John Doe, No. 1 v. Hon Eddy Coleman Judge, Pike Circuit Court

RENDERED: SEPTEMBER 22, 2016
TO BE PUBLISHED
$irprrmr Court 01
2015-SC-000408-MR U Li
JOHN DOE, NO. 1;
AND JOHN DOE, NO. 2 APPELLANTS
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2015-CA-000221-OA
PIKE CIRCUIT COURT NO. 13-CI-01145
HONORABLE EDDY COLEMAN,
JUDGE, PIKE CIRCUIT COURT APPELLEE
AND
WILLIAM HICKMAN, III REAL PARTY IN INTEREST
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING AND REMANDING
This case presents the question what must a public-figure prove to
obtain the identities of anonymous speakers alleged to have defamed him.
I. Background
Appellee William Hickman filed an action in Pike Circuit Court on
October 18, 2013 against several anonymous users of the website Topix
(hereafter the John Does) claiming that the John Does had posted defamatory
statements about him on the website. Hickman claimed that the various
statements, which he attached in a transcript, were recklessly published by the
John Does. Specifically, his complaint stated that the statements "perpetuated
substantial errors and omissions that wrongfully and erroneously imputed
fraud, dishonesty, criminal activity and conduct incompatible with his
business, trade, profession and office" about him and thereby damaged his
reputation.
Because he did not know the identity of the John Does, Hickman issued
subpoenas to Topix and another internet provider seeking the identity and
address of John Doe 1 and John Doe 2. The providers did not respond, but the
two John Does filed a motion to quash the subpoenas. The trial court, Appellee
Judge Coleman, denied the motion to quash, which led to the filing of a petition
for a writ of prohibition with the Court of Appeals.
In an attempt to balance the John Does' First Amendment right to
anonymous speech and Hickman's right to seek redress for defamatory speech,
the Court of Appeals purported to apply Dendrite International, Inc. v. Doe No. 3,
775 A2d 756 (N.J. Supp. Ct. App. Div. 2001), as modified by Doe v. Cahill, 884
A.2d 451 (Del. 2005). To some extent, this description of the relationship
between the two cases is not accurate: Dendrite cannot have been modified by
Cahill, as they are from different court systems. In reality, the Court of Appeals
applied Cahill, which applied a modified version of the rule announced in
Dendrite.
Dendrite required that in order to compel the identity of a John Doe, a
plaintiff must (1) take reasonable steps to notify the John Doe of the subpoena
and allow the John Doe opportunity to respond; (2) identify and set forth the
exact statements alleged to be actionable speech; and (3) establish that the
plaintiff's case can withstand a motion to dismiss for failure to state a claim
and produce sufficient evidence on each element of the claim on a prima facie
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basis. Finally, if the plaintiff establishes a prima facie case for defamation, then
(4) the court must balance the First Amendment right of free speech against
the prima facie evidence and the necessity for disclosure in order to proceed.
However, the Court of Appeals actually followed the holding in Cahill,
which concluded that under Delaware law, two of the specifics of the Dendrite
holding were subsumed under that state's summary judgment standard.
Instead of the four-step Dendrite approach, Cahill outlined a two-step process
of (1) giving notice and opportunity to be heard and (2) making a prima facie
showing sufficient to defeat a summary judgment motion.
And because of the additional factor of anonymous public speakers, the
Court of Appeals also adopted Cahill's reasoning that the final element of
public-official defamation—actual malice—did not have to be a part of a prima-
facie showing. The exclusion of establishing the knowledge or reckless-
disregard portion of a defamation claim against a public figure, the Court of
Appeals held, was appropriate at that time because that element could only be
proved after the identities were revealed, which was the point of the subpoena.
Thus, in order to obtain the identities of the John Does, the Court of
Appeals required Hickman to attempt to notify the John Does that he was
seeking their identity and give them opportunity to respond, and then make a
prima facie showing that defamation had occurred under Cahill. On that note,
the Court of Appeals granted a writ of prohibition as to the existing discovery
order and sent the case back to circuit court to apply this new rule. Although
that decision was appealable to this Court as a matter of right, no appeal was
taken.
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Back at the circuit court, Hickman sought to prove his prima fade case
since the first prong of the Court of Appeals ruling had obviously been met: the
John Does had entered an anonymous appearance in the court, and had had
time to respond to the subpoenas. Hickman offered an affidavit claiming falsity
and attaching 14 pages of individual Topix posts. The affidavit did not address
individual posts, but instead claimed that the posts collectively accused him of
"a pre-planned conspiracy to violate Federal and State Statutes to illegally take
property and money from the Pikeville / Pike County Airport Board for personal
gain and for the personal gain of other individuals." Without refuting any of the
specific statements, Hickman merely summarized "this is not true and is totally
baseless." He further characterized the statements as saying he was
"dishonest, a thief, an embezzler and otherwise a criminal," which he also said
was "not true" and "totally baseless." He repeated several times in his affidavit
that all the statements were "not true" and facially defamatory. Finally, he
asserted that audits had confirmed that "no accounting crimes" had been
committed regarding the airport funds.
The John Does argued that the specific language in the statements
simply did not contain facially defamatory statements and that there had 'been
inadequate proof that any of the statements alleged to be defamatory were
false.
The Pike Circuit Court ordered each side to submit a proposed order
reflecting the view each had argued. Hickman did so, but also included relief
that had not been previously requested or argued: that counsel for the John
Does be required to disclose their identity. The John Does proposed a counter-
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order addressing their arguments, and raising SCR 3.130(1.6) as authority that
a lawyer could not reveal confidential client information absent consent of the
client without court order, and without informing the client of the right to
appeal such order.
The court accepted Hickman's order as proposed, ordered subpoenas to
be served, and ordered counsel for the John Does to disclose their identities
and to specify which of the posts had been made by each of them. The John
Does filed another writ petition in the Court of Appeals. The court denied the
petition this time, concluding that Hickman had satisfied the standard
articulated in its previous opinion by making a prima facie case, including
providing evidence that the statements were false.
This time, the John Does filed their matter of right appeal to this Court.
II. Analysis
Generally speaking, cases in which a writ of prohibition or mandamus is
sought proceed in two steps. Collins v. Braden, 384 S.W.3d 154, 158 (Ky.
2012). First, the court must look at whether such an extraordinary remedy is
even available, before deciding the merits of the claimed legal error. Id. Second,
if the court finds that the remedy is available, it may then look at the merits of
the claimed error. Id. If the trial court has erred or is about to err, the court
may issue the writ.
A. The remedy of a writ of prohibition is available to the John Does.
The first question is whether the John Does have "established that
remedy by way of an extraordinary writ is even available to [them]." Id. Under
this approach, there are essentially "two classes of writs, one addressing claims
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that the lower court is proceeding without subject matter jurisdiction and one
addressing claims of mere legal error." Id. at 158. The John Does have not
made a claim under the first class, and thus we address only the second.
Under the second class, a writ may be granted—that is, the remedy is
available—if "there exists no adequate remedy by appeal or otherwise and great
injustice and irreparable injury will result if the petition is not granted."
Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Of the two prerequisites for
this class of writ, the first is mandatory, and thus the John Does are required
to prove that they have no adequate remedy by appeal. Marcum v. Scorsone,
457 S.W.3d 710, 716 (Ky. 2015). The second prerequisite, however, is more
flexible. Though it usually requires proof of "something of a ruinous nature," it
"may be put aside in 'certain special cases." Grange Mut. Ins. Co. v. Trude, 151
S.W.3d 803, 808 (Ky. 2004) (quoting Bender v. Eaton, 343 S.W.2d 799, 801
(Ky. 1961)). That limited sub-class of cases consists of those in which "a
substantial miscarriage of justice will result if the lower court is proceeding
erroneously, and correction of the error is necessary and appropriate in the
interest of orderly judicial administration." Id. (quoting Bender, 343 S.W.3d at
801). This includes those cases in which a privilege will be breached. Id.
Whether there is a privilege is at issue in two ways in this case. First,
because anonymous speech is protected under the First Amendment, Buckley
v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 197 99 (1999); McIntyre v.
-
Ohio Elections Comm'n, 514 U.S. 334 (1995), the speaker's identity is generally
protected and not subject to forced revelation in court. Second, the trial court
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rs
ordered the John Does' attorney to disclose their identities, which the John
Does claim violates their attorney-client privilege.
Generally speaking, an alleged violation of a privilege or similar
protection satisfies both writ prerequisites—that "of no adequate remedy by
appeal, 'because privileged information cannot be recalled once it has been
disclosed,' and the substitute requirement in 'special cases' that the
administration of justice would suffer." Collins, 384 S.W.3d at 158. For that
reason, "remedy by a writ of prohibition is available to a petitioner claiming the
potential violation of a privilege." Id. Indeed, we have specifically held that the
remedy is available to remedy improperly ordered discovery of information
claimed to be protected under the First Amendment in a libel case. Lexington
Herald-Leader Co. v. Beard, 690 S.W.2d 374, 377 (Ky. 1984). Thus, a writ is
available as a remedy in this case if the John Does can demonstrate error by
the trial court.
B. Hickman has not made a sufficient showing at this time to
overcome the John Does' First Amendment interest in protecting
their identities.
Here, the Court of Appeals found that issuance of a writ of prohibition
was not appropriate because the trial court had properly applied what it viewed
as the Dendrite/ Cahill test. That test, as the Court of Appeals stated it in the
first writ action, required a two-prong analysis: (1) the anonymous speaker
must be given notice and opportunity to be heard, and (2) the plaintiff must
make a prima facie case for defamation under the summary judgment standard
set forth in Justice Keller's partially concurring opinion in Welch v. American
Publishing Co. of Kentucky, 3 S.W.3d 724, 731-32 (Ky. 1999), to the extent
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those elements are under his control. Except for the addition from Welch, the
test set by the Court of Appeals mirrors the two-step process of Cahill rather
than the four-step process of Dendrite.
For the most part, the standard set forth in Justice Keller's opinion was
the ordinary summary judgment standard: if the alleged defamatory speakers
wanted to get summary judgment against the plaintiff in that case, they would
have to show that it was impossible for the plaintiff to produce sufficient
evidence at trial to prevail. Id. at 731 (Keller, J., concurring in part and
dissenting in part). But his opinion suggested as to falsity that a bare denial by
the plaintiff of the truth of the statements would suffice to defeat the speaker's
summary judgment motion. See id. (noting that the plaintiff "denied the truth
of many of the allegations"). The upshot of using the summary judgment
language from Cahill and an inaccurate view of the required evidence to prove
falsity adequate to pass a summary judgment motion resulted in a standard
not supported by either Dendrite or Cahill.
However, because no appeal was taken from the previous Court of
Appeals ruling, Dendrite and Cahill, as funneled through the partially
concurring opinion in Welch, are the law the trial court applied to this case.
Indeed, this Court agrees that Dendrite and Cahill are the appropriate authority
because they adequately protect the John Does' First Amendment rights. But
the directive from the Court of Appeals cannot fit within that protective law
because the partly concurring opinion in Welch does not articulate the
appropriate showing of falsity. And, as set forth herein, the four-step analysis
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of Dendrite is clear in defining the required prima facie showing, and requires
no "summary judgment" analysis.
Thus, while Dendrite and Cahill remain the "law of the case," this Court
recognizes that the doctrine is "prudential in nature and serves to direct a
court's decision, not limit its power." Wright v. Carroll, 452 S.W.3d 127, 130
(Ky. 2014). This Court thus "may deviate from the doctrine if a previous
decision was 'clearly erroneous and would work a manifest injustice.'" Id.
(quoting Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010)).
Thus, part of the Court of Appeals' test is clearly erroneous, but the
reasoning expressed in Dendrite and Cahill is correct, and we hold that the
appropriate test is the four-step process outlined in Dendrite, as supported by
the analysis in Cahill. As the Court of Appeals correctly noted, we must "strike
a balance between the First Amendment right to anonymous speech and the
right of those harmed by anonymous speech to seek legal redress." The four
steps of Dendrite provide the best process to strike that balance.
Similar to the present case, the plaintiff in Dendrite, a corporation,
brought a defamation action against John Doe defendants for posting a
message on an internet service provider's bulletin board. But Dendrite, as well
as this case, was not really an "internet" case, though there was much
discussion about the effect of the internet. There, as here, the internet was
simply the vehicle for posting the anonymous statements that the corporation
viewed as defamatory. Claiming that the posted comments were "categorically
false," Dendrite, 775 A.2d at 763, the corporation requested expedited discovery
disclosing the identity of the John Does.
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The trial court in Dendrite recognized that the usual deference given to
discovery requests did not apply when the speech in question was being
exercised anonymously. Instead, it attempted to "balance an individual's right
to anonymously voice their opinions against a plaintiff's right to confront their
accusers." Id. at 764. Concluding that the corporation had failed to show that it
was harmed by any of the posted messages and that the John Does had not
acted under their free-speech rights unlawfully so as to revoke their
protections, the trial court denied the discovery request. Id.
On appeal, the New Jersey Superior Court found that the trial court was
correct, and established a four-step process in cases involving protected
anonymous speech: (1) the plaintiff must make reasonable efforts to notify the
anonymous speakers that their identity is being sought, and give them a
reasonable opportunity to object; (2) the plaintiff must identify and set forth the
exact alleged defamatory statements; (3) the court must carefully review the
entire record to determine whether the plaintiff has stated a prima facie cause
of action sufficient to withstand a motion to dismiss for failure to state a claim
and, in addition, whether the plaintiff produced sufficient evidence supporting
each element of the cause of action; and (4) the court must balance the
anonymous free speech rights against the strength of the prima facie case
presented. Id. at 767-68.
Dendrite was subsequently followed by the Supreme Court of Delaware in
Cahill. However, that court condensed the Dendrite factors to only two: (1) the
plaintiff must undertake to notify the John Does that their identity is being
sought and give them the opportunity to object; and (2) the plaintiff must
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support his defamation claim with facts sufficient to defeat a summary-
judgment motion. That court reasoned that the separate steps of the Dendrite
test were actually subsumed in the summary-judgment analysis under
Delaware law. In other words, if the plaintiff could survive a theoretical
summary judgment motion, then the plaintiff was entitled to the identities of
the anonymous speakers. As the discussion throughout the case indicates,
however, that assumption was based on applying the Dendrite factors. Calling
this making a case sufficient to pass summary judgment, however, can be
misleading when other states attempt to apply the Cahill holding. This is where
the Court of Appeals went astray in using the summary judgment term and
looking for an example in another Kentucky defamation case.
First, summary-judgment standards vary significantly from state to state
and in comparison to the federal standard. In Kentucky, the non-moving
party's evidence must be taken as true. To prevail, the moving party must show
that it is all but impossible that the non-moving party could prevail at trial
before summary judgment can be granted. Steelvest, Inc. v. Scansteel Ser v. Ctr.,
Inc., 807 S.W.2d 476, 479, 483 (Ky. 1991).
Second, as the Cahill court describes the process, a plaintiff attempting
to obtain the identity of an anonymous speaker must anticipate how he would
refute a motion for summary judgment filed against him, and that is the type of
proof that he must produce as his prima facie evidence in order to persuade the
court to grant discovery of the identity of the anonymous speaker. And, as that
court pointed out, the standard is more stringent than a motion to dismiss or
good-faith standard. Despite using the term summary judgment, for whatever
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it means in Delaware, the court in Cahill acknowledged that a plaintiff seeking
the identity of an anonymous speaker had to produce factual evidence to
support his motion to obtain the identities.
When the Kentucky summary-judgment standard as laid out by the
partial concurrence in Welch is brought to play, it simply does not sync with
the analysis in Dendrite and Cahill. Thus when the trial court applied the
Kentucky summary-judgment standard below, it was in error, albeit following
the literal language of the Court of Appeals' remand. To avoid any such
confusion, we need simply apply the four steps of Dendrite.
It is significant, in determining what is necessary for a plaintiff to
produce in order to make a prima facie case sufficient to breach the protected
anonymity of a John Doe, to note that Dendrite requires factual evidence about
each element of the defamation claim. This is particularly true as to the
element of falsity.
In order for Hickman to breach the John Does' anonymity, he must make
a prima facie case of facially defamatory statements, that are in fact false,
through supporting facts under the reasoning of Cahill and the specific
language of Dendrite.
This approach is fitting considering the nature of the interests at issue: a
speaker's right to comment anonymously about matters of public interest or a
public official's actions in regard thereto, versus a citizen's right to redress for
harm caused by defamatory speech. This approach is necessary to "strike a
balance" between these competing interests. Thus we have adopted the more
specific analysis in Dendrite rather than the two-prong test of Cahill. And in
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order to meet that standard, supporting facts are necessary to confirm a claim
of falsity.'
There is little question now that the mere allegation of the falsity of a
statement will not be sufficient. For example, in the context of a claim of
qualified privilege to make otherwise defamatory remarks, "the mere allegation
of falsity" is no longer sufficient "to permit an inference of malice." Toler v. Sud-
Chemie, Inc., 458 S.W.3d 276, 287 (Ky. 2014). Instead, malice, like falsity,
"must be shown." Id. It stands to reason that if a mere allegation of falsity
cannot show malice, it also cannot show falsity. Stating "that's not true" is
substantially different from offering evidence showing how "that" is not true.
The former is merely a characterization; the latter is a refutation, or at least the
beginning of one.
And it is certainly true that "free speech" is one of the most sacrosanct of
freedoms, and one which is at the heart of defining what it means to be a free
citizen. The First Amendment of the United States Constitution guarantees this
freedom. And "political speech directed toward public officials is at the pinnacle
of protected speech." Welch v. American Publishing Co. of Kentucky, 3 S.W.3d
I It should be noted that the dicta and holding in Cahill make it clear that the
court believed it was doing a Dendrite analysis:
Another court has addressed this issue and reached the same
conclusion. In Dendrite Intl., Inc. v. Doe, an intermediate New Jersey
appellate court adopted a standard more stringent than either the motion
to dismiss or the good faith standard. ... We accordingly hold that before
a defamation plaintiff can obtain the identity of an anonymous defendant
through the compulsory discovery process he must support his
defamation claim with facts sufficient to defeat a summary judgment
motion.
Cahill, 884 A.2d at 459-60 (emphasis added, footnote omitted).
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724, 726 (Ky. 1999). Without free comment on matters of public concern,
totalitarianism can arise. And naturally, when public speech is "free," that
speech will contain comments critical of those who seek to govern. Indeed, it is
inherent in a democracy that only by exercising one's voice can the individual
citizen truly participate in the governance of society. Sometimes, negative
things just need to be said.
To that end, the U.S. Supreme Court has held that anonymous public
speech is also protected. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334,
342 (1995). Obviously, the importance of unfettered public speech is so great
that the benefit of such speech generally outweighs knowing who is making the
statement. That is true even when the speech occurs on the internet instead of
the common sources of the past, since internet speech stands on an equal
footing with any other speech. See Reno v. Am. Civil Liberties Union, 521 U.S.
844, 870 (1997).
Nonetheless, this freedom of speech is not without limit. There is no
protection for speech that is obscene, Miller v. California, 413 U.S. 15, 23
(1973), or defamatory, New York Times Co. v. Sullivan, 376 U.S. 254, 268
(1964). Here, Hickman claims that the anonymous speech at issue is
defamatory and false and that, as such, the identity of the person making the
internet comments is not protected. To find redress for this alleged defamatory
speech, he claims he must know who the speakers are, particularly to prove
the malice prong of his defamation claim.
As with any defamation claim against a public official, Hickman must
establish that statements have been made that hold him up to public hatred,
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contempt or ridicule, or that caused him to be shunned or avoided, or that
injured him in his business or occupation; that the statements are false; and
that the statements were made with actual malice. McCall v. Courier-Journal &
Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981). And, in this particular
case, he must also contend with the nature of the speech as protected,
anonymous public comment.
As the Court of Appeals noted, the United States Supreme Court has not
yet addressed the parameters for discovering the identity of an anonymous
public speaker, so that question at present has been left to the states. The
Court of Appeals in the first writ case thus adopted the two-prong test in Cahill
set forth above, which is correct only when it is viewed as encompassing the
specifics of Dendrite. But, the Court of Appeals also included another detail:
the elements of the prima facie defamation claim must be shown only to the
extent that they are within the control of the plaintiff. And when the plaintiff is
a public official, unless actual malice can be inferred from the statements
themselves, cf. Welch, 3 S.W.3d at 736 (Cooper, J., dissenting) (noting that
patent falsity of statement can be circumstantial evidence of malice), then it
may be impossible to prove actual malice until the identity of the John Does is
revealed. That is clearly beyond the control of the plaintiff at that point.
It should be noted that Dendrite did not involve a public official, although
Cahill did involve an elected town council member. In explaining how a prima
facie case could be made by a public defamation plaintiff, the Cahill court
addressed the elements of a defamation libel claim and what proof must be
shown for each element under Delaware defamation law. That law differs
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somewhat from the elements required to prove defamation and damages in
Kentucky, but it does also contain the requirement that a public figure must
show that a defendant made the statement with actual malice. The Cahill
court, however, specifically found that it was not requiring a public figure
defamation plaintiff to prove the statements were made with actual malice,
because at that point, not knowing the identity of the John Does, that element
was not within the plaintiff's control. Our Court of Appeals simply made this
discussion part of the test. Such is clearly logical at this stage of the
proceeding.
But one thing the Cahill court did in describing how a prima facie case
can be shown by a plaintiff was to point out that as to the element of falsity, a
defamation plaintiff can offer "his own factually based averment that the
statements are false." 884 A.2d at 464 (emphasis added). In short, while the
plaintiff does not have to offer evidence of actual malice at this point, the trial
court must determine that the statements are in fact defamatory, and the
plaintiff does have to present a factual basis upon which falseness can be
established. A bare denial is not sufficient, but rather some facts supporting
falsity must be put before the court. Clearly, because of the protected nature of
anonymous public speech, the degree of proof necessary to be sufficient to pass
review here is greater than when considering discovery that does not involve
constitutionally protected conduct.
Applying the Dendrite test to this case, the first prong has already been
met. It appears that sufficient notice was given, as the John Does were able to
engage counsel, who appeared on their behalf to challenge the discovery of
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their identities. And the alleged defamatory statements have been listed with
particularity. It is the third and fourth prongs from Dendrite that require a
more difficult analysis.
First, we must determine if the statements submitted to the court were in
fact defamatory. A series of posts on Topix, apparently by the John Does,
clearly takes issue with Hickman's role as chairman of the airport board. Some
of the statements are opinion, others contain innuendo, but some actually
make apparently factual statements that accuse Hickman of being in the
control of "little Frankie" and "Senator Ray Jones." Many of the comments
consist of the anonymous speaker saying what he thinks of Hickman's
character and abilities. As such, these are purely opinion, even though hurtful.
But Hickman is also accused of at least three potential illegalities in his public
role as chairman of the airport board: (1) improperly helping "Little Frankie"
obtain a parcel of land that the previous board would not sell him;
(2) improperly obtaining a new or favorably located hangar for himself and
Senator Jones; and (3) improperly squandering an $8 million budget on useless
projects such as pursuing a connection with a regional airline, fixing a "dip" in
the runway, and paying for unneeded services. In short, he is accused of
official misconduct or malfeasance in office, and the statements are obviously
defamatory. Other than obtaining a good hangar for his plane, however, the
comments do not accuse Hickman of personally benefiting from his actions.
The overall tone of the comments collectively is scathing. And Hickman's
response to the comments is understandable. But if the comments are
protected public criticism of a public official, the nature of the comments is not
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the point of legal scrutiny. Rather, the question is whether the comments are
false, and eventually whether they were made with actual malice. In order to
require disclosure of the identity of the John Does, as a part of his required
prima facie showing, Hickman must offer real evidence that the strident
complaints against him are false.
Hickman's proof of falsity so far consists of two things: he says the
statements are "not true" and "totally baseless," and that an audit did not
disclose any "accounting crimes" in the airport board's business.
The allegedly libelous statements cannot be presumed to be either false
or true when a plaintiff seeks to invade the anonymity of a public speaker. The
burden is on Hickman to make a prima facie showing that they are false. He
must meet "a standard more stringent" than simply restating that the
statements made about him were false as he did in his affidavit. Hickman
cannot simply deny that the statements are true and thus pierce anonymity.
Under that perspective, it cannot be said that Hickman has adequately
proved that the claims of malfeasance or official misconduct are false. A bare
denial does not suffice. And the fact that an audit did not turn up "accounting
crimes" does not, standing alone, establish that Hickman did not improperly
favor "Little Frankie," improperly obtain a favorable hangar for himself, or
improperly spend the airport budget. An audit simply does not guarantee that
this kind of claim has been examined.
As the court in Cahill pointed out, some specific proof is necessary to
invade the anonymity of a critic. Here, Hickman could address the expenditure
claims or outright dispute that he got a favorable hangar by showing that he
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got his spot through the normal process or that it was not actually all that
favorable, or that someone else was the decision maker regarding expenditures
and land sales, or any manner of other factual reasons why the allegations are
false. And certainly, if Hickman cannot produce some factual evidence that the
statements are false at this point, how would he be able to prove actual malice
by clear and convincing evidence, which is what our law requires? See Warford
v. Lexington Herald-Leader Co., 789 S.W.2d 758, 771 (Ky. 1990). As the
majority stated in Welch, "This higher proof requirement for public figures is
based upon the premise that unfettered political discussion is a necessary and
fundamental principle of our constitutional system of government, assuring
that political decisions will be made through persuasion rather than power."
Welch, 3 S.W.3d at 728 (citing New York Times Co. v. Sullivan, 376 U.S. at 269-
270).
Simply put, factual evidence of all the elements of a defamation claim
that are within the control of the plaintiff must be shown before a court may
pull aside the shroud of anonymity enjoyed by a public critic in instances like
the Topix posts. Because Hickman has not yet made a prima facie case
sufficient to substantiate the falsity of the statements, he should not be allowed
to obtain the John Does' identities at this point in the proceeding, and the
Court of Appeals should have issued the writ.
And, certainly if the trial court had applied the fourth prong of Dendrite,
of further balancing of the right to anonymity against the strength of the prima
facie case and the necessity for disclosure, the strength of bare denials could
not have outweighed the protected right of anonymity. Because of the
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importance, and thus protected nature, of anonymous public speech, even
after a prima facie showing has been made in such cases, the court must still
balance whether the overall extent of the defamation is so great that it
outweighs the protection of the anonymous public speech before ordering the
identities disclosed. That step was not reached by the court here, but may
require future analysis if the case proceeds further.
C. The trial court cannot enforce an order for an attorney to disclose
identities of clients at this stage in this litigation.
Having determined that the clients' identities remain protected by the
First Amendment, this case raises another issue: namely, whether the lawyer
can be required to disclose the identities at this stage of the litigation. The
John Does maintain that their names are privileged from disclosure under
KRE 503 (attorney-client privilege). 2
The identity of a client is normally not a privileged communication.
Hughes v. Meade, 453 S.W2d 538, 540 (Ky. 1970); see also Evidence Rules
Study Committee, Kentucky Rules of Evidence, Final Draft 42 (Nov. 1989)
(commenting that "[c]lient identity ... [is not] generally within the privilege").
That "information is not usually intended to be confidential, and in most
instances, the client's name or identity is not one of the facts about which the
client seeks legal advice." Paul C. Giannelli, Understanding Evidence 592 (3d
2 "A client has a privilege to refuse to disclose and to prevent any other person
from disclosing a confidential communication made for the purpose of facilitating the
rendition of professional legal services to the client ... [b]etween the client ... and the
client's lawyer." KRE 503(b)(1). "A communication is 'confidential' if not intended to be
disclosed to third persons other than those to whom disclosure is made in furtherance
of the rendition of professional legal services to the client or those reasonably
necessary for the transmission of the communication." KRE 503(a)(5).
20
ed. 2000). That being said, "[t]his general rule ... is subject to exception under
unusual circumstances." Hughes, 453 S.W.2d at 541.
The limited exception to the general rule that has developed in the
federal and state courts typically involves inquiring "whether an order to
disclose identity ... would have the effect of revealing intertwined confidential
communications between client and lawyer." Robert G. Lawson, Kentucky
Evidence Law Handbook §5.05[5][b], at 354 (5th ed. 2013). "[T]he correct test is
whether the fee-payer's identity ... [is] so intertwined with confidential
communications that revealing ... the identity ... would be tantamount to
revealing a privileged communication." Ralls v. United States, 52 F.3d 223, 226
(9th Cir. 1995). Absent such circumstances, it would not further the purpose of
the attorney-client privilege—encouraging a client's full disclosure of facts to
facilitate effective legal advice or advocacy, see, e.g., Lawson, supra, §
5.05[1][a], at 342—to allow the identity of clients to be privileged. Allowing a
broader exception would be inconsistent with the rule of strict construction,
see Haney v. Yates, 40 S.W.3d 352, 355 (Ky. 2000), which constrains the
privilege's reach to the rationale and purpose it is meant to serve.
Here, the attorney's disclosure of the clients' names would not reveal any
other such privileged communications, such as their motive for seeking legal
advice and representation. cf. Baird v. Keorrter, 279 F.2d 623 (9th Cir. 1960)
(sustained claim of privilege for lawyer who made payments to IRS on behalf of
clients where revealing their identities would have disclosed confidential
communications, such as their concern about past underpayments of taxes). It
follows that the attorney-client privilege would not shield the identities from
21
court-ordered disclosure by the attorney where the clients have no right to
remain anonymous. 3
Of course, the very reason the clients sought legal representation was to
protect their anonymity. Obviously, the clients communicated their identities to
their lawyer with the intent that they remain confidential, but that is true only
insofar as such confidentiality is protected under the law. It is the First
Amendment that limits the court's ability to order disclosure of their identities.
Their intent that their identities remain confidential does not control if the law
does not protect their anonymity.
To put it another way, at this point in the litigation, rather than as mere
client identities in the general sense contemplated above, the clients' names are
more accurately considered to be material facts at issue. That is, whether the
clients have a right under the First Amendment for their Topix posts to remain
anonymous, and thus their identities to remain undisclosed, is disputed.
Therefore, their identities are "facts" that they communicated to their lawyer in
confidence for the purpose of receiving legal services—to defend their
anonymity and, more broadly, to defend them against Hickman's allegations of
3 We also note in passing the claim made by the John Does' attorney at oral
argument that he would necessarily be committing an ethical violation by complying
with a court order to disclose his clients' identities. The rule of professional
responsibility governing maintaining a client's confidences is SCR 3.130-1.6, which
provides la) lawyer may not reveal information relating to the representation of a
client unless the client gives informed consent, the disclosure is impliedly authorized
in order to carry out the representation or the disclosure is permitted by paragraph (b)."
SCR 3.130-1.6(a) (emphasis added). Among other things, paragraph (b) allows a lawyer
to reveal what would otherwise be confidential information to the extent necessary "to
comply with other law or a court order." SCR 3.130-1.6(b)(4) (emphasis added). The
rule thus provides a safe harbor of sorts for attorneys ordered by a court to reveal
confidential information.
22
libel. Those facts remain privileged so long as the purpose for their being
confidential (the asserted right to anonymity) remains viable.
However, once the viability of that purpose ceases—that is, once it is
established that the First Amendment does not protect their anonymous
speech because an adequate prima facie showing of defamation has been made
as discussed above—the identities' status changes. The clients' names are then
no longer material facts in the sense explained above, but instead revert to the
ordinary sense of "client identity" not protected by the privilege.
If it is established that they do not in fact have a right to remain
anonymous because a sufficient initial showing that their speech was libelous
has been made to defeat that right, the confidential nature of their identities
evaporates. At that point, the general rule that client identity is not privileged
comes into play, and since the limited exception explained above is not
implicated by the circumstances here, the attorney-client privilege would not
bar the court from ordering the attorney to reveal his clients' names. Under the
circumstances of this case, there is no reason to broaden the exception to the
general rule that a client's identity is not a privileged communication under
KRE 503.
In sum, once it has been established through making the required prima
facie showing discussed above that the First Amendment does not shield the
identities of the anonymous-speaker clients from being disclosed, the attorney
can be ordered to divulge the identities of his clients, but not their confidential
communications to him.
23
HI. Conclusion
At this point, Hickman has not made an adequate prima facie case of the
elements of defamation that are under his control to allow him to obtain the
John Does' identities. Specifically, he has not made a factually based averment
that the statements are false and has, instead, merely characterized them as
false. That is not enough. For that reason, the order of the Court of Appeals
denying the petition for a writ of prohibition is reversed, and this matter is
remanded to that court to issue the writ. Further proceedings at the trial court
shall proceed under the standards articulated in this opinion.
All sitting. Minton, C.J.; Hughes and Keller, JJ., concur. Venters, J.,
concurs in result by separate opinion. Cunningham, J., dissents by separate
opinion in which Wright, J., joins.
VENTERS, J., CONCURRING IN RESULT ONLY: I concur in the result
reached by the majority but, I disagree with its reasoning. The majority holds
that to sustain his claim of defamation and obtain the true names of the
offending parties, Hickman must establish a prima facie case supported by
what the majority calls "real evidence" that the derogatory remarks are false.
The majority says that Hickman has failed to make a "factually based
averment" that the derogatory statements were false, and so his claim must be
denied. I disagree because there is no special kind of evidence that must be
produced to prove the falseness of alleged defamation. Hickman's own
statement saying, in effect, "I swear I did not do any of those bad things they
said about me" is a "factually based averment," and in many defamation
24
situations, the plaintiff's own denial will be the only proof that exists to show
the falsity of the derogatory remarks.
The majority's error on this point flows from an unsound analogy it
draws from our decision in Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 286-87
(Ky. 2014). As the majority notes, we held in Toler that malice in a defamation
case could not be inferred simply from plaintiff's allegation of the falsity of the
derogatory words. Instead, malice "must be shown." From that holding, the
majority reasons that "[i]f a mere allegation of falsity cannot show malice, it
also cannot show falsity." Here is the flaw of that analogy: unlike falsity of the
derogatory words, malice dwells in the mind and soul of the defamer, and the
victim of the defamation cannot know what lies there. Thus, the victim's mere
averment of malice cannot establish the existence of malice; he must present
some extrinsic evidence indicative of the defamer's malevolent intent. Unlike
malice however, the truth or falsity of the alleged defamation resides in the
mind of the victim, and thus the victim knows with absolute certainty if the
derogatory statement about him is true or false, and so his own averment on
the subject stands as evidence of that fact, even though his mere statement
with respect to malice would not.
Ultimately though, Hickman's effort to identify his detractors fails, not
because he fails to show they lied about him, but because the things they said
about him are simply not within the scope of actionable defamation. Of the
numerous insults hurled at Hickman by his secret detractors, the majority
finds only three that it regards as actionable. They are:
25
1. That "under Bill Hickman's chairmanship, Little Frankie got
exactly what he wanted, and there may be criminal activity
involved in the transfer of airport holdings to Little Frankie under
the leadership of his PERSONALLY chosen crony Mr. Bill
Hickman."
2. "We sat back and allowed Bill Hickman, with Little frankie's [sic]
approval, to spend nearly a MILLION dollars of OUR money so they, RAY
S. JONES and BILL HICKMAN, could have NEW, side by side, airplane
hangars for their personal pleasure and arrogance."
3. A number of different allegations that Hickman and the "mayor
justice appointed [airport] board" had "wasted" several million
dollars of airport funds.
Only the first of the foregoing statements gets even close to actual defamation:
the tepid suggestion that "there may be criminal activity involved" in the transfer of
airport property to "Little Frankie." We noted in Stringer v. Wal-Mart Stores, Inc., that
when defamation is based upon the imputation of crime, "it is now well-settled that
no 'particular act or transaction' sufficient for indictment is required, as long as the
``general terms' clearly and unequivocally' impute a 'high crime, such as murder,
robbery, or theft."' 151 S.W.3d 781, 795 (Ky. 2004) 4 (quoting DAVID A. ELDER,
KENTUCKY TORT LAW: DEFAMATION AND THE RIGHT OF PRIVACY, § 1.07(C)(1)(b)
at 68 (1983). Saying "there may be criminal activity involved in the transfer of airport
holdings" does not "clearly and unequivocally impute" a crime, "high" or otherwise, to
Hickman.
The other allegations are nothing more than the kind of ubiquitous opinion
about waste and mismanagement of public funds that now permeate the cultural
4 Overruled on other grounds by Toler v. Sud-Chemie, Inc., 458 S.W.3d 276 (Ky.
2014).
26
I
discourse to the point at which they have no real derogatory impact. An expenditure
that is in one person's opinion a waste of community's money is to another person a
vital investment in the community's future. We may, of course, debate the merits of
either opinion but to characterize one as actionable defamation is incorrect and steps
on the toes of First Amendment liberties. Therefore, I agree that the Court of Appeals
erred by granting the writ of prohibition but I would reverse its decision for the
reasons stated above rather than the reasons cited by the majority.
CUNNINGHAM, J., DISSENTING: I respectfully dissent.
The majority presents an overly restrictive requirement that all
defamation plaintiffs must satisfy in order to receive the most basic discovery
information—the identities of the alleged defamers. More precisely, I
respectfully submit that the majority's rigid interpretation of the element of
falsity is misguided. In so holding, the majority fails to address all of the
arguments raised by the anonymous defendants and also fails to address each
necessary element of defamation. Because our culture is becoming
increasingly saturated by malicious memes and other online chatter, this case
presents a novel claim that is likely to have a great impact on the citizens of
our Commonwealth. Therefore, a further discussion of all relevant issues is
appropriate.
The Prima Facie Elements of Defamation in Anonymous Speech Cases
"[T]he requisite elements for a defamation claim are: (a) a false and
defamatory statement concerning another; (b) an unprivileged publication to a
third party; (c) fault amounting at least to negligence on the part of the
publisher; and (d) either actionability of the statement irrespective of special
27
harm or the existence of special harm caused by the publication." Toler v. Sud-
Chemie, Inc., 458 S.W.3d 276, 281-82 (Ky. 2015) (citations omitted).
The first element requires that the communication be a false and
defamatory statement concerning another. As to the latter component of this
element, the communication must concern the plaintiff. See Columbia Sussex
Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1981). The internet posts at
issue here are clearly about Hickman.
A written statement is defamatory if it tends to "(1) bring a person into
public hatred, contempt or ridicule; (2) cause him to be shunned or avoided; or
(3) injure him in his business or occupation." McCall v. Courier-Journal and
Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981). Having reviewed all the
internet posts, we agree with the trial court, the Court of Appeals and the
majority that these communications tend to bring a person into public
contempt and would tend to injure a person in their occupation.
However, Appellants argue that the anonymous statements are not
actionable because they constitute opinions. See Yancey v. Hamilton, 786
S.W.2d 854, 857 (Ky. 1989). Although neglected by the majority, this defense
to defamation is relevant at the prima facie stage of litigation.
Protected opinion statements are classified as either "pure" or "mixed"
opinions. Id. At its foundation, the opinion doctrine depends on what, if any,
undisclosed facts were known to either the declarant or the recipient. Id.
Furthermore, "[e]ven if the speaker states the facts upon which he bases his
opinion, if those facts are either incorrect or incomplete, or if his assessment of
them is erroneous, the statement may still imply a false assertion of fact."
28
Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990) (emphasis added).
This information is out of Hickman's control.
Requiring Hickman to prove that the statements are actionable non-
opinion communications would require him to prove a negative, and to do so
without the benefit of discovery. Therefore, this is not an element of Hickman's
prima facie case. Coleman, 436 S.W.3d at 211-12 (citing Cahill, 884 A.2d at
464); see also David A. Elder, Defamation: A Lawyer's Guide, at § 8.17
(2003) (suggesting that "only the 'clearest cases' should be deemed
nonactionable as matter of law . . . .") (citation omitted).
Where I part ways with the majority is on the issue of falsity. Appellants
and the majority contest the sufficiency of Hickman's allegations. However, in
addition to the allegations pled in the Complaint, Hickman has also submitted
an affidavit asserting falsity. See Cahill, 884 A.2d at 464 (In order to
demonstrate a prima facie case for falsity, "the plaintiff can offer his own
factually based averment that the statements are false."). Contrary to the
majority's determination, falsity need not be pled with particularity. And
although supporting declarations or attestations of falsity are certainly
beneficial, such evidence should not be required to establish a prima facie case
for defamation. Therefore, Hickman has presented sufficient evidence to
establish a prima facie case that the communications are false.
Remaining Elements
Appellants do not assert that the communications are privileged nor do
they deny that the statements were published to a third party. We address this
element only to reiterate that publication is a critical component of a prima
29
facie case for defamation. Privilege, however, is not. Like opinion evidence,
evidence bearing on the issue of privilege is out of the plaintiff's control in
cases involving anonymous defendants. We will next address the element of
"fault."
The Court of Appeals correctly observed that Hickman need not prove
fault as an element of his prima facie case because it was out of his control.
Coleman, 436 S.W.3d at 211-12 (citing Cahill, 884 A.2d at 464). Similar to the
opinion and privilege issues previously discussed, a plaintiff cannot be required
to establish evidence of constitutional actual malice without first engaging in
discovery. Clearly, that necessitates knowledge of the defendant's identity. We
draw additional attention to this "fault" element only to clarify that the level of
fault depends on a plaintiff's status as a public or private figure. See New York
Times Co. v. Sullivan, 376 U.S. 254 (1964) (applying actual malice standard in
cases involving public officials); Curtis Publishing Co. v. Butts, 388 U.S. 130(1967) (applying actual malice standard in cases involving public figures); Gertz
v. Robert Welch, Inc., 418 U.S. 323 (1974) (requiring states to adopt a standard
of fault in cases involving private plaintiffs).
Kentucky has adopted the simple negligence standard of fault in cases
involving private plaintiffs. McCall, 623 S.W.2d at 886. In any event, proof of
actual malice or negligence necessitates knowledge of the defendant's identity.
Therefore, plaintiffs in anonymous speech cases need not prove fault as an
element of their prima facie case.
The final element of defamation involves "special harm." As we stated in
Toler, "[i]f a communication can be labeled per se defamatory, 'recovery is
30
permitted without proof of special damages because injury to reputation is
presumed and the words are actionable on their face.'" 458 S.W.3d at 282
(citations omitted). "One example of this per se classification is a
communication involving false allegations of unfitness to perform a job . . . ."
Id. The anonymous internet posts in the present case indicate that Hickman
was unfit to perform his job as chair of the Pike County Airport Board of
Directors. Several of the posts also imply criminality. 50 Am. Jur. 2d Libel
and Slander § 162 (2015). As such, these communications are actionable per
se and, therefore, do not require proof of "special harm" under the common
law.
However, "[a]lthough special damages need not be proved if the
communication is actionable per se, the Constitution is now held by the
Supreme Court to require proof of 'actual injury' to the plaintiff, at least if the
defendant did not have knowledge of the falsity of the statement or act in
reckless disregard as to its truth." Restatement (Second) of Torts § 569
comment c (2015) (emphasis added); see also id. at § 621. In the present case,
Hickman is a public official and/or public figure and therefore must eventually
prove actual malice in order to prevail, i.e. knowledge of falsity or reckless
disregard for the truth. As such, he need not prove actual injury. See T.
Michael Mather, Experience with Gertz 'Actual Injury' in Defamation Cases, 38
Baylor L. Rev. 917, 924 (1986) ("Public figures had to prove actual malice, but
could then recover traditional presumed and punitive damages. Private
plaintiffs had only to prove fault, not actual malice, but were limited in recovery
to 'actual injury' if they did not prove actual malice.") (citation omitted). See
31
also Walker v. Kiousis, 114 Cal. Rptr. 2d 69, 78 (Cal. Ct. App. 2001) (citing 2
Dobbs, The Law of Torts (2001) § 417, p. 1169 ["where public official proves
actual malice, New York Times rule 'does not require proof of actual harm to
reputation."'], fn. omitted.). In short, "actual injury" is not an element of
Hickman's prima facie case.
In First Amendment cases involving private plaintiffs and anonymous
defendants, the "actual injury" prima facie requirement may be satisfied by
evidence demonstrating economic, emotional, or reputational damage. Gertz,
418 U.S. at 349 50. See also Dun & Bradstreet, Inc. v. Greenmoss Builders,
-
Inc., 472 U.S. 749 (1985) (holding that the First Amendment does not require
showing of actual malice for recovery of presumed and punitive damages for
false statements about private figures involving matters of purely private
concern).
In anonymous defamation cases involving public officials, the
combination of the common law and the U.S. Supreme Court's First
Amendment jurisprudence provides multiple barriers that plaintiffs must
traverse in order to obtain relief. At the pre-discovery stage of litigation, the
trial court must balance the anonymous free speech rights against the strength
of the prima facie case presented. Dendrite Int'l, Inc. v. Doe No. 3, 775 A.2d
756, 761-62 (N.J. Super Ct. App. Div. 2001). This is a significant hurdle that
is absent from non-anonymous defamation cases. And despite the majority's
speculation on the matter, balancing these interests is an issue for the trial
court.
32
However, the majority holds that trial courts need not balance these
interests if a plaintiff, during the pre-discovery stage of litigation, has failed to
argue their case for falsity with mathematical precision fortified by an
abundance of evidence. Such a requirement imposes an undue burden on
Hickman as well as all other defamation plaintiffs.
In addition, public plaintiffs must eventually prove actual malice by clear
and convincing evidence, which is a difficult burden to satisfy. Even private
figure plaintiffs must at least demonstrate actual injury. Therefore, the
majority's requirement that all defamation plaintiffs in anonymous speech
cases must also prove falsity at the pre-discovery stage of litigation imposes yet
another barrier to recovery. And for what purpose?
The general absence of defamation cases from court dockets is not a
result of an absence of defamation in our society. Much of what is said about
public officials is probably defamatory. One need not look any further than the
2016 presidential campaign as a prime example. And since Milkovich has
essentially abrogated the opinion doctrine, much of what might not have been
actionable in the past, may now present a colorable claim.
It is, however, critical to note that the facial evidence presented by
Hickman may not be sufficient to overcome subsequent dispositive motions or
to establish his proof at trial. Applying a true prima facie standard, however,
Hickman should prevail on the narrow issue before this Court as to the identity
of John Doe. Therefore, I dissent.
Wright, J., joins.
33
COUNSEL FOR APPELLANTS:
Lawrence R. Webster
-
Webster Law Offices
PO Drawer 712
Pikeville, Kentucky 41502
APPELLEE:
Honorable Eddy Coleman
Judge, Pike Circuit Court
Pike County Judicial Center
175 Main Street
Pikeville, Kentucky 41501
COUNSEL FOR REAL PARTY IN INTEREST:
Richard A. Getty
Danielle Brown
The Getty Law Group, PLLC
1900 Lexington Financial Center
250 West Main Street
Lexington, Kentucky 40507
34