Public Official Is Entitled to Discover Identity of Online Commenter Who Accused Him of Molestation

By June 24, 2015 Uncategorized No Comments

In Hadley v. Subscriber Doe a/k/a Fuboy, 2015 IL 118000, the Illinois Supreme Court affirmed a decision of the Illinois Appellate Court, Second District, finding that a county board candidate was entitled to discover the identity of the author of an allegedly defamatory statement on an Internet message board.

The Freeport Journal Standard published an online article regarding Bill Hadley’s campaign for the Stephenson County Board. In the comments section of the article, one user who called himself “Fuboy” wrote: “Hadley is a Sandusky waiting to be exposed. Check out the view he has of [an elementary school] from his front door.” “Sandusky” was a reference to Jerry Sandusky, the former assistant football coach at Penn State who was convicted of sexually abusing minors.

In response to Fuboy’s comment, Hadley filed a defamation suit against Fuboy and requested that Comcast disclose Fuboy’s identity under Illinois Supreme Court Rule 224, which permits the discovery of individuals who may liable for damages. The Circuit Court ordered Comcast to release Fuboy’s identity so Hadley could pursue his defamation suit. Fuboy appealed. As we previously reported, after analyzing the rights of both parties, the Appellate Court found that Fuboy’s comment was defamatory and, therefore, unprotected. Accordingly, Hadley was entitled to discover Fuboy’s identity.

The Illinois Supreme Court granted Fuboy’s petition to appeal and affirmed the Appellate Court’s decision.  The Court found that Fuboy’s comment was defamatory per se because it imputed the commission of a crime by Hadley (i.e. sexual abuse of children), because the Sandusky story was so prominent in the news at the time of the comment, it was clear what Fuboy was intending to impute to Hadley.  Further, the Court found that the comment was not reasonably capable of an innocent construction and was not an opinion because it had a precise and readily understood meaning, was verifiable, and the context of the comment signaled that it had factual content.  As a result, the Court found that the comment was an assertion of fact, and was therefore defamatory and unprotected.  Thus, Fuboy’s identity was discoverable under Rule 224.

Although First Amendment protections apply to speech on the Internet, this case is a reminder that the right of anonymity in public discourse does not apply to defamatory speech. Illinois Supreme Court Rule 224 gives public officials the right to discover the identity of those who engage in defamatory speech against them in any forum.

Contact Steve Richart or Kerry Burnet with questions about this case.

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