Public Citizen Weighs In On Why Court Should Protect @DevinCow's Information Under The 1st Amendment

As lawyer Steven Biss continues to use one lawsuit to seek to identify the person or people behind a satirical internet cow that he's trying to unmask in another case, Public Citizen's Paul Levy has now filed an amicus brief arguing that identifying who is behind the @DevinCow account (along with two other pseudonymous accounts) would violate the 1st Amendment. While the brief makes a nod towards the point that the @DevinCow account seems entirely unrelated to the case at hand -- between PR guy Trevor FitzGibbon and lawyer Jesselyn Radack -- its arguments focus on the fact that, even if @DevinCow had communicated with Radack, the subpoena that Biss sent to Twitter on behalf of FitzGibbon would violate 1st Amendment protections for anonymity.

Full First Amendment protection applies to communications on the Internet, andlongstanding precedent recognizes that speakers have a First Amendment right to communicateanonymously, so long as they do not violate the law in doing so. Thus, when discovery seeks toidentify an anonymous speaker, courts must balance the right to obtain redress from allegedperpetrators of civil wrongs against the right to anonymity of those who have done no wrong - andwhen the discovery targets are third-party witnesses, they are, by definition, speakers who have doneno wrong. In cases such as this one, these rights come into conflict when a plaintiff seeks an ordercompelling disclosure of a speaker's identity, which, if successful, would irreparably destroy thespeaker's First Amendment right to remain anonymous.

In such cases, identifying an unknown speaker is not merely the first step toward establishinga defendant's liability for damages. Identifying the speaker gives the plaintiff immediate relief aswell as a powerful new weapon, because it enables him to employ extra-judicial self-help measuresto counteract both the speech and the speaker. It also creates a substantial risk of harm to thespeaker, who forever loses the right to remain anonymous, not only on the speech at issue, but withrespect to all speech posted with the same pseudonym. Moreover, the unmasked speaker is exposedto efforts to punish or deter his speech. For example, an employer might discharge a whistleblower,or a public official might use influence to retaliate against the speaker. Indeed, given the tenor ofmany online conversations, public exposure might lead a given individual to become the target ofthreats, doxxing and the like. Similar cases across the country, and advice openly given by lawyersto potential clients, demonstrate that access to identifying information to enable extra-judicial actionmay, in many cases, be the only reason plaintiffs bring many such lawsuits at all.

As Levy lays out in the brief, under no existing legal standard, should the court have Twitter identify @DevinCow and the other account holders.

Fitzgibbon's subpoena cannot meet this standard. First, the aspect of the subpoena that seeksidentifying information for @DevinCow strongly suggests bad faith. @DevinCow is a Twitteraccount holder who is a defendant in a different lawsuit, now pending in state court, in which adifferent plaintiff, also represented by Stephen Biss, counsel for plaintiff Fitzgibbon in this case, hasbeen frustrated in his efforts to use Virginia state subpoenas to compel the identification of thatdefendant. The subpoenas have not succeeded, in part because Mr. Biss has not complied withVirginia's statutory procedure for such subpoenas-which do not apply in federal court-but alsoin part because he has not met the First Amendment standard for identifying anonymous speakerswho have been sued for their speech. The justifications set forth in Fitzgibbon's opposition to themotion to quash do not come close to showing any basis for believing that @DevinCow has had anyinvolvement in making any false statements about Fitzgibbon or of that she has any evidence bearingon the claims by or against Fitzgibbon; the use of the subpoena in this case to identify @DevinCowis a transparent ruse. The significant indications of bad faith infect the validity of the entiresubpoena, not just the aspect seeking to identify @DevinCow.

Second, the effort to discover the identities of @DevinCow, @jimmysllama and @Kaidinn,and to obtain location and other potential identifying information about the owners of twenty-twoadditional Twitter accounts, is not pursued in aid of Fitzgibbon's core claims, for defamation andbreach of contract. Discovery is sought in aid of Fitzgibbon's claim that Radack is liable for havingconspired to defame him with various third parties, who are not named as defendants in thislitigation. But under Virginia law, a conspiracy to commit a tort is actionable only if the plaintiffcan also succeed on the underlying tort claim, here defamation.... Similarly, under Hustler Magazine v. Falwell, 485 U.S. 46 (1988), and Food Lionv. Capital Cities/ABC, 194 F.3d 505, 522 (4th Cir. 1999), a tort claim that seeks damages for injuryto reputation can succeed only if the claim meets First Amendment standards for a defamation claim.In effect, then, Fitzgibbon's civil conspiracy claim against Radack is one that piggybacks on hisdefamation claim and may, assuming that Radack has sufficient assets, provide an additional claimfor damages. But discovery in aid of additional damages does not pertain to a core claim and hencedoes not provide a basis for overriding the right to speak anonymously....

Third, Fitzgibbon has not shown that he has exhausted alternate sources of information thatwould not require imposing on the First Amendment rights of third parties. Other courts have saidthat "'an alternative requiring the taking of as many as 60 depositions might be a reasonableprerequisite to compelled disclosure.'" In re Petroleum Products Antitrust Litig., 680 F.2d 5, 9 (2dCir. 1982), quoting Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir.1981). So far as the record reflects,his only discovery efforts to date seeking to obtain Radack's alleged conspiratorial communicationsconsists of sending her written discovery requests to which, his brief alleges, defendant Radack hasrefused to respond. His brief further asserts, at 44, 53, 57, without providing admissible evidenceto support his contentions, that Radack has been guilty of spoliation and hence cannot be trusted toproduce evidence voluntarily. He does not explain why he has not moved to compel discovery fromRadack, including, if necessary, pursuing forensic examination of her electronic equipment. Moreover, if Radack has been guilty of spoliation as Fitzgibbon alleges, the sanctions for suchspoliation could easily be a sufficient route to establish her liability, making it wholly unnecessaryto impose on the free speech rights of innocent third parties. The Eastern District docket sheet doesnot reflect the filing of any motion to compel discovery or to seek sanctions for alleged spoliation.https://www.courtlistener.com/docket/16048358/fitzgibbon-v-radack/. The very fact that Fitzgibbonhas not pursued such alternate means to establish his claims against Radack gives ground to inferthat other motives might be afoot.

One hopes that the court already knows and understands this -- but it's good to see Public Citizen and Levy weighing in so clearly. Either way, as Levy reminds us, it's yet another example of how Virginia is a target for libel tourism these days.