Schmidt, Sethi & Akmajian Blog

Torts: Defamation—Essentially True Statements Protected

Posted by Ted A. Schmidt | Mar 12, 2018 | 0 Comments

Doe v. Mahoney, 784 Ariz. Adv. Rep. 34 (App. Div. I, February 6, 2018) (J. Mc Murdie)

UNLESS FALSE STATEMENTS IN AN ANYONOMOUS BLOG CHANGE THE “SUBSTANTIAL STING” OF OTHERWISE TRUTHFUL STATEMENTS THE FIRST AMENDMENT WILL PROTECT BLOGGER'S ANONYMITY AND DEFEAT A DEFAMATION ACTION

Plaintiff brought this special action seeking to quash a subpoena which would require plaintiff to reveal his identity regarding an anonymous internet blog he published which defendant mining company alleged defamed it. Specifically, plaintiff made a series of posts on a blog hosted on InvestorsHub.com, a website that organizes online debates for investors regarding various companies and prospective investments. Doe's posts concerned the viability of defendant's mining investments in Arizona and accused defendant of fraud. The Arizona Court of Appeals accepted jurisdiction and granted relief.

In order to overcome protections offered anonymous publishers by the First Amendment to the U.S. Constitution a party requesting disclosure of the anonymous party's identity must show:

(1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request,

(2) the requesting party's cause of action could survive a motion for summary judgment on the elements of the claim not dependent on the identity of the anonymous speaker, and

(3) a balance of the parties' competing interests favors disclosure.

Here, the court of appeals quashed the subpoena finding defendant's claim of defamation could not withstand a motion for summary judgment.

Truth is an absolute defense to a claim of defamation.  A defamatory statement that damages a plaintiff's reputation is actionable only if the inaccuracy changes the "substantial sting" of an otherwise true statement. To hold otherwise would place a “chilling effect” on free speech.

Here the court found inaccuracies and exaggerations in the blog posts but because these inaccuracies and exaggerations did not change the basic truth and impact of the blogs the inaccurate statements did not rise to the level of actionable defamation.  The First Amendment protects plaintiff's anonymity.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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