Robert Ambrogi Blog
A Florida lawyer has lost her bid in a defamation action to force the legal directory site Avvo to reveal the identify of an anonymous poster who wrote a negative review of her.
The Washington state Court of Appeals ruled against the lawyer, Deborah Thomson of The Women’s Law Group, Tampa, after determining that the First Amendment required her to provide evidence that she was defamed.
“Considering the speech at issue here, we agree that supporting evidence should be required before the speaker is unmasked,” the court said.
The opinion, Thomson v. Doe, was released on July 6.
At issue was a comment posted on Avvo by someone identified only as “Divorce client.” It said:
I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine hour mediation because she had vacation days. She failed to subpoena documents that are critical to the division of assets in any divorce proceeding. In fact, she did not subpoena any documents at all. My interests were simply not protected in any meaningful way.
Thomson filed suit against the anonymous Jane Doe, alleging that she was not a client and that the post defamed her. In a Washington trial court, she subpoenaed Avvo seeking the identity of the poster. When Avvo refused to provide the name, Thomson moved to force Avvo to comply. The trial court denied the motion and she appealed.
The question of the showing that a defamation plaintiff must make on a motion to unmask an anonymous defendant had not been decided in Washington. After reviewing cases on the issue from other jurisdictions, the court concluded that the evidentiary standard must match the First Amendment interest at play, and therefore the nature of the speech at issue. Commercial speech, for example, would be subject to a lesser standard than political speech.
The court conclude that Doe’s speech fell between commercial and political and was therefore entitled to an intermediate level of protection. Having determined that, it then held that the plaintiff was required to make at least a prima facie showing of circumstances that would support her claim.
“In fairness to Thomson,” the court said in a footnote, “when she filed her motion, the requisite showing was unclear. And, Avvo brought no motion challenging the adequacy of Thomson’s pleadings. But, because Thomson did not produce any supporting evidence, her claim fails whether we review it as a direct appeal or discretionary review, de novo or for abuse of discretion.”