Marie Gunning v. John Doe

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 78
Docket: Cum-15-558
Argued: October 26, 2016
Decided: May 4, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
Dissent: JABAR, J.

MARIE GUNNING

v.

JOHN DOE

MEAD, J.

[¶1] In August 2013, Marie Gunning brought suit in the Superior Court

(Cumberland County) against the anonymous publisher and writer(s)

(collectively John Doe) of News as Viewed From a Crow’s Nest (Crow’s Nest),

a publication distributed locally in Freeport, Maine, and accessible on the

Internet,1 which Gunning claimed had published defamatory statements about

her in several of its issues. After a California court quashed a subpoena that

Gunning served on the Crow’s Nest’s website host seeking to identify Doe, the

Superior Court (Warren, J.) dismissed her complaint without prejudice for

1
Doe’s brief states that the Crow’s Nest is no longer available on the Internet.
2

failure to effect service on the defendants. Gunning appeals from that

judgment. The publisher of the Crow’s Nest (Doe #1) cross-appeals, agreeing

with the court that Gunning is estopped by the California judgment from

continuing to seek the Does’ identities, and additionally contending that

Gunning cannot force the Does to reveal their identities because the Crow’s

Nest is both nonactionable constitutionally protected parody and protected

anonymous speech. We conclude that Gunning is estopped by the prior

California judgment, and we affirm the judgment of the Superior Court without

reaching Doe’s alternative arguments.

I. FACTS AND PROCEDURE

[¶2] In 2011, Gunning ran for the Freeport Town Council and was

defeated. One week later, the Crow’s Nest, which declares under its masthead

that it is “a parody look at the news,” published an “Election Special” issue,

which included a photograph of the “Wicked Witch of the West” character from

the classic movie The Wizard of Oz next to Gunning’s name, along with the

caption “Aka: ‘Gunner Gunning’ ‘Miss Prozac 2003,’” and several purported

quotes from Gunning. Several other people with apparent ties to Freeport were

treated similarly. Gunning’s complaint against Doe alleged three counts of libel

and one count each of false light and intentional infliction of emotional distress
 3

based on the statements concerning her in the “Election Special” issue, as well

as those appearing in fifteen subsequent issues of the Crow’s Nest.

[¶3] Gunning served a California subpoena on the Crow’s Nest’s website

host, seeking the names, email addresses, and IP addresses of anyone

associated with the publication’s website. Does #1 and #2, who filed written

declarations in the California Superior Court stating that they were the owner

and writer, respectively, of the Crow’s Nest website, moved to quash the

subpoena in that court, asserting that the Crow’s Nest was constitutionally

protected parody and that they had a constitutional right to speak

anonymously. In a decision issued on January 24, 2014, the court granted the

motion to quash, ruling that

[Gunning] must make a prima facie showing of libel. . . . [She] failed
to make this prima facie showing. The Court finds that while the
content of the Crow’s Nest could be seen as rude and distasteful,
taking into consideration the context and contents of the
statements at issue, it is a parody. The speech at issue in the Crow’s
Nest is protected under the First Amendment of the
U.S. Constitution. The statements are not actionable speech such
that the identities of the website owner and persons who comment
or otherwise publish material printed in or posted online at the
Crow’s Nest must be revealed pursuant to the subpoena.

Doe v. Gunning, No. CPF-13-513271 (Cal. Super. Ct. S.F. County Jan. 24, 2014).

[¶4] Gunning did not appeal the California judgment. Three months after

that judgment issued, Gunning served a Maine subpoena on a Town of Freeport
4

employee in order to depose him to learn whether he was the writer for the

Crow’s Nest. The employee objected to the subpoena and provided an affidavit

averring that he had never had anything to do with the Crow’s Nest and had no

knowledge of anyone who did. Fourteen months later, the employee, stating

that Gunning again sought to depose him, moved to quash the subpoena on the

grounds that Gunning was collaterally estopped by the California judgment

from further discovery seeking to learn the identities of Does #1 and #2, and

that her complaint failed to state a claim that could survive First Amendment

scrutiny.2 Doe #1 separately moved to quash the employee’s subpoena and “to

bar Gunning from issuing any other process to compel the disclosure of the

anonymous speakers named in her Complaint, and to enter an order dismissing

the Complaint.”

[¶5] On October 22, 2015, the Superior Court issued an order granting

the motion to quash and dismissing Gunning’s complaint without prejudice for

failure to effectuate service pursuant to M.R. Civ. P. 3.3 The court said that “[l]eft

to its own devices” it would “conclude that [G]unning has set forth a prima facie

2
The court ruled that the employee’s standing to make those arguments was not at issue because
Doe #1 also moved to quash the subpoena.

3
Although the Rule ordinarily requires service “within 90 days after the filing of the complaint,”
M.R. Civ. P. 3, the court explained that an extension of that deadline was implicit in its discovery
orders in the case.
 5

case and that she has submitted evidence sufficient to support the elements of

her libel claim.” The court found, however, that although it “would be inclined

to find that there is at least a factual dispute as to whether [one specific]

description of Gunning . . . would reasonably be understood to constitute a

parody” and therefore be entitled to First Amendment protection,

the court is not writing on a clean slate on that issue. . . . [W]hether
or not this court agrees with the California ruling, the issue of
whether Gunning has made the necessary prima facie showing [of
an actionable claim] was actually litigated in California, was
decided adversely to Gunning, and was essential to the outcome of
the California action. . . . No appeal was sought. Accordingly, the
California decision is entitled to collateral estoppel effect and
precludes Gunning from relitigating the same issue here in Maine.

[¶6] Accordingly, the court quashed the subpoena and dismissed the

complaint for lack of service on the Does. Gunning appealed and Doe #1

cross-appealed.

II. DISCUSSION

[¶7] We first address the question of whether Gunning is precluded from

relitigating in Maine the issue of the constitutional protection afforded to the

statements made about her in the Crow’s Nest. If she is, then the California

court’s determination that the statements are parody protected by the

First Amendment controls, and Gunning’s libel complaint fails to state an
6

actionable claim.4 In that event, the trial court did not abuse its discretion in

quashing the Freeport employee’s subpoena, and we need not reach the Does’

contention that the statements in the Crow’s Nest, if reviewed de novo, are

entitled to protection either as constitutionally protected parody or as

anonymous speech. See State v. Marroquin-Aldana, 2014 ME 47, ¶ 33,

89 A.3d 519 (“We review a court’s decision on a motion to quash for an abuse

of discretion.”).

[¶8] The California judgment is conclusive to the extent that it quashed

the subpoena issued to the Crow’s Nest’s website host, a result concerning a

discrete collateral issue related to Gunning’s suit that she does not challenge.

See Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998) (holding that pursuant

to the Full Faith and Credit Clause, “the judgment of the rendering State gains

4
The elements of a libel claim are “a false and defamatory statement concerning another; an
unprivileged publication to a third party; fault amounting at least to negligence on the part of the
publisher; and either actionability of the statement irrespective of special harm or the existence of
special harm caused by the publication.” Cole v. Chandler, 2000 ME 104, ¶ 5, 752 A.2d 1189
(list headings omitted). Gunning’s false light claim is similar, except that it involves propagating
defamatory information through “publicity” rather than by “publication.” Id. ¶ 17. If the statements
in the Crow’s Nest are constitutionally protected, then they are not “unprivileged,” and Gunning
cannot satisfy the second element of a libel claim. See Simmons, Zillman & Gregory, Maine Tort Law
§ 13-11 at 13-19 (2004 ed.) (“[A defamation] action that meets all state common law requirements
for recovery may fail because a recovery for the plaintiff would unconstitutionally abridge the
freedom of speech and press.”). If Gunning’s libel claim fails for that reason, her claim for intentional
infliction of emotional distress fails as well. See Shay v. Walters, 702 F.3d 76, 83 (1st Cir. 2012) (“The
Supreme Court has made it pellucid that a failed defamation claim cannot be recycled as a tort claim
for negligent or intentional infliction of emotional distress.”); Ault v. Hustler Magazine, 860 F.2d 877,
880 & n.1 (9th Cir. 1988) (“There is no independent cause of action for intentional infliction of
emotional distress based on the very same acts which are insufficient to support an action for
defamation.”), cert. denied, 489 U.S. 1080 (1989).
 7

nationwide force”). Maine law, however, determines whether the judgment

acts to foreclose Gunning’s claims in this State. See Restatement (Second) of

Conflict of Laws § 95 cmt. c (Am. Law Inst. Supp. 1989 revisions) (“[L]ocal law

of the State where the judgment was rendered . . . will be consulted to determine

whether the judgment affects the claim or only some incidental issue. If under

this law the judgment was not on the merits and settled only some incidental

issue . . . the judgment will be held conclusive in other States only as to the issue

decided and the plaintiff will remain free to maintain an action on the original

claim.”).

[¶9] In beginning that analysis, we have explained, applying

well-established law, that

[c]ollateral estoppel is the issue preclusion component of the
principle of res judicata. It prevents the relitigation of factual
issues already decided if the identical issue was determined by a
prior final judgment, and the party estopped had a fair opportunity
and incentive to litigate the issue in a prior proceeding. . . . The
court’s conclusion that collateral estoppel applies is a legal
determination; our review of that conclusion is therefore de novo.

Gray v. TD Bank, N.A., 2012 ME 83, ¶ 10, 45 A.3d 735 (alteration and quotation

marks omitted) (emphases added); see Macomber v. MacQuinn-Tweedie,

2003 ME 121, ¶ 22, 834 A.2d 131 (stating that “[w]e have long recognized that
8

the doctrine of res judicata has two prongs,” including “[i]ssue preclusion, also

referred to as collateral estoppel,” and claim preclusion).

A. Identical Issue

[¶10] Concerning the first element, the issue decided by the California

court and that to be decided by Maine courts if Gunning is not estopped from

relitigating it is the same—did Gunning make out a prima facie showing of libel,

or were the statements made about her in the Crow’s Nest shielded by the

First Amendment from being the basis for a libel claim. The trial court correctly

found that “Gunning previously litigated that issue in California[.]”

B. Final Judgment

[¶11] Gunning vigorously contests the court’s determination that “[t]he

decision of the California Superior Court constituted a final decision on

Gunning’s application for interstate discovery.” Nonetheless, the only issue that

the California court was asked to decide was whether the subpoena directed to

the Crow’s Nest’s website host should be quashed. Once it did so, there was

nothing left for the California court to consider. See Fitzgerald v. Bilodeau,

2006 ME 122, ¶ 4, 908 A.2d 1212 (“[A] judgment is final, and not interlocutory,

when: (1) the trial court’s action fully decides and disposes of the whole matter

leaving nothing further for the consideration and judgment of the trial court;
 9

and (2) no subsequent proceedings in the case will render the appellate court’s

decision immaterial.” (quotation marks omitted)). The final provision in the

California court’s order and the final notation in the docket entries concern the

resolution of costs and attorney fees involved in adjudicating the motion—

indicative of a finished case.

[¶12] Gunning’s argument that she is not estopped because appellate

review of the California judgment was effectively unavailable to her is not

persuasive. She points to the Restatement (Second) of Judgments § 28

(Am. Law Inst. 1982), which provides that “relitigation of [an] issue in a

subsequent action between the parties is not precluded . . . [when] [t]he party

against whom preclusion is sought could not, as a matter of law, have obtained

review of the judgment in the initial action.” The first comment to section 28

elaborates: “There is a[n] . . . exception to the rule of preclusion when . . . appeal

does not lie[] by . . . extraordinary writ[.]” Id. cmt. a.

[¶13] The Restatement limits the exception, however, in saying that

“[t]he [section 28] exception . . . applies only when review is precluded as a

matter of law. It does not apply in cases where review is available but is not

sought.” Id. (emphasis added). Here, review of the order quashing the

subpoena was available by extraordinary writ pursuant to the California Code
10

of Civil Procedure,5 but Gunning opted not to seek such review. Accordingly,

the Restatement exception to the collateral estoppel doctrine that is invoked

when no appellate review is available does not apply.

[¶14] Although Gunning argues that she would have been required to

show “immediate harm” in order to obtain an extraordinary writ and chose not

to file a petition because she believed she would have been unsuccessful, it was

for the California courts, and not Gunning, to say that the likely termination of

her Maine lawsuit was not a qualifying “immediate harm,” or that some other

ground for granting a writ under California law did not apply.

[¶15] Like Gunning, the dissent goes to great lengths to predict an

adverse ruling by California’s appellate courts had Gunning pursued

an extraordinary writ. Dissenting Opinion ¶¶ 23-26. That would be an

unnecessary exercise if Gunning had requested a writ, as was her right.

See Cal. Civ. Proc. Code § 2029.650(a) (Deering, LEXIS through ch. 4 of the

2017 Reg. Sess.). In any event, we are not a California court, and it is

5
The California Code of Civil Procedure provides: “If a dispute arises relating to discovery . . . any
request . . . to enforce, quash, or modify a subpoena, or for other relief may be filed in the superior
court in the county in which discovery is to be conducted . . . .” Cal. Civ. Proc. Code § 2029.600(a)
(Deering, LEXIS through ch. 4 of the 2017 Reg. Sess.). Thereafter, “[i]f a superior court issues an order
. . . resolving a petition under Section 2029.600 . . . a person aggrieved by the order may petition the
appropriate court of appeal for an extraordinary writ.” Cal. Civ. Proc. Code § 2029.650(a)
(Deering, LEXIS through ch. 4 of the 2017 Reg. Sess.).
 11

indisputably true that Gunning did not pursue the avenue of appellate review

available to her under California law—the venue that she chose. Had she done

so, in addition to having a stronger argument in this appeal, that state’s

appellate courts would have had an opportunity to address what Gunning and

the dissent contend are serious errors of law in the California Superior Court’s

decision. See Dissenting Opinion ¶ 35.

C. Fair Opportunity and Incentive

[¶16] Gunning asserts that although in furtherance of her Maine lawsuit

she caused a subpoena to be served in California and then fully litigated the

Does’ motion to quash it, she “did not have a full and fair incentive to litigate

the issue in the California court” because “she had another avenue available to

her from which to seek disclosure of the Crow’s Nest authors: the depositions

that were being sought in Maine.” That position is counterintuitive at best.

A plaintiff in Gunning’s situation would be very motivated to litigate a motion

that (1) presumably involved considerable time and expense to pursue;

(2) would have potentially yielded all of what she continues to seek had it

succeeded, namely the identities and contact information of the website’s host

and contributors; and (3) would predictably lead, if the motion to quash were

granted, to precisely what occurred—an effort to collaterally estop Gunning
12

from relitigating in Maine the central issue of whether the Crow’s Nest

statements were actionable at all.

[¶17] The Restatement provides, in a comment captioned “[l]ack of fair

opportunity to litigate in the initial action,” that

the court in [a] second proceeding may conclude that issue
preclusion should not apply because the party sought to be bound
did not have an adequate opportunity or incentive to obtain a full
and fair adjudication in the first proceeding. Such a refusal to give
the first judgment preclusive effect should not occur without a
compelling showing of unfairness, nor should it be based simply on
a conclusion that the first determination was patently erroneous.

Restatement (Second) of Judgments § 28 cmt. j. Gunning does not make any

“compelling showing of unfairness” sufficient for us to conclude that she lacked

opportunity or incentive to fully litigate this matter in California.

[¶18] Furthermore, in charging that our decision is unfair to Gunning

because “we are allowing the California law to prevent [her] from pursuing her

defamation case in this state,” Dissenting Opinion ¶ 37, the dissent ignores the

fact that Gunning had a full opportunity to litigate the issue at hand in the venue

of her choosing. Had Gunning chosen to prosecute this Maine action by

pursuing discovery in Maine’s courts—for example if she had sought to depose
 13

the Freeport employee before serving a subpoena in California,6 or if she had

withdrawn the subpoena when the Does’ California motion to quash raised a

potentially dispositive issue—then the Superior Court would have decided the

Freeport employee’s motion to quash based on Maine law, and either party

could have appealed an adverse ruling to this Court. Instead, Gunning opted, of

her own volition, to litigate a substantive issue in the California courts,

presumably hoping for a favorable result. After receiving an unfavorable ruling,

and choosing not to pursue an appeal of that ruling, she cannot simply elect to

relitigate the very same issue involving the same parties in another jurisdiction,

hopeful of obtaining a more favorable result. Such is the long-standing,

well-established doctrine of collateral estoppel. See Gray, 2012 ME 83, ¶ 10,

45 A.3d 735.

D. Conclusion

[¶19] Because the issue decided by the California court in a final

judgment was the same issue that Gunning seeks to have a Maine court revisit,

namely whether the Crow’s Nest enjoys constitutional protection sufficient to

foreclose her libel claim, and because Gunning had both opportunity and

6
In that event, if the Does had intervened and the Maine court ruled that Gunning had made out
a prima facie case of libel, that judgment would have had preclusive effect in California.

14

incentive to litigate that issue in California, she is estopped from relitigating it

in the Maine action. See id. Accordingly, the trial court did not abuse its

discretion in quashing the subpoena served on the Freeport employee, or in

dismissing Gunning’s complaint for lack of service on the defendants as a

result.7 See Marroquin-Aldana, 2014 ME 47, ¶ 33, 89 A.3d 519; M.R. Civ. P. 3.

Having concluded that the court did not err in finding that Gunning is precluded

from relitigating the dispositive issue, we do not address the question raised in

the cross-appeal of whether on de novo review we would reach the same

conclusion as did the California court, and we offer no opinion as to whether

the trial court correctly articulated Maine law concerning the extent to which

anonymous speech is protected.8

7
Gunning does not challenge the court’s statement that, by agreement, if the subpoena were
quashed then she “had no further avenues to pursue disclosure of the identities of John Does #1
and #2.”

8
Although the trial court went to considerable lengths to set out the analysis that it would have
applied had it been “writing on a clean slate” on the issue of whether the Crow’s Nest’s statements
concerning Gunning constituted actionable defamation, including citing a test articulated in
Dendrite International, Inc. v. Doe, 775 A.2d 756, 760-61 (N.J. Super. Ct. App. Div. 2001), that
discussion was dicta given the court’s ultimate conclusion that Gunning was estopped by the
California decision. We have previously made mention of Dendrite but have not adopted it, and we
do not do so today. See Fitch v. Doe, 2005 ME 39, ¶¶ 26-27, 869 A.2d 722 (“Because Doe failed to
raise the issue in the trial court, we decline at this time to consider the extent to which the First
Amendment affects the consideration of motions to disclose information about anonymous ISP
subscribers.”). Thus, the dissent’s discussion of the trial court’s Dendrite analysis, and its declaration
that “we have not addressed whether the Dendrite ‘heightened burden’ or some other procedural
hurdle at the commencement of the suit will be the law of our state,” Dissenting Opinion ¶ 34, simply
create and then attack a straw man. See supra ¶ 7. We take no issue with the dissent’s appeal to
sovereignty when it says that “[t]he law in this area is evolving and we should be making our own
decision as to what is the best policy for Maine,” Dissenting Opinion ¶ 39, but today’s opinion does
 15

The entry is:

Judgment affirmed.

JABAR, J., dissenting.

[¶20] I respectfully dissent because I do not believe that a California

court’s order concerning a discovery dispute should be given preclusive effect

on a defamation claim in Maine. The law addressing defamation claims in

California and Maine is not identical, and because of significant differences we

should not give deference to the California court’s order. For the reasons

discussed below, I would vacate the trial court’s decision and remand for

further proceedings.

I. DISCUSSION

A. Restatement of Judgments

[¶21] The Court refers to the Restatement (Second) of Judgments § 28

(Am. Law Inst. 1982) to support its decision. Court’s Opinion ¶ 13. The

Restatement in fact supports vacation of the trial court’s judgment. It reads:

not have the effect that the dissent fears. The California decision is controlling only in this case, and
then only because that is where Gunning chose to litigate. In the future, the Legislature is free to
make any policy judgment in this area that it deems fit within constitutional constraints, and,
contrary to the dissent’s accusation, see Dissenting Opinion ¶¶ 28, 37, 39, our jurisprudence remains
very much our own.
16

Although an issue is actually litigated and determined by a valid
and final judgment, and the determination is essential to the
judgment, relitigation of the issue in a subsequent action between
the parties is not precluded in the following circumstances:

(1) The party against whom preclusion is sought could not, as a
matter of law, have obtained review of the judgment in the initial
action; or

. . .

(3) A new determination of the issue is warranted by differences
in the quality or extensiveness of the procedures followed in the
two courts or by factors relating to the allocation of jurisdiction
between them; or

(4) The party against whom preclusion is sought had a significantly
heavier burden of persuasion with respect to the issue in the initial
action than in the subsequent action; the burden has shifted to his
adversary; or the adversary has a significantly heavier burden than
he had in the first action; or

(5) There is a clear and convincing need for a new determination
of the issue (a) because of the potential adverse impact of the
determination on the public interest or the interests of persons not
themselves parties in the initial action, (b) because it was not
sufficiently foreseeable at the time of the initial action that the issue
would arise in the context of a subsequent action, or (c) because
the party sought to be precluded, as a result of the conduct of his
adversary or other special circumstances, did not have an adequate
opportunity or incentive to obtain a full and fair adjudication in the
initial action.

Restatement (Second) of Judgments § 28.

[¶22] The California discovery order against Gunning meets several of

these exceptions to the general rule of issue preclusion. First, pursuant to
 17

section 28(1) Gunning could not have obtained review of the judgment of the

California Superior Court. Next, pursuant to sections 28(3) and (4), because

California applies a different burden at the threshold of a case to litigants

making defamation claims than the burden applied in Maine, a new

determination of the issue is warranted. Finally, pursuant to section 28(5),

there is a clear and convincing need for a determination in Maine of the scope

of First Amendment protection when it conflicts with a plaintiff’s right to seek

recovery for defamation because this conflict involves important public

interests.

B. Inability to Seek Review

[¶23] The Restatement provides that relitigation is not precluded where

“[t]he party against whom preclusion is sought could not, as a matter of law,

have obtained review of the judgment in the initial action.” Restatement

(Second) of Judgments § 28(1). Though the Court asserts that Gunning should

have sought review in California of the order granting Doe’s motion to quash,

Court’s Opinion ¶¶ 13-15, I disagree that as a matter of law review was

available to Gunning.

[¶24] The California Code of Civil Procedure provides that when a

California superior court issues an order resolving a motion to quash, “a person
18

aggrieved by the order may petition the appropriate court of appeal for an

extraordinary writ.” Cal. Civ. Proc. Code § 2029.650(a) (Deering, LEXIS through

ch. 4 of the 2017 Reg. Sess.); Cal. Civ. Proc. Code § 2029.600(a) (Deering, LEXIS

through ch. 4 of the 2017 Reg. Sess.). The case law in California indicates that

an extraordinary writ is difficult to obtain: “[discovery] rulings are typically

vested in the trial court’s discretion, and even if an abuse can be shown it is

often impossible for the aggrieved party to establish grounds for interlocutory

intervention.” O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72, 82

(Cal. Ct. App. 2006). Only when an immediate harm is threatened by failure to

grant review, “such as loss of a privilege against disclosure, for which there is

no other adequate remedy,” will review be granted. Id. at 83 (emphasis added);

see also Raytheon Co. v. Superior Court, 256 Cal. Rptr. 425, 427

(Cal. Ct. App. 1989) (“[W]rit review is appropriate when [a] petitioner seeks

relief from an order which may undermine a privilege.”).

[¶25] The extraordinary writ required for Gunning’s discovery appeal to

move forward in California is not available to her because such a writ would

only be granted if the facts were flipped—to achieve the writ, the order would

need to have breached some privilege, rather than maintained it. For example,

review by extraordinary writ has been granted when a court’s order denying
 19

motions to quash resulted “in the production of privileged materials and

threaten[ed] the confidential relationship” between a client and an attorney.

Bank of Am., N.A. v. Superior Court, 151 Cal. Rptr. 3d 526, 546 (Cal. Ct. App. 2013)

(quotation marks omitted). Nor was Gunning subject to the immediate harm

that is required to be granted an extraordinary writ. The only review permitted

for the discovery order was by extraordinary writ, and it was, as a matter of

California law, unavailable to Gunning.

[¶26] It is unrealistic for the Court to assume otherwise. See Court’s

Opinion ¶ 13. A litigant need not go through a lengthy and expensive process

to demonstrate something that is legally evident on its face. Where we can

plainly see that review of the discovery order was not available in California,

pursuant to section 28(1) of the Restatement, we should not allow collateral

estoppel to prevent Gunning from litigating her defamation claim in Maine.

C. Differing Burdens

[¶27] The Restatement also provides that relitigation is not precluded if

the issue is one of law and a “new determination of the issue is warranted by

differences in the quality or extensiveness of the procedures followed in the

two courts,” or where “[t]he party against whom preclusion is sought had a

significantly heavier burden of persuasion with respect to the issue in the initial
20

action.” Restatement (Second) of Judgments § 28(3)-(4). Here, both of these

exceptions are implicated for essentially the same reason: the law addressing

the issue of whether or not the litigant has a “heightened burden” when

asserting a defamation action against an anonymous speaker has not

previously been decided by this Court. California, in contrast to Maine, has

adopted a “heightened burden” standard requiring a prima facie showing of the

elements of the plaintiff’s claim in order to overcome a motion to quash a

subpoena seeking the speaker’s identity. See Krinsky v. Doe,

72 Cal. Rptr. 3d 231, 245 (Cal. Ct. App. 2008). Applying the California law here

imposes California’s “significantly heavier burden of persuasion” upon

Gunning. See Restatement (Second) of Judgments § 28(4).

[¶28] The drafters of the comments to the Restatement assert that in

subsequent cases such as this, “the more flexible principle of stare decisis is

sufficient to protect the parties and the court from unnecessary burdens.” Id.

cmt. b. “A rule of law declared in an action between two parties should not be

binding on them for all time, especially . . . when other litigants are free to urge

that the rule should be rejected. Such preclusion might unduly delay needed

changes in the law and might deprive a litigant of a right that the court was

prepared to recognize for other litigants in the same position.” Id. Allowing the
 21

California order to determine the outcome of Maine defamation claims by

collaterally estopping litigation in Maine on the basis of discovery orders delays

needed review of Maine law and deprives litigants of rights that would

otherwise be recognized.

[¶29] Additionally, “reexamination [of a legal principle] is particularly

appropriate when the application of the rule of issue preclusion would impose

on one of the parties a significant disadvantage.” Id. cmt. c. This conflict

between a litigant’s right to access the courts and a defendant’s First

Amendment rights is analogous to Maine’s anti-SLAPP statute, which imposes

a statutory burden upon those bringing claims that implicate a party’s

constitutionally protected First Amendment rights. See 14 M.R.S. § 556 (2016).

In an anti-SLAPP case, upon a showing by the speaker “that the claims against

it are based on the exercise of that party’s constitutional right to petition,” the

burden shifts to the nonmoving party to demonstrate prima facie evidence

through pleadings and affidavits that “at least one of the moving party’s

petitioning activities was devoid of any reasonable factual support or any

arguable basis in law and caused actual injury to the [non-moving party].”

Nader v. Me. Democratic Party, 2013 ME 51, ¶¶ 13-14, 66 A.3d 571; see also

14 M.R.S. § 556. This procedural hurdle placed before litigants in Maine is
22

similar to the “heightened burden” hurdle imposed by California on litigants

pursuing a defamation action against a defendant claiming protected speech

under the First Amendment.

[¶30] Like our jurisprudence addressing the anti-SLAPP statute, we are

faced with a clash between Gunning’s right to access the courts for redress of

grievances, and Doe’s First Amendment rights. However, unlike the anti-SLAPP

protections, there is no Maine legislation nor any Maine case law imposing a

“heightened burden” upon litigants who bring defamation claims against

individuals claiming that First Amendment protection. Instead, there is only

case law in a few scattered states that have placed this type of threshold hurdle

against plaintiffs. To date, we have not established such a hurdle, nor has the

United States Supreme Court. There are serious policy concerns that this Court

should consider prior to placing this type of obstacle in front of litigants, not the

least of which is whether such an obstacle should be imposed by us or by the

Maine Legislature.

[¶31] The policy concerns are significant. The California court relied

upon Krinsky to require that Gunning show a prima facie case of defamation.

Krinsky, in turn, relied upon Dendrite International, Inc. v. Doe, 775 A.2d 756

(N.J. Super. Ct. App. Div. 2001); Doe v. Cahill, 884 A.2d 451 (Del. 2005); and
 23

Highfields Capital Management L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2004),

among other cases, to hold, after a thorough analysis of methods by which

courts in several jurisdictions balance the competing rights of access to the

courts and First Amendment protection, that California will require a

prima facie showing before allowing discovery to proceed in defamation cases

against anonymous speakers. Krinsky, 72 Cal. Rptr. 3d at 241-46. The Krinsky

court undertook a California-specific assessment of the case law, noting that it

was addressing “California subpoenas” and that “specific Dendrite criteria to

defeat a protective order or motion to quash may likewise be dependent on the

different pleading and motion procedures across states.”9 Id. at 244. The court

even pointed out that in certain states the second Dendrite criterion would be

“essential,” whereas in other states, it would be “superfluous.” Id.

9
It is worth noting that the Dendrite court’s analysis emphasized that “New Jersey’s State
Constitution affords even greater protection to persons’ rights to free speech than does [the] federal
Constitution . . . .” Dendrite Int’l, Inc. v. Doe, 775 A.2d 756, 765 (N.J. Super. Ct. App. Div. 2001). Other
courts have therefore applied a “heightened burden” to plaintiffs in defamation cases based on state
constitutional protections that may or may not be coextensive with the constitutional protections
guaranteed by the Maine Constitution, see id. at 766—protections that the Court here does not
address.

24

[¶32] We should engage in our own assessment of whether to impose a

“heightened burden” in defamation claims against anonymous speakers

asserting First Amendment protection.10

D. Public Interests

[¶33] Finally, the Restatement provides that relitigation is not precluded

when “[t]here is a clear and convincing need for a new determination of the

issue . . . because of the potential adverse impact of the determination on the

public interest or the interests of persons not themselves parties in the initial

action.” Restatement (Second) of Judgments § 28(5)(a).

10
In this case, the Maine Superior Court mistakenly concluded that Maine and California law are
identical, imposing a “heightened burden” on litigants pursuing a defamation claim against an
anonymous defendant. The court attempted to define the issue before it by stating that “[t]he
motions to quash before the court turn on whether Gunning has met her burden of demonstrating
entitlement to proceed with discovery when her rights are weighed against what the Law Court has
stated as ‘the recognized right to anonymous speech,’” citing to our decision in Fitch v. Doe,
2005 ME 39, ¶ 26, 869 A.2d 722.

In Fitch, however, Doe and amici urged the Court to adopt the “heightened burden” test enunciated
in Dendrite, and the Court declined to address the question because Doe failed to raise a First
Amendment issue in the trial court. Id. ¶ 27. As the Court today acknowledges, Court’s Opinion ¶ 18
n.8, we have never held that Dendrite is the law in our state, or otherwise indicated that Dendrite or
any similar “heightened burden” would control cases in which a plaintiff seeks to bring a defamation
case.

It is therefore inapposite that, relying upon the elements from Dendrite, which the California court
did not even cite, the Maine Superior Court would conclude that because “one of the essential
Dendrite requirements”—whether Gunning established a prima facie case sufficient to support her
libel claim—was fully litigated in California and decided adversely to Gunning, collateral estoppel
precludes Gunning from relitigating her claim in Maine.

 25

[¶34] In Maine, we have not addressed whether the Dendrite “heightened

burden” or some other procedural hurdle at the commencement of the suit will

be the law of our state.11 Even though the Maine Superior Court in this case

indicated that Gunning had presented a prima facie case, the Court today is

preventing Gunning from proceeding with her defamation claims because a

California court interpreting California state law concluded that pursuant to an

analysis applied uniquely in California—which the Krinsky court found

“unnecessary and potentially confusing,” Krinsky, 72 Cal. Rptr. 3d at 244—

Gunning had not presented a prima facie case. This is not the approach that we

should take.

[¶35] Also concerning is the California court’s conclusion that the speech

at issue was parody and therefore protected by the First Amendment,

rendering the speech not actionable.12 What constitutes parody includes factual

determinations best left to a jury. See Masson v. New Yorker Magazine,

11
The Court states in its opinion that if Gunning had litigated the motion to quash in Maine and
the Maine court had ruled that Gunning had made out a prima facie case, that judgment would have
preclusive effect in California. Court’s Opinion ¶ 18 & n.6. This argument is misplaced because
presently, under Maine law, Gunning would not be required to establish a prima facie case before
proceeding with discovery.

12
The Court states that the claim for defamation was for Doe’s comparison in newsprint of
Gunning with the “Wicked Witch of the West” from The Wizard of Oz, as well as a caption stating
“Miss Prozac 2003.” Court’s Opinion ¶ 2. The article concerning Gunning also contains a more
blatantly defamatory statement: “Rumors continue that, Marie is suffering from a bipolar disorder
with acute depression and paranoia, amplified by substance abuse.”
26

501 U.S. 496, 522 (1991) (stating that when “[a] reasonable jury could find a

material difference between the meaning of [a published, written] passage and

[a] tape-recorded statement,” the falsity of the published passage is a jury

question); Nike, Inc. v. “Just Did It” Enters., 6 F.3d 1225, 1232 (7th Cir. 1993)

(discussing several trademark parody cases in which summary judgment was

vacated because “[t]oo many disputed facts require[d] a trial for resolution”);

Anheuser-Busch, Inc. v. L&L Wings, Inc., 962 F.2d 316, 317-18, 320

(4th Cir. 1992) (holding that a federal district court judge “improperly assumed

the jury’s role of determining” whether a t-shirt depicting a beer can was

parody when the district court granted entry of judgment notwithstanding the

verdict, because “the jury was uniquely positioned to make the critical

determination in that regard”); San Francisco Bay Guardian, Inc. v. Superior

Court, 21 Cal. Rptr. 2d 464, 468 (Cal. Ct. App. 1993) (“It is not for the court to

evaluate the parody as to whether it went ‘too far.’”); Kiesau v. Bantz,

686 N.W.2d 164, 177 (Iowa 2004) (“To be a parody, the jury must find the

altered photograph could not reasonably be understood as describing actual

facts . . . or actual events . . . .”), overruled on other grounds by Alcala v. Marriott

Int’l Inc., 880 N.W.2d 699, 708 & n.3 (Iowa 2016). Because the California court

entered into its own assessment, based on review of the parties’ moving papers,
 27

of whether the speech constituted a parody, thereby reducing a mixed question

of fact and law into a question of law, the California court’s discovery order

should not have preclusive effect on the litigation of the issue in Maine.

[¶36] Furthermore, the Maine Superior Court stated that it believed

Gunning had established a prima facie case of defamation and that there was a

genuine issue of fact as to whether Doe’s speech constituted parody, but it felt

compelled to collaterally estop Gunning from litigating the issue because of the

California court’s discovery decision. Unless and until we impose a “heightened

burden” on litigants claiming defamation, a jury, rather than a court, should

determine whether Doe’s speech was parody. Because of the status of the law

in Maine, the issues in the California court are not identical to those before the

court in Maine and do not warrant preclusive application of collateral estoppel.

[¶37] Despite the Maine trial court’s indication that Gunning may have

satisfied the “heightened burden” standard, we are allowing the California law

to prevent Gunning from pursuing her defamation case in this state. Maine has

never ruled that there is a “heightened burden” for a plaintiff to make a prima

facie showing of defamation before proceeding with a claim. A decision of this

magnitude should not be decided by simply deferring to a California trial

court’s imposition of a “heightened burden” on a discovery order. See
28

Restatement (Second) of Judgments § 29(7) (Am. Law Inst. 1982) (stating that

a party should not be precluded from relitigating an issue when “[t]he issue is

one of law and treating it as conclusively determined would inappropriately

foreclose opportunity for obtaining reconsideration of the legal rule upon

which it was based”).

[¶38] “Decisions of this sort demonstrate that res judicata, as the

embodiment of a public policy, must, at times, be weighed against competing

interests, and must, on occasion, yield to other policies.” Spilker v. Hankin,

188 F.2d 35, 38-39 (D.C. Cir. 1951). “[W]hen as here private litigation has

extensive implications of public import, the rule of res judicata or estoppel is

not allowed to stultify reassessment of the prior decision. The public interest

supersedes the private interest.” Griffin v. State Bd. of Educ., 296 F. Supp. 1178,

1182 (E.D. Va. 1969). Because the public interest in Maine courts establishing

our own framework for balancing the rights at stake in this case outweighs

Doe’s interest in not relitigating the issue of whether Doe’s speech constitutes

defamation, I cannot join the Court’s decision.

II. CONCLUSION

[¶39] There are significant issues in today’s society surrounding social

media, blogs, and claims of “fake news.” The law in this area is evolving, and we
 29

should be making our own decision as to what is the best policy for Maine.

Furthermore, as was done by the Maine Legislature with our anti-SLAPP

statute, the Legislature should determine whether any “heightened burden”

should be imposed upon litigants at the filing stage. This important policy

decision should not be resolved by a discovery order in California.

[¶40] I would vacate the Maine Superior Court’s decision and remand

the case so that it may proceed as any other defamation case filed in a Maine

court.

Gene R. Libby, Esq., Tara A. Rich, Esq., and Tyler Smith, Esq. (orally), Libby
O’Brien Kingsley & Champion LLC, Kennebunk, for appellant Marie Gunning

Sigmund D. Schutz, Esq. (orally), Preti, Flaherty, Beliveau & Pachios, LLP,
Portland, for appellee John Doe

Zachary L. Heiden, Esq., American Civil Liberties Union of Maine Foundation,
Portland, Paul Alan Levy, Esq., Public Citizens Litigation Group, Washington, DC,
and George J. Marcus, Esq., Marcus, Clegg & Mistretta, P.A., Portland, for amici
curiae Public Citizen, Inc., and American Civil Liberties Union of Maine
Foundation

Cumberland County Superior Court docket number CV-2013-359
FOR CLERK REFERENCE ONLY