Are anonymous bloggers protected by First Amendment?

By Jordan Smith
The Austin Chronicle
Originally published Nov. 7, 2013

Who is the anonymous blogger known as the “Trooper?” More importantly, does anyone – including Bob Brockman – have a right to know?

Those are among the questions now before the Texas Supreme Court after oral arguments this morning in a case where Brockman and the company he heads, Reynolds & Reynolds, seeks to compel Google to divulge the identity of Trooper, who Brockman argues has been defaming him and his company for years.

To hear lawyers for the blogger tell it, Brockman’s demand to have Google spill the details on their client is little more than a fishing expedition by a corporate executive with a reputation for litigiousness. Before Google can be forced to give up Trooper’s identity, attorney Shelly Skeen argued before the court Thursday morning, Brockman should be required to demonstrate it has evidence to support claims that Trooper has libeled and defamed him, such that a lawsuit could be filed in Texas and the charges considered by a judge or jury. Neither Brockman nor his company have “suffered one iota of damage” because of posts to Trooper’s blog (Reynolds News and Information), Skeen said, and Trooper’s First Amendment right to free speech shouldn’t be violated unless and until the company can at least demonstrate an actual cause of action.

Reynolds & Reynolds, a developer and supplier of car dealer management computer systems based in Ohio, combined with Texas-based Universal Computer Systems in 2006, in what court records describe as a highly controversial takeover. Soon after the merger there were layoffs, the newly combined company lost clients, and employee satisfaction “dramatically decreased,” according to court filings connected to the current case. At issue, at least in part it seems, was the personality and management style of Brockman, who took over as head of the combined corporation.

Apparently in response to issues with the company post-merger, a blogger named Trooper took up residence on the internet in 2007, dishing dirt about R&R and Brockman. It wasn’t until 2010, however, that Brockman took action, asking a Houston court to require Google to turn over the identity of Trooper as a means to investigate a potential legal claim – notably, that Trooper not only defamed and disparaged Brockman and the company, but that he also breached a fiduciary duty to R&R by talking smack that could hurt its bottom line.

On that last point, perhaps, the truth about Trooper’s identity is key: According to Brockman’s lawyers, Trooper is clearly an employee of the company, and as such is obligated not to divulge certain information. During oral arguments Thursday, Brockman’s lawyer Grant Harvey pointed out that Trooper has written many times on his blog that he is, indeed, a Reynolds employee. And the kind of acrimonious speech Trooper has been spewing does not provide him, as an anonymous speaker, with First Amendment protection, he argued.

But Skeen challenges that Brockman has thus far failed to provide any actual evidence that Trooper is an employee, or, more importantly, that he lives in Texas or has any connection to the state. Without that, she argues, Brockman’s threat of a suit in Texas, and seeking Trooper’s identity via Texas courts, is little more than a fishing trip in a state that wouldn’t even have jurisdiction over any ultimate lawsuit. Skeen told the justices that Trooper does, indeed, live in Ohio; if Brockman were going to bring suit he would have to do so in that state.

Should Texas be concerned that if it agrees that Brockman should have information about Trooper’s identity that the state would be inviting any number of potential litigants in any number of jurisdictions to see Texas as some kind of Internet “bureau of investigation,” asked Chief Justice Nathan Hecht. No, not generally, Harvey responded, and in this particular case there remains question about whether Trooper, even if he lives elsewhere, would be free from action in Texas since he has has specifically focused on attracting Texas readers.

And because Trooper’s speech was commercial and not political in nature, he has no protection as an anonymous speaker under the First Amendment, Harvey argued, “where there is simply an employee complaining and griping about an employer.”

Skeen countered that the courts have failed to consider evidence Trooper offered to demonstrate not only that he has no connection to Texas, but also that he is not an R&R employee. In the broader interest of First Amendment protections, the Texas Supremes should first require the lower court to vet the allegations of Brockman (or of anyone else making such claims against an anonymous speaker), to ensure they’re not baseless. Regardless of whether Brockman likes it, Trooper’s speech is still “expressive speech and is still entitled to deference under the First Amendment,” Skeen argued, which begs for legal showing that a larger case could be made before a court could order the speaker outed.

Harvey, however, isn’t buying it: In the facts of this particular case, he said his client has brought evidence sufficient to learn Trooper’s identity – including that there is a dispute over who Trooper has said he is: online he claims he is an employee of Reynolds, in an affidavit before the court, that he is not an employee. But as Trooper would have it, the Supremes “should just drop this, trust me,” Harvey said. “If there’s one thing we know about the Trooper in this courtroom, [it is that] he is a liar.”

The court has no deadline to rule.