First Amendment Right to Anonymous Internet Speech Challenged by Florida Doctor

May 28, 2012

The First Amendment protects the right to speak anonymously on the Internet, but that right is not absolute. Defamatory statements, in particular, are not protected. Freedom of speech does not include the right to commit libel or other torts anonymously. As demonstrated by a new case filed in Henrico County Circuit Court, however, not everyone agrees on the extent to which an online review can go before a poster's identity must be revealed.

Armando Soto is a plastic surgeon in Orlando, Florida. A former patient, unhappy with the results of a breast augmentation procedure, posted negative comments about Dr. Soto on www.RateMDs.com. The comments included statements that scars were "horrific," "frightening and unnecessary," that breasts were "uneven," that Dr. Soto charged for procedures that he did not perform, and that he is not skilled or caring.

The online comments were posted anonymously, so Dr. Soto filed a "John Doe" action and subpoenaed Internet provider Comcast for records revealing his critic's identity. The anonymous reviewer hired a lawyer and moved to scope.jpgquash the subpoena to protect his identity. (Apparently the allegations are that "John" received breast augmentation surgery, which is why I'm referring to "his" identity).

John Doe's Motion to Quash argues that to reveal his identity would stifle free speech and that the First Amendment protects anonymous speech regarding matters of public concern such as the performance of a physician and his products. John Doe also contends that Dr. Soto filed the case in Virginia in order to cause him expense and hardship as the case has no apparent connection to Virginia. According to Doe, Dr. Soto filed the case solely to chill online criticism and coerce him into removing the postings.

Dr. Soto's attorney apparently concedes that some of the posted comments constitute protected opinion, but he contends that comments about unevenness and scarring are defamatory because they are not true. Soto's attorney learned that the online critic is a Florida schoolteacher and says he plans to transfer the suit to Florida.

Online review sites such as Yelp, Angie's List, Trip Advisor and Healthgrades.com, on which users can comment on the quality of service or care they received have flourished in recent years and are useful tools for consumers seeking information about service providers. However, professionals on the receiving end of criticism argue that these sites can become a forum for disgruntled consumers to unfairly bash them. In this author's view, Dr. Soto's case fails to state a defamation claim sufficient to overcome the First Amendment right to online Internet speech, and the court should quash the subpoena to Comcast.