Judge Richard J. McAdams of the California Court of Appeal wrote yesterday, in Tendler v. www.jewishsurvivors.blogspot.com (UPDATE: originally unpublished, but published July 7, 2008), so I thought I'd pass it along:
Attention anonymous Internet posters and bloggers: this court has good news and bad news for those of you who engage in nontortious discourse [i.e., in this context, speech that isn't libelous -EV]. The good news, announced earlier this year: your message will be protected by the First Amendment and your identity will be protected by the court quashing a third-party subpoena, unless the requesting party can make a prima facie showing of defamation. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 (Krinsky).) The bad news: it may cost you tens of thousands of dollars to preserve your anonymity.
I must concur with my colleagues’ ultimate conclusion that Code of Civil Procedure section 425.16 [the so-called "anti-SLAPP" statute -EV] does not apply to requests for subpoenas, but I write separately for two reasons: First, I cannot agree with the rationale employed by the majority in reaching the conclusion that the statute is inapplicable here [discussion omitted -EV]. Second, I urge the Legislature to consider whether the statute should be expanded to include third-party subpoena requests of this type....
2. The Legislature should give this issue its consideration.
As this court noted in Krinsky, “computer users have encountered a proliferation of chat rooms and websites that allow them to share their views on myriad topics from consumer products to international diplomacy.” (Krinsky, supra, 159 Cal.App.4th at p. 1158.) Given that fact, there is good reason to believe there has been and will continue to be a corresponding increase in requests for subpoenas served on ISPs and other site hosts to disclose the identities of writers. Some requests will be based on a legitimate right to discover the source of libelous statements or business disinformation schemes; but some will be solely for the purpose of silencing a critic by harassment, ostracism, or retaliation.
I urge the Legislature to consider whether section 425.16 as currently written adequately addresses this rapidly expanding arena of public expression and whether the statute leaves this popular forum open to potential “abuse of the judicial process” without the level of protection afforded “causes of action.”