Posted: 5:56 p.m. Monday, Dec. 2, 2013

Texas Supreme Court hears Dayton blogger case



By Chuck Lindell

Austin American-Statesman

As state law struggles to catch up to the Internet Age, the Texas Supreme Court will decide whether a computer software company can force a sharp-tongued anonymous blogger who claims to be from Dayton to be identified by name so he could be sued.

The blogger, known online as Trooper, claims a First Amendment right to remain anonymous, calling Internet speech in blogs and chat rooms the modern equivalent of political pamphleteering and quoting a 1995 U.S. Supreme Court ruling that said “anonymity is a shield from the tyranny of the majority.”

But the Ohio-based software company, Reynolds & Reynolds, known as R&R, argues that Trooper’s missives — calling the firm’s chairman a thief and disparaging its top product as “crap,” among other criticisms — should not receive the same free-speech protection as political speech because they came from a self-described employee.

“The Supreme Court of the United States has not held that there is a right of anonymity … where it is simply an employee complaining and griping about his employer,” Grant Harvey, lawyer Reynolds and Reynolds, told the court during oral arguments in early November.

With the explosion of Internet platforms blurring the lines between professional news organizations and bloggers, commentators and pundits, the court’s ruling will likely set new ground rules in a rapidly changing media arena.

Trooper began a now-discontinued blog in 2007 called “Reynolds News & Information” that was particularly critical of Robert Brockman, who had acquired R&R earlier that year for $2.8 billion and became its chairman and chief executive officer. Trooper blamed Brockman for lost customers, a sharp decline in product quality and poor employee morale at the maker of computer management systems for auto dealerships.

In 2010, R&R and Brockman filed suit in Houston to force Google, which ran the online home for Trooper’s blog, to disclose the blogger’s name and address so they would know who to sue for defamation, business disparagement and — if his status as an employee could be confirmed — for publishing corporate secrets and disparaging the company in violation of a signed employment agreement.

Trooper submitted a sworn affidavit arguing that Texas courts lacked jurisdiction because he did not live in Texas. What’s more, Trooper claimed that he was not an R&R employee and could not be sued for employment-related allegations. The blogger’s lawyer also offered to reveal his name in private to District Judge Robert Schaffer to verify his claims.

Schaffer refused the offer and instead ordered Google to reveal the blogger’s identity. The 1st Court of Appeals in Houston affirmed Schaffer’s order in 2011.

Trooper next turned to the state Supreme Court, managing to keep his identity a secret while the appeals continue.

During oral arguments before the nine Supreme Court justices, R&R lawyer Harvey said that Schaffer was justified in ordering disclosure because there was a fact question that could not be answered otherwise: Is Trooper an R&R employee, as he claimed in his blog?

“Let’s be candid about what’s going on here. There is one thing we know about the Trooper in this courtroom: He’s a liar,” Harvey said. “There are 50 (online) references to the man being an employee. … I would submit to you that that’s enough to say, wait a minute, now we get to test” his claims in court.

Chief Justice Nathan Hecht took the argument one step further.

“On the other hand, shouldn’t Texas be concerned that its courts can be used to investigate any cause of action that could be brought anywhere in the United States?” Hecht asked. “Why should Texas courts just be sort of the State Bureau of Investigation?”

Judges, Harvey replied, have the discretion to determine whether the burden or cost of disclosure outweighs the need. And if Texas courts lack jurisdiction over a lawsuit, “the judge can say no,” he added.

Trooper’s lawyer, Shelly Skeen, argued that Texas courts must have “personal jurisdiction” over the blogger before a judge can force him to reveal his identity.

But Trooper cannot be bound by state courts because he does not live, own property or keep a bank account in Texas, Skeen said. Trooper even identified himself as a resident of Dayton in his blog — a detail known to R&R before it filed suit in Houston, she said.

“You go to the place where the person is,” Skeen said. “They know they didn’t file this here in this court in good faith.”

R&R argues that Texas is an appropriate venue for its lawsuit because Brockman owned a house in Houston and the company’s principal Texas office is in the city as well.

Skeen also argued that less-intrusive options could have established that Trooper lives out of state, including geolocation software that would have shown that his computer-specific IP address is in Ohio.

“This court told lower courts that you should strictly limit and closely supervise (such disclosures) because the intrusion into otherwise private matters … is not to be taken lightly,” Skeen said. “Just because someone is on the Internet doesn’t mean … they should be hauled into court in Texas.”

For its part, Google has steered a middle path through the controversy, submitting a brief describing itself as “caught in the middle.” Google assured the court that it would turn over Trooper’s information if ordered but said it should not be forced to do so until the free speech and jurisdictional issues are resolved.

The court has no deadline to issue a ruling in the case.

 
 

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