California Leads the Country in Protecting Online Anonymity
Ken Paulson, President of the The First Amendment Center, recently wrote a piece titled “Online anonymity no sure thing in libel cases,” where he discussed a “number of cases in recent months in which judges have upheld subpoenas that give libel-suit plaintiffs the identities of those who have been posting ugly things about them.”
Since the enactment of the California anti-SLAPP law almost twenty years ago, Californians have been protected against abusive subpoenas, so long as the lawsuit was filed in California. However, in Tendler v. WWW.JEWISHSURVIVORS.BLOGSPOT.COM, the California Court of Appeal held that the California anti-SLAPP law did not apply if the underlying lawsuit is filed outside of California. This led the California Anti-SLAPP Project, along with the Electronic Frontier Foundation and the California Newspaper Publishers Association, to co-sponsor Assembly Bill 2433, which was eventually signed into by law by then Governor Schwarzenegger, amending California Code of Civil Procedure 1987.1 and 1987.2. Similar to provisions of the California anti-SLAPP law, these two statutes allow those whose information is being subpoenaed to move to quash the subpoena, and if they are successful, recover attorneys’ fees.
Ryan Metheny of the California Anti-SLAPP Project recently blogged and discussed legal objections that can be raised to quash a subpoena:
“California law provides that any subpoena issued by a California court regarding an out-of-state lawsuit that arises from an exercise of First Amendment rights – i.e., participating in an online discussion about an issue of public interest – is subject to a motion to quash, unless the plaintiff can show the lawsuit has merit. The subpoena may also seek information that is not relevant to the lawsuit, in which case it may also be quashed. These are by no means the only grounds for filing a motion to quash, however.”