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During oral arguments in Pittsburgh last week, the Pennsylvania Supreme Court became the first state-level high court in the nation to consider whether the First Amendment protects the anonymity of the authors of online political criticism. The justices’ decision in the case of Melvin v. Doe could set a precedent for courts in other U.S. jurisdictions, where thousands of similar lawsuits are flooding the dockets. The court also grappled with the applicability of the standards for introducing scientific evidence set forth in two federal cases during arguments in Grady v. Frito-Lay Inc. This case may determine whether Pennsylvania will continue to employ the evidence standards established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) or adopt the refined federal evidence test set forth in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). But it is Melvin that is attracting national attention. Melvin revolves around the question of whether persons who post dispatches on the Internet may be forced out of anonymity through court-ordered discovery in a defamation suit. Superior Court Judge Joan Orie Melvin initiated the suit in the Allegheny County Court of Common Pleas against several “John Doe” defendants who maintained a Web site devoted to commentary on western Pennsylvania politics. On that site, the Web writers posted a dispatch accusing Orie Melvin of “lobbying the Ridge administration” to appoint a lawyer to a vacancy on the Allegheny County Common Pleas Court — a statement, Orie Melvin argues, is false and defamatory. Orie Melvin, who is running for a seat on the state high court this fall, has asked the Internet service provider, America Online Inc., to divulge the names of the persons who maintained and posted messages to the Web site. In November 2000, Allegheny County Judge R. Stanton Wettick Jr. found that Orie Melvin adequately stated a cause of action for defamation and, therefore, had the right to seek discovery of the identity of the nameless Internet critics. The Doe defendants appealed. In November 2001, a Superior Court panel led by Senior Judge John G. Brosky quashed the defendants’ appeal, calling it interlocutory. The defendants have now taken their case to the Pennsylvania Supreme Court. Noting the U.S. and state constitutions provide a right to anonymous free speech, attorneys with the American Civil Liberties Union, which is representing the Doe defendants, have asked the court to apply the economic harm requirement to this case, compelling Orie Melvin to prove that the alleged criticisms caused her to suffer economic loss before the defendants could be unmasked. Such proof is difficult for a judge, whose salary is fixed and job is secured by the electorate, one justice observed. Furthermore, Orie Melvin’s attorneys maintain, the loss of reputation, a right protected by the state constitution, is just as devastating as economic loss and should be an actionable matter. AOL has also gotten into the mix, filing an amicus brief in the case that urges the court to protect the identity of the anonymous online speakers during discovery until the plaintiff can prove this is a viable claim and the defendants are afforded a full opportunity to demonstrate that the plaintiff could not prevail as a matter of law. With a national audience tuning in, this case presents an opportunity for the court to resolve a constitutional issue that is becoming more and more common as more and more Americans harness the power of the Internet. CHALLENGES TO ONLINE SPEECH They are called CyberSLAPP suits, explained Witold J. Walczak, an attorney with the American Civil Liberties Union of Pennsylvania and counsel for the “John Doe” defendants in Melvin. CyberSLAPP suits are challenging the anonymity of online speech across the United States, he said. A coalition of civil liberties and privacy groups, including the ACLU, have joined forces to advocate a legal standard for courts to follow in deciding whether to compel the identification of anonymous speakers. They have even formed a Web site urging courts “Don’t chill the online freedom of expression.” John R. Orie, an attorney with Orie & Zivic in Pittsburgh representing Orie Melvin, said he is a firm believer in the right to free speech, but when inaccurate statements are made anonymously about public officials, their reputations suffer and they are entitled to unmask the culprits. “When spurious allegations appeared on the Internet site, it was a question of defending [Orie Melvin's] name,” said Orie, who is also the plaintiff’s brother. “She has a very good name, and what I find anymore is people take the Internet as gospel.” Ann Beeson, an attorney and litigation director of the ACLU’s Technology & Liberty Program in Washington D.C., presented the Doe defendants’ arguments last week. She urged the court to apply the economic harm requirement to this case, requiring Orie Melvin to show an economic loss before she could proceed with the suit. Beeson maintained that Pennsylvania law requires proof of economic harm, or “special harm,” in defamation cases, pursuant to 42 Pa. C.S.A. � 8343. This argument raised the question of what constituted “special harm” among several of the justices. Beeson also observed that affording the right to free anonymous speech is a long tradition in this country, dating back to the Colonial era and the birth of the nation. Justice William H. Lamb observed that unlike the Colonial era, when a pamphleteer could post a critical pamphlet in prominent places under cover of night, today modern critics, posting their views online, take a knowing risk. Justice Ronald D. Castille responded to Lamb’s observation, noting that the Colonial pamphleteer was not 100 percent anonymous, as he ran a risk by engaging a printer to publish his pamphlet. Chief Justice Ralph J. Cappy asked Beeson how she would reconcile the right to a reputation afforded to every citizen of Pennsylvania by the state constitution with her clients’ arguments. Beeson responded that the state constitution also affords the right to anonymous free speech, absent proof of actual malice. A balance must be struck between individuals’ constitutional rights, she said. Pittsburgh attorney Robert O. Lampl, who presented oral arguments for Orie Melvin, said that the collateral order, codified in Pa.R.A.P. 313, raises a jurisdictional question for the court in this case. However, he suggested the court could opt to consider the merits of the case under its general supervisory jurisdiction. On the merits of the case, Lampl argued that the question is not one of free speech but one of defamation. Every citizen has a right to criticize a public official, but no one has the right to make false and damaging statements; accordingly, Lampl argued, defamatory allegations made on the Internet should be no different than such statements made through any other medium of communication. “You’re allowed to criticize a public official, and you can get harsh and even cruel,” Lampl said in an interview after arguments. “But you cannot falsely accuse a public official of an unlawful or unethical activity that is false.” Justice J. Michael Eakin asked Lampl what he thought constituted “special harm.” “I said I thought it was well established that you have to prove harm to reputation but you don’t have to show direct damages,” such as a loss of job or other opportunity, Lampl said. Beeson disagreed, arguing special harm constitutes actual economic harm. Noting the difficulty a judge faces in establishing economic harm, Orie noted, in an interview after arguments, that harm to a judge’s reputation is just as distressing. “It’s still a very deep wrong,” he said. “Should economic harm enter the picture or not? Our position is it should not.” Beeson argued that economic harm, or special harm, has been typically represented in case law by the loss of a job or the loss of an opportunity, as the U.S. Supreme Court held in New York Times v. Sullivan, 376 U.S. 254 (1964). In terms of economic harm, there is no specific dollar amount that warrants it, Beeson said in response to a question posed by Castille. But, she continued, a higher level of proof should be required than harm to one’s reputation. What if the court ultimately does not agree to the economic harm rule? Cappy asked Beeson. If the court came to such a decision, Beeson said, she would urge the court to consider an approach that would balance the merits of the case with the constitutional rights of the defendants. In response to a query whether she was asking the court to provide online immunity so that anyone could slander a judge, Beeson argued that absolute immunity is not the answer but rather a heightened level of proof must be established. As such, she argued, the court should require a plaintiff alleging defamation against an anonymous author to prove economic harm. Ronald D. Barber, co-counsel for the defendants and an attorney with Strassburger McKenna Gutnick & Potter in Pittsburgh, noted the court raised the question of whether Orie Melvin, as a judge in the public eye, should not be more thick-skinned to criticisms. “We thrive on criticizing public officials,” Barber said in a post-argument interview. “That’s what keeps us free. When you run for public office, that’s what you ask for.” But Lampl reiterated the position that citizens are free to criticize public officials but not to defame them with false accusations. Barber said he was pleased with the court’s reception of the case, characterizing the court’s treatment of the defendants as amenable. Orie also felt positive about the plaintiff’s reception in the court, noting his optimism about the case’s outcome. “I think we’ve had a winner since we first took it,” he said. “It’s a clear case where we have a clear right to the information we are seeking.” Orie said the court has a “precedent setting” opportunity to provide a clear statement of law on this issue — a statement echoed by Beeson. The question remains what precedent the court will set. WHETHER TO KEEP ‘FRYE’ In Grady, the court tackled the applicability of the Frye test in introducing scientific evidence, and the question of whether Frye should be replaced by the standard established in Daubert. The Frye test calls for general acceptance in the scientific community as the standard for admissibility, while Daubert requires courts to weigh the validity of scientific evidence using four factors: hypothesis testing, a known error rate, peer review, and publication and general acceptance in the scientific community. The scientific evidence in Grady involved a plaintiff’s expert’s opinion that Doritos brand corn chips are unreasonably dangerous and caused the plaintiff to suffer an esophageal tear. Without this evidence, the plaintiff could not prove causation, a necessary element for the cause of action. The question of the applicability of Frye was a central concern, articulated at the outset of arguments by Justice Cappy, in the court’s consideration of this case, according to plaintiff attorney John P. Joyce, of Joyce & Joyce in Pittsburgh. During arguments, Joyce asserted that neither Daubert nor Frye are necessary, as Pennsylvania Rules of Evidence 702 and 703 provide sufficient parameters for expert testimony. However, if the court decides to retain one or the other standard, Joyce continued, it should keep Frye, but limit its two-prong approach only to methodology, eliminating the causation criteria. Furthermore, he argued, the court should apply Frye only in cases involving novel scientific ideas. Joyce declined to comment further about the details of his argument or questions posed by the justices. While plaintiffs’ attorney John A. Robb, of Robb, Leonard & Mulvihill in Pittsburgh, also urged the court to adopt a one-prong Frye test, he noted that such a test should also consider the relevancy of the expert testimony. In Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992), Robb said in a post-argument interview, the court held that “when doing a Frye analysis, in addition to general acceptance in the scientific community, you also have to have a threshold inquiry into its relevance.” During arguments, Justice Lamb asked Robb if he was not trying to advocate a two-prong Frye test with this argument. Robb maintained his argument was for a one-prong test but that “we cannot forget that question of relevancy.” Whereas Frye would serve as a good bright-line rule for Pennsylvania, Robb argued that Daubert, as a multi-prong test, would not work in Pennsylvania, primarily because the federal system makes expert reports discoverable more quickly than Pennsylvania rules allow. Additionally, federal rules mandate a pretrial Frye evidentiary hearing, while Pennsylvania Rule of Civil Procedure 207.1 makes such a hearing discretionary, he said. “The federal system is equipped for Daubert; the state court system really isn’t,” Robb said. In an amicus brief, the Product Liability Advisory Council Inc. also expressed its support for Frye, urging the court to keep the standard, which, the brief asserted, “avoids pitfalls that have arisen in applying alternative tests, such as Daubert.”

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