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 U.S, 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 and Liberty Program in Washington D.C., presented the Doe defendants’ arguments last week. She said 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.
Defendant co-counsel Ronald D. Barber, of Strassburger McKenna Gutnick & Potter in Pittsburg, said that Beeson’s reference to the Colonial period prompted an exchange between Justice William H. Lamb and Justice Ronald D. Castille.
Barber said that 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. According to Barber, Castille responded to Lamb’s observation by noting that the Colonial pamphleteer was not 100 percent anonymous, as he ran a risk by engaging a printer to publish his pamphlet.
Beeson said that Chief Justice Ralph J. Cappy asked 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.”
Lampl also said he responded to Justice J. Michael Eakin’s question of what constitutes “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.
Barber noted the court raised the question of whether Orie Melvin, as a judge and public official, should not be more thick-skinned.
“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.
Keep Frye, Court Urged
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 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 plaintiff 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, Robb said, Lamb asked him 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 pre-trial 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.”
