The NYT reports that a Delaware Supreme Court has ruled that a public official who claims to have been defamed by an anonymous blogger cannot use a subpoena to unmask the blogger's identity unless he has "substantial evidence" to prove his claim.
This is the correct decision. I was involved in some of the first cases challenging the use of subpoenas to learn the identity of anonymous posters on Yahoo message boards when I was at EFF. The problem is that in the course of normal civil litigation, courts generally do not like to get involved in the discovery process, and there is a general philosophy to disclose all information so that there are no surprises at trial. We had to convince the courts that subpoenas seeking the identity of a speaker were special, because the First Amendment protects a speaker's right to speak anonymously. So there needed to be some burden on the party seeking the information to demonstrate that they have a valid claim before the identity of the speaker was revealed. Here, the Delaware Supreme Court says that the burden is that the plaintiff must have "substantial evidence" to support their claim that they were defamed before the Court will allow the name of the blogger to be released. The timing is important because it prevents plaintiffs from filing bogus claims just so they can issue subpoenas to get the blogger's name. As the Court said, this standard:
will more appropriately protect against the chilling effect on anonymous First Amendment Internet speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass or unmask their critics.