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Lawyers for Superior Court Judge Joan Orie Melvin will have to prove before members of her own court that anonymous individuals who posted allegedly defamatory comments about her on the Internet should be forced to disclose their identities so she can proceed with a defamation suit against them. The Pennsylvania Supreme Court Thursday remanded the First Amendment issue to the Superior Court after it decided a procedural question to permit the anonymous writers’ appeal of a trial judge’s interlocutory discovery order to reveal their identities. Writing for the court, Justice William H. Lamb said that the Pittsburgh trial judge’s order involved an issue of such importance that it fell within an exception to the final order rule. Therefore, the anonymous writers’ appeal was permissible because disclosure of their identities could irreparably damage their constitutional right to free speech. “There is no question that, generally, the constitutional right to anonymous free speech is a right deeply rooted in public policy that goes beyond this particular litigation, and that it falls within the class of rights that are too important to be denied review,” Lamb wrote. “It is clear that once appellants’ identities are disclosed, their First Amendment claim is irreparably lost as there are no means by which to later cure such disclosure.” With Melvin v. John Doe, the Pennsylvania Supreme Court was the first state-level high court to hear the issue of whether the First Amendment protects the anonymity of those who post political criticism on the Internet. While the court declined to decide the divisive constitutional matter at this time, ruling only on the procedural question, the majority opinion went on for at least three pages detailing how the U.S. Supreme Court has supported a right to anonymous free speech under certain circumstances. “They could have just as easily issued a two-page opinion” that decided the procedural question, said Ann Beeson, associate legal director for the American Civil Liberties Union, who argued the case on behalf of the anonymous writers. “They went farther than they needed to go given the posture of the case. They seem to be clearly sending a message.” Indeed, the 13-page majority opinion inspired Chief Justice Ralph J. Cappy to write separately with Justices Russell M. Nigro and J. Michael Eakin joining him. Cappy concurred with the majority’s finding that the writers should be permitted to appeal the discovery order but said the majority went “too far” in discussing whether the First Amendment right to anonymous speech should apply to the writers’ specific situation. Cappy accused the majority of engaging in a “preliminary determination as to whether the First Amendment right to anonymous speech applies to appellants’ particular circumstances.” Robert O. Lampl, who argued the case before the court for Orie Melvin, said the majority opinion language was merely highlighting how important the First Amendment issue is and communicating to the Superior Court what questions they should consider. “I don’t think their language was admonitive,” Lampl said. Orie Melvin, who lost her run for a state Supreme Court vacancy earlier this month, learned in 1999 of comments posted on a Pittsburgh government-gossip Web site called “Grant Street ’99,” alleging she had engaged in “misconduct” by lobbying former Gov. Tom Ridge’s administration to appoint a particular lawyer to a judicial vacancy, according to the opinion. She filed a defamation claim in Allegheny County and initiated discovery requests for the writers’ identities, according to the opinion. The writers requested a protective order and moved for summary judgment, claiming that they were protected by a First Amendment right to engage in anonymous political criticism and that the court should require Orie Melvin, as a public official, to show she had suffered actual economic harm before they could be required to reveal their identities. The trial judge, R. Stanton Wettick Jr., denied the writers motion for summary judgment and their request for a protective order, according to the opinion. Wettick ordered the writers’ identities revealed, stipulating that the identities would only be disclosed to the parties and their counsel. The writers appealed to the Superior Court, which quashed the appeal to reverse Wettick’s discovery order, saying the request was interlocutory and not subject to appeal under the collateral order doctrine, according to the opinion. The Superior Court judges couldn’t review the discovery order because it “‘may only be considered collateral where the material subject to discovery is not intertwined with the facts necessary to support the cause of action,’” according to the opinion. But this analysis of the so-called intertwined discoverable facts was based on the subject of the information — the writers’ identities — an analysis that the state Supreme Court has rejected in the past, Lamb noted. “It cannot be said that review of appellants’ instant claim relating to the trial court’s discovery order requires consideration of the merits of the underlying defamation action,” Lamb wrote. The questions of whether defamation occurred and whether the writers should be forced to reveal their identities can “plainly” be separated, Lamb said. Defamation is the main cause of action, based on the allegedly false statements made about Melvin, Lamb explained. “Appellate review of the constitutionality of the discovery order is not directly related to or impermissibly intertwined with the resolution of the underlying defamation claim. Consideration of whether a defamatory statement was made … is not necessary,” he wrote. Instead, the question the Superior Court should have decided was what threshold requirements were needed as prerequisites to discovery in an anonymous defamation case “in order to implement essential First Amendment protections,” Lamb noted. After establishing that the discovery order was indeed separate from the issue of whether defamation occurred, Lamb next turned to whether the writers’ claim fit within an exception to the collateral order doctrine. To overcome the collateral order doctrine, the general rule that only final orders can be appealed, the writers needed to prove that the discovery issue not only be of importance to the parties but also “deeply rooted in public policy going beyond the particular litigation at hand,” Lamb said. He noted that the U.S. Supreme Court has found the First Amendment has at times protected individuals’ right to speak anonymously, but has also recognized that “with regard to free speech generally, the states have justifiable interests in preventing certain evils,” including libel. Additionally, the U.S. Supreme Court has recognized an individual’s interest in his or her reputation, but also that neither factual error nor defamatory content is sufficient to remove the constitutional protection for those who criticize public officials, Lamb explained. The writers argued that the trial court impeded their right to engage in anonymous political speech by ordering them to reveal their names, Lamb wrote. That issue is still undecided, he explained. “However, in the context of this case, we find that the court-ordered disclosure of appellants’ identities presents a significant possibility of trespass upon their First Amendment rights,” Lamb said. The court directed the Superior Court to consider the writers’ constitutional question of whether the Constitution requires a plaintiff in a public-official defamation suit to establish a prima facie case of actual economic harm before learning the identities of the anonymous defendants. “If nothing else, it postpones the discovery of Doe’s identity, and sends the issue back to the Superior Court,” said Vic Walczak, legal director of the Pittsburgh ACLU, who also represented the anonymous writers. “We like the signals the Supreme Court sent.” Lampl underscored the importance of the constitutional question, saying “Free speech doesn’t mean you’re free to say anything at any time about any one you want. A public official does have some rights.”

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