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McVicker v. King

March 3, 2010

WILLIAM L. MCVICKER, PLAINTIFF,
v.
CHRISTOPHER W. KING, JEFFERSON HILLS BOROUGH COUNCIL MEMBER IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; JAMES A. WEBER, JEFFERSON HILLS BOROUGH COUNCIL MEMBER IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; JANICE R. CMAR, JEFFERSON HILLS BOROUGH COUNCIL MEMBER IN HER OFFICIAL AND INDIVIDUAL CAPACITY; AND KATHLEEN REYNOLDS, JEFFERSON HILLS BOROUGH COUNCIL MEMBER IN HER OFFICIAL AND INDIVIDUAL CAPACITY; AND THE BOROUGH OF JEFFERSON HILLS, DEFENDANTS.



MEMORANDUM OPINION AND ORDER

Presently before the Court is the MOTION TO COMPEL RESPONSE TO SUBPOENA directed to non-party Trib Total Media, Inc., with brief in support, filed by Plaintiff, William L. McVicker (Document Nos. 40 and 41), the BRIEF IN OPPOSITION filed by Trib Total Media (Document Nos. 49), and the REPLY BRIEF filed by Plaintiff (Document No. 50). For the reasons that follow, the Motion to Compel Response to Subpoena will be denied.

Background

On April 14, 2009, Plaintiff, William L. McVicker, filed the instant lawsuit in which he alleges that Defendants, the Borough of Jefferson Hills (the "Borough") and certain Borough Council members (the "Individual Defendants"), unlawfully terminated his employment with the Borough in violation of Title VII, the Age Discrimination in Employment Act, the First Amendment, the Fourteenth Amendment's Equal Protection Clause, and the Pennsylvania Human Relations Act.

Plaintiff's employment was terminated by Borough Council immediately following a Board meeting that occurred on September 8, 2008. According to Plaintiff, the four (4) Individual Defendants all provided deposition testimony that the termination of Plaintiff's employment was not discussed until shortly before the Executive Session on September 8, 2008. However, Plaintiff contends that the deposition testimony of the Individual Defendants is contradicted by the deposition testimony of other members of Council, who are not named Defendants. The time frame regarding when Council first learned that Plaintiff had filed an EEOC claim is critical to Plaintiff's claims of retaliation and discrimination due to political affiliation. The Court has previously ruled that whether and which Defendants were on notice in May, June, July, August, or September is a subject for cross-examination at trial.

The instant motion relates to a number of anonymous blogs which were posted on the "YourSouthhills.com" website, an interactive discussion board on the Internet owned by Trib Total Media, Inc. The blogs were made during the period of May 1, 2008 until June 8, 2008, a time period which Plaintiff contends is in "very close proximity to the time when the Plaintiff reasonably believes that Defendants were about to take an adverse employment action against him." A number of people using "YourSouthhills.com" were engaged in ongoing discussion of the activities of the government of Jefferson Hills Borough through the referenced anonymous blogs.

On January 22, 2010, Plaintiff served a Subpoena Duces Tecum on Trib Total Media, Inc., in which he sought the disclosure of certain materials submitted to Trib Total Media, Inc., by the users of seven (7) specified screen names on the "YourSouthhills.com" message boards, including information that would disclose the true identities of those users.*fn1 On January 29, 2010, through its attorney, Trib Total Media informed Plaintiff that it objected to the subpoena and would not produce any documents pursuant to the subpoena unless ordered by the Court.

In his Motion to Compel, Plaintiff argues that "[m]any of the posts which are the subject of the Subpoena were made precisely at the same time the Borough received the EEOC documents and leading up to the Executive Session that occurred on June 9, 2008" and that the identity of the bloggers would be relevant to impeach the testimony of the four (4) Individual Defendants.

Community Agreement and Privacy Policy of YourSouthhills.com

In order to post comments on the YourSouthhills.com online site, a person first must register for an online account. In the registration process, a user is required to provide the following personal identifiable information: name, e-mail address, zip code and age. See Mot., Exhibit A. The privacy policy of the Agreement discloses the information Trib Total Media will gather from its online users and how that information will be used, generally in a commercial manner. In pertinent part, the policy states the following:

Personally identifiable information collected on the Site may also be used for other purposes, including, but not limited to, trouble-shooting and site administration. Certain third parties, our email service provider, for example may access the information. . . .

The Company may also disclose your Information in response to a court order, [or] at other times when the Company believes it is reasonably required to do so, in connection with the collection of amounts you owe to the Company, or if we deem it appropriate to give your information to law enforcement authorities. . . .

Analysis

The United States Supreme Court has consistently held that "an author's decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995) (holding that a ban on distributing anonymous campaign literature violates the First Amendment, explaining that "[a]nonymity is a shield from the tyranny of the majority"). See also Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 200 (1999) (invalidating a Colorado law which required that initiative-petition circulators wear a badge identifying the circulator's name as a violation of the First Amendment); Talley v. California, 362 U.S. 60, 65 (1960) (declaring invalid an ordinance that prohibits the distribution of handbills that fail to identify the name and address of those responsible for their creation and distribution). This First Amendment protection extends to speech via the Internet. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (finding that Supreme Court precedent "provide[s] no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet]"). As one district court has stated, "[t]he Internet is a particularly effective forum for the dissemination of anonymous speech." Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp.2d 556, 562 (S.D.N.Y. 2004) (copyright infringement action for the downloading and distribution of music via peer-to-peer file copying networks).

However, anonymous speech on the Internet, like speech from identifiable sources, does not have absolute protection. Courts have ordered disclosure of identifying subscriber information in circumstances involving copyright infringement, see In re Verizon Internet Servs., Inc., 257 F. Supp.2d 244, 267 (D.D.C. 2003), rev'd on other grounds by RIAA, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C.Cir. 2003), and where the anonymous speaker allegedly made defamatory statements and disclosed confidential insider information online. See In re Subpoena Duces Tecum to Am. Online, Inc., No. 40570, 2000 WL 1210372, at *1 (Va. Circ. Ct. Jan. 31, ...


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