A Philadelphia judge has ordered the owners of Philly.com to disclose the identity of an anonymous poster who allegedly called city International Brotherhood of Electrical Workers, Local 98, leader John Dougherty a “pedophile” in the comments section of an online article.
Philadelphia Court of Common Pleas Judge Jacqueline F. Allen, in response to a petition filed by Dougherty, ordered that any identifying information related to the commenter identified as “fbpdplt” and any comments that individual made on Philly.com since Aug. 10, 2012, be produced by the site’s owners.
Dougherty, represented by Richard A. Sprague and Joseph R. Podraza Jr. of Sprague & Sprague, initiated the defamation suit against the poster in February 2013, with Allen’s ruling coming down Feb. 28.
“Judge Allen’s ruling is very significant and demonstrates that those who think they can defame others based on anonymity are sorely mistaken,” Podraza told The Legal.
The commenter’s attorney, Philip L. Blackman of Schwartz and Blackman, did not return a call seeking comment.
Dougherty’s petition claimed that the defendant’s alleged comments constituted a “plainly defamatory personal vendetta” that went beyond the context of the article to which they were attached, which was about the controversy over a Chick-fil-A official’s opposition to gay marriage.
“In this day and age, and particularly here in Pennsylvania where the Jerry Sandusky child-molestation scandal is felt most acutely, to call someone a ‘pedophile’ is about the worst label with which to smear another person,” Dougherty said in the petition.
The defendant’s response to Dougherty’s petition argued that “to require the disclosure of the identity of ‘fbpdplt’ under the circumstances would … be an affront to the First Amendment rights of [the] defendant and others who want to anonymously participate in the discourse of controversial issues.”
The post was allegedly made Aug. 10, 2012, according to the plaintiff’s petition. Upon request from Dougherty’s counsel four days later, the post was allegedly removed from Philly.com. On Nov. 19, 2012, a subpoena requesting the identity of the defendant was sent to the site’s owners.
The petition contended that compelling the disclosure of the commenter’s identity is compatible with the four-pronged test provided in Pilchesky v. Gatelli, a2011 Superior Court decision.
According to the petition, the elements of the test include giving the defendant adequate notice to disclose his or her identity, establishing a prima facie case, proving that the information required is necessary to the case, and finally, balancing the defendant’s First Amendment rights against the strengths of the plaintiff’s case.
In terms of establishing a prima facie case, the petition said, “In this case, the anonymous defendant plainly and simply called Dougherty a ‘pedophile’ on a public Internet message board of a widely circulated Philadelphia media outlet. As such this court easily can conclude that such a statement is of defamatory character.”
The petition also said that comments indicating that someone is a criminal or has engaged in serious sexual misconduct are considered defamation per se.
The petition said that comments criticizing public officials are entitled to “robust protection,” as spelled out in the landmark 1964 U.S. Supreme Court case New York Times v. Sullivan.
However, the petition reasoned, “Here, whatever so-called rights that ‘fbpdplt’ may have are not the sort protected by the lofty principles of cases like New York Times v. Sullivan.”
The defendant’s response to Dougherty’s petition said the defendant “did attempt to post a comment.” However, the response noted that the defendant “never actually saw his comment on the blog, did not print out a copy and … does not remember what the comment stated.”
Therefore, the defendant argued in the response, the commenter could not state that the comment the plaintiff presented is the one the commenter allegedly made.
“In any event no comment made by the defendant was made with actual malice,” the response said. “Even if for argument sake only, this is the wording of the comment the defendant posted, said comment is not defamatory and is not defamatory per se.”
Lastly, the defendant claimed that Dougherty’s case did not satisfy the requirements of the Pilchesky test.
Pepper Hamilton attorney Eli M. Segal represented Philadelphia Media Network, former owner of Philly.com.
“Philadelphia Media Network is not a party to this case,” Segal said in an email to The Legal. “However, after receiving a subpoena for information regarding the identity of the anonymous poster, the company went to court to make sure that the defendant received notice and an opportunity to be heard.”
Segal added, “The plaintiff’s and defendant’s lawyers then presented their arguments to the court about whether the plaintiff had met his burden under the Pilchesky case to obtain the information he was seeking. The court considered those arguments and ruled on that issue.”