A plaintiff in a defamation suit over anonymous postings on a Google-hosted blog may not obtain the writers’ names, a New Jersey appeals court ruled on Wednesday, upholding a trial judge who had quashed a subpoena.
Because the statements concerned a public figure and a matter of public concern, the statements were nonactionable “rhetorical hyberbole,” the Appellate Division said in Somerset Development v. Cleaner Lakewood, A-2819-10.
The Ocean County suit was brought by Somerset Development of Lakewood and its president, Ralph Zucker, against a group called “Cleaner Lakewood” and individuals who posted on its blog, cleanerlakewood.blogspot.com.
The statements, which concerned the plaintiffs’ development projects in Lakewood, called the developer a “rip off artist” and an “under the table crook.”
The posters wrote that Zucker “shortchanged the taxpayers with millions,” “cost taxpayers when he took a piece of township land on County Line Road without paying for it,” and “paved the way for the senior citizen vote by stealing 6 million in tax dollars.”
Zucker could not serve the defendants, whose identities were unknown, so he served a subpoena on Google, seeking production of data that would help identify them.
The blog operators and some of the posters moved to quash the subpoena. The plaintiff filed a cross-motion to compel defense counsel to identify the anonymous defendants they represented.
Superior Court Judge Frank Buczynski Jr. found the subpoena was overbroad and that the offending postings were opinions and thus not actionable. He also denied the plaintiff’s cross motion as premature.
On appeal, Judges Francine Axelrad, Paulette Sapp-Peterson and Mitchel Ostrer balanced the plaintiff’s right to redress with the First Amendment right to anonymous speech, applying the three-part test set forth in Dendrite International, Inc. v. John Doe No. 3, 342 N.J. Super 134 (App. Div. 2001). There, the court affirmed a judge’s decision not to compel Yahoo! to reveal the identity of a person who criticized the company in anonymous postings on one of its message boards.
The Somerset Development court said the plaintiffs satisfied the first prong of the Dendrite test. They had adequately sought to notify the anonymous posters that they are subject to a subpoena. The subpoena was posted under each disputed blog entry and comment. Though the defendants’ attorney said that was not sufficient notice, because defendants had to log in to the website to learn about the lawsuit and subpoena, the panel found Buczynski properly concluded there was no other way to contact the anonymous posters because they provided no identifying information other than their user names.
Satisfying the second Dendrite prong, the plaintiffs properly identified the exact statements that they claim constitutes actionable speech, the appeals court said.
But the plaintiffs fell short under the third prong of the test, which directs the court to determine whether or not the plaintiff has a prima facie cause of action to form a basis for the relief sought.
Examining whether a statement is defamatory requires a court to consider the content, verifiability and context of the challenged statements, the panel said, citing Ward v. Zelikovsky, 136 N.J. 516 (1994). In that regard, while the “use of epithets, insults, name-calling, profanity and hyperbole may be hurtful to the listener and are to be discouraged, …such comments are not actionable,” the panel said, citing Romaine v. Kallinger, 109 N.J. 282 (1998). The verifiability analysis requires a court to determine whether a statement is one of fact or opinion, the Romaine court said.
“Expressions that clearly reflect opinion on matters of public concern are protected and are not actionable,” the court said, citing Kotlikoff v. Community News, 89 N.J. 62 (1982).
The plaintiffs argued that the offending statements described them as engaging in criminal behavior, but Buczynski rightly concluded that no reasonable person would interpret the statements that way, the panel said.
The defendants’ lawyer, Richard Ravin of Hartman & Winnicki in Paramus, says, “I think this case is a good example of the court acting as a gatekeeper to protect against the unconstitional intrusion on one’s anonymous free speech rights on the Internet.
“The plaintiffs’ lawyer, Robert Feinberg of Giordano, Halleran and Ciesla in Red Bank, says “we view the decision as creating yet another obstacle confronting honest, successful New Jersey businesses, who, with this ruling, are effectively defenseless from shadowy attack. Our clients are, nevertheless, pleased that by prosecuting their claim, the offending blog site removed the objectionable content and ceased publishing.”
Charles Toutant is a reporter for the New Jersey Law Journal, a Legal affiliate.