In yet another blow to confidentiality on the Internet, Tennessee Judge Thomas Brothers has ruled a married couple that runs a real estate business and a halfway house for recovering drug abusers may confirm the identity an anonymous blogger critic. The critic used a blog called Stop Swartz to accuse Donald and Terry Keller Swartz of Old Hickory, of committing arson, evading taxes and being drug addicts themselves.

The Swartzes claimed that the attacks resulted direct damages: alleging that they “experienced actual damages from the allegedly defamatory statements, including loss of business, harm to their reputations, emotional distress, and the costs of having to hire a security expert to inspect their home.”

The blogger also asked readers to report any movements of the couple that they witnesses.

When you see a Swartz, no matter how trivial it may seem, leave a comment. Extra points if you observe them outside the village. This serves two purposes: First, it helps us all to keep tabs on Don and Terry and to know what they are up to. Second, it sends a clear message to Don and Terry that their actions are not being ignored . . . . We will tolerate their crap no longer.

The Swartzes sued for defamation and invasion of privacy. They subpoenaed Google to reveal the blogger, and the blogger filed a motion to quash.

Brothers ruled “Internet anonymous speech is not entitled to absolute protection” and that “[t]he free speech of the defendant must therefore be balanced with the reputation and privacy interests of the plaintiffs.” In the opinion below, he rejected the test used in Virginia (this is a case of first impression in Tennessee) in favor of the five-step standard established in the 2001 New Jersey case of Dendrite International v. Doe– requiring (1) a reasonable attempt to notify the blogger, (2) a reasonable time to respond, (3) identification of allegedly defamatory statements, (4) a substantial showing of proof, and (5) a balancing of First Amendment interests.

The Court concludes that the Dendrite test is the best method of determining whether a plaintiff is entitled to pierce a defendant’s shield of anonymity. The Court further finds that this factual showing must be made by affidavit, deposition, or sworn statement, and that mere allegations of fact are insufficient. As the Solers and Krinsky courts have noted, the labels of “summary judgment” or even “prima facie” are potentially confusing. By adopting the Dendrite analysis, the Court does not focus on the terminology, but rather the requirement that a plaintiff make a substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant’s identity.

While some free speech advocates will not like the result, the opinion is well-written and well-researched. It is a blow against the concept of anonymity in favor of a balancing test, but this is the clear trend of courts across the country.

The litigation appears to have succeeded in shutting down the attacks. In his or her last posting, the blogger wrote:

Th..th..th..that’s all, folks!
We’re done. We are posting no more. We’ll keep this site open so you may communicate with us via our email . Thanks for all your support.

For the complaint in the case: 2008-02-11-Swartz Complaint

For the opinion: 2009-10-08-Swartz v. Does Memorandum and Order on Motion to Quash and Motion to Dismiss