The Texas Court of Appeals for the Sixth Appellate District at
Texarkana took an important step today toward protecting the rights of
Internet bloggers in Texas to write anonymously. In an opinion issued
by Justice Jack Carter in Essent v. Doe, the court of appeals joins a
broad consensus of state and federal courts in insisting that
plaintiffs present sufficient evidence to show they could win at trial
before gaining access to information identifying anonymous speakers
whom they wish to sue for wrongdoing.

The case arose from a blog about the Paris Regional Medical Center in
Paris, Texas, which included analysis of problems at the hospital (http://the-paris-site.blogspot.com
). Claiming a concern for patient privacy, Essent, the operator of the
Medical Center, sued for defamation, and immediately sought discovery
to identify the employees who, Essent claimed, were revealing
confidential patient information in the course of criticizing abuses
at the hospital. The Doe, represented by James Rodgers of the Moore
Law Firm in Paris, sought to block discovery but District Judge Scott
McDowell upheld the request. However, the Court of Appeals has now
reversed and remanded the case to give the hospital a chance to submit
evidence for consideration under the proper legal standard.

In ruling, the court recognized that although Internet anonymity can
be abused, the right to speak anonymously online is protected by the
First Amendment. That right cannot be denied absent real evidence
supporting the plaintiff's claims of wrongdoing. Otherwise, the very
threat of litigation will have a serious chilling effect on anonymous
speech. The court also agreed with rulings in other states that
declare an anonymous blogger has "standing" to oppose discovery even
though the discovery demand is directed to a third-party Internet
hosting service, and that a blogger has the right to appeal if their
request for anonymity is denied.

The decision is not a perfect one. Unlike last month's decision of the
Arizona Court of Appeals in Mobilisa v. Doe, and the 2001 ruling of
the New Jersey Appellate Division in Dendrite v. Doe, the Texas Court
of Appeals did not add an explicit balancing step, under which, for
example, the danger of retaliation against an employee whistleblower
can be considered in deciding whether the plaintiff has put in enough
evidence of wrongdoing. This case may well present a realistic
possibility of such retaliation. So far as I have been able to
determine, the balancing step was not proposed to the Texas court.