9

f:EO FfLEC: 1 Cindy A. Cohn, Bsq. (StateBar No. 145997) Gwen A. fflDZo, Esq. (StateBar No. 209562) ., ".", ',I t n ',I "i\:" 1 PH a.: 2 ELECTRONIC fRONTIER FOUNDA nON 454 Shotwell Street ,: I,'. .' ,'..',.,;---:;:; 't' LI 3 SanFrancisoo, CA 94110 - . ., 1 I..' _1"11. , " ".",:('~ 01:' -' Tel~honc: (415) 436-9333xlO8 1'.::'""' ' ,-" ..1,,'I " , '.'T '. ,. ~ . \ ~ ' $~!."( FacsImile: (415) 436-9993 CC~:.: ~. ",I, \, 4 "~t'l~ 'i ' : 5 David Greene (SUte BarNo. 160107) ~.. FIRST AMENDMENT PROJECT (,' 6 1736 Franklin St, Ninth Floor Oakland, CA 94612 7 Telephone:(.510) 208-7744 facsimile: (510) 208-4562 8 Attomeysfor Defendant 9 JOHNDOE 10 SUPERIORCOURT OF THE STATE OF CALIFORNIA 11 IN AND FOR mE COUNTY OF SANTA CLAM

12 UNLIMITED JURISDICTION

13 E . v AN CULLENS . No. CV 814664 14 Plaintiff, ~MORANDYM OF~~S ~ FUTHORITIES IN SUPPORT_O~ 15 ~ND:A.NTts TO QUASH v. ! 1~ §UBPOENA JOHN DOE, C.C.P. §418.10 17 Defendant. ! Date: A~117. 2003 18 Time: 9:00Lm. Dept: 2, Hon.William]. Blf\li]1g 19 ~ 20 21 .22 23 2. 2S 26 27 s 28

~~ - - NBtI4O~M OFPOINTS AND AUTHO~ I!'l SurPOJ.TOF ' \~ DBIIeIt)ANT'S MO'nON TO QUASH Su.POlNA \&.. - PAGE.a? ~.d £666~tvt Ol 9S89L~ ~J.5 ~I~;:! ~;:! 9S:91 ~ l.1 ~ 1 TABLE OF CONTENTS

2 I. INTRODUcnON ..1

3 II. FACIUAL BACKGROUND

4 A. The Parties 1

5 B. Yahoo's Message Boards on the Internet 2 6 c. The Westell and ADCT MessageBoards 3 7 D. Doe'sParticipation In The Public DiscussionOn The Westell and ADCT MessageBoards 4

8 ill. LEGAL BACKGROUND ...5 9 A The First Amendment Establishes The Right To Speak Anonymously In Chat Rooms And On Message Boards On The Internet 5 10 B. Does' Motion to Quash Should Be Granted Because there Is No Compelling Need for 11 Defendant's Identity that Outweighs Defendant's First Amendment Rights 6

12 c. Cullens Cannot Demonstrate That He Has A Compelling Interest in Obtaining Doe's Identity That Outweighs Doe's First Amendment Right to Speak Anonymously 8 13 1. Libel Actions Under lllinois Law are Strictly Limited by the First Amendment and the 14 lllinois Constitution 8 IS 2. Cullens's is Obviously Without Merit becausethe Statementwas not "of and Concerning" Cullens and May Reasonablybe Given an Innocent, Nondefamatory 16 Construction 8 17 3. Cullens's Lawsuit Against Doe is Obviously Without Merit BecauseDoe's Statements Are Privilegedunder illinois Law 11 18 4. Cullens's Lawsuit Against Doe is Obviously Without Merit BecauseDoe's Statements 19 Are Rhetoricaland Do Not Imply the Existenceof a Provably FalseFact 11

20 IV. CONCLUSION. 15 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES 2 Cases

3 Archibald v. Belleville News Democrat,54111.App.2d 38 (1964) 9

4 Aroonsakul v. Shannon, 279 lli.App.3d 345 (1996) , 9

5 Barry Harlem Com. v. Kraff. 273 ill.App.3d 388 (1995) ,..10

6 BioSDherics. Inc. v. Forbes. Inc., 151 F.3d 180 (4th Cir. 1998) 13 7 Bryson v. News America Publications,174 Dl.2d 77 (1996) 8,9

8 Buckley Y. American Constitutional Law Found.. Inc.. 525 U.S. 182 (1999) 5

Q Cartwri2ht v. Garrison. 113 Dl.App.3d 536 (1983) , 10

10 Catalano v. Pechous, 83 1ll.3d 146 (1980)

1 ChaDski v. CoDle~ Press. 92 m.2d 344 (1982) 9

12 Columbia InsuranceComnanv v. Seescand~.com.185 F.R.D. 573 (N.D. Ca!. 1999) 1,6 13 Dendrite International.Inc. v. Doe. No.3. 775 A.2d 756 (N.J. App. 2001) 1

14 Dodds v. ABC. Inc., 145 F.3d 1053 (9th Cir. 1998) 12

IS Dollens v. Vukovich and Zionts. No. OlC2826(N.D. Dl, 4

16 Dubinskv v. United Arlines MasterExecutive Council, 303 Dl.App.3d 317 (1999) ...13 17 Greenbelt PublishinQ:Association v. Bresler. 398 U.S. 6 (1970) 13 18 Grisanziov. Rockford Newsnapers.132 Dl.App.3d914 (1985) 10

19 Homerin v. Mid-Illinois Newsnmers, 245 lli.App.3d 402 (1993) ... , 9,10

20 HoDewell v. Vitullo, 299 1ll.App.3d 513 (1998) 12 21 Immunomedics.lnc.v. Doe, 775 A2d 773 (N.J. Sup. Ct App. Div. 2001) 6 22 Canada,case no. 02-0151-MISC-WHA 8,13 23

In re Yagman,Westell Technolo~es. 55 F.3d 1430Inc.. (9th Cir. Securities 1995)Lit No. 00C6735 (N.D.ll1.) ..4 24 12 25 JeffersonCounty School District v. Moodys Investor'sServices. Inc., 988 F. Supp. 1341(D. Colo. 26 1997) 15 27 McIntvre v. Ohio Elections Comm'n. 514 U.S. 334 (1995) 5 28 Milkovich v. Lorain JournalCo.. 497 U.S. (1990) 11

n MOTION TO QUASH SUBPOENA 1 Mittleman v. Witous, 135 Dl.2d 220 (1989) 10

2 Moriartv v. Greene. 315 1ll.App.3d 225 (2000) , 11

3 Momin2star. Inc. v. SuDerior Court, 23 Cal.App.4th 676 (1994) 13

4 NAACP v. Alabama ex reI. Patterson, 357 U.S. 449 (1958) 5 5 New York Times v. Sullivan. 376 U.S. 254 (1964) 8,9

6 Newell v. Field Ent~rises, 91 1ll.3d 735 (1980) 11 7 PhantomTourine:. Inc. v. Affiliated Productions,953 F.2d 724 (1stCir. 1992), , 12

8 Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) 2 9 Richards of Rockford. Inc. v. Pacific Gas & Electric Co.. 71 F.R.D. 388 (N.D. Ca!. 1976).. 13

10 Schaffer v. Zekm~ 196 lli.App.3d 727 (1990) 9

11 Schivarelli v. CBS. Inc., 333 lll.App.3d 755 (2002) , 9, 13 12 Statev. DiGui~ 152 Dl.2d 104 (1992) 8

13 Talley y. Califomi~ 362 U.S. 60 (1960) 5

14 TeDDer v. CoRley Press. 308 lll.App.3d 718 (1999) 1

15 Watchtower Bible and Tract Society y. Village of Staton, 122 S.Ct. 2080 (2002) 5 16 Other Authorities

17 Restatement (Second) of Torts §611 , 11 18 Law Review Articles and Treatises

19 Joshua R. Funnan, C bersmearor C er-SLAPP: Anal in Suits A ainst Online John Doesas Strate~c LawsuitsA2ainst Public Particination,25 SeattleU. L. Rev. 213 (2001) 6 20 21

22 23

24

25 26 27 28 1 I. INTRODUCTION 2 Peopleshould be able to participateonline without fear that someonewho wishesto harassor embarrassthem can file a frivolous lawsuit and thereby gain the power of 3 the court'sorder to discovertheir identities. 4 Columbia Insurance ComDanv v. Seescandy.com,185 F.R.D. 573, 578 (N.D. Ca!. 1999) 5 (discussingFirst Amendmentlimitations on allowing to reveal an anonymous 6 defendant'sidentity). Movant John Doe! is an anonymousposter to two Internet messageboards 7 who madetwo statementscritical of a publicly-traded companycurrently run by Plaintiff Cullens. 8 In an effort to prevent Doe from further posting his opinions about the company on the Internet, 9 Cullens has filed a manifestly meritless libel suit against Doe in lllinois and now asks this 10 California court to force disclosureof his identity. 11 Doe brings two motions in response,one to quash the subpoenaand a second,a special 12 motion to strike under California's Anti-SLAPP statute. Both seek to protect Doe's First

13 Amendment right to speak anonymouslyon the Internet. Since both motions draw on the same 14 factual and legal backgroundsand the same portions of lllinois defamation law, we will only 15 provide them once in this Motion to Quash (and not in the Motion to Strike) in order to avoid 16 repetition and savepaper. 17 II. FACTUALBACKGROUND 18 A. The Parties 19 Plaintiff Cullens is Presidentand Chief Executive Officer of Westell, an lllinois company. 20 Cullens has sued Doe in lllinois state court alleging one causeof action for libel per se. E. Van 21 Cullens v. John Doe. No. 2003LOOOlll (18thJudicial Circuit, Du Page County, lllinois). A b"ue 22 and correct copy of the Complaint is attachedto the Declarationof Cindy A. Cohn file herewith as 23 Exhibit A (Cohn. Decl.)? Cullens has issued a California subpoenato online service provider 24 Yahoo! Inc. ("Yahoo") seekingto have Yahoo reveal the identity and all other information Yahoo

25 1 Plaintiff refers to Defendant as John Doe. Doe here adopts that moniker but this is not intended 26 to be a representation of Defendant's actual gender. 2 On March 17,2003, the lllinois Court issued an extension of time until May 12, 2003, for Doe to 27 respond to the lllinois lawsuit in order to allow this Court time to consider this Motion to Quash 28 and for Cullens to substantiate his claim of $50,000 in damages.

MOTION 10 QUASH SUBPOENA 1 has aboutJohn Doe. Cohn. Decl.t Exh. B.3 The lawsuit arisesfrom two postings Doe madein two 2 discussionsheld on Yahoo messageboards.

3 B. Yahoo's Messa2eBoards on the Internet 4 The United States SupremeCourt has repeatedly recognized the Internet's potential to

5 support democraticinstitutions and serve as the ideal "town square." The Internet allows people 6 otherwise without accessto significant resourcesto voice their opinions - profound, profane, or

'7 proselytizing though they may be - to all who wish to readthem. As the SupremeCourt explained

8 in Reno v. American Civil Liberties Union. 521 U.S. 844, 853 (1997), "[t]rom the publisher'spoint 9 of view, [the Internet] constitutesa vast platfonn from which to addressand hear from a worldwide

10 audienceof millions of readers,viewers, researchers,and buyers." "Through the use of chat 11 rooms, any person with a phone line can becomea town crier with a voice that resonatesfarther

12 than it could from any soapbox.Through the use of Web pages, the same individual can 13 becomea pamphleteer.tlM.at 870. 14 So that these town criers and pamphleteersand their interestedaudiences can find each 15 other, Yahoo! has createdelectronic bulletin boards, or "MessageBoards," covering a variety of

16 topics. A messageboard exists for every publicly-traded company in the U.S. These message 17 boardspermit any user to post commentsand opinions and read the postings of others. To sign up 18 for a messageboard, a person need give Yahoo! only her birthday, zip code, gender and an 19 alternatee-mail address.But the posteris free to post messagesunder any moniker.

20 Anonymity on these message boards facilitates free expression, particularly where 21 controversialtopics are discussed. Anonymity, by shielding the writer from those who might take 22 issue with her comments,encourages free-flowing conversationson these messageboards and 23 fosters a dialogue that includes a wide range of sometimesheated exchanges,encompassing the 24 infonned, the opinionated,the speculative,the caustic,and the invective. Indeed,although nothing 25 prevents an individual from using her real name, most people chooseto post messagesunder a

26 pseudonym. 27 3 Note that the subpoenaseeks identifying infomlation about Doe plus "any and all recordsof any 28 type whatsoeverrelating, referring, concerningor identifying" Doe. Subpoenaat ~8.

2 MOTION TO QUASH SUBPOENA 1 One aspectof the messageboard that makesit very different from almost any other form of 2 published expressionis that any person who disagreeswith somethingthat is said on a message 3 board for any reason- including the belief that a statement contains false or misleading 4 infomlation about herself - can respondto the statementimmediately, at little or no cost, and that

5 response will have the same prominence as the offending message.

6 c. The Westell and ADCT Messa!!eBoards 7 Doe here postedone messageon the Yahoo Westell messageboard and one on the Yahoo

8 messageboard devoted to ADC Telecommunications(" ADCT"). The opening messageon the 9 Westell and ADCT messageboards each explains the ground rules for discussion. The Westell 10 board says:

1. This is the Yahoo! MessageBoard about Westell (Nasdaq:WSTL), where you can discuss the future prospectsof the company and share information about it with 12 others. This board is not connectedin any way with the company, and any messagesare solely the opinion andresponsibility of the poster. 13 14 Every page of messagelistings on both boards is accompaniedby a similar warning that all 15 messagesshould be treatedas the opinions of the poster:

16 Reminder: This board is not connected with the company. These messagesare only the opinion of the poster, are no substitute for your own research, and should not be 17 relied upon for trading or any other purpose. 18 Many membersof the public regularly contribute to the Yahoo messageboards to discuss 19 the companies. As of the date this brief is filed, over 39183 messageshave been posted on the

20 Westell board and over 69596 messageshave been posted on the ADCT board. These speakers 21 addressan enonnousvariety of topics. Investorsand membersof the public discussthe latest news 22 about what products the companieshave sold and may sell, what new products it may develop, 23 what the strengthsand weaknessesof the companies'operations are, what competitors are doing 24 and what managersand employeesmight do better. Many of the messagespraise the company, 25 many criticize it, and some are neutral. The postersfrequently correct, upbraid, insult and praise 26 eachother as well. 27 1/1 28 HI

3 MOTION TO QUASH SUBPOENA D. !>_oe'sPa.!:ticiD~tion In The Public Discussion On The Westen and ADCT Messa2e Boards 2

3 The two messagesat issue in this caseare both dated January 15, 2003. On the Westell 4 Board Doe posted,in a messagewith the subjectline "WSTL's crookedmanagement": 5 You guys are dreaming. . . Have you forgottenthe multi-million dollar that are still pending againstWSTL when former CEO Zionts orchestrateda cook-the- 6 book scheme. Obviously you guys weren't on board then. You simply can't trust the managementof this company. Put your money in ADCT and you'll do okay. 7

8 On the ADCT Board Doe postedwith the subjectline "Look at WSTL": 9 WSTL sucks. Their managementis crooked. Multi-million dollar lawsuits pending from Enron-like managementof Marc Zionts. STAY AWAY from this loser 10 11 Cohn. Decl., Exh. A, pp. 7-8. Plaintiff Cullens is not identified in either message.The messages 12 refer only generically to Westell's "management." The only individual mentioned is Westell's 13 fonner CEO, Marc Zionts. The lawsuits to which Doe refers were real; then-pendingshareholder 14 class action lawsuits basedupon a claim of mismanagement:In re Westell Technologies.Inc., 15 SecuritiesLit No. OOC6735(N.D. lli.) and Dollens v. Vukovich and Zionts. No. OlC2826 (N.D. 16 Dl.).4 17 Cullens did not attemptto rebut Doe's statementson the Yahoo board. He madeno attempt 18 to explain that current managementwas trustworthy or explain why the lawsuits were unfounded. 19 Instead,he simply filed a personallawsuit repletewith conclusoryallegations that thesestatements 20 were defamatoryper se as to him as an individual and have causedhim "damageand injury to his 21 reputation"in excessof $50,000. Cohn. Decl., Exh. A, page5. 22 IH 23 III 24 25 4 Westell itself described the lawsuits as alleging that defendantsmade "false and misleading statementsin 2000 regarding forecastsfor the secondquarter of 2001." On February 20, 2003, 26 long after Doe's postings, Westell issueda pressrelease announcing that it paid $3.95 million to settle the case along with adopting "certain governance and communications procedures." 27 .See e.g. Cohn. Decl., Exh. C (preliminary decisions 28 in both cases).

4 MOTION TO QUASH SUBPOENA m. LEGAL BACKGROUND

2 A. ~he Fir~t ~!!]en~l!!ent Es_tablishesThe Ri2ht To Soeak Anonvmouslv In Chat Rooms And On Messa2e Boards On The Internet 3 4 The U.S. SupremeCourt has repeatedlyupheld, in diverse contexts,the First Amendment right to speak anonymously.5 5 The California Supreme Court too has acknowledged the 6 constitutional right to speak and associateanonymously based on both the liberty of speechand 7 privacy provisions of the California Constitution. Britt v. Superior CoY1:.t,20 Cal.3d 844, 852-57 8 (1978). 9 Theseprotections have been extendedto anonymousspeech online. "The free exchangeof 10 ideas on the Internet is driven in large part by the ability of Internet users to communicate 11 anonymously. If Internet userscould be stripped of that anonymity by a civil subpoenaenforced 12 under the liberal rules of civil discovery,this would have a significant chilling effect on Internet 13 communicationsand thus on basic First Amendment rights." Doe v. 2TheMart.com.Inc.. 140 14 F.Supp.2d 1088, 1093 (W.D. Wash. 2001). Accord ColumbiaIns. Co. v. Seescandy.com,185 15 F.R.D. 573, 578 (N.D. Ca!. 1999). A lessprotective approachwould allow lawsuits that have little 16 merit, like the presentone, to be used solely for the purpose of piercing the veil of anonymity. 17 Indeed,"[t]he primary purposeof many of thesesuits is not to pursuea defamationcause of action, 18 however, but to reveal the identity of the poster and quiet criticism." Joshua R. Furman, 19 C ersmearor C er-SLAPP: Anal in DefamationSuits A ainst Online John Does as Strate .c 20 5 ~ WatchtowerBible and Tract Societvv. Villa2e of Staton. 122 S.Ct. 2080, 2089 (2002) ("The 21 decision to favor anonymity may be motivated by fear of economic or official retaliation, by 22 concern about social ostracism,or merely by a desire to preserveas much of one's privacy as possible"); Bucklev v. American Constitutional Law Found.. Inc.. 525 U.S. 182, 199 (1999) 23 (holding that statute requiring, inter alia, that initiative-petition circulators wear name badges 24 violates First Amendment); McIntvre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995) (holding that anonymouspamphleteering is "an honorabletradition of advocacyand of dissent"and 25 that anonymity is "a shield from the tyranny of the majority"); Talley v. Californi~ 362 U.S. 60, 64-65 (1960) (holding anonymity protected under the First Amendment because forced 26 "identification and fear of reprisal might deter perfectly peaceful discussionsof public matters of importance");NAACP v. Alabamaex reI. Patterson,357 U.S. 449, 460-61, 463 (1958) (describing 27 how the fear of retribution exerts a powerful chilling effect on one's ability to exerciseher First 28 Amendmentrights).

5 MOTION TO QUASH SUBPOENA 1 Lawsuits AszainstPublic Partici~ation, 25 Seattle U. L. Rev. 213, 217 (2001). Courts have set 2 tough standardsby which to evaluatesubpoenas that compel production of anonymousInternet

3 speakers'identities, to ensurefirst amendmentrights are not abrogated.

4 B. ~oe~' _Mo~io!} to Quash Should Be Granted Because there Is No ComDellin!! ~~e_dfor Defendant's Identitv that Qutwei!!hs Defendant's First Amendment 5 Ri!!bts 6 To insure that Doe's First Amendment rights are adequately protected, a subpoena issued 7 under the authority of this Court that might strip a speaker of anonymity triggers exacting

8 constitutionalscrutiny. RanchoPublications v. Su!JeriorCo:urt. 68 Cal.App.4th 1538, 1547-51,81 9 Cal.Rptr.2d 274, 276-78 (1999) (quashing a subpoenathat sought the names of anonymous

10 advertiserswho had criticized a community hospital). Specifically, the need for the discovery of 11 Doe's identity must be balancedagainst the magnitudeof the privacy invasion. ~~ at 1549. 12 A well-reasoned,rigorous test has been adoptedby other courts around the country that 13 have confronted the issue of anonymousonline speechin recent years. Although the law in this 14 relatively new area is still coalescing,courts have consistently concluded that First Amendment 15 principles are best protectedby setting heavy burdensupon litigants who seek to use the court's 16 subpoenapower to compelproduction of anonymousspeakers' identities. A recentfederal decision 17 determinedthat allowing such a subpoenato stand is only appropriatein the "exc~tional case" 18 where a "compelling need for the discovery sought outwei~ the First Amendment rights of the

19 anonymous speaker." Doe v. 2themart.com. 140 F.Supp.2d 1088, 1095 (W .D. Wash 2001) 20 (emphasisadded) (£i!ing Columbia Ins. Co. v. Seescandy.com,185 F.R.D. 573, 578 (N.D. Ca!. 21 1999); Immunomedics.Inc. v. Doe, 775 A.2d 773 (N.J. Sup. Ct. App. Div. 2001) (affirming 22 motion to quash). Cohn. Decl., Exh. D. 23 A compelling need for the information does not exist where the underlying litigation is 24 weak.~ Dendrite International.Inc. v. Doe. No.3. 775 A.2d 756,760 (N.J. App. 2001) 760 ("the

25 court must balancethe defendant'sFirst Amendmentright of anonymousfree speechagainst the 26 strengthof the prima facie casepresented"). Cohn.Decl., Exh. E. In suchcases, the risk is high 27 that the underlying litigation servesonly as a tool for the disclosure of the Doe's identity. ~

28 Missouri ex reI. ClassicIII Inc. v. Ely. 954 S.W.2d650, 659 (Mo. App. 1997)("If the caseis weak,

.6 MOTION TO QUASH SUBPOENA 1 then little purpose will be servedby allowing such discovery, yet great hann will be done by 2 revelationof privileged information. In fact, there is a dangerin such a casethat it was broughtjust 3 to obtain the names.") Cohn. Decl., Exh. F. 4 The seminal case setting forth First Amendment restrictions upon a plaintiffs ability to

5 compel an ISP to reveal an anonymousdefendant's identity is Dendrite. Cohn. Decl., Exh. E. In 6 Dendrite, Dendrite formally sued four anonymous posters on the Yahoo message board relating to

7 Dendrite, alleging that some were current or former employeeswho had violated confidentiality

8 agreements,and that some had defamed the company. Two of the Does moved to quash the 9 subpoena. Recognizing "the well-establishedFirst Amendmentright to speakanonymously," the 10 New Jerseyappellate court imposeda heavy burden on any plaintiff seekingto reveal the identity 11 of anonymousdefendants:

12 We hold that . . . the trial court should first require the plaintiff to undertakeefforts to DQ!ift the anonymousposters that they are the subject of a subpoena.. . .These 13 notification efforts should include DOstin2a messa2eof notification of the identity discoveryrequest to the anonymoususer on the {Sf's ~ertinentmessage board. 14 The court shall also require the plaintiff to identify and set forth the exact statements IS purportedly made by each anonymous poster that nlaintiff alleges constitutes actionable s~ech. The complaint and all infonnation provided to the court should 16 be carefully reviewed to detennine whether the plaintiff has set forth a nrima facie against the fictitiously-named anonymous defendants. In addition to 17 establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted. . . the nlaintiff must nroduce sufficient 18 evidence SUDDOrtinQeach element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant. 19 Finally, assumingthe court concludesthat the plaintiff has presenteda prima facie 20 causeof action, the court must balancethe defendant'sFirst Amendment right of ~onvmo~ free sDeechaQ:ainst the stren2thof the Rrima facie caseRresented and 21 the necessityfor the disclosureof the anonymousdefendant's identity to allow the plaintiff to properly proceed. 22 23 !d. at 760-61 (emphasisadded). 24 Applying thesemultiple safeguardsto protect First Amendmentrights, the Dendrite court 25 carefully examinedthe complained-ofstatements and concludedthat Dendrite "failed to provide 26 this Court with ample proof from which to conclude that John Does 3 and 4 have used their 27 constitutional protections in order to conduct themselvesin a manner which is unlawful or that 28 would warrant this Court to revoketheir constitutionalprotections." 14. at 764.

7 MOTION TO QUASH SUBPOENA 1 Similarly, in a case recently decidedin Federal District Court in San Jose, Judge Alsop,

2 after reviewing the relevant caselaw,required the following: (1) that prior to seeking assistance 3 from the court, it made a diligent effort to obtain the desiredinformation by other means;and (2) 4 that the offending statementsare actionable;and (3) that the statementshave in fact causedthe

s company actual damage." In re Discoyerv Order Issued by the SuDerior Court. Province of 6 Quebec. District of Montreal. Canada. case no. 02-0151-MISC-WHA at 5:16-18 (hereinafter 7 "N~ox"). Cohn.Decl., Exh. F.

8 c. ~ul!en~ ~an!!ot Demonstrate That He Has A Comoellin!! Interest in Obtainin!! Uoe's Identitv That Outwei!!hs Doe's First Amendment Ri!!ht to Soeak 9 Anonymously

10 It is clear that when this test is applied, Cullens has not made, and cannot make, an

1 adequateshowing that his need to know Doe's identity outweighsDoe's First Amendmentrights. 12 Cullens's cannotdemonstrate a compelling needto learn Doe's identity becausehis causeof action 13 for libel per se is obviously without merit for severalreasons.

14 1 Libel Actions!lnd~ Illinois Law are Strictly Limited bX the First Amendment and the Illinois Constitution 15

16 All actions based on the disseminationof injurious falsehoodsare strictly limited by the 17 First Amendment to the U.S. Constitution, and are also limited by the parallel provisions in the

18 stateconstitutions. New York Times v. Sullivml, 376 U.S. 254 (1964). The free speechprovision 19 in the lllinois Constitution, article 1, section4, is in some contexts interpretedas providing even 20 more protection for speakersthan the First Amendment. State v. DiGuid~ 152 1ll.2d 104, 122 21 (1992). Cohn. Decl., Exh. G.

22 It is obvious, however, in this case that the Complaint is defective and the action has little

23 likelihood of successunder even common law principles.

24 2. Cullens's Lawsuit is ObviouslX Without Merit becausethe Statementwas not "of and ConceminK' Cullens and Max Reasonablx be Given an 25 Innocent.Nondefamato[X Construction 26 In Dlinois, a statementis consideredlibelous if it tendsto causesuch hanD to the reputation

27 of another that it lowers that person in the eyes of the community or deters third persons from

28 associatingwith him. Bason v. NewsAmerica Publications, 74 m.2d 77, 87 (1996). Cohn. 1 Decl., Exh. H. A statementis libelous per se, that is libelous on its face, if, amongother factors,it 2 imputes the commission of a criminal offense to the plaintiff or imputes the lack of ability or

3 integrity of the plaintiff in the perfOmtanceof his or her professional duties. ~ at 88. Such 4 statements are so obviously and materially hannful to the plaintiff that no proof of actual injury is

5 required. IQ. at 87. 6 However, the statementmust be "of and concerning"the plaintiff. Schivarelli v. CBS. Inc.. 7 333 Dl.App.3d 755, 765 (2002); Aroonsakul v. Shannon,279 lll.App.3d 345, 350 (1996) ; 8 Schaffer v. Zekman. 196 Dl.App.3d 727, 732 (1990).6 Cohn. Decl., Exhs. I, J, K, That is the 9 statementmust be identifiably about the plaintiff. Schivarelli. 333 Dl.App.3d at 765. Statements 10 that do not identify the plaintiffby nameare not libelous to the plaintiff unless,as a matter of law, 11 the statementis capableof being reasonablyunderstood by a third party as referring to the plaintiff. 12 Aroonsakul. 279 1ll.App.3d at 350. It is not enoughthat the plaintiff believes the statementswere 13 about him; it must be alleged that others actually believed the statementswere about him 14 Archibald v. Belleville News Democrat,54 Ill.App.2d 38, 42 (1964). Cohn. Decl., Exh. L. Thus IS in Schivarelli, the action was dismissedbecause it was not obvious from the report that the

16 allegedly libelous statementspertained to the plaintiff businesses.Schivarelli, 333 Dl.App.3d at 17 765-66. And in Schaffer, a toxicologist at the medical examiner'soffice was not permitted to 18 maintain a libel action arising from a report that alleged mishandling by the medical examiner's 19 office despite the fact that he was interviewed in the report and depicted while the allegedly 20 libelous statementswere broadcast. 196 1ll.App.3dat 732 21 Illinois also recognizesa modified form of the common law "innocent constructionrule."

22 Chaoski y. Cooley Press.92 ill.2d 344, 352 (1982). Cohn.Decl., Em. M. Under this rule, a 23 plaintiff may not maintain a libel per se action if the statement,when consideredin context, may

24 reasonablybe interpretedas "referring to someoneother than the plaintiff." 14.; Homerin v. Mid-

25 illinois New~apers, 245 ill.App.3d 402, 405 (1993). Cohn. Decl., Exh. N. The rule bars a libel 26 per se action if such an innocent constructionis reasonable;it does not matter that there may be

27 6 The "of and concerning"requirement is also of constitutional dimension. New York Times v. 28 Sullivan, 376 U.S. at 288-89.

9 MOTION TO QUASH SUBPOENA 1 other constructions that are equally or more reasonableunder which liability could attach. 2 Mittleman v. Witous. 135 m.2d 220, 231 (1989). 3 The innocent constructionrule hasbeen used to prohibit libel per se actionsin situationsfar 4 less "innocent" than the one plead in the Complaint in this action. In Homerin. the court dismissed 5 the libel per se action basedon the publication of a political cartoon that caricatured,but did not 6 otherwise identify, the plaintiff becausethe plaintiff had failed to allege that readers of the

7 publication reasonablyunderstood the cartoonto refer to him. 245 lli.App.3d at 405, In Grisanzio 8 v. Rockford News~a!>ers,132 ffi.App.3d 914,919 (1985) (Cohn. Decl., Exh. P), the article referred

9 to a restaurantwhere illegal activity took place but did not refer to the owner of the restaurantby 10 name. In fact the article specifically namedthe personswho were committing the allegedly illegal 11 acts. The court applied the innocent constructionrule to bar the restaurantowner's libel per se 12 action. 14. And in B~ Harlem Com. v. Kraff. 273 Dl.App.3d 388, 390-91 (1995) (Cohn. Decl., 13 Exh. Q), the court applied the rule to bar an action based on statementsthat referred to 14 advertisementsfor a medical procedureeven though the plaintiff was the only practitioner of that 15 procedurewho advertised. 16 The illinois Court of Appeal's decision in Cartwri~t v. Garrison. 113 ill.App.3d 536 17 (1983)(Cohn. Decl., Em. R), is directly on point. In Cartwright,the court found that a school 18 district superintendentcould not maintain a libel per se action againstthe publisher of an article 19 that alleged misdeedsby the school "administration." The court found that the article could be 20 reasonably read to refer to other administrators besides the plaintiff and thus the plaintiff 21 superintendentcould not maintain a defamationaction. M. at 541 22 Indeed, Cullens's Complaint against Doe is defective under both of these common law

23 requirements. The statementswere clearly not "of and concerning" Cullens. Doe's statements 24 about Westell's "management"are clearly analogousto the statementsabout the "administration"

25 madein Cartwright. Thesestatements could be reasonablyread to refer to other managers,say, for

26 example, Zionts, the one Doe specifically names,and not Cullens. Indeed, the only reasonable 27 reading of the statementsin context is that they refer to Zionts and the managementin place at the 28 time of his misdeeds. Cullens doesnot plead in the Complaint that othersreasonably believed the

10 MO11ON TO QUASH SUBPOENA 1 statementsto pertain to him personally.Even if he did, such an allegation cannotbe maintainedas 2 a matter of law.

3 3. Cullens's Lawsuit A2ainst Doe is Obviouslv Without Merit BecauseDoe's StatementsAre Privile2edunder lllinois Law 4

5 An additional common law principle also severely limits the libel per se action as pled. 6 Illinois has adoptedthe privilege for reportsof official proceedingsfound in Restatement(Second)

7. of Torts §611. Catalanov. Pechous,83 1ll.3d 146 (1980). Cohn.Decl., Exh. S. This privilege 8 provides that those who report fairly and accurately on judicial proceedingsenjoy a qualified 9 immunity from liability. TeoDerv. Co~le~Press. 308 Dl.App.3d 718 (1999) (Cohn. Decl., Exh. T); 10 Newell v. Field Ent~rises, 91 lli.3d 735(1980). Cohn.Decl., Exh. U. This is exactlywhat Doe II was doing: reporting to the messageboards on the shareholderactions filed against Westell's

12 management.Thus, Cullens will have to demonstratethat the defendantpublished the statements

13 with the specific intent to harm Cullens's,not the company's,reputation in order to prevail. He 14 will not be able to do so.

IS 4. Cullens's Lawsuit A2ainst Doe is ObviouslXWithout Merit BecauseDoe's StatementsAre Rhetorical and Do Not 1m12IXthe Existence of a Provablx 16 FalseFact 17 Furthennore,Cullens's action againstDoe cannot succeedbecause Doe's statementsabout 18 Westell's "management"were not actionablefactual statements.Rather they are statementsof pure 19 opinion, the factual basesfor which are disclosedwithin the samecommunication. No action for 20 libel can be basedon suchstatements under lllinois law.

21 Under illinois law, a statementof opinion is not defamatory"unless the opinion implies the 22 existenceof undisclosedfacts or disclosesincorrect or incompletefacts." Mori~ v. Greene.315 23 Ill.App.3d225,234 (2000)(£i!ing Milkovichv. LorainJowna1~~. 497 U.S. 1,20 (1990».There 24 are severalreasons why Doe's statementsare not actionableunder this standard. Cohn. Decl., Exh. 25 v. 26 First, Doe disclosedthe factual basis for his conclusionsthat Westell's managementwas 27 "crooked" and "cannot be trusted." It is clear from his statementsthat he baseshis conclusionson 28 the revealedfacts regardingthe performanceof Westell's previous CEO Zionts and the shareholder

11 MonON TO QUASH SUBPOENA lawsuits that resultedfrom his actions. In such situations,the readersare "free to acceptor reject 2 the author's opinion basedon their own independentevaluation of the facts." In re Yagman, 55 3 F.3d 1430, 1439 (9thCir. 1995). Seealso Dodds v. ABC. Inc., 145 F.3d 1053, 1067-68(9th Cir.

4 1998); Phantom Tourin2. Inc. v. Affiliated Productions,953 F.2d 724, 730-31 & n.13 (1- Cir. 5 1992)(characterizing such statements as "pure opinion").

6 Second,the characterizationsof Westell's managementas being "crooked" and "not to be 7 trusted"made in the contextof the Yahoo! messageboards are clearly the kinds of rhetorical 8 hyperbole that cannot as a matter of law be defamatory.If Cullens is able to clear each of the 9 hurdles already describedabove, an lllinois court will apply a three part test to determinewhether

10 or not Doe's statementsreasonably implies the existenceof a provably false fact. Ho~ewell v. 11 Vitullo. 299 Dl.App.3d 513, 518-19 (1998). Cohn. Decl., Exh. W. First the court will "consider 12 whetherthe languageof the statementhas a preciseand readily understoodmeaning, while bearing 13 in mind that the first amendmentprotects overly loose, figurative, rhetorical, or hyperbolic 14 language,which negatesthe impressionthat the statementactually presentsfacts." ~ Second,the 15 court will consider "whether the general tenor of the context in which the statementappears 16 negatedthe impressionthat the statementhas factual content." ~ Third, the court will consider 17 "whether the statementis susceptibleof being objectively verified as true or false." ~ 18 Applying this test the Honewell court concludedthat the statement"fired becauseof his 19 incompetence"was nonactionableopinion. The fact of Hopewell's firing was not disputed. The 20 court acknowledgedthat the term "incompetence,"although easily understood,was neverthelessso 21 broad in scopeand lacking in detail that it did not have a preciseand readily understoodmeaning 22 such that it could be defamatory. "There are numerousreasons why one might conclude that 23 anotheris incompetent;one persont s idea of when one reachesthe thresholdof incompetencewill 24 vary from the next person's. Without the context and contentof the statementto limit the scopeof 25 'incompetent,' we cannot say that there is a precise meaning relating to the alleged defamatory 26 statement," ~ at 519-20, 27 The word "crook," a foml of which is at issuehere, was found by anotherlllinois appellate 28 court to suffer from the sameimprecision as "incompetence." DubinskYv. United Arlines Master

12 MOTION TO QUASH SUBPOENA ExecutiveCouncil, 303 ill.App.3d 317, 329-30 (1999). Cohn. Decl., Exh. X. "Richards' statement 2 that Dubinsky was a 'crook' was not actionablebecause it was not made in any specific factual 3 context. One cannot rely on an assumptionthat those who heard the statementwere completely

4 apprisedof all the developmentsin the controversyso as to createa definitive factual context 5 for useof the word 'crook.'" 14. ~ ~ Schivarelli, at 762 (2002) (holding that the statement 6 accusingthe plaintiff of "cheatingthe city" was nonactionableopinion). Cohn Decl., Exh. I. .7 When the test is applied to Doe's statements,it is obvious that a court will reach the same 8 decision. The phrases"crooked" and "not to be trusted" are the type of rhetorical languagethat the

9 First Amendmentwas designedto shield from liability. They do not imply the ex.istenceof any 10 specific facts. Rather, like "incompetence"and "crook," they are so broad in their meaningsthat 1 they could encompassa whole range of subjectivebeliefs. Furthermore,applying the third part of 12 the lllinois test, the terms arenot objective,provably false terms. 13 The second prong of the Dlinois test bears special attention. The general tenor of the 14 Yahoo! messageboards is one of fiery and invective rhetoric~not reasonedfactual exposition.

15 Indeed,many forums in which publicly-trade stocksare casuallydiscussed are similarly inherently

16 subjective. In such situations, courts place a heavy burden on the plaintiff to prove that the 17 statementsare actionable.~ BiosDherics.Inc. v. Forbes.Inc.. 151F.3d 180, 184(4th Cir. 1998) 18 (holding that the context and tone of stock tips indicated that article contained constitutionally 19 protectedsubjective views, not factual statementsgiving rise to defamationliability); Morning§tar. 20 Inc. v. Suuerior Co~ 23 Cal.App.4th 676, 693 (1994) (holding that plaintiff could not state a 21 cause of action for libel or interferencewith prospective economic advantagebased on loose, 22 figurative, or hyperbolic language in commentary about a mutual fund); accord Greenbelt 23 PublishiniZAssociation v. Bresler. 398 U.S. 6, 14 (1970) ("even the most carelessreader must have 24 perceivedthat the word ["blackmail"] was no more than rhetorical hyperbole,a vigorous epithet."). 25 Internet messageboards have a well-establishedreputation for being for a for fiery and 26 figurative rhetoric rather than objective facts. In Nymox, the Doe accusedcorporate management 27 of deliberatelyfalsely claiming that a rival company"has been killing hwnan volunteersduring the 28 courseof this studyby injectingthem with HN." Nmox at 5:26-6:6. CohnDecl., Exh. F. The

13 MOTION TO QUASH SUBPOENA 1 court acknowledgedthat if the messageswere false they were defamatoryper se. Still it noted:

2 "The context, as well as the content, of the statementmust be considered. The statementwas

3 posted anonymously on an Internet messageboard. The tenor of the submitted postings would lead

4 the ordinary reader to regard their contents skeptically." !S;!.at 6:18-20. And in Global Telemedia

5 Int'l. Inc. v. Doe 1. 132 F.Supp.2d1261 (C.D. Cal. 2001), which consideredallegedly defamatory

6 statementsposted anonymouslyto a financial messageboard, the court observedthat "to put it 7 mildly, thesepostings . . lack the fonnality andpolish typically foundin documentsin which a

8 reader would expect to find facts."? !d. at 1267. The Court emphasizedthat the posters "use[d] 9 exaggeration,figurative speechand broad generalities"and that "[t]he reasonablereader looking at 10 the hundredsand thousandsof postingsabout the companyfrom a wide variety of posters,would 11 not expectthat [the poster] was airing anything other than his personalviews of the company and 12 its prospects." 14. at 1268. Based on this context, the court reasonedthat "while [the poster's] 13 sentimentsare not positive, the statementcontains exaggerated speech and broad generalities,all 14 indicia of opinion. Given the tone, a reasonablereader would not think the poster was stating facts 15 about the company,but rather expressingdispleasure with the way the company is run." 14. at 16 1270. The court concludedthe statementswere protectedopinion and dismissedthe lawsuit with

11 prejudiceunder California's anti-SLAPPstatute. ~ ill. at 1271 18 Indeed, the Yahoo messageboards expressly warn that "[t]hese messagesare only the 19 opinion of the poster, are no substitutefor your own research,and should not be relied upon for 20 trading or any other purpose." Such a disclaimer has been cited as a basis for denying a causeof 21 action for defamationagainst an adversefinancial rating. ~ JeffersonCoun!x School District v. 22 23 7 The postings that the Global Telemediacourt reviewed demonstratethe broad range of 24 expressionthat hasbeen protected in the context of a messageboard: 25 . "you have been screwedout of your hard earnedmoney here its time to talk abouta lawsuit" 26 . "I have neverwitnessed such blatant mis-management,these people hold our 27 money and they dictate after they lie how it will be used ..greatestjoke on the boards." 28 ~. at 1268-69.

14 MOTION TO QUASH SUBPOENA 1 Moodv's Investor'sServices. Inc., 988 F. Supp. 1341, 1345(D. Colo. 1997). 2 Thus even if Doe had misstatedany facts aboutthe lawsuit or the company'soperations, the 3 misstatementswere unlikely to be taken as truthful given the nature of Yahoo messageboards. 4 The notion that mostmembers of the public would treatthe averagemessage board posting as a 5 reliable statementof fact on which to basemajor investmentdecisions, or to form an opinion about 6 the officers of a major company,is almost laughable;that is certainly true of the reparteein which 7 many of the posterson messageboards tend to be engaged.

8 IV. CONCLUSION 9 If the John and JaneDoes of the Internet are not afforded First Amendmentprotection, the 10 threat of their identities being revealedwill impose a devastatinglychilling effect on speakersof

11 modestmeans and little understandingof the law. The result will be that comparativelywealthy 12 corporationsand their managementwill be able to use the subpoenapower of the court as a tool for 13 silencing their critics. Facedwith losing their anonymity, millions of "speakers"and "critics" on 14 the Internet will no longer participatein public messageboards because of the risk that they will 15 lose their anonymity. 16 Because Cullens cannot shown a compelling interest in obtaining Doe' identities, and 17 cannot demonstratethat any such interest outweighs Doe' First Amendment right to speak 18 anonymously,the Motion to Quashthe subpoenashould be granted. 19

20 DATED: March 17, 2003 By 21 CindyA. hn, Esq. (SBN.145997) ELECTRO IC FRONTIER FOUNDA nON 22 454 Shotwell Street SanFrancisco, CA 94110 23 Telephone: (415) 43~9333 xl08 Facsimile: (415) 43~9993 24 Attorneys for Defendant 25 JOHN DOE 26 27 28

1~ MonoN TO QUASH SUBPOENA