UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LAWRENCE SINCLAIR,

Plaintiff, v. Civil Action No. 08-0434 (JDB) TubeSockTedD, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Lawrence Sinclair ("Sinclair") has filed this action for common law defamation

and reckless misrepresentation against three defendants, who he describes as follows:

"TubeSockTedD is a natural person maintaining an account with YouTube.com which contains

his/her real identity" (Compl. ¶ 5); "mzmolly is a natural person maintaining an account with

Demoncraticunderground.com [sic] which contains his/her real identity" (Compl.¶ 6); and

"OWNINGLIARS, is a natural person maintaining an account with Digg.com which contains

his/her real identity" (Compl. ¶ 7). Sinclair then subpoenaed DemocraticUnderground.com,

Digg.com and Google, Inc. (for YouTube.com) to acquire the true identities of the anonymous

Internet speakers that he has sued, and motions to quash or compel are now pending with respect

to those subpoenas. Although Sinclair's effort poses potentially important and complex issues

relating to defamation actions against anonymous Internet speakers, and efforts to force

revelation of the identities of such speakers, the pending motions, and ultimately the viability of

this case as brought by Sinclair, can be resolved on somewhat narrower grounds.

-1- BACKGROUND

In his complaint, Sinclair alleges that in January 2008 he posted a YouTube.com video

alleging that in November 1999, while visiting Chicago, he met then-state senator Barack Obama

and then purchased cocaine from, used cocaine with, and performed a sex act on Mr. Obama.1

Compl. ¶ 8. Subsequently, according to Sinclair, in February 2008, the defendants each posted

items on the Internet critical of him: TubeSockTedD uploaded a video to YouTube.com stating

that Sinclair is "Spreading Lies about Obama" (Compl. ¶ 9); mzmolly posted a comment on

DemocraticUnderground.com stating that Sinclair is a mental patient who was institutionalized

on the date in 1999 when he claims to have encountered Obama (Compl. ¶ 10); and

OWNINGLIARS posted a comment on Digg.com stating, inter alia, that Sinclair is a liar and

was in a mental hospital when he claimed he met Obama (Compl. ¶ 11). The complaint asserts

claims for defamation and "reckless misrepresentation" against each defendant, seeking $1

million in damages on each of six counts.

The case was originally assigned to another judge of this Court, who granted Sinclair's ex

parte motion for leave to engage in ex parte limited discovery, which permitted third-party

subpoenas to the relevant Internet providers for account information relating to each defendant.

Now before the Court are Sinclair's motion to compel information identifying defendant

mzmolly, and motions to quash the subpoenas seeking from Google, Inc. and Digg.com

information identifying defendants TubeSockTedD, OWNINGLIARS, and mzmolly.2 The case

1 Because Sinclair's allegations, and hence this action, are totally unrelated to President Obama's current official responsibilities, the Court will not employ that title in this opinion. 2 The arguments presented by mzmolly and DemocraticUnderground.com in opposition to Sinclair's motion to compel have, for the most part, simply been adopted in the context of the

-2- was reassigned to the undersigned judge in July 2008. Thereafter, in an Order issued on August

14, 2008, the Court denied Sinclair's motion seeking relief under

against the

Department of Justice and directed that the Clerk accept no further filings from Sinclair's then-

counsel, Montgomery Blair Sibley, who had been suspended from the practice of law.

DISCUSSION

This case involves Sinclair's effort to identify and obtain monetary relief from three

bloggers who have criticized him concerning his sensational claims, which were broadly

publicized in the "blogosphere," in tabloid newspapers, and on radio programs. The threshold

issue presented -- whether the Court should order the identification of the anonymous Internet

speakers Sinclair has sued -- is of growing importance in the law. It raises First Amendment

questions uniquely framed to the message and discussion boards that are increasingly popular on

the Internet, and that thrive on the ability of users to criticize and respond to criticism, often

anonymously, to the audience viewing the original message. Sinclair has used that medium to

communicate his original message and then to respond vigorously to those, including the three

anonymous defendant bloggers, who have criticized him concerning his sensational claims.

Generally speaking, the First Amendment protects the right to speak anonymously.

Watchtower Bible & Tract Soc'y of New York v. Village of Stratton,

(2002); McIntyre v. Ohio Elections Comm'n,

(1995). Such rights to speak

anonymously apply, moreover, to speech on the Internet. See, e.g., Doe v. 2TheMart.com Inc.,

(W.D. Wash. 2001); Global Telemedia Int'l, Inc. v.

, 132 F.

motions to quash. The Court will therefore refer collectively to defendants' arguments unless further specificity is needed.

-3- Supp. 2d 1261, 1264-66 (C.D. Cal. 2001); ACLU v. Johnson,

(D.N.M.

1998); see generally Reno v. ACLU,

(1997). And the Supreme Court

has required both proof of a compelling interest and a narrowly tailored restriction serving that

interest where compelled identification of speakers threatens the First Amendment right to

remain anonymous. McIntyre,

; see also Bates v. City of Little Rock,

(1960) (due process requires a showing of a compelling interest where compelled

disclosure threatens fundamental rights). Hence, recognizing these First Amendment interests

and the chilling effect that subpoenas seeking the disclosure of anonymous speakers can have on

dissenters, see, e.g., FEC v. Florida for Kennedy Comm.,

(11th Cir.

1982), courts have applied a three-part test for a qualified privilege against disclosure of

anonymous sources in the analogous area of libelous speech: the party seeking the identity of an

anonymous speaker must show (1) the issue as to which disclosure of the source is sought goes

to the heart of the case, (2) disclosure is necessary to prove the issue because the party seeking

the information is likely to prevail on all other issues, and (3) all other means of proving the

issue have been exhausted. Lee v. Dep't of Justice,

(D.C. Cir. 2005); United

States v. Caporale,

(11th Cir. 1986).

Drawing on this case law, two similar standards have emerged in cases involving

discovery seeking the identification of anonymous Internet speakers. In Dendrite Int'l v. Doe,

(N.J. Super. Ct. App. Div. 2001), a five-part balancing test was

articulated, requiring (1) that the plaintiff undertake to notify the anonymous posters that they

are the subject of a subpoena seeking their identity; (2) that the plaintiff specify the exact

statement alleged to constitute actionable speech; (3) that the court review the complaint and

-4- other information to determine whether a viable claim against the anonymous defendants is

presented; (4) that the plaintiff produce sufficient evidence to support, prima facie, each element

of its cause of action; and (5) that the court then balance the First Amendment right of

anonymous speech against the strength of the plaintiff's prima facie claim and the need for

disclosure of the anonymous defendant's identity. Several courts have adopted this test or some

close variant of it. See, e.g., Highfields Capital Mgmt. v. Doe,

(N.D. Cal. 2005); In re Baxter,

, at *12 (W.D. La. Dec. 20, 2001); Mobilisa,

Inc. v. Doe,

(Ariz. Ct. App. 2007). A second, less-exacting standard

foregoes an explicit balancing of interests but still requires the plaintiff to come forward with

sufficient evidence to establish a prima facie case on all elements of a claim that are supportable

without discovery. See Doe v. Cahill,

(Del. 2005); accord, Best Western Int'l,

Inc. v. Doe,

, at *4-5 (D. Ariz. July 25, 2006); Krinsky v. Doe 6,

(Cal. Ct. App. 2008).

The Court need not resolve here the precise standard appropriate for determining whether

disclosure of anonymous Internet speakers is warranted. When the viability of Sinclair's present

complaint is assessed -- and an examination of the sufficiency of a plaintiff's claims is an

essential part of the tests under both Dendrite and Cahill -- it is apparent that Sinclair should not

be permitted to compel the identification of the three anonymous Internet speaker defendants.

Sinclair's action is fundamentally flawed for three reasons.

First, it is obvious that, as presented, the Court has no subject-matter jurisdiction over

Sinclair's complaint. He has alleged only state-law causes of action, and jurisdiction rests on

diversity of citizenship. But the citizenship of the defendants -- all anonymous "Does" -- is not

-5- known. Instead, Sinclair, a citizen of Minnesota, urges that after reasonable discovery, he will

establish that defendants are citizens of other states. See Compl. ¶ 2. The law is clear, however,

that a diversity action cannot be brought against Doe defendants in hopes of later discovering

that the requisite diversity of citizenship actually exists. See, e.g., Menzies v. Doe,

(D.C. Cir. 1999) (unpublished table decision); Howell by Goerdt v. Tribune Entertainment Co.,

(7th Cir. 1997); Meng v. Schwartz,

(D.D.C. 2004);

see also 13B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction and Related

Matters § 3602, at 372 (2d ed. 1984) ("the essential elements of diversity jurisdiction must be

alleged in the pleadings").

Second, there is likewise no basis to believe that Sinclair can establish personal

jurisdiction over defendants; certainly the complaint pleads no ground for personal jurisdiction

in the District of Columbia. Minimum contacts with this forum would appear lacking for either

general or specific jurisdiction. Sinclair does not allege that any defendant owns property or

does business in the District, and hence the "continuous and systematic" contacts needed for

general jurisdiction are not present or even alleged. See Helicopteros Nacionales de Columbia,

S.A. v. Hall,

(1984). For specific jurisdiction, the defendant's contacts with

the forum must be related to the controversy at hand.

at 414 n.8. Sinclair makes no

allegation that any defendant has purposely directed activities toward or availed himself of the

privilege of doing business in the District of Columbia, that his cause of action arises from

conduct here, or that any defendant has enough connection to the District to make the exercise of

jurisdiction reasonable, thereby making defendant's contacts sufficient to provide fair warning of

being subject to suit here. See

. Sinclair's anticipated response that defendants'

-6- statements posted on the Internet can be downloaded and viewed in the District of Columbia is

insufficient to establish personal jurisdiction, even if Sinclair were located here rather than in

Minnesota. See Gorman v. Ameritrade Holding Corp.,

(D.C. Cir. 2002).

Third, for several reasons, the Court questions the sufficiency of Sinclair's claims in this

case. Of course, just stating that someone is "spreading lies" or is a liar may not be actionable as

defamation. See Rocker Mgmt. LLC v. John Does 1-20,

, at *1, *3 (N.D.

Cal. May 29, 2003); Beatty v. Ellings,

(Minn. 1969). Here, the challenged

statements are less an attack on Sinclair's general character and instead a dispute with the

accuracy of a specific statement made by him. Indeed, the irony here is that defendants' alleged

statements actually dispute whether Sinclair engaged in the criminal and disreputable acts that he

has claimed, hardly the normal fare of a defamatory statement. The statement that Sinclair is a

former mental patient, although perhaps defamatory, is most probably not actionable because

mzmolly and OWNINGLIARS were simply summarizing and reporting information obtained

from another content provider. See

(c)(1).

Perhaps most importantly here, Sinclair has not alleged in his complaint either special

damages or actual malice. Under Minnesota law, special damages must be pled unless the

alleged statements are defamatory per se, which they are not here. See Anderson v. Kammeier,

(Minn. 1977). Arguably, Sinclair is a limited-purpose public figure

concerning the controversy that he sought to generate relating to candidate Obama and the 2008

presidential election, see Waldbaum v. Fairchild Publ'ns, Inc.,

(D.C. Cir.

1980), and hence he must show actual malice. Not only has Sinclair failed to plead actual

malice, which condemns his defamation claim, but there is no reason whatsoever to believe he

-7- will be able to show by the requisite clear and convincing evidence that defendants' Internet

statements were made with the degree of serious doubts about their truth that the actual malice

standard requires. See St. Amant v. Thompson,

(1968). The assertion by

Sinclair that statements were made without knowing whether they were true or false, see Compl.

¶ 25, is plainly insufficient to establish actual malice. St. Amant,

. And when

a plaintiff has not shown that a defendant could have published a defamatory statement with

actual malice, the defendant may prevail on a defamation claim as a matter of law. Liberty

Lobby, Inc. v. Rees,

(D.C. Cir. 1988).

If the Court were to engage in the balancing required under the Dendrite standard,

certainly Sinclair's discovery attempts to compel disclosure of the identity of the three

anonymous Internet speaker defendants would have to be rejected. Likewise, under the Cahill

test, Sinclair plainly fails to establish a prima facie case on his claims or that his complaint can

survive its obvious jurisdictional flaws, and hence his attempt to discover defendants' identities

must be rejected. Where the viability of a plaintiff's case is so seriously deficient, there is simply

no basis to overcome the considerable First Amendment interest in anonymous speech on the

Internet. Sinclair has provided no ground to do so here.3

Finally, the Court returns to the question of subject-matter jurisdiction. Clearly, there is a

3 Sinclair's responsive arguments do not squarely address the serious issues here. His ad hominem accusation against mzmolly and its counsel (Public Citizen) is baseless, and the contention that only a jury can assess the facial validity of his claims ignores the body of defamation law discussed above. So, too, the argument that the First Amendment is irrelevant ignores both logic and the law. And the contention that jurisdiction can be established later through discovery is unpersuasive. Lastly, Sinclair's effort to force Public Citizen to reveal the identity of its client is frivolous because no subpoena has been served on Public Citizen and Sinclair simply ignores the attorney-client privilege.

-8- total absence of subject-matter jurisdiction in this Court as revealed on the face of the complaint.

Sinclair offers no convincing argument to the contrary. Federal jurisdiction based on diversity of

citizenship cannot simply be assumed, as Sinclair wishes, with discovery then permitted in hopes

that a proper basis for jurisdiction can later be ascertained. The proper course in a setting like

this one is for a plaintiff to pursue any valid claims in a state court where both subject-matter and

personal jurisdiction exist. Hence, the Court will dismiss Sinclair's action in this Court for a

clear lack of subject-matter jurisdiction.4

CONCLUSION

For the foregoing reasons, Sinclair's discovery effort to compel disclosure of the

identities of the three anonymous Internet speaker defendants is rejected and the complaint will

be dismissed. A separate Order has been issued on this date.

/s/ JOHN D. BATES United States District Judge

Date: February 10, 2009

4 Although the Court is not impressed with the merits of Sinclair's claims, and rejects completely his discovery efforts, the sanctions requested by mzmolly and DemocraticUnderground.com will be denied given the evolving and novel areas of law involved here.

-9-