Jоan MELVIN, Appellee v. John DOE, Allen Doe, Bruce Doe, Carl Doe, David Doe, Edward Doe, Frank Doe, George Doe, Harry Doe, Irving Doe, Kevin Doe, Larry Doe, and Jane Doe, Appellants.
836 A.2d 42
Supreme Court of Pennsylvania.
Decided Nov. 19, 2003.
836 A.2d 42
Supreme Court of Pennsylvania.
Argued March 3, 2003.
Decided Nov. 19, 2003.
John R. Orie, Robert O. Lampl, Pittsburgh, for appellee, Joan Melvin.
Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.
OPINION
Justice LAMB.
In this appeal, we are asked to review the Superior Court‘s refusal to overturn the order of the Allegheny County Court of Common Pleas forcing Appellants, John Doe et al., to reveal their identities to Appellee, Joаn Melvin.
Appellee, a former Allegheny County Court of Common Pleas Judge, has been a Pennsylvania Superior Court Judge since November of 1997. In early 1999, Appellants, via a service provided by America Online, published a statement about Appellee on an Internet webpage known as “Grant Street ‘99“. The statements posted on the webpage included allegations that Appellee had engaged in “misconduct” by lobbying the Ridge administration1 for the appointment of a particular attorney to an upcoming vacancy on the Allegheny County Court of Common Pleas.
After bеcoming aware of the statements posted on the website, Appellee commenced a defamation action in Allegheny County. Thereafter, Appellee propounded discovery seeking Appellants’ identities. Appellants filed a motion for a protective order, as well as a motion for summary judgment, alleging that they enjoy a First Amendment2 right to engage in anonymous political criticism, and that the court, in order to protect that right, should require Appellee, a public official defamation plaintiff, to prove actual economic harm prior to obtaining discovery of Appellants’ identities. The trial court denied Appellants’ motion for summary judgment because
Appellants filed an appeal from the trial court‘s order with the Superior Court. Appellee filed a motion to quash, which the Superior Court granted. The Superior Court held that the order denying Appellants’ motion for summary judgment was not a collateral order subject to immediate appellate review under
The Superior Court also held that the trial court‘s order directing Appellants to disclose their identities was not a collateral order under
As discussed infra, under the collateral order doctrine,5 Appellants, in seeking to protect their First Amendment rights, were entitled to appellate review of the trial court‘s order requiring disclosure of Appellants’ identities.6 Pennsylvania Rule of Appellate Procedure 313 states:
(a) General Rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.
This Court recently discussed the collateral order doctrine in Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999). In Schwartz, we addressed the issue of whether a trial court order compelling the Bureau of Professional and Occupational Affairs to produce its investigative file in connection with a dental malpractice action was appealable under the collateral order doctrine. Similar to the action of Appellants in the instant case, the bureau filed a motion for a protective order claiming, inter alia, that the investigative file was privileged and thus not subject to discovery.7
As in Ford Motor, the issues of privilege raised by the Bureau can be addressed without analysis of the alleged negligence of the dentists in treating Ewa Ben. We find, therefore, that the Bureau has demonstrated that the issue of privilege is separate from the merits of the dispute for purposes of the collateral order dоctrine.
In the instant case, Appellee argues that the trial court‘s discovery order cannot be considered a collateral order because it is “intertwined closely and inseparabl[y] with the merits of Appellee‘s defamation claim.” Appellee‘s Brief, p. 20. We disagree with Appellee‘s argument based on Schwartz, where this Court unanimously concluded that the Ford Motor concept of separability is more practical in its application than the standard articulated by the Commonwealth Court in Doe v. Commonwealth of Pennsylvania, Department of Public Welfare, 105 Pa.Cmwlth. 482, 524 A.2d 1063 (1987), which prior to Schwartz, was a leading case on the subject.
The Superior Court held that it could not review the discovery order because it “may only be considered collateral where the material subject to discovery is not intertwined with the facts necessary to support the cause of action.” Melvin, 789
Appellants claim that they enjoy a First Amendment right to engage in anonymous political speech and that the trial court failed to adequately protect that right by requiring Appellee to prove actual economic harm as a prerequisite to disclosure of their identities in discovery. The main cause of action is a defamation claim based on the allegedly defamatory statements made about Appellee. Appellate review of the constitutionality of the discovery order is not directly related to or impermissibly intertwined with the resolution of the underlying defamation claim. Consideration of whether a harmful defamatory statement was made (i.e., publication, falsity, defamatory meaning, actual malice, and actual harm) is
However, this Court is committed to preventing the erosion of the principle behind the collateral order doctrine. As we explained in Geniviva v. Frisk, 555 Pa. 589, 725 A.2d 1209, 1214 (1999), the collateral order doctrine is a specialized, practical application of the general rule that only final orders are appealable as of right. Thus, Rule 313 must be interpreted narrowly, and the requirements for an appealable collateral order remain stringent in order to prevent undue corrosion of the final order rule. See Geniviva, 725 A.2d at 1214. Tо that end, each prong of the collateral order doctrine must be clearly present before an order may be considered collateral. Therefore, we must also give critical attention to the remaining criteria of whether the trial court‘s discovery order directly affects a right that is too important to be denied review and whether the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.
As we stated in Geniviva, “[f]or purposes of defining an order as a collateral order under Rule 313, it is not sufficient that the issue be imрortant to the particular parties. Rather it must involve rights deeply rooted in public policy going beyond the particular litigation at hand.” Geniviva, 725 A.2d at 1213-14. Appellants assert that the First Amendment protects anonymous political speech, and that the courts, in order to protect that right, should require a public official defamation plaintiff to establish economic harm prior to obtaining discovery of an anonymous defamation defendant‘s identity. The importance of protecting against government infringement upon the rights afforded by the First Amend
The United States Supreme Court has found that the First Amendment does indeed protect, in some cases, the right to speak anonymously. The Court made such a conclusion in Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960). In Talley, the petitioner had distributed handbills in violation of the Municipal Code of the City of Los Angeles, which provided in pertinent part that “[n]o person shall distribute any hand-bill in any place under any circumstances, which does not have printed on the cover the name and address of [t]he person who printed, wrote, compiled or manufactured the same.” Talley, 362 U.S. at 60-61 (quoting Section 28.06 of the Municipal Code of the City of Los Angeles). The handbills that petitioner had distributed in Los Angeles urged readers to help a consumer organization carry out a boycott against businesspersons whom the organization believed supported manufacturers that did not offer equal employment opportunities to various ethnic groups. Id., 362 U.S. at 61. The petitioner alleged that the ordinance invaded his freedom of speech and of press in violation of the First and Fourteenth Amendments to the United States Constitution. Id. at 62. The Court found that the ordinance was overly broad in that it barred all handbills that did not have printed thereon the names and addresses of the persons who prepared, distributed or sponsored them. Id. at 64-65. Thus, the Court held that the ordinance was void on its face, noting that9
“there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified.”
Id. at 65 (citing Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (the reasoning of such holdings bеing that identification and fear of reprisal might deter otherwise peaceful discussions of public matters of importance)).
Recently, in McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), the Court again ruled on the constitutional implications of anonymous pamphleteering. In McIntyre, the Court addressed whether an Ohio statute that prohibited the distribution of anonymous campaign literature abridged the freedom of speech within the meaning of the First Amendment. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 336. McIntyre distributed leaflets to persons attending a public meeting in order to raise opposition to a proposed school tax levy. While some of the handbills identified McIntyre as the author, others did not. A school official filed a complaint with the Ohio Elections Commission alleging that McIntyre‘s distribution of unsigned leaflets violated the Ohio election law. The commission agreed and fined McIntyre $100. Finding in favor of McIntyre, the United States Supreme Court cited its decision in Talley from thirty-five years earlier: “[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.” McIntyre, 514 U.S. at 341 (citing Talley, 362 U.S. at 64). The Court stated unequivocally that an author‘s decision to remain anonymous is protected by the First Amendment.10 Id. at 342. Emphasizing this right as applied to politicаl debate, the Court stated: “even in the field of political rhetoric, where ‘the identity of the speaker is an important component of
More than fifty-five years before McIntyre was decided, in Schneider v. State of New Jersey (Town of Irvington), 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), the United States Supreme Court addressed four cases, each of which presented the question of whether regulations embodied in a municipal ordinance abridged the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment to the Constitution. Three of the four consolidated cases involved ordinances that prohibited in some way the distribution of handbills. In those three cases, the purpose of the ordinances was to protect the appearance of the streets by keeping them free of unnecessary litter. The Supreme Court concluded that such a purpose was insufficient to justify ordinances that prohibited persons rightfully on a public street from handing literature to those willing to receive it. Schneider, 308 U.S. at 162. In so finding however, the Court recognized that certain interests could justify some regulation of speech without infringing upon protected First Amendment rights:
For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept
a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion.
Thus, while the United States Supreme Court, in applying the First Amendment, has held that there is indeed a right to anonymous free speech, it has also recognized that, with regard to free speech generally, the States have justifiable interests in preventing certain evils. The Court has specifically stated that libel is one of those evils that the States have justifiable interests in guarding against:
The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defаmatory falsehood. We would not lightly require the State to abandon this purpose for, as Mr. Justice Stewart has reminded us, the individual‘s right to the protection of his own good name
reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our cоnstitutional system. Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (concurring opinion).
Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In Gertz, the Court recognized that there is some tension “between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury.” Id. at 342.
In the instant case, Appellants argue that the trial court did not adequately protect their First Amendment right to engage in anonymous рolitical speech, since it directed disclosure of their identities without requiring Appellee to establish actual economic harm. We find that the United States Supreme Court has endorsed that right in certain circumstances. The issue of whether that right protects Appellants’ identities in the context of Appellee‘s defamation claim remains undecided. However, in the context of this case, we find that the court-ordered disclosure of Appellants’ identities presents a signifi-
Finally, it is clear that once Appellants’ identities are disclosed, their First Amendment claim is irreparably lost as there are no means by which to later cure such disclosure.11
For the reasons discussed above, this Court finds that the trial court‘s discovery order falls within Rule 313, the exception to the final order rule. Since the instant appeal is from the Superior Court‘s order quashing the appeal of the trial court‘s discovery order, the Superior Court, having found that the order is not appealable, has not yet addressed the constitutionality of the trial court‘s order. Therefore, we vacate the Superior Court‘s order quashing Appellants’ appeal and remand this case to the Superior Court for consideration of Appellants’ constitutional question, namely, whether the First Amendment requires a public official defamation plaintiff to establish a prima facie case of actual economic harm prior to obtaining discovery of an anonymоus defamation defendant‘s identity.
Chief Justice CAPPY files a concurring opinion in which Justices NIGRO and EAKIN join.
Chief Justice CAPPY, concurring.
I agree with the majority‘s holding that the trial court‘s order directing Appellants to disclose their identities is a collateral order under
I do not, however, entirely agree with the majority‘s reasoning as to why the Rule‘s second prong is met. Specifically, I take issue with the majority‘s inquiry into whether Aрpellants “presents a significant possibility of trespass” upon the right that Appellants have asserted. (Majority Opinion at 13). I believe that the majority‘s inquiry and determination in this regard go to the merits of Appellants’ appeal, and should not be part of the Court‘s present opinion.
In connection with the Rule‘s second prong, the court is to determine whether “the right involved is too important to be denied review....”
The majority, however, goes further. On pages 8 through 13, it engages in a preliminary determination as to whether the First Amendment right to anonymous speech applies to Appellants’ particular circumstances, as defendants in a defamation case. In doing so, I believe that the majority goes too far. In my view,
I find our decision in Ben v. Schwartz, 556 Pa. 475 instructive. There, the Bureau of Professional and Occupational Affairs (“Bureau“) objected to a subpoena of its investigative files pertaining to complaints against a dentist who had been sued for malpractice. The Bureau claimed that
We disagreed, and held that the trial court‘s discovery order satisfied all three of the Rule‘s prongs. In connection with the second prong, we weighed the interests implicated in the case against the costs of piecemeal litigation. Because we determined that the privileges the Bureau had raised concerned rights rooted in public policy, we concluded that the Rule‘s second prong was met. 729 A.2d at 552. In this part of our opinion, we did not consider whether the privileges or other rights the Bureau was asserting actually applied in the circumstances its case presented. Rather, it was later in our opinion, when we moved to the merits of the Bureau‘s appeal, that we decided whether the Bureau‘s files were privileged or otherwise protected from disclosure because of the privacy interests of third parties. Ultimately, we rejected the Bureau‘s claims of privilege and other interests, and held that its files were subject to discovery. Id. at 553-54.
Thus, given the terms of
Justice NIGRO and EAKIN join this concurring opinion.