Superior Court Applies a High-Tech Test to a Low-Tech Issue
State and federal courts alike have long upheld the notion that the right to speak anonymously or pseudonymously is protected by the First Amendment. The rationale is that political speech cannot truly be “free” where a speaker fears retaliation for expressing one’s ideas. The principle, however, acts as natural roadblock to discovering the identity of a speaker charged with defamation.
A few years ago, the Superior Court addressed these competing rights and fashioned a four-part test which one, who contends they were defamed by an anonymous comment or post, must satisfy to support revealing of an anonymous speaker. Pilchesky v. Gatelli, 12 A.3d 430 (Pa. Super. 2011). In a recent opinion from the Superior Court, it extended the test to allegedly defamatory speech contained in “snail mail.”
The case arose when a person under the pseudonym “Scott Wilson” mailed two letters to United States government entities responsible for hiring contractors. In the letters, “Scott Wilson” contested the awarding of certain contracts to KGL, a Kuwaiti-based company, on the grounds that KGL had relations with Iranian entities in violation of the Iran Sanctions Act. KGL claimed the letters were defamatory and sought the real identity of “Scott Wilson,” a known employee of Agility Warehousing, which was a corporate competitor of KGL. Agility argued that the author’s identity was protected by the First Amendment, and thus, KGL should be required to meet the Pilchesky test. The trial court held that the letters did not amount to highly protected “political speech” but rather were “commercial speech,” in which case Pilchesky did not apply. The Superior Court disagreed, finding the letters were “political speech” and that the four prongs of Pilchesky must be met to reveal the speaker’s identity. It remanded the case back to the trial court for further application.
What Kuwait and Gulf Link Transport tells us explicitly is that the Pilchesky test applies to all modes of speech, both electronic blogs as well as good old-fashion “snail mail.” What is not so clear is whether Pilchesky applies only to “political” speech. The Court’s lengthy analysis in finding the letters were political speech might signal that the less protected commercial speech would not be subject to the test. That precise issue remains for a later time.
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