… outside your main jurisdiction can have collateral consequences.

In Gunning v. Doe, 2017 WL 1739442 (Me. May 4, 2017), Maine’s highest court just dodged the issue of the applicable First Amendment test for the disclosure of an anonymous speaker accused of defamation.  Instead, it deferred to California’s test.  Why?  Collateral estoppel:  the defamation plaintiff lost her effort to subpoena a California website host for identifying information of the John Doe defendant, and that decision barred the plaintiff from relitigating the disclosure issue in Maine. 

In Gunning, an anonymous speaker published an online (and print) story about Marie Gunning, a Freeport, Maine candidate for Town Council.  The speaker included a photo of the Wicked Witch of the West next to Gunning’s name, along with a caption titled “Aka:  Gunner Gunning Miss Prozac 2003.”  Gunning sued speaker Doe for defamation.

To affect service on Doe, Gunning subpoenaed Doe’s California website host for the names, email addresses, and IP addresses for those associated with the website.  Doe appeared in California and moved to quash the subpoena.  The California court granted the motion.  It held that under California’s Krinsky v. Doe First Amendment test for the disclosure of anonymous speakers accused of defamation, Gunning failed to first establish a prima facie case of defamation.  Doe’s story was parody, not actionable defamation.

Gunning did not appeal.

Rather, she returned to Maine and subpoenaed a local government employee for his deposition to determine if he was in fact Doe.  Both the employee and Doe moved to quash the subpoena on collateral estoppel grounds.  They argued that the California ruling precluded Gunning from relitigating the same disclosure issue.  The Maine trial court agreed and dismissed Gunning’s complaint for lack of service on Doe.

The Supreme Judicial Court of Maine affirmed the dismissal per curiam.  But it declined to weigh in on the extent to which the First Amendment protects anonymous speakers accused of defamation.  “We have previously made mention of Dendrite [New Jersey’s First Amendment test followed in other states] but have not adopted it, and we do not do so today.”  Id. at *5, n.8.

The court observed that the result might have been different had Gunning elected not to first litigate the disclosure issue in California.  Gunning could have pursued the employee deposition before or in lieu of serving the California subpoena.  The disclosure issue in that instance would have been ripe for the Maine courts to decide.

Instead, Gunning opted, of her own volition, to litigate a substantive issue in the California courts, presumably hoping for a favorable result.  After receiving an unfavorable ruling, and choosing not to pursue an appeal of that ruling, she cannot simply elect to relitigate the very same issue involving the same parties in another jurisdiction, hopeful of obtaining a more favorable result.  Such is the long-standing, well-established doctrine of collateral estoppel.

Id. at *5.

The lone dissenting judge disagreed that all elements of collateral estoppel had been met.  In particular, the judge noted differences between Maine and California defamation law.  Maine has never adopted a “heightened burden” for defamation claims against those claiming First Amendment protection, and to defer to California law on that matter is against the public interest in having Maine courts or the Maine legislature balance the competing interests.

There are significant issues in today’s society surrounding social media, blogs, and claims of “fake news.”  The law in this area is evolving, and we should be making our own decision as to what is the best policy for Maine.

Id. at *11.

Maine thus remains in the camp of more than half the states who have yet to decide what First Amendment test applies (if any) for the disclosure of anonymous speakers accused of harmful speech.