In Refusing to Review Order Requiring Disclosure of Identities of Anonymous Internet Commentators, Pennsylvania Court Finds No Protectable First Amendment Interest in Maintaining Anonymity When One Comments Under Name of Real Person

In Amerisource Bergen Corporation v. John Does 1 and 2, the Superior Court of Pennsylvania recently held that two individuals who posted false and non-satirical comments to an online article under the name of an executive mentioned in the article had no protectable interest in their identities sufficient to invoke the collateral order doctrine and permit appellate review of a trial court order granting pre-complaint discovery of their identities, thus allowing an executive and his company to pursue claims against the posters for their unlawful appropriation of the executive’s name.

The two-judge Superior Court panel determined that it had no jurisdiction to review the orders at issue, as they were neither final nor subject to the collateral order doctrine. In determining whether to exercise jurisdiction under the collateral order doctrine, the court was required to first determine whether the defendants’ alleged right at issue (First Amendment protection of disclosure of their identities), was “deeply rooted in public policy” or “too important to be denied review.” In making this determination the court considered and made important findings about the strength of one’s constitutional right to maintain anonymity when engaging in speech on the internet.

The comments at issue were posted on the barrons.com website under an article discussing the possible effect a merger between Medco Health and Express Scripts could have on Amerisource Bergen Corporation. The comments were posted under the name “Neil Herson,” the president of an Amerisource subsidiary. One of the comments suggested that Amerisource would take a $300-$500 million “cash hit” if Medco were to stop patronizing Amerisource as a result of the merger. The other comment discussed Amerisource’s cash flow and “facts” related to its financial position.

The defendants contended that the First Amendment interests in protecting anonymous speech and allowing free public comment in the Internet would be compromised if disclosure of their identities were ordered and that the appellate court should therefore review and reverse the trial court’s order under the collateral order doctrine.  However, the two-judge Superior Court panel determined the individuals had no First Amendment right to “misattribute patently non-satirical comments to an individual with a direct connection to the matter.”

The Superior Court adopted the trial court’s decision distinguishing protected “anonymous” speech or speech made under a pseudonym from the use of the name of a real person closely connected with the subject of a published story, finding that the latter type of speech was not “anonymous,” and therefore not protected under the First Amendment.  The Superior Court also distinguished cases protecting obviously satirical speech, finding that “the comments in question do not constitute obvious satire, and were not such that a reasonable reader could be expected to recognize that Mr. Herson’s name was used ironically or as part of protected commentary on an issue of public importance.”  Instead, the comments were posted under the name of a person who might be expected to be well-informed regarding the information in the commentary and have a personal interest in making certain impressions with the public.  Accordingly, the Superior Court “reject[ed] Appellants’ attempt to glean from these cases that fraudulently ascribing commercially salient information to a particular person in a position to know such information, one whose employment status or legal position to know such information, one whose employment status or legal position might be compromised by such commentary under state or federal securities laws and regulations, enjoys the same First Amendment protections as obvious satire or indirect associations of individuals in the expression of opinions in the context of debate over important public issues or any First Amendment protection at all.”  Since the defendants had not established a protectable interest in their identities, the court determined it did not have jurisdiction under the collateral order doctrine to consider the appeal of the trial court’s order.

While the Superior Court did not technically rule on the merits of the trial court’s decision compelling disclosure of the Appellants’ identities, this decision may serve to further delineate the limitations of protected anonymous speech on the Internet.