Donato v. Moldow

Stephen Moldow established the website "Eye on Emerson" in late 1999. He posted information about local government activities, including minutes of meetings of the borough council, planning board and board of education. Public opinion polls were conducted on the site, which included approval ratings of local elected officials. The site included a discussion forum, in which any user could post messages, either with attribution or anonymously.

Unknown users of the website posted comments on the forum under pseudonyms criticizing Vincent Donato and Gina A. Calogero, elected members of the Emerson Borough Council, and other local public officials. One comment indicated that Donato was "emotionally and mentally unstable and in need of psychiatric help, ready to explode and should be on medication." Another stated that Calogero used illegal drugs.

Donato, Calogero and other officials sued Moldow for defamation and other torts in New Jersey state court, claiming that he was responsible for the messages as a publisher. The plaintiffs subpoenaed the Internet service provider that hosted the website, seeking the identities of the unknown posters. The Public Citizen Litigation Group and the ACLU submitted an amicus curiae brief to address the First Amendment and Due Process rights of the anonymous posters who were not represented by counsel in the case. The court quashed the subpoena because the plaintiffs failed to meet the requirements of an important New Jersey opinion, Dendrite International, Inc. v. Doe, 342 N.J. Super. 134 (N.J. App. Div. 2001). The plaintiffs abandoned their claims against the anonymous posters.

The trial court later dismissed the complaint against Moldow on CDA 230 grounds, and the appeals court affirmed. See Donato v. Moldow, 865 A.2d 711, 713 (N.J. Super. Ct. 2005).