The state Supreme Court has declined to hear argument on whether online commenters have a constitutional right to falsely attribute nonsatirical postings to someone with direct connection to the subject matter.
The high court denied allocatur in AmerisourceBergen v. John Does 1 and 2 on Aug. 22.
Last November, the state Superior Court found that two John Doe defendants could not appeal a trial court’s interlocutory order requiring an Internet service provider to reveal their identities because they failed to establish that they had a First Amendment right to pose online as a high-level AmerisourceBergen Corp. executive and post commercial information about the company in a website’s comments section.
A two-judge panel ruled that it did not have jurisdiction to entertain an appeal from a Chester County Court of Common Pleas judge’s order requiring the defendants to reveal their identities because the order was not final or collateral and the defendants failed to establish a protectable interest in their identities sufficient to overcome the collateral order doctrine.
Judge David N. Wecht, writing for the court, said the defendants failed to show they had a First Amendment right that is “‘deeply rooted in public policy’” and “‘too important to be denied review,’” as required by the state Supreme Court in its 1999 ruling in Geniviva v. Frisk.
Wecht said the postings the defendants allegedly made are distinguishable from the postings at issue in the cases they cited, because those cases involved online comments that were clearly meant to be satirical and did not directly address the question in AmerisourceBergen: whether there exists “any right to misattribute patently nonsatirical comments to an individual with a direct connection to the subject matter; and, if so, whether that right is ‘too important to be denied review.’”
“We reject appellants’ attempt to glean from these cases that fraudulently ascribing commercially salient information to a particular person in a position to know such information, one whose employment status or legal position might be compromised by such commentary under state or federal securities laws and regulations, enjoys the same First Amendment protections as obvious satire or indirect associations of individuals in the expression of opinions in the context of debate over important public issues or any First Amendment protection at all,” Wecht said.
Wecht emphasized, however, that the court’s ruling only addressed whether the defendants had a constitutional right sufficient to trump the collateral order doctrine.
Senior Judge Robert E. Colville joined Wecht’s opinion. Former president judge and current state Supreme Court Justice Correale F. Stevens was listed as a member of the panel but did not participate in the consideration of the case.
In AmerisourceBergen, according to court documents, someone allegedly falsely identifying himself or herself as Neil Herson, the president of ASD Specialty Healthcare Inc., a subsidiary of AmerisourceBergen, or ABC, posted two comments on a July 22, 2011, Barrons.com article about the potential effect a merger between pharmacy benefit managers Express Scripts and Medco Health could have on ABC.
The first comment, court documents said, stated, in part, “‘Medco is a very fast payer—so fast that ABC operates in a very POSITIVE working capital position on its business. If Medco leaves, expect a $300-500 million cash hit to ABC.’”
A second comment posted later that day said, “‘ABC sells a little over $300 million per business day. Cash on hand is 5 to 7 days of revenue. Operating cash flow is 3 to 4 days of revenue. With $4 billion of A/R, bad debt risk relative to cash is notable. Yes, ABC’s cash balance appears substantial, however interesting to view in the above context,’” according to court documents.
ABC filed a writ of summons in July 2011 naming “John Doe” as a defendant and subpoenaed Dow Jones & Co., which provided two IP addresses associated with the postings, court documents said.
In August 2011, ABC served a subpoena on the ISP, Verizon Online, seeking the names of the subscribers associated with the IP addresses. But when Verizon refused to disclose the subscribers’ identities without a court order, ABC filed a petition in the Chester County Court of Common Pleas to compel Verizon to hand over the identities, court documents said.
The trial court granted the petition, but the defendants objected and a hearing on the objections was scheduled, according to Wecht.
However, counsel for the defendants sent a request for a continuance to opposing counsel that inadvertently contained one of the defendants’ actual names, court documents said.
According to court documents, it appeared the attorney had attempted to redact the name but it was still easily readable.
In a June 2012 letter, counsel for the plaintiffs wrote to defense counsel that because the identity of one of the defendants had now been revealed, he was now entitled to the name of the other defendant, according to court documents.
The defendants then filed an emergency petition for disqualification of their attorney and to prohibit the plaintiffs from commencing an action against them, but the trial court denied it, according to court documents.
On appeal to the Superior Court, according to Wecht, the defendants argued that both the trial court’s order granting the plaintiffs’ motion to compel the defendants’ identities and its order denying the defendants’ petition to prohibit the plaintiffs from commencing an action were final because they disposed of all the issues before the court.
Wecht, however, disagreed.
“The allowance of precomplaint discovery following the filing of a writ of summons necessarily presupposes the future filing of a complaint,” Wecht said. “Equally self-evidently, the trial court should not grant such discovery unless it concludes that, upon the completion of discovery, the claimant will likely be able to make out one or more causes of action, and that the claimant intends in good faith to do so.”
Wecht turned to the issue of whether the defendants had a constitutional right to make the alleged postings that was strong enough to overcome the collateral order doctrine.
The defendants pointed to the Superior Court’s 2011 ruling in Pilchesky v. Gatelli, and out-of-state rulings as well, but Wecht felt that the cases were distinguishable.
“The comments in question do not constitute obvious satire, and were not such that a reasonable reader could be expected to recognize that Mr. Herson’s name was used ironically or as part of protected commentary on an issue of public importance. Nor were the comments anonymous or pseudonymous, which are the only categories of commentary clearly protected by the case law discussed herein,” Wecht said.
Because defendants failed to establish a right to appeal the order compelling their identities, they also failed to establish a right to appeal the trial court’s order refusing to disqualify their attorney, Wecht said.
Counsel for the defendants, William Conyngham of Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington, D.C., and counsel for AmerisourceBergen and Herson, Eric Kraeutler of Morgan, Lewis & Bockius in Philadelphia, declined to comment.