Shelly Skeen

November 22, 2013

BFS Law Group’s Shelly Skeen argued in front of the Texas Supreme Court on November 7, 2013 in support of the First Amendment right to speak anonymously on the Internet. The case, styled 13-0073 In re John Doe aka “Trooper”, involves a company’s and its CEO’s attempt to discover the identity of an anonymous Internet blogger, “Doe.”

Doe began blogging about Reynolds and Reynolds Co. (“Reynolds”), a large computer hardware and software company headquartered in Ohio, and its new CEO, Robert Brockman (collectively, “R & R”). Doe’s blog was hosted on blogspot.com, which is owned by Google. In an attempt to discover Doe’s identity before filing a defamation suit against Doe, R & R filed a Rule 202 Petition for pre-suit discovery asking the Court to order Google to disclose Doe’s identity.

Doe, through its counsel at BFS Law Group’s , filed a Special Appearance arguing the trial court lacked jurisdiction to disclose Doe’s identity because Doe does not live in Texas and has no contacts with Texas. The trial court never ruled on Doe’s Special Appearance.

In 2010 the trial court granted Reynolds’s 202 Petition ordering Google to release Doe’s name, address, and telephone number to R & R. The Court of Appeals agreed, and BFS Law Group’s Shelly Skeen filed a Petition for Writ of Mandamus in the Texas Supreme Court. After substantial briefing by BFS Law Group’s Shelly Skeen and associate Claire E. James, the Texas Supreme Court agreed to hear oral argument.

First, Ms. Skeen argued the trial court abused its discretion when it granted R & R’s Rule 202 Petition because the trial court did not have personal jurisdiction over Doe. Generally, an individual cannot be forced to defend himself in a court unless the individual resides in the state or has other substantial contact with the state. Doe argued this standard, which is an essential component of the Fifth Amendment right to Due Process, applies to Rule 202 petitions to obtain the identity of anticipated or potential defendants, like Doe. At the very least, Doe argued, a court should have to find some basis to believe the disclosure will allow a company like Reynolds and its CEO to establish the court has personal jurisdiction over Doe. For more information concerning this issue check out Ms. James’s earlier blog post here.

Second, Ms. Skeen argued the trial court abused its discretion in granting R & R’s Rule 202 Petition because R & R could not present sufficient evidence on each of the elements of its potential claims. Anonymous speech enjoys First Amendment protection, and the anonymity of the speaker is itself protected. Of course, free speech and anonymity are subject to certain limitations. For example, speech that is defamatory is not protected. Ms. Skeen argued that, before a Texas court can disclose an anonymous speaker’s identity, the complaining party should have to present proof of actionable conduct under the law and proof of damages. This will ensure that anonymous free speech is protected while at the same time allowing the complaining party to learn the identity if it has been harmed under the law.

To see the Oral Argument click here

To see the documents filed with the court click here

See below for links to the Texas Supreme Court briefs:

Relator’s petition for Writ of Mandamus

R&R’s response to Petition for Writ of Mandamus

Google Inc.’s Response to Petition for Writ of Mandamus

Relator’s reply to Response to Request for Writ of Mandamus

Relator’s Brief in Support of Petition for Writ of Mandamus

Google’s Response to Petition for Writ of Mandamus and Brief in Support

R&R’s Response and Brief in Support of Petition for Writ of Mandamus

Relator’s Reply Brief

For more information please see the links below:

TX Supreme Court Oral Argument:

http://texassupremecourt.mediasite.com/mediasite/Play/6fca286f5b1f4a31b3592e3f873df2e91d

Other Media reports:

http://www.law360.com/articles/469584/5-texas-supreme-court-cases-to-watch-this-fall

http://www.law360.com/articles/467380/texas-high-court-will-hear-blogger-defamation-row

http://www.law360.com/articles/484475/blogger-asks-texas-high-court-to-protect-anonymous-speech

http://blogs.lawyers.com/2013/09/texas-may-compel-google-to-give-up-blogger/

http://foift.org/2013/11/11/anonymous-bloggers-protected-first-amendment/

http://www.austinchronicle.com/blogs/news/2013-11-07/are-anonymous-bloggers-protected-by-first-amendment/

http://www.thebatt.com/news/a-m-to-host-texas-supreme-court-1.3100975#.Uo1Cy-Le5Pw

http://www.menafn.com/5d716ec6-9b43-4131-96d2-72ed3c5e20ad/Reynolds-fighters-in-court-to-ID-critical-blogger?src=MWHEAD

http://www.mydaytondailynews.com/news/news/local-company-wants-google-to-id-anonymous-blogger/nZpQp/

http://www.therepublic.com/view/story/67164ad2891b428e8ea08a5cd3480b03/TX–Blogger-Lawsuit

http://www.austinchronicle.com/blogs/news/2013-11-07/are-anonymous-bloggers-protected-by-first-amendment/

http://www.chron.com/news/texas/article/Court-to-decide-if-critical-blogger-must-be-outed-5021663.php?cmpid=htx

http://www.mrt.com/top_stories/article_9e00dee2-599d-11e3-907c-0019bb2963f4.html?mode=jqm