advice.