In the closing days of its January term, the Illinois Supreme Court heard oral argument in Hadley v. Subscriber Doe. Hadley poses the question of whether the defendant is entitled to quash the plaintiff’s subpoena seeking to discover the identity of an anonymous internet poster. Our detailed summary of the underlying facts and lower court orders in Hadley is here.

An anonymous reader posted a defamatory comment about a political candidate at the end of an online newspaper article. The plaintiff sued the poster, using only his online screen-name, and sent the internet service provider a subpoena seeking the poster’s ISP address. The defendant moved to quash the subpoena. At the hearing, the trial court commented that the matter would be better addressed through Supreme Court Rule 224, which is intended to help identify unknown defendants prior to actually filing a complaint. So the plaintiff filed an amended two-count complaint: a defamation claim, and a Rule 224 petition for an order that the poster’s identity and address be disclosed. After a hearing the trial court granted the Rule 224 petition. On reconsideration, the defendant pointed out that the court’s order wasn’t appealable, given that the defamation claim was still pending. The trial court responded by adding Rule 304(a) language.

The majority of the Appellate Court affirmed, holding that the defendant’s screen name was a fictitious name, not a fictitious person, and the filing of the complaint was therefore not a nullity for statute of limitations purposes. The court further held that the trial court’s order was immediately appealable as an ordinary Rule 224 order. Even though the plaintiff had bundled the petition with a claim for defamation which was still pending, the Rule 304(a) language disposed of any doubt as to whether the order was appealable.

Counsel for the defendant began the Supreme Court argument. Counsel began by briefly discussing the timeline, because in defendant’s view, the statute of limitations was central to the case. Justice Freeman asked whether the second action in state court had introduced the Rule 224 issue. Counsel said no. The matter was a routine civil case with litigants Hadley and Doe. The plaintiff had obtained a subpoena to the internet service provider, and the defendant appeared and moved to quash, arguing that the action against the unnamed defendant was void ab initio. The plaintiff then amended what defendant believed was a void complaint, but Rule 224 actions are supposed to be independent actions filed prior to a substantive complaint. The courts have considered an action against a party whose identity is unknown void for more than 100 years. Justice Thomas asked, if the Court found the anonymous poster’s screen name fictitious, what that would do to the argument. Counsel said it would bolster the argument. According to the common law, a fictitiously named party cannot be sued. That’s why we have Rule 224. Justice Thomas asked whether the internet screen name was chosen to preserve anonymity. Counsel said no, the defendant had alleged that he was the same person as the unknown user of the screen name – that was done by the plaintiff only. There are no factual allegations in the plaintiff’s complaint linking the defendant and the screen name. Counsel suggested that the defendant could be one person, a place or an office – the name was a placeholder. Justice Theis asked counsel whether he agreed with earlier case law providing that discovery of the identity of a blogger should be ordered when the allegations can withstand a 2-615 motion. Counsel answered that the standard is intended to balance the interests of the plaintiff and the commentator’s First Amendment rights. Counsel suggested that a more appropriate step would be a Section 2-619 motion or a motion for summary judgment – something extending beyond the four corners of the complaint. Justice Theis suggested that the fundamental issue has not been resolved in Illinois. Counsel agreed, and suggested that at minimum, in the context of a political race, the plaintiff should be required to come up with factual allegations on harm. Justice Theis asked how the plaintiff should proceed in connection with Rule 224. Counsel responded that the plaintiff should file the petition, including specific allegations about how the petition is related to a claim, and how the plaintiff has been damaged. Counsel argued that the case is a SLAPP suit waiting to happen. The only thing a political candidate would have to do to find his or her opponents would be to file a Rule 224 petition and then do nothing. Counsel argued that it was telling that when the plaintiff sought reconsideration, he had asked for the case to be reinstated only long enough for a ruling on the motion to quash. Counsel argued that the plaintiff merely wanted to know the identity of the anonymous website poster – he didn’t actually want to proceed with a defamation claim. Counsel argued that this conclusion was supported by plaintiff’s failure to include a defamation per quod count, which defendant argued was because plaintiff had no damages.

Plaintiff too began his argument by reviewing the procedural history. Plaintiff had filed an amended action, naming the internet service provider, because he had initially failed to learn the identity of the defendant. Counsel argued that the anonymous poster had used a false name, his screen name, and the name “subscriber Doe.” The plaintiff had filed suit against “Subscriber Doe,” using the screen name- which plaintiff argued the defendant had used in Federal court. Plaintiff insisted that it was obvious that Subscriber Doe and the screen name were the same person. The speaker was obviously an actual person, counsel argued. Justice Thomas asked whether the screen name was a fictitious name, a generally known name, or was there a difference. Counsel answered that it was a fictitious name for a real person. Chief Justice Garman asked whether it was essential to plaintiff’s theory that the Court maintain a distinction between a fictitious party and a name. Counsel said yes, one could sue a person by the name that person is using, even if it’s false. The defendant was obviously a real person, plaintiff argued – a non-party can’t file a substantive motion attacking a complaint. Counsel said perhaps Rule 224 needs to be clarified, but if a party is going to file something substantive in an Illinois court, anonymity goes away. Counsel for the defendant had pointed out that the plaintiff won the election, suggesting that he had no damages, but plaintiff’s counsel insisted that had nothing to do with anything. In a defamation per se claim, the only issue was whether the statement was defamatory – which this clearly was – and whether it was published. Justice Thomas asked counsel whether he wanted to respond to counsel’s comment that plaintiff was only concerned with identifying the speaker. Counsel responded that the case wasn’t a fishing expedition. The internet service provider said that the ISP address of the commenter was one person at a private address. At the very least, that meant that Subscriber Doe was a material witness.

Counsel for the defendant concluded the argument with rebuttal, arguing that any number of people could have accessed the relevant IP address. Chief Justice Garman asked why the Court should take steps to protect the identity of someone who hasn’t taken steps to protect his or her own network. Counsel responded that unprotected networks were commonplace. Justice Thomas asked how counsel would know that the plaintiff wasn’t really interested in recovering damages, as opposed to merely identifying the speaker. Counsel suggested that his view was supported by the circumstances; this was a political case in a small town. Justice Thomas asked whether it was more likely that someone accused on the internet of highly improper activities was pursuing the case to preserve his own integrity, as opposed to for the sake of retribution. Counsel argued that taking the story as a whole, and all the comments made, the plaintiff’s reading of the comment as defamatory was untenable. Counsel argued that the defendant and the screen name may be the same entity, or they may not be; counsel represented the defendant only. Justice Theis asked counsel whether he had used both names in a pleading, and counsel said no, he had never suggested that the defendant and the screen name were the same person. Counsel concluded by arguing that it was ridiculous that comments made in an internet chat situation would be construed as assertions of fact.

We expect Hadley to be decided in three to four months.

Image courtesy of Flickr by James Cridland (no changes).