Yelp, Inc. v. Hadeed Carpet Cleaning, Inc. , 62 Va. App. 678 ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Petty and Senior Judge Haley
PUBLISHED
Argued at Alexandria, Virginia
YELP, INC.
OPINION BY
v. Record No. 0116-13-4 JUDGE WILLIAM G. PETTY
JANUARY 7, 2014
HADEED CARPET CLEANING, INC.
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Lisa B. Kemler, Judge
Paul Alan Levy (Scott Michelman; Raymond D. Battocchi; Public
Citizen Litigation Group; Raymond D. Battocchi, P.C., on briefs),
for appellant.
Raighne C. Delaney (James Bruce Davis; Rachelle E. Hill; Bean,
Kinney & Korman, P.C., on brief), for appellee.
Amici Curiae: The Reporters Committee for Freedom of the Press,
American Society of News Editors, Gannett Co., Inc., and The
Washington Post (Kevin M. Goldberg; Bruce D. Brown; Gregg P.
Leslie; Robert J. Tricchinelli; Barbara W. Wall; John B. Kennedy;
James A. McLaughlin; Kalea S. Clark; Fletcher, Heald & Hildreth
PLC, on brief), for appellant.
Yelp, Inc. (“Yelp”) appeals from an order of the Circuit Court for the City of Alexandria
holding it in civil contempt for failing to comply with a subpoena duces tecum served upon it by
Hadeed Carpet Cleaning, Inc. (“Hadeed”).1 On appeal, Yelp assigns two errors to the circuit
court’s decision. First, Yelp argues that the circuit court “violated the First Amendment by
ordering Yelp to identify seven anonymous Doe defendants, and then by holding Yelp in
contempt for its failure to comply with the order, thus stripping the Doe defendants of their First
1
We have jurisdiction over this appeal pursuant to Code § 19.2-318: “From a judgment
for any civil contempt of court an appeal may be taken to the Court of Appeals. A writ of error
shall lie from the Court of Appeals to a judgment for criminal contempt of court.”
Amendment right to speak anonymously, all without requiring Hadeed to show that it had legally
and factually sufficient claims against each defendant.” Second, Yelp argues that the trial court
erred “by asserting subpoena jurisdiction over Yelp, which is a non-party, foreign corporation.”
For the reasons stated below, we affirm the ruling of the circuit court.
I. BACKGROUND
Yelp is a Delaware corporation with its principal place of business in California. Yelp is
a social-networking website that allows its users to post and read reviews on local businesses. In
the first quarter of 2013, Yelp had an average of approximately 102 million monthly, unique
visitors. Contributors to Yelp have written over thirty-nine million local reviews.
Yelp users must register to post reviews. The registration process requires users to
provide Yelp with a valid email address. Users are then free to choose a screen name to use
when posting their reviews. Yelp further allows users to designate a zip code of their own
choosing as their location. Yelp does not require users to use their actual name or place of
residence. Yelp typically records the Internet Protocol (“IP”) address from which each posting is
made. This information is stored in Yelp’s administrative database, which is accessible to Yelp’s
custodian of records in San Francisco.
During registration, Yelp users are required to agree to Yelp’s Terms of Service and
Content Guidelines (“TOS”). The TOS require users to have actually been customers of the
business in question before posting a review. The TOS further require users to base their
reviews on their own personal experiences. Yelp may remove posts that it deems in violation of
the TOS. Moreover, Yelp employs a proprietary algorithm to filter potentially less reliable
reviews. These reviews are moved to a separate page that a user can access by clicking on a
filtered reviews link at the bottom of a business listing.
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Hadeed is a Virginia corporation doing business in the City of Alexandria. Hadeed takes
customers’ carpets to its premises for cleaning.
As of October 19, 2012, Yelp’s website displayed seventy-five reviews about Hadeed and
eight reviews about a related company, Hadeed Oriental Rug Cleaning. These reviews were
posted by various Yelp users, and a number of the reviews were critical of Hadeed. Hadeed filed
suit against the authors of seven specific critical reviews. In these reviews, the authors implicitly
or explicitly held themselves out to be Hadeed customers. In its complaint, Hadeed alleged that
it tried to match the negative reviews with its customer database but could find no record that the
negative reviewers were actually Hadeed customers. Consequently, Hadeed alleged that the
negative reviewers were not actual customers; instead, the Doe defendants falsely represented
themselves to be customers of Hadeed. Hadeed’s complaint further alleged that the negative
comments were defamatory because they falsely stated that Hadeed had provided shoddy service
to each reviewer.
Hadeed filed its complaint on July 2, 2012. On July 3, 2012, Hadeed issued a subpoena
duces tecum to Yelp, seeking documents revealing information about the authors of each of the
challenged reviews. On July 19, 2012, Yelp served written objections to the subpoena duces
tecum. In its objections, Yelp contended that Hadeed had not complied with Virginia’s
procedure for subpoenas to identify anonymous Internet users, Code § 8.01-407.1, among other
objections. On July 27, 2012, Hadeed served a renewed subpoena duces tecum on Yelp that
complied with the procedural requirements of Code § 8.01-407.1. Yelp filed written objections
to the renewed subpoena duces tecum. Hadeed moved to overrule the objections and
cross-moved to enforce the subpoena duces tecum.
On November 19, 2012, the circuit court issued an order enforcing the subpoena duces
tecum. The circuit court ruled that the service of the subpoena duces tecum on Yelp’s registered
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agent in Virginia provided jurisdiction. Furthermore, the circuit court ruled that Hadeed’s
subpoena duces tecum complied with both the First Amendment and the standards enumerated in
Code § 8.01-407.1. In order to appeal the circuit court’s order, and protect its users’ rights, Yelp
informed Hadeed that it would not comply with the circuit court’s order. Hadeed moved to have
Yelp held in contempt. The circuit court held Yelp in civil contempt, imposing a monetary
sanction of $500 and awarding Hadeed an additional $1,000 in attorney’s fees. This appeal
followed.2
II. ANALYSIS
On appeal, Yelp presents two arguments. First, Yelp argues that the First Amendment
requires a showing of merit on both the law and facts before a subpoena duces tecum to identify
an anonymous speaker is enforced. Second, Yelp argues that the circuit court lacked jurisdiction
to subpoena its documents.
A. Subpoena Duces Tecum and Code § 8.01-407.1
We usually review a “‘trial court’s refusal to quash the issuance of a subpoena duces
tecum . . . under an abuse of discretion standard.’” America Online, Inc. v. Nam Tai Elec., Inc., 264
Va. 583, 590-91, 571 S.E.2d 128, 132 (2002) (quoting America Online, Inc. v. Anonymous Pub.
Traded Co., 261 Va. 350, 359, 542 S.E.2d 377, 382 (2001)). On issues involving the First
2
We recognize that, as a general rule, litigants may not refuse to comply with a valid
order of a court and then challenge its validity when held in contempt. Rather, “where the court
has jurisdiction of the parties and of the subject matter of the suit and the legal authority to make
the order, a party refusing to obey it, however erroneously made, is liable for contempt. Such
order, though erroneous, is lawful within the meaning of the contempt statutes until it is reversed
by an appellate court.” Local 33B, United Marine Div. of Int’l Longshoremen’s Ass’n v.
Commonwealth, 193 Va. 773, 784, 71 S.E.2d 159, 166 (1952) (quoting Robertson v.
Commonwealth, 181 Va. 520, 537, 25 S.E.2d 352 (1943)). This is true “even if the statute upon
which it is based is later declared to be unconstitutional.” Id. at 783, 71 S.E.2d at 166. However,
the Supreme Court has recognized an exception to this general rule when a witness is “compelled
to divulge privileged matters which have been given to him in confidence.” Robertson, 181 Va.
at 538, 25 S.E.2d at 360; see also HCA Health Services v. Levin, 260 Va. 215, 530 S.E.2d 417
(2000). Neither party has addressed whether the customer names maintained by Yelp fall within
this exception. Therefore, for purposes of this opinion, we will assume the exception applies.
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Amendment, however, we have “an obligation to ‘make an independent examination of the whole
record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the
field of free expression.’” Bose Corp. v. Consumers Union, 466 U.S. 485, 499 (1984) (quoting
New York Times v. Sullivan, 376 U.S. 254, 284-86 (1964)).
The First Amendment to the United States Constitution provides, in relevant part, that
“Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. The
First Amendment was originally applied only to federal action; however, it was extended to the
states via the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666 (1925)
(“[F]reedom of speech and of the press—which are protected by the First Amendment from
abridgement by Congress—are among the fundamental personal rights and ‘liberties’ protected by
the due process clause of the Fourteenth Amendment from impairment by the States.”).3
Anonymous speech is protected by the First Amendment. Buckley v. American
Constitutional Law Found., 525 U.S. 182, 197-99 (1999); McIntyre v. Ohio Elections Comm., 514
U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960).
“Anonymous pamphlets, leaflets, brochures and even books
have played an important role in the progress of mankind.” Great
works of literature have frequently been produced by authors writing
under assumed names. Despite readers’ curiosity and the public’s
interest in identifying the creator of a work of art, an author generally
is free to decide whether or not to disclose his or her true identity.
The decision in favor of anonymity may be motivated by fear of
3
Yelp’s argument is that the subpoena duces tecum violated the First Amendment of the
Constitution of the United States. Yelp does not mention the Virginia counterpart, Article I, § 12
of the Constitution of Virginia. Nevertheless, we note that “‘[t]he freedom of speech guaranteed
by Article I, § 12 of the Constitution of Virginia is co-extensive with the protections guaranteed
by the First Amendment of the Constitution of the United States.’” Daily Press, Inc. v.
Commonwealth, 285 Va. 447, 455 n.7, 739 S.E.2d 636, 640 n.7 (2013) (quoting Black v.
Commonwealth, 262 Va. 764, 785, 553 S.E.2d 738, 750 (2001) (Hassell, C.J., dissenting)); see
also Elliott v. Commonwealth, 267 Va. 464, 473-74, 593 S.E.2d 263, 269 (2004) (“We take this
opportunity to declare that Article I, § 12 of the Constitution of Virginia is coextensive with the
free speech provisions of the federal First Amendment.”). Thus, for the purposes of this opinion,
we make no distinction between the protections provided by the First Amendment of the
Constitution of the United States and Article I, § 12 of the Constitution of Virginia.
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economic or official retaliation, by concern about social ostracism, or
merely by a desire to preserve as much of one’s privacy as possible.
Whatever the motivation may be, at least in the field of literary
endeavor, the interest in having anonymous works enter the
marketplace of ideas unquestionably outweighs any public interest in
requiring disclosure as a condition of entry. Accordingly, an author’s
decision to remain anonymous, like other decisions concerning
omissions or additions to the content of a publication, is an aspect of
the freedom of speech protected by the First Amendment.
McIntyre, 514 U.S. at 341-42 (quoting Talley, 362 U.S. at 64).
In Talley, there was a California statute that prohibited the distribution of “any handbill in
any place under any circumstances” that did not identify the person who prepared, distributed, or
sponsored the handbill. 362 U.S. at 60-61. The Supreme Court held that the statute was void on its
face because “identification and fear of reprisal might deter perfectly peaceful discussions of public
matters of importance.” Id. at 65.
Thirty-five years after Talley, the Supreme Court upheld the right to speak anonymously on
election-related matters. In McIntyre, there was an Ohio law that prohibited the distribution of
campaign literature that did not identify the person issuing the literature. 514 U.S. at 344. The
Supreme Court held, “[U]nder our Constitution, anonymous pamphleteering is not a pernicious,
fraudulent practice, but an honorable tradition of advocacy and dissent. Anonymity is a shield from
the tyranny of the majority.” Id. at 357. Four years after McIntyre, the Supreme Court heard a
similar, election-related anonymous-speech case, and upheld the right to speak anonymously. See
Buckley, 525 U.S. at 200 (invalidating, on First Amendment grounds, a Colorado statute that
required initiative petition circulators to wear identification badges).
An Internet user does not shed his free speech rights at the log-in screen. The right to
free speech is assiduously guarded in all mediums of expression, from the analog to the digital.
The anonymous pamphleteer has the right to distribute literature without the looming specter of
government interference. Similarly, the anonymous speaker has the right to express himself on
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the Internet without the fear that his veil of anonymity will be pierced for no other reason than
because another person disagrees with him.
1. The Rights of the Anonymous Speaker vs. The Right to Protect One’s Reputation
The freedom of speech—and within this, the freedom to speak with anonymity—is not
absolute. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (“It is well understood
that the right of free speech is not absolute at all times and under all circumstances.”). If we
assume that the Yelp reviews of Hadeed are lawful, then the John Does may remain anonymous.
But if the reviews are unlawful in that they are defamatory, then the John Does’ veil of
anonymity may be pierced, provided certain procedural safeguards are met. This is because
defamatory speech is not entitled to constitutional protection: “Our constitutional guarantees of
free speech, as we have seen, protect expressions of opinion from action for defamation. Those
constitutional guarantees have never been construed, however, to protect either criminal . . . or
tortious conduct.” Chaves v. Johnson, 230 Va. 112, 121-22, 335 S.E.2d 97, 103 (1985); see also
Chaplinsky, 315 U.S. at 572 (“It has been well observed that such utterances are no essential part
of any exposition of ideas, and are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social interest in order and
morality.”); Sullivan, 376 U.S. at 269 (“[Defamation] can claim no talismanic immunity from
constitutional limitations. It must be measured by standards that satisfy the First Amendment.”).
The bottom line is that “[s]preading false information in and of itself carries no First Amendment
credentials.” Herbert v. Lando, 441 U.S. 153, 171 (1979).
Furthermore, courts have long recognized a distinction in the level of protection the First
Amendment accords to literary, religious, or political speech as compared to that accorded to
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commercial speech. 4 Where, as here, speech constitutes an “expression related solely to the
economic interests of the speaker and its audience,” Central Hudson Gas & Elec. Corp. v. Public
Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980), “any First Amendment right to speak
anonymously ‘enjoys a limited measure of protection, commensurate with its subordinate
position in the scale of First Amendment values, and is subject to modes of regulation that might
be impermissible in the realm of noncommercial expression,’” Lefkoe v. Jos. A. Bank Clothiers,
Inc., 577 F.3d 240, 248-49 (4th Cir. 2009) (quoting Bd. of Trustees of SUNY v. Fox, 492 U.S.
469, 477 (1989)). Thus, the John Does’ “First Amendment right to anonymity is subject to a
substantial governmental interest in disclosure so long as disclosure advances that interest and
goes no further than reasonably necessary.” Id. (citing Central Hudson Gas & Elec. Corp., 447
U.S. at 566).
a. The Law of Defamation
“Since the latter half of the 16th century, the common law has afforded a cause of action
for damage to a person’s reputation by the publication of false and defamatory statements.”
Milkovich v. Lorain Journal Co., 497 U.S. 1, 12 (1990). A person’s, or business’s, reputation is
a precious commodity. Perhaps, Shakespeare said it best:
“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash;
‘Tis something, nothing;
‘Twas mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
4
Neither party has addressed this distinction, nor has Yelp argued that the emails were
anything other than commercial speech. That having been said, we find it difficult to conceive
how these emails could be read as anything other than such an expression.
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Robs me of that which not enriches him,
And makes me poor indeed.”
Id. (quoting Shakespeare, Othello Act III, scene 3). Thus, “[d]efamation law developed not only
as a means of allowing an individual to vindicate his good name, but also for the purpose of
obtaining redress for harm caused by such statements.” Id. The ability to obtain redress for
harm caused by defamatory statements has also been extended to allow a person to vindicate the
good name of his business. See Tronfeld v. Nationwide Mutual Ins. Co., 272 Va. 709, 713, 636
S.E.2d 447, 449-50 (2006) (providing that defamatory words which prejudice a person in his
trade or business are actionable per se).
In order to state a cause of action for defamation in Virginia, one needs to allege that a
statement is “both false and defamatory.” Tharpe v. Saunders, 285 Va. 476, 481, 737 S.E.2d
890, 892 (2013). And the elements of defamation must be met: “‘(1) publication of (2) an
actionable statement with (3) the requisite intent.’” Id. at 480, 737 S.E.2d at 892 (quoting Jordan
v. Kollman, 269 Va. 569, 575, 612 S.E.2d 203, 206 (2005)). Further, “[d]efamatory words that
cause prejudice to a person in her profession are actionable as defamation per se.” Hyland v.
Raytheon Technical Serv. Co., 277 Va. 40, 46, 670 S.E.2d 746, 750 (2009). However, “‘[c]auses
of action for defamation . . . are subject to principles of freedom of speech arising under the First
Amendment to the United States Constitution and Article I, Section 12 of the Constitution of
Virginia.’” Tharpe, 285 Va. at 481, 737 S.E.2d at 892 (quoting Yeagle v. Collegiate Times, 255
Va. 293, 295, 497 S.E.2d 136, 137 (1998)). Within these principles is the protection of speech
that is merely a matter of opinion.
The First Amendment to the Federal Constitution and article I,
section 12 of the Constitution of Virginia protect the right of the
people to teach, preach, write, or speak any such opinion, however
ill-founded, without inhibition by actions for libel and slander.
“[E]rror of opinion may be tolerated where reason is left free to
combat it.” Thomas Jefferson’s First Inaugural Address (1801).
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“However pernicious an opinion may see[m], we depend for its
correction not on the conscience of judges and juries but on the
competition of other ideas.”
Id. at 481, 737 S.E.2d at 893 (alterations in original) (citations omitted). It is important to note,
however, that “‘there is no constitutional value in false statements of fact.’” Id. (quoting Gertz v.
Robert Welch, 418 U.S. 323, 340 (1974)). Therefore,
“pure expressions of opinion” are constitutionally protected and
“cannot form the basis of a defamation action.” “Statements that
are relative in nature and depend largely upon the speaker’s
viewpoint are expressions of opinion.” Furthermore, “[s]peech
that does not contain a provably false factual connotation” is
generally considered “‘pure expression[] of opinion.’”
Id. (citations omitted). Nevertheless, even though “pure expressions of opinion are not
actionable, ‘[f]actual statements made to support or justify an opinion . . . can form the basis of
an action for defamation.’” Id. at 481 n.3, 737 S.E.2d at 893 n.3 (quoting Raytheon Tech. Servs.
Co. v. Hyland, 273 Va. 292, 303, 641 S.E.2d 84, 90 (2007)). With these basic defamation
principles in mind, we turn to the standard for piercing the veil of anonymity of an Internet
speaker.
b. Piercing the Veil of Anonymity
Yelp argues that the First Amendment requires a showing of merit on both the law and
the facts before a subpoena duces tecum5 to identify an anonymous speaker is enforced. This is
an issue of first impression at the appellate level in the Commonwealth. Moreover, neither the
United States Supreme Court nor the Fourth Circuit Court of Appeals has addressed this issue.
Thus, Yelp relies upon persuasive authority from other states to support its argument. See
Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001); Doe v. Cahill,
5
A court order, such as a subpoena duces tecum that is issued at the request of a private
party, constitutes state action and is subject to constitutional limitations. See Sullivan, 376 U.S. at
265. Accordingly, the subpoena power is necessarily limited to the extent that it impacts First
Amendment rights. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461 (1958).
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884 A.2d 451 (Del. 2005). In relying upon persuasive authority from other states, however, Yelp
delicately glosses over Code § 8.01-407.1, which sets forth the standard in the Commonwealth
for discovering the identity of persons communicating anonymously over the Internet. Instead of
applying the standard set forth in Code § 8.01-407.1, Yelp argues that we should adopt and apply
the standards enunciated in Dendrite, Cahill, and their progeny, when deciding whether a
subpoena to identify an anonymous speaker is enforced. We decline to do so.
i. Code § 8.01-407.1
“‘Statutory construction is a question of law which we review de novo on appeal.’”
Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 480, 666 S.E.2d 361, 368 (2008) (quoting
Parker v. Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007)). In construing statutes, we
“‘apply the plain language of a statute unless the terms are ambiguous.’” Id. (quoting Boynton v.
Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006)). Our “‘primary objective . . . is to
ascertain and give effect to legislative intent.’” Commonwealth v. Amerson, 281 Va. 414, 418,
706 S.E.2d 879, 882 (2011) (quoting Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118
(2010)). Legislative intent is discovered “‘by giving to all the words used their plain meaning,
and construing all statutes in pari materia in such manner as to reconcile, if possible, any
discordant feature which may exist, and make the body of the laws harmonious and just in their
operation.’” Thomas v. Commonwealth, 59 Va. App. 496, 500, 720 S.E.2d 157, 159-60 (2012)
(quoting Lucy v. Cnty. of Albemarle, 258 Va. 118, 129-30, 516 S.E.2d 480, 485 (1999)).
Finally, “‘[W]e . . . presume that the legislature chose, with care, the words it used when it
enacted the relevant statute.’” Seabolt v. Cnty. of Albemarle, 283 Va. 717, 720, 724 S.E.2d 715,
717 (2012) (quoting Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402, 404 (2011)).
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Virginia has developed an unmasking standard in Code § 8.01-407.1; it is one of many
jurisdictions to develop its own unmasking standard.6 On February 22, 2001, the General
Assembly passed Senate Joint Resolution 334, which provided “for a study of the discovery of
electronic data and proposal of a statutory scheme or rules of evidence to govern the discovery of
electronic data in civil cases in the courts of Virginia.” Discovery of Electronic Data, S. Doc.
No. 9, at 7 (2002) (citing S.J. Res. 334, Va. Gen. Assem. (2001)). Pursuant to this Resolution,
the Office of the Executive Secretary of the Virginia Supreme Court prepared a comprehensive,
ninety-eight-page report that was submitted to the Governor and General Assembly. Id. at 4.
The report included a summary, which set forth the results of its study:
The Report first introduces the importance of the Internet
and World-Wide Web as forums for communication protected by
Constitutional free speech rights, as recognized by the United
States Supreme Court and consistent with pre-existing Virginia
law. The role of anonymous speech in this medium is discussed,
along with federal and Virginia law relevant to an understanding of
the importance that anonymity plays in the free expression of
ideas, under protections for free expression, privacy and freedom
of association with others.
The Report canvasses the existing case law directly on the
topic of requests for confidential information relating to electronic
communications, which is not extensive. Analogies from other,
more developed, bodies of law are sketched. The prevailing
standards for decisions on contested applications to pierce the
anonymity of protected communications in civil litigation are
discussed: the key to this analysis is that in order for a trial court to
perform the balancing of rights necessary for a determination of
whether intrusion upon protected anonymous speech will be
allowed, the court must first be provided with the information it
needs to perform that balancing. To decide these issues, the trial
6
There are at least nine unmasking standards—not including Virginia’s statutory
standard—that state and federal courts have created. See Doe I v. Individuals (AutoAdmit.com),
561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088,
1095 (W.D. Wash. 2001); Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D.
Cal. 1999); Mobilisa, Inc. v. Doe 1, 170 P.3d 712, 721 (Ariz. Ct. App. 2007); Krinsky v. Doe 6,
72 Cal. Rptr. 3d 231, 244-45 (Ct. App. 2008); Doe No. 1 v. Cahill, 884 A.2d 451, 460-61 (Del.
2005); Solers, Inc. v. Doe, 977 A.2d 941, 954 (D.C. 2009); Indep. Newspapers, Inc. v. Brodie,
966 A.2d 432, 457 (Md. 2009); Dendrite Int’l, 775 A.2d at 760-61.
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court in Virginia need not decide the merits of the case pending
elsewhere, but must have sufficient considerations illuminated by
the parties’ submissions to permit assessment of the need for the
contested information, on the one hand, and the severity of the
intrusion on free speech, on the other. Tests applied in this
situation by other courts, state and federal, are summarized and
assessed in the Report.
A brief summary of how the subpoena process now
operates in the federal courts and the Virginia circuit courts is
provided in the body of the Report, along with several analogous
procedures and doctrines that suggest considerations for inclusion
in any effort to provide a unified approach to subpoenas for
electronic information.
The relevant considerations and factors are specifically set
forth and discussed, and a proposed statute or rule embodying the
applicable provisions is then proposed.
Id. After considering the report, the General Assembly adopted Code § 8.01-407.1 as it was
drafted in the report.
Code § 8.01-407.1 is titled, “Identity of persons communicating anonymously over the
Internet.” Code § 8.01-407.1 provides a procedure that must be followed when a person files a
subpoena seeking information about the identity of an anonymous individual that engaged in
Internet communications that are allegedly tortious or illegal. Code § 8.01-407.1(A). All such
subpoenas must follow the procedure listed in the statute. That procedure is listed below in its
entirety.
1. At least thirty days prior to the date on which disclosure
is sought, a party seeking information identifying an anonymous
communicator shall file with the appropriate circuit court a
complete copy of the subpoena and all items annexed or
incorporated therein, along with supporting material showing:
a. That one or more communications that are or may be
tortious or illegal have been made by the anonymous
communicator, or that the party requesting the subpoena has a
legitimate, good faith basis to contend that such party is the victim
of conduct actionable in the jurisdiction where the suit was filed.
A copy of the communications that are the subject of the action or
subpoena shall be submitted.
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b. That other reasonable efforts to identify the anonymous
communicator have proven fruitless.
c. That the identity of the anonymous communicator is
important, is centrally needed to advance the claim, relates to a
core claim or defense, or is directly and materially relevant to that
claim or defense.
d. That no motion to dismiss, motion for judgment on the
pleadings, or judgment as a matter of law, demurrer or summary
judgment-type motion challenging the viability of the lawsuit of
the underlying plaintiff is pending. The pendency of such a motion
may be considered by the court in determining whether to enforce,
suspend or strike the proposed disclosure obligation under the
subpoena.
e. That the individuals or entities to whom the subpoena is
addressed are likely to have responsive information.
Code § 8.01-407.1(A). The statute also has a notice provision in section A, subsection three. The
notice provision provides:
Except where the anonymous communicator has consented
to disclosure in advance, within five business days after receipt of
a subpoena and supporting materials calling for disclosure of
identifying information concerning an anonymous communicator,
the individual or entity to whom the subpoena is addressed shall
(i) send an electronic mail notification to the anonymous
communicator reporting that the subpoena has been received if an
e-mail address is available and (ii) dispatch one copy thereof, by
registered mail or commercial delivery service, return receipt
requested, to the anonymous communicator at his last known
address, if any is on file with the person to whom the subpoena is
addressed.
Code § 8.01-407.1(A)(3).
After receiving notice, the anonymous communicator, or any interested party, may file a
written objection, motion to quash, or motion for protective order “at least seven business days
prior to the date on which disclosure is sought under the subpoena.” Code § 8.01-407.1(A)(4).
Finally, “the party to whom the subpoena is addressed shall not comply with the subpoena earlier
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than three business days before the date on which disclosure is due, to allow the anonymous
communicator the opportunity to object.” Code § 8.01-407.1(A)(6).
In summation, a plaintiff seeking to uncover the identity of an anonymous Internet
speaker in the Commonwealth must show a circuit court that (1) he has given notice of the
subpoena to the anonymous communicator via the Internet service provider;
(2)(a) communications made by the anonymous communicator are or may be tortious or illegal
or (b) the plaintiff “has a legitimate, good faith basis to contend that such party is the victim of
conduct actionable in the jurisdiction where the suit is filed,” Code § 8.01-407.1(A)(1)(a);
(3) other “reasonable efforts to identify the anonymous communicator have proven fruitless,”
Code § 8.01-407.1(A)(1)(b); (4) the identity of the anonymous communicator is important, is
centrally needed to advance the claim, is related to the claim or defense, or is directly relevant to
the claim or defense; (5) no motion challenging the viability of the lawsuit is pending; and
(6) the entity to whom the subpoena is addressed likely has responsive information. Code
§ 8.01-407.1(A)(1)(a)-(e) and (3).
Thus, the plaintiff must first show the circuit court that he has given notice of the
subpoena to the Internet service provider, who in turn provided notice to the anonymous
communicator. Notice provides the anonymous communicator with the chance to defend
himself and maintain his anonymity.
The second prong consists of two, distinct subparts. Under the first subpart, the plaintiff
must show that the communications are or may be tortious. If there is direct evidence
demonstrating that the communications are tortious, and the plaintiff provides that evidence to
the circuit court, then there is no need to analyze the second subpart of this prong. The second
subpart, which is explicitly separated from the first subpart by the conjunction or, requires the
plaintiff to show that he has “legitimate, good faith basis” for his belief that the conduct is
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tortious. Thus, the plaintiff can either show that the communications are or may be tortious or
show that he has a “legitimate, good faith basis” for his belief that the communications are
tortious.
The third prong requires the plaintiff to show that other “reasonable efforts to identify the
anonymous communicator have proven fruitless.” Code § 8.01-407.1(A)(1)(b). This is merely a
requirement that the plaintiff exhaust all other means of identifying the anonymous
communicator. Indeed, by exhausting all other means of identifying the anonymous
communicator, the plaintiff can show a real need for the identity of the person before the veil of
anonymity is pierced.
The fourth prong provides the circuit court with some leeway to apply a balancing test to
the request for a subpoena. The plaintiff must show that the identity of the anonymous
communicator is important, is centrally needed to advance the claim, is related to the claim or
defense, or is directly relevant to the claim or defense. In order to make this determination, a
circuit court must necessarily balance the interests of the anonymous communicator against the
interests of the plaintiff in discovering the identity of the anonymous communicator.
The fifth prong speaks for itself. It is designed to assure the circuit court that there is no
dispositive motion pending before the court before it rules on the subpoena.
Similarly, the sixth prong speaks for itself. It merely requires a showing that the entity to
whom the subpoena is addressed has responsive information.
Code § 8.01-407.1 provides the test for uncovering the identity of an anonymous Internet
communicator in Virginia. We are “reluctant to declare legislative acts unconstitutional, and will
do so only when the infirmity is clear, palpable, and practically free from doubt.” Mahan v.
NCPAC, 227 Va. 330, 335, 315 S.E.2d 829, 832 (1984) (citing Blue Cross v. Commonwealth,
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221 Va. 349, 358, 269 S.E.2d 827, 832 (1980); Green v. Cnty. Bd., 193 Va. 284, 287, 68 S.E.2d
516, 518 (1952)). This is because
[t]here is a strong presumption in favor of the constitutionality of
statutes. Indeed, “[t]here is no stronger presumption known to the
law than that which is made by the courts with respect to the
constitutionality of an act of Legislature.” Any reasonable doubt
as to the constitutionality of a statute must be resolved in favor of
its constitutionality, and “[o]nly where it is plainly in violation of
the Constitution may the court so decide.” The General Assembly
may enact any law or take any action “unless it is prohibited by the
state or federal constitution in express terms or by necessary
implication.”
FFW Enters. v. Fairfax Cnty., 280 Va. 583, 590, 701 S.E.2d 795, 799-800 (2010) (citations
omitted).
We decline to declare Code § 8.01-407.1 unconstitutional. We cannot identify a clear,
palpable, and free from doubt infirmity. Therefore, we hold that Code § 8.01-407.1 provides the
path of analysis that a circuit court must follow when determining whether to enforce a subpoena
duces tecum seeking the identity of an anonymous communicator.
ii. Dendrite, Cahill, and their Progeny
Nevertheless, Yelp argues that we should apply the standards enunciated in Dendrite,
Cahill, and their progeny when determining whether a subpoena to identify an anonymous
defendant should be enforced. We find Yelp’s argument unpersuasive.
In Dendrite, an intermediate appellate court in New Jersey held that a plaintiff seeking to
uncover the identity of an anonymous defendant must meet a five-part test: the plaintiff must
(1) give notice to the anonymous defendant; (2) identify the exact statements that purportedly
constitute actionable speech; (3) establish a prima facie cause of action against the defendant
based on the complaint and all information provided to the court; (4) “produce sufficient
evidence supporting each element of its cause of action, on a prima facie basis, prior to a court
ordering the disclosure of the identity of the unnamed defendant”; (5) “balance the defendant’s
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First Amendment right of anonymous free speech against the strength of the prima facie case
presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the
plaintiff to properly proceed.” Dendrite, 775 A.2d at 760-61.
In Cahill, the Supreme Court of Delaware adopted a test that requires the plaintiff to both
make reasonable efforts to notify the defendant and “support his defamation claim with facts
sufficient to defeat a summary judgment motion.” Cahill, 884 A.2d at 460. In so holding, the
Cahill court declined to adopt the balancing prong of the Dendrite test.
Although the case law has coalesced around the basic framework of the Dendrite and
Cahill standards, they are not the only courts to articulate a standard for identifying anonymous
Internet speakers. One commentator notes that
[a]s of 2010, more than twenty courts have either promulgated
unmasking standards or outlined specific criteria that parties
seeking to identify anonymous internet speakers must satisfy
before compelling discovery. These unmasking standards have
been promulgated primarily at the state and federal district court
levels and have been formulated on a jurisdiction-by-jurisdiction
basis, resulting in what has been described as an “entire spectrum”
or, less charitably, a “morass” of unmasking standards.
Matthew Mazzotta, Note: Balancing Act: Finding Consensus on Standards for Unmasking
Anonymous Internet Speakers, 51 B.C. L. Rev. 833, 846 (2010).
There is no need for us to adopt persuasive authority from other states. In drafting Code
§ 8.01-407.1, the General Assembly considered persuasive authority from other states and made
the policy decision to include or exclude factors that other states use in their unmasking
standards. The General Assembly’s unmasking standard was ultimately promulgated in Code
§ 8.01-407.1. This is the standard that we will apply.
2. Hadeed, Yelp, and the Doe Defendants
Here, it is clear that the circuit court complied with the requirements of Code
§ 8.01-407.1 in determining whether to enforce the subpoena duces tecum seeking the identity of
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the Doe defendants. Accordingly, we hold that the circuit court did not abuse its discretion in
enforcing the subpoena duces tecum.
Turning to the first prong of Code § 8.01-407.1(A)(1)(a), it is evident that Hadeed
provided the requisite notice to Yelp. Indeed, Yelp concedes that Hadeed provided the requisite
notice. Accordingly, after making an independent review of the whole record, we hold that the
circuit court did not abuse its discretion in ruling that Hadeed met the first prong of Code
§ 8.01-407.1(A)(1)(a).
Turning to the second prong, it is without dispute that the Doe defendants have a
constitutional right to speak anonymously over the Internet. However, that right must be
balanced against Hadeed’s right to protect its reputation. The circuit court, in determining
whether to enforce the subpoena duces tecum under Code § 8.01-407.1, stated:
Among other things, [Code § 8.01-407.1] requires that one
show that the statements “may be tortious” and that the “identity of
the anonymous communicator is important, is centrally needed to
advance the claim, relates to a core claim or defense, or is directly
and materially relevant to that claim or defense.” This Court finds
that Hadeed’s subpoena duces tecum complies with the requisite
standard enumerated in Code § 8.01-407.1 and that the statements
are tortious if not made by customers of Hadeed Carpet Cleaning
and the identity of the communicators is essential to maintain a suit
for defamation.
Thus, the circuit court held that Hadeed met the statutory standard for requiring Yelp to disclose
the identity of the Doe defendants.
In order to meet the second prong of Code § 8.01-407.1(A)(1)(a), Hadeed could either
show that the communications are or may be tortious or show that it has a legitimate, good faith
basis for its belief that the communications are tortious. Here, it is clear, as the circuit court held,
that if the Doe defendants were not customers of Hadeed, then their Yelp reviews are
defamatory. Assuming without deciding that the Doe defendants are not customers of Hadeed,
the first subpart of this prong is met because the Doe defendants published a tortious, defamatory
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statement with the requisite intent. See Tharpe, 285 Va. at 481, 737 S.E.2d at 892. Moreover,
Hadeed met the second subpart of this prong because it showed that it had a legitimate, good
faith basis for its belief that the reviews are defamatory. It established that it had no record of
having provided services to the posters. Specifically, Yelp alleged the following in its subpoena
duces tecum:
8. After conducting an independent investigation in an
attempt to match the negative reviews contained in Exhibit 5 with
customers on the Hadeed customer database, Hadeed determined
that it simply had no record that the negative reviewers were ever
actually Hadeed customers.
9. Consequently, Hadeed believes that the reviews
contained in Exhibit 5 are not the opinions of its customers, but
were made by Defendants falsely representing themselves as
customers of Hadeed.
10. The negative reviews in Exhibit 5 are false and
defamatory. For example, user “Bob G.” from Oakton allegedly
relates how he was in a desperate need of emergency carpet
cleaning and was ripped off. User “Chris H.” from Washington
reported that his precious rugs were shrunk. User “J8.” from Falls
Church reports that he was charged for work never performed.
User “YB.” from Fairfax reports that unauthorized work was
performed and his rug was stained. One user, “Aris P.” from
Haddonfield, N.J. reports that the price was double the quote and
that Hadeed was once bankrupt. Many of the negative reviews
report that the price was double what was charged [sic]. After
combing it customer records, Hadeed was at a loss to find record
of these allegations. Regarding Aris P., in particular, Hadeed
conducts no business in New Jersey.
11. Not only was Hadeed unable to find any evidence that
the negative reviewers were ever Hadeed customers, but many of
the negative reviewers use the same theme. For example, negative
reviewers Bob G., YB, and Aris P. use the theme that Hadeed
doubled the price. Negative reviewers Bob G., Chris H., MP.,
Mike M., and Aris P. criticize Hadeed’s advertising.
Generally, a Yelp review is entitled to First Amendment protection because it is a
person’s opinion about a business that they patronized. See Tharpe, 285 Va. at 481, 737 S.E.2d
at 893. But this general protection relies upon an underlying assumption of fact: that the
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reviewer was a customer of the specific company and he posted his review based on his personal
experience with the business. If this underlying assumption of fact proves false, in that the
reviewer was never a customer of the business, then the review is not an opinion; instead, the
review is based on a false statement of fact—that the reviewer is writing his review based on
personal experience. And “‘there is no constitutional value in false statements of fact.’” Id.
(quoting Gertz, 418 U.S. at 340).
Here, Hadeed attached sufficient evidence7 to its subpoena duces tecum indicating that it
made a thorough review of its customer database to determine whether all of the Yelp reviews
were written by actual customers. After making such a review, Hadeed discovered that it could
not match the seven Doe defendants’ reviews with actual customers in its database. Thus, the
evidence presented by Hadeed was sufficient to show that the reviews are or may be defamatory,
if not written by actual customers of Hadeed. Moreover, Hadeed sought the subpoena duces
tecum under the legitimate, good faith belief that the Doe defendants were not former customers,
and, therefore, their reviews were defamatory.
After making an independent review of the whole record, we hold that the circuit court
did not abuse its discretion in ruling that the communications made by the Doe defendants “are
tortious if not made by customers of Hadeed.” In so holding, the circuit court correctly applied
the second prong of Code § 8.01-407.1(A)(1)(a).
Turning to the third prong, we find that Hadeed took reasonable efforts to identify the
anonymous communicators and those efforts proved fruitless. Hadeed represented to the circuit
court that it compared all of the Yelp reviews with its customer database. Out of all of the Yelp
reviews, Hadeed identified seven reviewers whose information could not be found in their
7
Hadeed attached evidence that it made an independent investigation of its customer
database in an attempt to match all of the Yelp reviews with its customers. Further, Hadeed
attached screenshots of the specific reviews that it alleged were defamatory.
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customer database. The circuit court, in reaching its holding, considered this evidence and ruled
that Hadeed complied with the requirements of Code § 8.01-407.1(A)(1)(b). Moreover, Hadeed
first contacted Yelp to obtain the identity of the Doe defendants. Yelp refused to comply. Thus,
Hadeed was then forced to resort to a subpoena duces tecum to obtain the identity of the Doe
defendants. After making an independent review of the whole record, we hold that the circuit
court did not abuse its discretion in ruling that Hadeed took reasonable efforts to identify the Doe
defendants before requesting the subpoena duces tecum.
Turning to the fourth prong, we find that the identity of the Doe defendants is important,
is centrally needed to advance the claim, is related to the claim or defense, or is directly relevant
to the claim or defense. Without the identity of the Doe defendants, Hadeed cannot move
forward with its defamation lawsuit. There is no other option. The identity of the Doe
defendants is not only important, it is necessary. The circuit court considered this in making its
decision. After making an independent review of the whole record, we hold that the circuit court
did not abuse its discretion in ruling that the identity of the Doe defendants is important and
centrally needed to advance the defamation claim.
Turning to the fifth and sixth prongs, we find that there was no dispositive motion
pending before the circuit court at the time it made its decision, and we find that Yelp has
responsive information. These prongs were not disputed at the circuit court. The record does not
indicate that there was a dispositive motion pending before the circuit court before it made its
decision on the subpoena duces tecum. Further, Yelp concedes that it keeps responsive
information on all of the users of its website. Therefore, after making an independent review of
the whole record, we hold that the circuit court did not abuse its discretion in making its decision
in regard to the fifth and sixth prongs of Code § 8.01-407.1(A)(1).
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We have made an independent examination of the whole record, and we cannot say that
the circuit court abused its discretion. The judgment of the circuit court “‘does not constitute a
forbidden intrusion on the field of free expression.’” Bose Corp., 466 U.S. at 499 (quoting Sullivan,
376 U.S. at 285). Accordingly, we affirm the circuit court’s decision.
B. Subpoena Duces Tecum and Jurisdiction
Yelp next argues that the trial court erred by asserting subpoena jurisdiction over Yelp,
which is a non-party, foreign corporation. We disagree.
“‘We review the trial court’s refusal to quash the issuance of a subpoena duces
tecum . . . under an abuse of discretion standard.’” America Online, Inc. v. Nam Tai Elec., Inc., 264
Va. at 590-91, 571 S.E.2d at 132 (quoting America Online, Inc. v. Anonymous Pub. Traded Co.,
261 Va. at 359, 542 S.E.2d at 382). However, we review questions of law de novo. This involves a
question of law because it requires us to interpret the relevant service of process statutes.
Yelp is a non-party, foreign corporation that is headquartered in San Francisco, California.
But Yelp is registered to do business in the Commonwealth and has a registered agent in the
Commonwealth. Yelp argues that the circuit court lacked jurisdiction to subpoena documents from
Yelp. Within this, Yelp argues that the mere presence of a registered agent is not enough to confer
jurisdiction. In so arguing, Yelp skirts around the rules of the Supreme Court and the service of
process statutes found in the Virginia Code.
A subpoena duces tecum is a rule-based discovery tool. The procedure for issuing a
subpoena duces tecum to a non-party is found in Rule 4:9A. The Rule is titled, “Production from
Non-Parties of Documents, Electronically Stored Information, and Things and Entry on Land for
Inspection and Other Purposes; Production at Trial.” The Rule creates two methods by which a
subpoena duces tecum may be issued: by the clerk of court or by an attorney. Rule 4:9A(1) and (2).
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The procedure for the issuance of a subpoena duces tecum by the clerk of court is found in
Rule 4:9A(1):
Upon written request therefor filed with the clerk of the court
in which the action or suit is pending by counsel of record for any
party or by a party having no counsel in any pending case, with a
certificate that a copy thereof has been served pursuant to Rule 1:12
upon counsel of record and to parties having no counsel, the clerk
shall issue to a person not a party therein a subpoena duces tecum
subject to this Rule.
(Emphasis added).
The procedure for the issuance of a subpoena duces tecum by an attorney is found in
Rule 4:9A(2). Under this rule, an attorney-at-law may personally issue the subpoena duces tecum,
but a copy of it must be sent to all parties, and it must be filed with the clerk’s office in which the
case is pending. Rule 4:9A(a). Further, the person to whom the subpoena duces tecum is directed
may file a written objection. Rule 4:9A(b). If an objection is made, then the party issuing the
subpoena may seek a court order compelling disclosure. Id.
Rule 4:9A, however, does not state how a subpoena duces tecum is to be served on a
non-party, foreign corporation. Instead, Code § 8.01-301 sets forth the method for serving process
on a foreign corporation.
Code § 8.01-301 provides that service may be effected “[b]y personal service . . . on the
registered agent of a foreign corporation which is authorized to do business in the Commonwealth
. . . .” Code § 8.01-301(1). Code § 13.1-7668 works in conjunction with Code § 8.01-301 in that
it explicitly defines the purpose of a foreign corporation’s “registered agent.” Code § 13.1-766
provides, in relevant part: “The registered agent of a foreign corporation authorized to transact
business in this Commonwealth shall be an agent of such corporation upon whom any process,
8
Code § 13.1-766 applies to corporations that issue stock. Code § 13.1-928 applies to
corporations that do not issue stock. The rules for service are functionally similar for stock
corporations and non-stock corporations. Yelp is a corporation that issues stock; therefore, we
analyze only Code § 13.1-766.
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notice, order or demand required or permitted by law to be served upon the corporation may be
served.” (Emphasis added).9
Code § 8.01-301(1) and Code § 13.1-766 explicitly allow for service on a registered agent
of a foreign corporation that is authorized to do business in the Commonwealth. Service
includes “any process, notice, order or demand required or permitted by law.” Code § 13.1-766.
A subpoena duces tecum falls within the definition of “process,” as used in Code § 13.1-766.
See Bellis v. Commonwealth, 241 Va. 257, 262, 402 S.E.2d 211, 214 (1991) (“‘Process,’
includes a subpoena directed to a witness.”).
Yelp’s registered agent in Virginia was served with a subpoena duces tecum by Hadeed.
This constituted service of process under Code § 13.1-766. Accordingly, we agree with the
circuit court’s holding that “service of a subpoena duces tecum on Yelp’s registered agent in
Virginia provides jurisdiction for th[e] Court to adjudicate the motion to compel.” Therefore, we
affirm the circuit court’s decision.
III. CONCLUSION
For the foregoing reasons, we affirm the circuit court’s decision.
Affirmed.
9
In the same chapter of the Virginia Code, there is a provision that defines the sole duty
of the registered agent: “The sole duty of the registered agent is to forward to the corporation at
its last known address any process, notice or demand that is served on the registered agent.”
Code § 13.1-763(B).
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Haley, S.J., concurring, in part, and dissenting, in part.
I concur with the majority: (1) that the trial court had subpoena jurisdiction over Yelp,
and (2) that Code § 8.01-407.1 provides a procedural and substantive path of analysis for
determining the propriety of issuing an unmasking subpoena duces tecum which constitutionally
balances the First Amendment protection of an anonymous speaker and the right of redress for
defamation.
Code § 8.01-407.1(A)(1)(a), (b), and (c) define the “supporting material” to be attached
to the request for an unmasking subpoena duces tecum. This dissent maintains that the
supporting material did not suffice to justify issuance of the subpoena.10
Subsection (A)(1)(a) requires that the communications “are or may be tortious.” To be
tortious the communications must be false. Tharpe v. Saunders, 285 Va. 476, 481, 737 S.E.2d
890, 892 (2013). Six of the seven communications claimed Hadeed overcharged and/or failed to
honor a quoted price.11 Nowhere in this cause has Hadeed claimed that any of the substantive
statements are false. Rather, Hadeed maintains, these communicators may not have been
customers, and, if they were not, the substantive statements may be tortious.
Subsection (A)(1)(b) requires that “reasonable efforts” for identification have been
fruitless, and subsection (A)(1)(c) requires that identity is “needed to advance the claim.”
In the trial court counsel for Hadeed stated: “I don’t know whether that person is a
customer or not, and we suspect not.”
In material supporting issuance of the subpoena request, Hadeed writes:
8. After conducting an independent investigation in an attempt to
match the negative reviews . . . with customers on the Hadeed
10
I concur with the majority that Hadeed complied with all other subsections of Code
§ 8.01-407.1.
11
One of the commenters claimed Hadeed had “shrunk” his rugs.
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customer database, Hadeed determined that it simply had no record
that the negative reviewers were ever actually Hadeed customers.
* * * * * * *
26. In order to advance its defamation claim, Hadeed must
ascertain whether or not Defendants were in fact customers.
In oral argument before this Court, Hadeed candidly admitted that it cannot say the John
Doe defendants are not customers until it obtains their identities.
This, I suggest, is a self-serving argument - one that proceeds from a premise the
argument is supposed to prove. If Hadeed were an individual, he would be attempting to “‘lift
himself by his own bootstraps.’” Turpin v. Branaman, 190 Va. 818, 827, 58 S.E.2d 63, 67
(1950).
Anonymous speech is protected by the Constitution of the United States and by Article 1,
Section 12 of the Constitution of Virginia. A business subject to critical commentary,
commentary here not even claimed to be false in substance, should not be permitted to force the
disclosure of the identity of anonymous commentators simply by alleging that those
commentators may not be customers because they cannot identify them in their database.
Under the facts in this case, the balance envisioned by Code § 8.01-407.1 should weigh
for the protection afforded by our Constitutions. Accordingly, I would reverse the trial court’s
finding of civil contempt and quash the subpoena duces tecum.
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