In an interesting decision today, the Texarkana Court issued a writ of mandamus protecting the anonymity of a blogger who had been critical of a local hospital. The case is In re Does 1-10. The full opinion can be found at this link. [Docket sheet]

While these Doe defendants won the day, the decision is not a landmark in free speech or internet anonymity. Indeed, the court did not even reach the constitutional questions. Its main holdings were that:

  • The federal Cable Communications Policy Act of 1984 does permit private parties to make discovery requests against ISPs to reveal the identities of subscribers — a result in line with the federal Seventh Circuit and the Supreme Court of Maine, but opposed to the result reached by two federal district courts. ((I have not independently researched this split; these are the courts cited in the Texarkana Court’s opinion.))
  • Even so, these particular plaintiffs failed jump through the right hoops of Texas discovery procedure to actually obtain those identities. For that reason, the discovery order below was clear error.
Under In re Does 1-10, it remains very possible that these hospitals will ultimately uncover the identity of these bloggers. They just must follow the appropriate procedures under Texas law to do so.

The basis of the hospital’s suit is explained in the opinion:

The Hospital sued Does 1-10 alleging that Doe 1 had set up a blog that contained many scurrilous comments that “unfairly disparage and criticize the Hospital, its employees and the doctors who admirably serve patients there on a daily basis” and that his postings were defamatory. The Hospital also alleged that some postings to the blog had disclosed confidential patient health information and generally complained that the postings “are otherwise actionable under federal and state law.”
The trial court ordered the ISP SuddenLink Communications to reveal identifying information about the blogger.The blogger — known online as fac_p or Frank Pasquale — filed a writ of mandamus, the procedural device that would allow for immediate appellate review before the disclosure order would have to be complied with by the ISP. Under Texas law, mandamus requires two elements: (a) lack of an adequate remedy at law (i.e., a reason for the appellate court to intervene outside the normal appellate process that would require waiting for a final judgment) and (b) a clear abuse of discretion.

The first element was easy to satisfy: “If discovery is allowed, then the identity of the blogger is revealed, the damage is done, and it cannot be rectified.”

The second element was harder. The court’s conclusion is interesting — although very narrow in terms of its effect on internet law, at least for this case. Analyzing the federal Cable Communications Policy Act of 1984, the court held that it did not prevent this disclosure, but that it also did not create an independent procedural vehicle for such discovery to proceed. Instead, the trial court would have to use a mechanism under Texas law. ((The opinion explains:

There is an ongoing analytical inconsistency among the few courts that have addressed the application of this statute. Some courts have been willing to apply the statute to discovery by nongovernmental parties. Others have stated that the ability to obtain a proper court order under Section 2(B) is explicitly “subject to” the requirements of subsection (h). …We will follow the interpretation given by the majority of the courts that have addressed this issue and hold that the statute provides a sanctuary for cable operators who disclose personal information to private parties pursuant to a valid court order without imposing the requirements found in subsection (h). However, we also find that the federal statute is not a procedural vehicle for obtaining such a court order. That must be accomplished through some procedural device, either state or federal, depending on the forum of the case. In Texas state courts, the rules of discovery provide ample methods for obtaining information from third parties. In this case, the trial court ordered the release of this private information without regard to any procedural rule that would authorize such release.
))

The court of appeals then concluded that the trial court’s order — which had relied solely on the federal statute rather than following the letter of Texas discovery law — was clear error as a matter of Texas law. For that reason, the court found that it was appropriate to issue mandamus relief. ((“The result is this: An order compelling production could have been issued pursuant to the rules of procedure. The mechanisms set out in the rules of discovery that might authorize and regulate such an order (and also the protections to the person inherent in those procedures) were not utilized. Instead, counsel sought and originally obtained an ex parte order entirely outside the rules, based on the application of a statute that is not relevant to this situation.” In re Does 1-10, slip op.))

The court went on to offer a final section of its opinion discussing general First Amendment principles as applicable to internet bloggers and anonymity, but that discussion seems to be largely dicta in this case. The court says it is offered merely to guide the trial court in this case if the hospital chooses to seek disclosure again using a valid procedural device under Texas law.

Under Texas appellate procedure, the dissatisfied parties (here, the hospitals) could in theory file a writ of mandamus with the Supreme Court of Texas arguing that this appellate court decision was itself clear error. Because the writ is an equitable device under Texas law, there is no fixed deadline for such a filing, although undue delay can itself be a basis to deny the writ. I’ll keep you posted if there is such a filing.