• by Wendy Davis  @wendyndavis, January 6, 2011

Backing online commenters' right to anonymity, an appellate court in Pennsylvania has overturned an order requiring a Web site operator to disclose the identities of commenters who slammed a local politician.

The Pennsylvania Superior Court ruled that Lackawanna County Court of Common Pleas Judge Peter O'Brien didn't adequately examine whether the commenters' right to speak out anonymously was outweighed by former Scranton City Council President Judy Gatelli's defamation allegations. "Comments on matters of public importance or those which criticize public officials are entitled to robust protection, for it is in the public forum that the First Amendment right of speech is strongest," the court wrote.

While the ruling doesn't absolutely shield the commenters from disclosure, the decision could make it harder for Gatelli to learn their identities. In order to unmask them, she will have to show that she can win a lawsuit -- meaning that the statements actually harmed her -- and that her interest in suing the speakers outweighs their right to criticize a public official.

The decision grew out of a dispute between Gatelli and between local activist Joseph Pilchesky, who runs the site Dohertydeceipt.com -- dedicated to criticizing Scranton Mayor Christopher Doherty and other local politicians.

The litigation began four years ago, shortly after Gatelli allegedly said she canceled a City Council meeting due to threats on Dohertydeceipt.com. Her alleged comments prompted Pilchesky to sue Gatelli for defamation. Gatelli then countered Pilchesky, also for defamation. As part of her lawsuit, she demanded to learn the true names of almost 100 anonymous posters.

The trial judge, Peter O'Brien, ultimately ruled that Gatelli was entitled to unmask six of the posters who used referred to Gatelli in derogatory terms. One of the six called her the "whore of all whores," while another referred to her as a "political whore."

O'Brien found that such statements supported Gatelli's defamation claim and were not protected by the First Amendment because they attributed "serious sexual misconduct" to her.

But the appellate court reversed that ruling and ordered a further hearing about whether Gatelli could realistically prevail at trial.

Advocacy group Public Citizen (which is representing MediaPost in an unrelated matter) filed a friend-of-the-court brief in the case arguing that some of the commenters made statements that would be libelous if they were untrue and also harmed Gatelli, but that others "had simply expressed derogatory opinions in graphic or hyperbolic terms that should not afford a proper basis for an elected official to sue her constituents."