Update: Now it can be told... Ken at Popehat has more on this case.
As you saw when you (hopefully) read my response two of the leading cases in Maryland on point is Lubin v. Agora, 882 A.2d 833 (2005) and Independent Newspapers v. Brodie, 966 A.2d 432 (Maryland 2009). Lubin is actually the better precedent to apply because like the present case, it concerned the subpoena of persons who was not a party to the instant case, but might have useful information. Still, Brodie provides important guidance on many points.
As you saw when you (hopefully) read my response two of the leading cases in Maryland on point is Lubin v. Agora, 882 A.2d 833 (2005) and Independent Newspapers v. Brodie, 966 A.2d 432 (Maryland 2009). Lubin is actually the better precedent to apply because like the present case, it concerned the subpoena of persons who was not a party to the instant case, but might have useful information. Still, Brodie provides important guidance on many points.
One thing that Brodie makes clear is that when a subpoena is aimed at identifying an anonymous writer, that anonymous person has a right to be heard before he or she loses their anonymity:
Thus, when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should ... require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board... withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application;
And anonymous filings are not unheard of. For instance, when I sued the LSAC a while back, I did so anonymously. And when we discuss whether there is a constitutional right to abortion, we are likely to mention a case featuring an anonymous Plaintiff; indeed not only was Jane Roe a pseudonym, but there was also a married couple challenging the law known only as John and Mary Doe. So what I was asking for was not actually very unusual.
But there is one difficulty. Maryland Rule §1-311 requires that every pleading be signed, either by the lawyer or if the individual is proceeding pro se (that is, when you represent yourself). And while it doesn’t say it in so many words, obviously they mean that you have to sign your real name.
It’s worth noting that the signature requirement is actually an important safeguard against frivolous suits and filings. There appears to be a version of this rule in virtually every American jurisdiction, where they declare that every paper you file with the court must be signed and by signing it, you are assuring that to the best of your “knowledge, information, and belief there is good ground to support it; and that it is not interposed for improper purpose or delay.” The language will change, but the thrust of the thing is the same: you are assuring that you have factual and legal support for your claims and you are not using this filing as a sham for some improper purpose. And if it turns out that the court later finds that a pleading was filed in violation of this promise significant sanctions are available. For instance, in the movie A Civil Action, based on a real case, the judge eventually finds that Travolta’s character violated this the Federal version of this rule, called Rule 11, and dismisses the entire case as a sanction for violating that rule (this happened in reality pretty much just as it did in the movie). So the signature requirement is not a small technicality, but in fact part of an important procedural requirement that provides some protection against lawsuit abuse, at least in theory. It wasn’t a requirement to just blow off.
But there had to be some way to file, and preserve my anonymity. I suggested in my filing two ways around this problem, writing:
In the alternative, Mr. Worthing moves to file a second copy of this Motion and Opposition under seal and to sign it under his true name and contact information, if the court deems it appropriate. This would allow the court to ensure that a real person who can be located made the certifications required by Maryland Rule §1-311, without piercing Mr. Worthing’s right to anonymous speech McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-342 (1995) before he has a chance to defend it.
So I had my pleading written out and I called the court to try to speak to the judge’s chambers about how to solve the problem on Friday, December 23. Oh, except there was one tiny problem: the court was closed. And looking on the internet showed that they were closed again the following Monday, December 26, and closed Friday, December 30. So effectively I had only three days to file this and additionally, if Kimberlin or his allies wanted to try to stake out the place, I had accidentally made it pretty clear when I was likely to be there. Maybe that is paranoid, but a great man once said, “just because you’re paranoid, don’t mean they’re not after you.”
So maybe I was being paranoid, but its pretty plain they are after me, too. So I intentionally gave some misdirection, believing I could definitely file it person on Tuesday. Well, first I learned that the judge in the particular case wasn’t going to be in chambers until Thursday. So I was unable to get any kind of ruling or guidance from the judge how to proceed. So instead I talked to several officials. I won’t name them and try to embarrass them. They were repeating what they were told and what they were told didn’t seem to account for this situation. So I was told that the only way to do this was to file the motion under seal. And that had to be accompanied by a separate motion to file under seal. In writing. And signed. In my own name. And that document would be part of the public record.
And now, for another musical interlude:
Like I said, I bear no ill will toward the people who told me this. This was clearly not a situation that arose every day. Still this was a serious problem and I didn’t seem to have very much time to address this.
Now prior to this I had made a half-hearted attempt to obtain a pro-bono attorney, knowing it would useful to have one. But after Tuesday, it was clear at that point that local counsel was not a luxury but a necessity. And Ken at Popehat will surely tell you more tonight, but let’s just say he and a very nice attorney come through, big time. So she is representing me for the purpose of securing the right to represent myself anonymously—or more precisely without revealing my identity to a convicted terrorist and perjurer. So she filed a motion to allow me to file anonymously. It’s like Liza telling Henry that she has a second bucket: problem solved. But it took a few days to do it, and because I thought I might have to go to court on Thursday, I engaged in slightly more disinformation to make everyone think it was already filed. I know, I know, if you can’t trust a guy to tell his stalkers the truth about where he will be and when, what is this world coming to?
So all’s well that ends well. My pleading was filed and you get to see it... a few minutes ago. I meant to finish this post first, but it took longer to write than I anticipated.
But let me say something to the court... some constructive criticism, if you will. While I am not angry about the bureaucratic difficulties I went through this week, it became clear to me that this needs to be changed. It was difficult for me, a licensed lawyer from another state, to navigate this situation and without some help from a Maryland lawyer, I wouldn’t have been able to get around this problem at all. When someone seeks to reveal the name of an anonymous or pseudonymous writer, that person should be allowed to object and they shouldn’t be required to find a lawyer to do it for them. I mean Brett Kimberlin hasn’t been forced to hire a lawyer, and neither is Seth Allen. But while I actually am a lawyer (just not in Maryland), I was the one being effectively forced to hire counsel and on an extremely short basis. It is a basic premise in our adversarial system of justice that justice is more perfectly done when there is vigorous advocacy on both sides of any question. And yes, two sides represented by counsel is the ideal, but not every person can afford a lawyer and in many cases the most rational answer is to represent yourself—especially when that person is himself a lawyer. There needs to be a new rule, a new procedure to deal with this kind of situation more smoothly, that allows a person, representing him or herself, to ask this court to allow that person to preserve his or her anonymity without hiring a lawyer when challenging this sort of action to reveal their true identities.
And I would thank this court if to consider this circumstance and at the first opportunity rewrite the rules a little account for this circumstances. Not so much for myself, but for the next anonymous writer.
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Follow me at Twitter @aaronworthing, mostly for snark and site updates.
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