Long before Liskula Cohen's case brought online anonymity into the mainstream press, New York courts were already struggling with the law surrounding the outing of anonymous Internet speakers. For example, back in October 2007, a court in New York County denied a school board member's request to unmask "Orthomom," an anonymous blogger who had published critical comments about her. In June 2008, Judge Rory Bellantoni of Westchester County ruled that ex-Congressman Richard Ottinger and his wife could obtain the identity of an anonymous commenter to a forum on LoHud.com, an online news site operated by The Journal News that covers New York's Lower Hudson Valley.
In a recent development in the latter case, last month another judge in Westchester county dismissed the Ottingers' subsequent defamation lawsuit against Stuart Tiekert, the commenter unmasked in the previous proceeding. In his ruling, Judge Richard Liebowitz invoked New York's anti-SLAPP law and ruled that the Ottingers "failed to demonstrate that their action has a substantial basis in fact or law."
How can this be? Didn't the Ottingers have to make some kind of legal and factual showing in order to get Mr. Tiekert's identity in the first place? In fact, they did. Judge Bellantoni's ruling in 2008 relied expressly on Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), and Doe v. Cahill, 884 A.2d 451 (Del. 2005), two opinions which provide a strong measure of protection for anonymous speech. And while the details of his reasoning weren't made entirely clear, Judge Bellantoni concluded that "[t]he complaint and all the information provided to the court establishes that [the Ottingers] have set forth a prima facie cause of action against the fictitiously-named defendants." Slip op. at 5. So what gives? How did the Ottingers fail to come forward with "a substantial basis in fact or law"? Did Judge Liebowitz simply second-guess his former colleague's decision? The brevity and opacity of the court's recent ruling make it difficult to say for sure, but there's at least one reasonable explanation for these seemingly disparate outcomes.