2/23/2001 Walking a fine line on cyber rights Dendrite case at core of free speech battle By GREG SAITZ STAR-LEDGER STAFF When Dendrite International filed a "cyber-smear" lawsuit in May, the Morris County software company had little notion it would find itself in the forefront of an unfolding fight over First Amendment freedoms on the Internet. As a first step, the Harding-based company wanted to learn the real names of four anonymous scribes who posted messages on the Internet critical of Dendrite, so it could pursue defamation and other claims against them. Dozens of similar cases across the country had been filed before this one, and the names always came out. It took nine months of legal bandying, but earlier this month Dendrite attorneys finally got their hands on the identities of two of the message writers. Yesterday, they filed an amended complaint naming two former employees as the ones who posted messages using pseudonyms. "Given what we've seen, we're confident we have the right people," company attorney Michael Vogel said yesterday. "We've tried to be very careful about this." But not everything has gone Dendrite's way. An earlier court decision protects the anonymity of the two other message writers - a decision privacy-rights advocates see as a beachhead in the pitched battle over anonymous free speech rights on the World Wide Web. The November ruling by state Superior Court Judge Kenneth MacKenzie was only the second time in the country in which a judge sided with unnamed message posters after balancing their constitutional rights against the merits of a defamation suit. And with the number of cybersmear cases against anonymous defendants on the rise - well over 100 have been filed nationally in the past year - MacKenzie's decision could play an important role in guiding other judges through unfamiliar territory. "It has the potential to be very influential, given this is a new type of case with new types of legal issues," said Lyrissa Barnett Lidsky, a professor at the University of Florida College of Law. The Dendrite lawsuit started out like so much other cybersmear litigation. Company attorneys initiated action against four "John Does" who posted messages using pseudonyms on a Yahoo! financial message board about the company. Dendrite accused the message writers, two of whom were thought to be current or former employees, of defamation, misappropriation of trade secrets and breach of an employee contract. Dendrite wanted to get the message writers' real identities by sending subpoenas to Yahoo!, which until last year routinely divulged its members' names without notifying them. But unlike judges before him, MacKenzie ordered that a notice be posted on the message board alerting the four John Does of Dendrite's intentions. Two of the message writers, with screen names "xxplrr" and "gacbar," hired attorneys to challenge their unmasking. Public Citizen, a public interest group founded by Ralph Nader, also stepped in to argue that the lawsuit was a blatant attempt at intimidation and a violation of First Amendment speech rights. Public Citizen attorney Paul Levy urged the judge to carefully consider the merits of Dendrite's claims before allowing disclosure. MacKenzie did, following reasoning similar to a judge in Pennsylvania who decided last year against revealing an anonymous message writer's name. However, the Pennsylvania judge ultimately allowed John Doe's name to be released. "We are generally optimistic about the approach courts are taking," said Ann Beeson, a national staff attorney for the American Civil Liberties Union and an Internet free speech expert. "They are recognizing there is a problem. But we still think there is a need for stronger protections for anonymous speakers." The Dendrite decision, as well as similar First Amendment balancing tests employed by a few other judges, may be forcing companies to think twice about what kinds of online speech warrant litigation, experts said. "Initially, when these cases started, a lot of plaintiffs were very sloppy in the way they would draft their complaints," said Lidsky, whose article "Silencing John Doe: Defamation and Discourse in Cyberspace" was published last February in the Duke Law Journal. "The fact they know there may be some scrutiny helps ensure that the suits will not be brought solely for harassment." Yet Lidsky, Levy and others acknowledge that not all anonymous speech on the Internet deserves constitutional protection. MacKenzie made that clear two weeks ago when he refused to halt disclosure of a third John Doe in the Dendrite case. That anonymous message writer, "implementor_extrodinaire," did not object to the company's efforts until the end of last month, when his identity was about to be revealed. Yesterday's court filing identifies him as Paul Jetter, a Blairstown resident who worked for Dendrite until June. In Jetter's case, the judge employed the same balancing test as he did with the other two John Does who hired attorneys, but found the claims against Jetter had more merit. "The necessity for the subpoenaed information clearly outweighs defendant's First Amendment rights and therefore (Dendrite) is permitted to obtain evidence that would lead to the true identification of John Doe 1," MacKenzie wrote. "While the First Amendment protects free speech, there are limits on this protection, especially in a case such as this." Jetter's attorney, Bob Leonard, said yesterday the allegations were without merit. "Americans are free to express opinions," he said. The fourth anonymous poster - "ajcazz" - never challenged Dendrite, and the company was allowed to discover his real name. The amended complaint identifies him as Timothy Rogers, who worked as a Web designer for the company until May. Although there were many messages posted under the name "ajcazz," Rogers, 23, said yesterday he posted only two messages and didn't believe either was defamatory or a breach of his employment contract. He said other people had access to the screen name and denied the Yahoo! account was his. Rogers said he was under the impression Dendrite was only trying to get the names of the anonymous message posters and was unaware the company was pursuing a lawsuit. Still, he said, "It seems like anyone who says anything negative about the company, they're going to go after them." While privacy rights groups claim many companies file lawsuits as a means of harassment, Miami attorney Bruce Fischman doesn't buy that argument. Fischman represents Fort Lauderdale businessman Erik Hvide, who sued several anonymous message writers last year over their postings. The John Does objected, but a Florida judge sided with Hvide - apparently without using the balancing test employed by MacKenzie - and an appeals court declined to consider the case. Fischman got the names. "The right to speak on the Internet is not an absolute right," said Fischman, who plans to move forward with the lawsuit in the coming weeks. "The same protection applies on the Internet as off the Internet. . . . If one is going to speak using a pseudonym and defame somebody . . . then they're going to get hauled into court and be held accountable for their actions." Dendrite attorneys are appealing MacKenzie's ruling protecting the identity of one John Doe, "xxplrr," but are not challenging the judge's order shielding the other John Doe, "gacbar." Vogel, the Dendrite attorney, said "gacbar" will remain part of the lawsuit in the event the company learns of his or her identity through other means. ____________________________________________________________________________ Greg Saitz is a reporter in the Morris Bureau. He can be reached at gsaitz@starledger.com or (973) 539-7910. COPYRIGHT © The Star-Ledger 2001