Who Is Frank Pasquale?

pasquale-frank2.jpgYou know him as Frank Pasquale, as he blogs here occasionally regularly frequently like a madman on steroids, but who is he really?

You might not know that Frank Pasquale recently won a victory in a court case in Texas, In re Does 1-10, — S.W.3d –, 2007 WL 4328204 (Tex. Ct. App., Dec. 12, 2007):

Essent PRMC, L.P. (Hospital) filed suit against ten John Does alleging they had defamed the Hospital and violated other laws by posting comments on an Internet site. The trial court ordered that anonymous contributer John Doe number one be identified by his Internet service provider (ISP). Anonymous John Doe number one (identified in his blog as fac-p and Frank Pasquale) has filed a petition for writ of mandamus asking this Court to order the district court to withdraw its order directing a third party ISP to reveal his identity to the Hospital.

As Frank mentioned earlier, this other Frank Pasquale is his “purloined persona.” Several others commented on the fake Frank and the lawsuit in question. For example, Professor Bill McGeveran wrote:

A Blogger page called “The Paris Site” (cute pun) is a detailed gripe site about the local hospital in Paris, Texas and its parent company, Essent Healthcare. According to this news story in the local Paris paper, Essent has sued the anonymous bloggers behind the site for defamation, alleging that the site suggests the hospital is culpable for Medicare fraud and other wrongdoing. The blogger(s) use various pseudonyms, including, at one point, “Frank Pasquale.” The state court judge in the case has ordered a local ISP to provide the real name and address of the site’s proprietor.

This sort of thing occurs fairly frequently online. On political blogs you often see commenters signing the name of elected officials, usually to parody them by making sarcastic or ridiculous remarks in their name. You also see it all the time on sites like AutoAdmit/XOXOHTH, where part of the style of so-called joke is to use other people’s names (or screen names) and turn them into sock puppets. If obvious enough as humor, those may or may not be misleading, but I have little doubt that this sort of impersonation also happens in many contexts that are outright deceptive.

See also this post by Ruchira Paul.

In the lawsuit, John Doe aka “Frank Pasquale” prevailed, with the court declaring the importance of protecting the First Amendment rights of anonymous speakers. The court adopted the approach in Doe v. Cahill,, 884 A.2d 451 (Del.2005), an approach that I believe is the best. I blogged about Cahill here. According to the court:

The cases that have decided this issue range from placing an extremely light burden (indeed, virtually no burden at all) on the plaintiff, to requiring the plaintiff to tender proof of its allegations that would survive a summary judgment, or even more stringent requirements. At least one case has essentially concluded that the mere allegation of libel is sufficient. Other cases have articulated requirements that are so weak as to essentially require no more than allegations made in good faith (or not in bad faith), with some evidence to support the allegations.

We cannot agree that either of these formulations is sufficient to survive any form of constitutional balancing. Thus, the question becomes the degree of actual proof that must be provided before the balance tips in favor of piercing the constitutional shield and disclosing the identity of the anonymous blogger.

We find ourselves more in alignment with the formulations set out in Cahill, 884 A.2d at 458-61. . . . The court in Cahill described the test as: “[B]efore a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.” Cahill, 884 A.2d at 460. This standard does not require a plaintiff to prove its case as a matter of undisputed fact, but instead to produce evidence sufficient to create issues that would preclude summary judgment.

The court remanded the case to the trial court to determine if the hospital could meet this standard. I am pleased that the court followed Cahill, and I’m doubly pleased because the court cited me in its opinion — my article A Tale of Two Bloggers: Free Speech and Privacy in the Blogosphere, 84 Wash. U. L. Rev. 1195 (2006).

The only downside in all this is that the mystery remains: Who is Frank Pasquale? For now, we’ll have to continue to wait and wonder.

You may also like...

2 Responses

  1. Dan– thanks for clearing that up. I noticed that as well in the court proceedings, and realized that it must be an enormous coincidence.

    This is only tangentially related, so I wonder if you (or anyone else) here can indulge me:

    Funny that this decision mentions Cahill (as many do.) I’m not a lawyer, so I was curious to learn whether facts after a decision can logically invalidate it. (Not to worry: Of course I recognize the value of Miranda, no matter what Miranda himself did after the trial.)

    What few realized about Cahill is that Doe was shortly thereafter unmasked. Doe’s lawyers had been extremely sloppy in their paperwork, and the IP address had been faxed to Cahill’s lawyers. The Cahills were able to determine that the IP address did belong to their real-life antagonists, the Schaeffers, and sued them directly.

    What didn’t meet the summary judgment standard for Justice Steele in the first trial now met that standard in the second trial. The trial went forward. The Schaeffer household determined amongst themselves that it was their stepdaughter who had made the offending posts, and she confessed in court proceedings — which is what the Cahills wanted all along. [This is related to my initiative of an informal collaboration with Dan last week about the privacy of IP addresses.]

    One of the reasons Justice Steele felt that the summary judgment wasn’t met was because the postings were made on an Internet blog, which he felt no reasonable person could take seriously(“by their very nature, they are not a source of facts or data upon which a reasonable person would rely.”) But the second trial judge didn’t apply this same summary judgment. Was this because Cahills’ attorney made a better filing? (it’s not available for me to read online.) Was it because the summary judgment standard had changed somehow? Was it because the second trial judge didn’t accept in the state supreme court’s logic? I don’t know– and, not being a student of the law, I wonder if there are sometimes lower court decisions which call into question the logic of the higher court ones.

  2. Richard Posner says:

    This post was very informative.