INDEPENDENT NEWSPAPERS INC -v- BRODIE

2-27-2009 Maryland:

INDEPENDENT NEWSPAPERS INC -v- BRODIE

In this case, we are called upon to decide whether a circuit court judge, in a defamation action, appropriately denied a motion to quash/motion for protective order regarding a subpoena requiring, Independent Newspapers, Inc., a company that commissioned an Internet forum (for which it required participants to register), to identify five Internet forum participants known only by their pseudonyms or usernames. Independent Newspapers appealed the denial of the motion, and we granted certiorari, Independent Newspapers v. Brodie, 405 Md. 505, 954 A.2d 467 (2008), prior to any proceedings in the Court of Special Appeals to address the following questions:

• 1. May a court breach the constitutional right to speak anonymously and order the identification of Internet speakers who are alleged to have violated the plaintiff's rights without a factual and legal showing that the plaintiff has a supportable claim on the merits?
• 2. Did plaintiff Brodie make the required showing in this case?

We shall conclude that the circuit court judge abused his discretion when ordering the identification of the five anonymous Internet forum participants, because the three participants sued, concededly, did not make the alleged defamatory statements, while the other two anonymous participants, who allegedly made the actionable remarks, were not sued by Brodie.

For guidance to the trial courts, we, nevertheless, will discuss the standard that should be applied to balance the First Amendment right to anonymous speech on the Internet with the opportunity on the part of the object of that speech to seek judicial redress for alleged defamation.