Comcast Must Reveal ID of Poster of Sandusky Comment

A county board candidate is entitled to the name of an anonymous poster who wrote that the candidate “is a Sandusky waiting to be exposed,” an Illinois appellate court ruled.

The appellate court affirmed a trial court’s order requiring Comcast Cable Communications, LLC to provide the name of a subscriber who posted the comment as “Fuboy” on a message board maintained by the Freeport (IL) Journal Standard.  The post was in response to an article that discussed candidate Bill Hadley’s election campaign.  The post stated, “Hadley is a Sandusky waiting to be exposed.  Check out the view he has of Empire from his front door.”  Empire is the name of a grade school in Freeport.  Sandusky appears to refer to the assistant football coach for Penn State who was convicted of sexually abusing young boys.

Hadley filed a two-count complaint.  The first count alleged defamation by Fuboy, and the second count requested that Comcast disclose Fuboy’s identity under Illinois Rule 224.  The trial court ordered the name released and Fuboy appealed.

The appellate court noted that, under Rule 224, “a court must balance the potential plaintiff’s right to redress for unprotected defamatory language against the danger of setting a standard for disclosure that is so low that it effectively chills or eliminates the right to speak anonymously and fails to adequately protect the chosen anonymity of those engaging in nondefamatory public discourse.”  This analysis requires that the plaintiff show the facts would support a cause of action for defamation.

As to defamation per se, the court said the idea the post intended to convey “to the reasonable reader by the words at issue—‘Hadley is a Sandusky waiting to be exposed.  Check out the view he has of Empire from his front door’—is that Hadley is a pedophile. . . . It is natural and obvious that calling someone ‘a Sandusky’ while the scandal dominated the national news showed an intent to convey the idea that the ‘Sandusky’ had engaged in yet-to-be discovered sexual acts with children.”

The appellate court noted, “[W]e appreciate the idea that, when potentially defamatory statements are published in a setting in which the audience might anticipate attempts at persuasion by the use of epithets, fiery rhetoric, or hyperbole, the statements might well assume the character of opinion, even where, in other settings, they would be considered statements of fact.” However, the court also noted that the “mere fact” that “a statement is made on the Internet does not render it hyperbole.”  From the post, it was clear that “Fuboy knows where Hadley lives” and that “it is not fatal to Hadley’s claim that portions of Fuboy’s statement carry the tone of opinion.”

The appellate court found the statement was “mixed opinion,” which, unlike a pure opinion, may be actionable.  The statement “implies the existence of defamatory facts but does not disclose them.  Fuboy calls Hadley a ‘Sandusky,’ a figurative term for a child molester.  He then states that Hadley is ‘waiting to be exposed.’  This phrase, ‘waiting to be exposed,’ implies the existence of undisclosed facts.  Fuboy’s position that Hadley is a child molester appears to be derived from Hadley’s past conduct, but Fuboy does not disclose what this conduct was.”

The appellate court found the statement was not “reasonably capable of an innocent construction, and it can be reasonably construed as a factual assertion.”

Hadley v. Subscriber Doe, 2d Dist., Illinois App. Court, 2014 IL App (2d) 130489, issued May 8, 2014.