December 2, 2020

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, and
longstanding precedent recognizes that speakers have a First Amendment right to communicate
anonymously, so long as they do not violate the law in doing so. Thus, when discovery seeks to
identify an anonymous speaker, courts must balance the right to obtain redress from alleged
perpetrators of civil wrongs against the right to anonymity of those who have done no wrong – and
when the discovery targets are third-party witnesses, they are, by definition, speakers who have done
no wrong. In cases such as this one, these rights come into conflict when a plaintiff seeks an order
compelling disclosure of a speaker’s identity, which, if successful, would irreparably destroy the
speaker’s First Amendment right to remain anonymous.

In such cases, identifying an unknown speaker is not merely the first step toward establishing
a defendant’s liability for damages. Identifying the speaker gives the plaintiff immediate relief as
well as a powerful new weapon, because it enables him to employ extra-judicial self-help measures
to counteract both the speech and the speaker. It also creates a substantial risk of harm to the
speaker, who forever loses the right to remain anonymous, not only on the speech at issue, but with
respect to all speech posted with the same pseudonym. Moreover, the unmasked speaker is exposed
to 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 of
many online conversations, public exposure might lead a given individual to become the target of
threats, doxxing and the like. Similar cases across the country, and advice openly given by lawyers
to potential clients, demonstrate that access to identifying information to enable extra-judicial action
may, 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 seeks
identifying information for @DevinCow strongly suggests bad faith. @DevinCow is a Twitter
account holder who is a defendant in a different lawsuit, now pending in state court, in which a
different plaintiff, also represented by Stephen Biss, counsel for plaintiff Fitzgibbon in this case, has
been frustrated in his efforts to use Virginia state subpoenas to compel the identification of that
defendant. The subpoenas have not succeeded, in part because Mr. Biss has not complied with
Virginia’s statutory procedure for such subpoenas—which do not apply in federal court—but also
in part because he has not met the First Amendment standard for identifying anonymous speakers
who have been sued for their speech. The justifications set forth in Fitzgibbon’s opposition to the
motion to quash do not come close to showing any basis for believing that @DevinCow has had any
involvement in making any false statements about Fitzgibbon or of that she has any evidence bearing
on the claims by or against Fitzgibbon; the use of the subpoena in this case to identify @DevinCow
is a transparent ruse. The significant indications of bad faith infect the validity of the entire
subpoena, 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-two
additional Twitter accounts, is not pursued in aid of Fitzgibbon’s core claims, for defamation and
breach of contract. Discovery is sought in aid of Fitzgibbon’s claim that Radack is liable for having
conspired to defame him with various third parties, who are not named as defendants in this
litigation. But under Virginia law, a conspiracy to commit a tort is actionable only if the plaintiff
can also succeed on the underlying tort claim, here defamation…. Similarly, under Hustler Magazine v. Falwell, 485 U.S. 46 (1988), and Food Lion
v. Capital Cities/ABC, 194 F.3d 505, 522 (4th Cir. 1999), a tort claim that seeks damages for injury
to 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 his
defamation claim and may, assuming that Radack has sufficient assets, provide an additional claim
for damages. But discovery in aid of additional damages does not pertain to a core claim and hence
does not provide a basis for overriding the right to speak anonymously….

Third, Fitzgibbon has not shown that he has exhausted alternate sources of information that
would not require imposing on the First Amendment rights of third parties. Other courts have said
that “‘an alternative requiring the taking of as many as 60 depositions might be a reasonable
prerequisite to compelled disclosure.’” In re Petroleum Products Antitrust Litig., 680 F.2d 5, 9 (2d
Cir. 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 communications
consists of sending her written discovery requests to which, his brief alleges, defendant Radack has
refused to respond. His brief further asserts, at 44, 53, 57, without providing admissible evidence
to support his contentions, that Radack has been guilty of spoliation and hence cannot be trusted to
produce evidence voluntarily. He does not explain why he has not moved to compel discovery from
Radack, including, if necessary, pursuing forensic examination of her electronic equipment. Moreover, if Radack has been guilty of spoliation as Fitzgibbon alleges, the sanctions for such
spoliation could easily be a sufficient route to establish her liability, making it wholly unnecessary
to impose on the free speech rights of innocent third parties. The Eastern District docket sheet does
not 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 Fitzgibbon
has not pursued such alternate means to establish his claims against Radack gives ground to infer
that 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.
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