An attorney representing five of the six anonymous commenters being sued for defamation by elected Beaver County Treasurer Connie Javens and her adult daughter Renee Javens Zuk has filed a court motion to quash a subpoena issued against the Beaver Countian.
Attorney James Tallman with the Pittsburgh law firm of Elliott & Davis filed the motion on behalf of anonymous Beaver Countian commenters aka “thebigdigger,” “THE EXECUTIONER,” “Slicer,” “Courthouseconvicts,” and “ConnieintheSlammer.” An attorney representing aka “John Q Taxpayer” separately filed a motion seeking to quash the subpoena on his behalf.
The Beaver Countian was served with a subpoena by Treasurer Javens and Renee Zuk earlier this month, seeking email addresses, IP [Internet Protocol] addresses, or other records this publication may have which could help ascertain the true identities of the six anonymous commenters they are targeting with litigation.
Beaver Countian founder John Paul has refused to turn over any information about the commenters. Although not a named defendant in the lawsuit, attorneys for the Beaver Countian have taken legal action to protect the commenters’ identities by filing a motion with the court invoking the Pennsylvania Journalist Shield Law — it marked the first time in the state that a reporter has invoked the Shield Law to secure the anonymity of commenters on a news website.
In his motion seeking to quash the subpoena, attorney Tallman stressed the strong protections provided to anonymous speech in the United States.
“Anonymous speech is fundamental to the right to free speech protected by the First Amendment to the United States Constitution,” wrote Tallman. “It is essential to our democratic system of government that Citizens have the ability to criticize public officials without fear of reprisal or being stifled by lawsuits […] Pennsylvania Courts recognize that the identity of anonymous or pseudonymous speakers is protected by the First Amendment.”
Attorney Tallman went on to cite the so-called “Pilchesky Test” which was similarly argued by attorney Gerald Benyo in his motion on behalf of “John Q Taxpayer” and attorneys Brian Collins and Mark Gottlieb in their motion on behalf of the Beaver Countian.
The “Pilchesky Test” is used to determine if the right to identify a speaker in a case outweighs the First Amendment right of anonymous speech. The standard strongly favors the protection of anonymous speech, requiring the presentment of actual evidence and a showing of actual harm to overcome. Attorney Tallman asserts that Treasurer Javens and Renee Zuk made no attempt at either in the filing of their subpoena.
Attorney Tallman went on to argue that articles published by the Beaver Countian gave good reason for the commenters to express alarm at events that were unfolding within Beaver County government, arguing they “raise serious questions about whether Connie Javens violated state law and her relationship with the new owners of Friendship Ridge. The articles raise serious questions concerning misuse of taxpayer dollars and public corruption […] Against this backdrop, John Does (1)-(6) and many others posted comments […] Many of the hundreds of comments were similar in nature to the comments of John Does (1)-(6), suggesting public corruption and misuse of public funds. The Plaintiffs, however, have targeted only a handful of commentators with their claims of defamation […] Plaintiffs cannot claim to be harmed by the comments of John Does (1)-(6), but not the similar comments of numerous other anonymous commentators. This undermines their claims of harm from the comments and that her claims are brought in good faith. Indeed, it raises the specter of targeted attack to stifle protected free speech.”
Tallman’s court filing suggests that based on a reading of comments posted to articles on the Beaver Countian, Renee Javens Zuk may herself have been commenting under anonymous pseudonyms.
The motion asks that the subpoena issued by Treasurer Connie Javens and her daughter Renee Javens Zuk be quashed and that information which could be used to identify the five anonymous commenters remain confidential.
About The Beaver Countian’s Legal Representation
Founded in the 1980’s in Baltimore, Offit Kurman is now one of the fastest-growing full-service law firms in the region. The group has a keen understanding of the importance of the intersection of law and technology, having recently expanded their attorneys with technology focused practices including intellectual property, data and cybersecurity, and privacy issues. With 120 attorneys on staff, the firm offers a comprehensive range of services in virtually every legal category. Offit Kurman’s twelve offices serve individual and corporate clients in the Philadelphia, Washington DC, Baltimore, and New York City metropolitan areas, and markets including Maryland, Delaware, New Jersey, and Northern Virginia.
Legal representation for the Beaver Countian was arranged by the Electronic Frontier Foundation (EFF), the world’s leading digital civil rights organization. The EFF was founded in 1990 to ensure that rights and freedoms are enhanced and protected as our use of technology grows. The international nonprofit organization champions causes of user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. The EFF is currently leading federal litigation against the National Security Agency’s mass surveillance program.