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MORANDYM OF~~S ~ FUTHORITIES in SUPPORT O~ 15 ~ND:A.Ntts MOTION to QUASH V

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MORANDYM OF~~S ~ FUTHORITIES in SUPPORT O~ 15 ~ND:A.Ntts MOTION to QUASH V 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 MOTION 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 Lawsuit 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 Defamation 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 discovery 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.
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