Illinois court sets standard for unmasking anonymous commenters

Maxon v. Ottawa Pub. Co., — N.E.2d —, 2010 WL 2245065 (Ill.App. 3 Dist. June 1, 2010)

The rules of civil procedure in Illinois permit an aggrieved party to file a petition with the court asking for an order requiring unknown potential defendants to be identified. This is called a Rule 224 petition.

A couple from Ottawa, Illinois got their feelings hurt over some anonymous comments left in response to content published by the local newspaper on its website. Wanting to sue for defamation, the couple filed a Rule 224 petition. The newspaper opposed the petition. (For something similar, see Enterline v. Pocono Medical Center.)

The trial court denied the petition, applying the standards articulated in Dendrite v. Doe and Doe v. Cahill, finding that the petitioners had not presented a strong enough case for defamation to justify the unmasking of the anonymous commenters. Those cases require, among other things, that a party seeking to identify an anonymous speaker make efforts to notify the anonymous party, and present enough evidence to establish a prima facie case of defamation (Dendrite) or survive a hypothetical motion for summary judgment (Cahill).

The aggrieved couple sought review with the Appellate Court of Illinois. Reviewing the decision to deny the Rule 224 petition de novo, the court reversed and remanded, ordering the identification of the anonymous speakers to be made.

In reaching its decision, the court rejected the newspaper’s (and amicis’) arguments that the trial court should apply the rigorous standards of Dendrite and Cahill. That’s not to say, however, that the court left anonymous speakers at great risk of having their First Amendment rights trampled upon.

The court held that the mechanics of Rule 224 adequately protect the potential First Amendment rights of anonymous internet speakers. Here’s why, according to the court:

  • The petition must be verified – the threat of the pain of perjury should keep out half-hearted claims.
  • The petition must state the reason discovery is necessary.
  • The discovery is limited only to learning the identity of the potential defendant.
  • Most importantly, before the discovery will be permitted, the court must hold a hearing and determine the petition sufficiently states a cause of action.

In this fourth step, the court is to apply the standard it would apply in a Section 2-615 motion. Such a motion is, essentially, the Illinois version of a motion to dismiss for failure to state a claim. That is no insignificant test, because unlike federal court and other state jurisdictions, Illinois requires fact pleading. That means the petition needs to include a significant amount of specific information to survive the motion to dismiss.

A troubling aspect of the ruling is the omission from the test of a requirement that the party seeking discovery attempt to notify the anonymous target of the inquisition. The appellate court held that a trial court may, in its discretion, impose such a requirement.

But it would be nice to know that the real party whose First Amendment interests are at stake (the anonymous speaker) is guaranteed a fair opportunity to argue from his or her perspective. After all, it’s that party with the real incentive to do so. Let’s hope the trial courts exercise that discretion wisely (and that they know in the first place that they have that discretion).

Photo courtesy Flickr user TheTruthAbout… under this Creative Commons license.


  1. I don’t understand why or how people are allowed to say mean things about people and hide behind screen names. It’s like writing nasty things on the bathroom wall–so junior highish.

  2. This decision is a bit disturbing. I agree that the anonymous commenters may not have their interests taken into account at this stage.

    In response to Joe, our nation has a long, long history of anonymous advocacy. The First Amendment guarantees the right to express one’s opinion–and to do so anonymously. Even back in the 1780s, the authors of the Federalist Papers urging adoption of our Constitution published them under the name Publius.

    There is an argument that when you don’t sign your name to something, the weight of your arguments is lessened. But that’s a decision for the speaker to make. Part of living in society means putting up with people who want to say mean things and hide behind a screen name. The answer is not to strip them of their anonymity. The answer is basically to ignore them or mock them.

  3. Good post, Evan. This is a 3rd District opinion, so it is persuasive but not precedential in other districts. I’m still waiting for decisions in other cases in other districts that may have a different result.

  4. Chris McGeehan

    June 19, 2010 at 6:03 am


    Actually, this case in controlling precedent throughout the state of Illinois until a conflict arises. The Illinois Constitution provides that “the judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts.” The Illinois Supreme Court has held the reference to the singular appellate court means that Illinois has one appellate court that sits in five locations. Therefore a decision of any one appellate court is binding throughout Illinois unless their is conflicting precedent in the district where a circuit court is located. Of course, the de facto rule is that will all appellate authority is equal, some is more equal than others.

    However, a possibility for a conflict exists since at least one other case on this point is working its way through the Illinois Courts. Stone v Paddock Publication is presently being briefed in the First District (Cook County). Stone is a message board meanie case where commenters on a newspaper message board said mean things about a candidate for local office and her son. John Doe, the MBM, argues that his identity should not be disclosed to the Stones until a court decides whether the plaintiffs have a viable cause of action against him. [The Illinois trial judge did not apply this standard prior to ordering his ISP to disclose his identity. The disclosure has been held in abeyance pending an interlocutory appeal.]

    The EFF’s page on Stone v. Paddock–which collects the briefs and pleadings is here:

  5. Actually, I have to at least partially disagree with Kevin’s statements. Although the decision is not binding on the other appellate court districts, absent any contrary opinion, it is binding on all circuit courts in the state. The Illinois Supreme Court has explained:

    “As a preliminary matter, we wish to comment briefly on the failure of the circuit court in this case to adhere to established appellate court precedent. A decision of the appellate court, though not binding on other appellate districts, is binding on the circuit courts throughout the State.”

    State Farm Fire & Cas. Co. v. Yapejian, 152 Ill. 2d 533, 539, 605 N.E.2d 539, 542, 178 Ill. Dec. 745, 748, 1992 WL 297601 (1992).

    The Supreme Court has been clear that, unlike the federal system, Illinois does not have separate appellate courts. It has a single appellate court that, for administrative purposes, it divided into districts. Consequently, absent competing authority, a decision of any appellate court is binding on all circuit courts.

  6. Chris and Bryan,

    If you re-read my comments, you will see I said it was a persuasive but not precedential decision *IN OTHER DISTRICTS*. So, we are all right.

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