Maryland's highest court issues framework for identifying an anonymous speaker Cases of Interest >  Cyberlaw >  Privacy

Independent Newspapers v Brodie


“Maryland’s highest state court has issued a comprehensive opinion setting out the proper framework trial courts should use when evaluating whether a plaintiff should be permitted to learn the identity of an anonymous (or pseudonymous) internet speaker. After considering the varying standards courts across the country have applied in balancing the First Amendment right to anonymity against the right of a plaintiff to seek redress, the court adopted, in large part, the standard put forth in the New Jersey case of Dendrite, Int’l. v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) which requires, among other things, a prima facie showing by the plaintiff before compulsory discovery concerning the identity of an unknown defendant will be had.” (http://blog.internetcases.com/)


Zebulon J. Brodie, filed a complaint in the Circuit Court for Queen Anne's County, alleging defamation and conspiracy to defame against Independent Newspapers, Inc., and three John Doe defendants known only by their usernames “CorsicaRiver,” “Born & amp; Raised Here” and “chatdusoleil.” The John Doe defendants posted comments on Independent’s internet discussion forum. Brodie attempted to discover information identifying the John Doe defendants and Independent moved for a protective order. The Circuit Court for Queen Anne's County denied motion and ordered release of information. Independent appealed.


Upon granting certiorari on its own initiative, the Court of Appeals, Battaglia, J., held that circuit court judge abused his discretion when ordering the identification of the John Doe defendants.

ANALYSIS: First Amendment and the Internet

The command of the First Amendment, that congress shall make no law abridging the freedom of speech, is directed with equal force, by way of the Fourteenth Amendment, to state and local governments. Eanes v. State, 569 A.2d 604, 608 (1990).

The constitutional right of free expression puts the decision as to what views shall be voiced largely into the hands of each person, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which the political system rests. Id. at 608.

The freedom under the First Amendment to think as you will and to speak as you think is a means indispensable to the discovery and spread of political truth and is essential both to stable government and to political change. Id. at 608 (quoting Whitney v. California, 274 U.S. 357 (1927) (Brandeis & Holmes, JJ., concurring).

Included within the panoply of protections that the First Amendment provides is the right of an individual to speak anonymously. Watchtower Bible & Tract Soc. of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002).

The anonymity of speech is not absolute under the First Amendment and may be limited by defamation considerations. Beauharnais v. Illinois, 343 U.S. 250 (1952).

With respect to the Internet, the Supreme Court has noted that there is, “no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.” Reno v. ACLU, 521 U.S. at 870.

The Internet gives citizens inexpensive access to a medium of mass communication and therefore transforms every citizen into a potential “publisher” of information for First Amendment purposes. Sony Music Entm't Inc. v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y.2004).

ANALYSIS: Defamation

A “defamatory statement” is one which tends to expose a person to public scorn, hatred, contempt, or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person. Offen v. Brenner, 935 A.2d 719 (2007).

To establish a prima facie case of defamation the plaintiff must show: (1) that the defendant made a defamatory statement to a third person; (2) that the statement was false; (3) that the defendant was legally at fault in making the statement; and (4) that the plaintiff thereby suffered harm. Offen v. Brenner 935 A.2d 719 at 723-24.

In the case of defamation per quod, extrinsic facts must be alleged in the complaint to establish the defamatory character of the words or conduct. M & S Furniture Sales Co., Inc. v. Edward J. De Bartolo Corp., 241 A.2d 126, 128 (1968).

Posters to internet message forums have a First Amendment right to retain their anonymity and not to be subject to frivolous suits for defamation brought solely to unmask their identity.
When a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should:
(1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board;
(2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application;
(3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech;
(4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and
(5), if all else is satisfied, balance the anonymous poster's First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant's identity, prior to ordering disclosure.

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