Case: 2:10-cv-00793-EAS-NMK Doc #: 57-1 Filed: 02/15/11 Page: 1 of 12 PAGEID #: 1164

In the United States District Court

for the Southern District of Ohio
:
Omar Tarazi, :
:
Plaintiff, : Case No. 2:10-cv-00161
v. :
: Judge Sargus
Pamela G. Oshry et al. , :
:
Defendants. : Magistrate King

INTERVENORS’ MOTION FOR PROTECTIVE ORDER

John Doe (pseudonym) and Barbarossa (nom de plume) move the court for a

protective order prohibiting disclosure of their identities as anonymous speakers

consistent with their rights to anonymous speech under the First Amendment to the

United States Constitution.

Respectfully submitted,

/s/ David W. T. Carroll

_______________________
David W. T. Carroll (#0010406)
Carroll, Ucker & Hemmer, LLC
7100 N. High St, Ste. 301
Worthington, OH 43085
dcarroll@cuhlaw.com
614-547-0350; fax 614-547-0350

Attorney for Barbarossa and John Doe

Memorandum in support

Facts:

Movants are parties to this action only as intervenors for the limited purpose of

seeking and enforcing a protective order to preserve their anonymity. Movants ask the

court for a protective order prohibiting disclosure of their identities consistent with their
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rights to anonymous speech under the First Amendment to the United States

Constitution.

Plaintiff Tarazi brought this action for defamation against Defendant Geller and

Defendant Stemberger allegedly arising from Plaintiff Tarazi’s activities representing the

parents in the high profile Rifqa Bary case.

Barbarossa is an anonymous blogger on The Jawa Report located at

http://mypetjawa.mu.nu/.

John Doe is the pseudonym of the confidential informant to which Mr.

Stemberger referred in a confidential letter of June 24, 2010 to the Florida Bar, the

existence of which Plaintiff Tarazi discloses to the public by referring to it in paragraph

8 of his Amended Complaint.

Plaintiff Tarazi has sought from both Defendant Geller and Defendant

Stemberger in discovery: “The identity and contact information for the individual who

posts under the name Barbarossa on the Jawa Report Blog.” [Request for Documents 9

to Defendant Stemberger and Request for documents 13 to Defendant Geller.]

In addition, Plaintiff Tarazi has sought from Defendant Stemberger,

The identity and contact information and any documents,

correspondences [sic.] or contracts between John Steinberger and the
person he identified as his “confidential informant” (regarding his
information that Plaintiff took up a collection at the Noor Islamic Cultural
Center in John Stemberger’s correspondences to the Florida Bar) which in
any way directly or indirectly deal with the Rifqa Bary case, Plaintiff or the
Noor Islamic Cultural Center. [Request for documents 7 to John
Stemberger.]

Plaintiff has no right to learn the identity of these anonymous speakers.

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Law and Argument

Anonymous Speaker Cases

Anonymous speech is protected by the First Amendment to the United States

Constitution. "Anonymous pamphlets, leaflets, brochures and even books have played

an important role in the progress of mankind." Talley v. California, 362 U.S. 60, 64, 80

S.Ct. 536, 538, 4 L.Ed.2d 559 (1960). In McIntyre v. Ohio Elections Comm'n, 514 U.S.

334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) the majority opinion invalidated an Ohio

election law requiring disclosure of individual anonymous opponents to a school bond

issue and concluded:

Under our Constitution, anonymous pamphleteering is not a

pernicious, fraudulent practice, but an honorable tradition of advocacy
and of dissent. Anonymity is a shield from the tyranny of the majority. See
generally J.S. Mill, On Liberty, in On Liberty and Considerations on
Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus
exemplifies the purpose behind the Bill of Rights, and of the First
Amendment in particular: to protect unpopular individuals from
retaliation—and their ideas from suppression—at the hand of an intolerant
society. The right to remain anonymous may be abused when it shields
fraudulent conduct. But political speech by its nature will sometimes have
unpalatable consequences, and, in general, our society accords greater
weight to the value of free speech than to the dangers of its misuse. See
Abrams v. United States, 250 U.S. 616, 630-631, 40 S.Ct. 17, 22, 63 L.Ed.
1173 (1919) (Holmes, J., dissenting). Ohio has not shown that its interest
in preventing the misuse of anonymous election-related speech justifies a
prohibition of all uses of that speech.

Anonymous blogging has produced a number of cases in the past few years

addressing the circumstances in which litigants seek the identity of anonymous

speakers. There is much litigation through the Districts and states on the issue of

disclosure of anonymous speakers. We have located no controlling precedent for the

Sixth Circuit.

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In the present case, Plaintiff Tarazi seeks disclosure of the identity of nonparties

who are anonymous speakers. Barbarossa is a blog poster engaging in classic public

political speech, and John Doe was cited as a confidential source in a confidential

proceeding before the Florida Bar. In Speakers v. United States Dist. Court For The

Dist. Of Nev. Reno (9th Cir., 2010), the Ninth Circuit in an anonymous commercial

speech case, recognized,

[A] higher standard should apply when a subpoena seeks the identity of an
anonymous Internet user who is not a party to the underlying litigation.
See [Doe v. 2TheMart.Com, 140 F. Supp. 2d 1088 (W.D. Wash. 2001)]. at
1095 (noting that identification is only appropriate where the compelling
need for discovery outweighs the First Amendment right of the speakers
because litigation may continue without disclosure of the speakers'
identities); accord Sedersten v. Taylor, No. 09-3031-CV-S-GAF, 2009 WL
4802567 (W.D. Mo. Dec. 9, 2009); Enterline v. Pocono Med. Ctr., 3:08-
CV-1934, 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008).

Although finding that the Nevada court did not commit clear error in authorizing

disclosure of commercial speakers, the Ninth Circuit, making the distinction between

commercial speech and political speech, said,

As in Perry [v. Schwarzenegger, 591 F.3d 1147, 1157 (9th Cir. 2010)] and
as recently illustrated by the Supreme Court in Doe v. Reed, we suggest
that the nature of the speech should be a driving force in choosing a
standard by which to balance the rights of anonymous speakers in
discovery disputes. See Perry, 591 F.3d at 1160-61; Doe v. Reed, No.
09559, slip op. at 6-7 (June 24, 2010). For example, in discovery disputes
involving the identity of anonymous speakers, the notion that commercial
speech should be afforded less protection than political, religious, or
literary speech is hardly a novel principle. See Lefkoe, 577 F.3d at 248
(inasmuch as the speech in question is of a commercial nature it "enjoys
less First Amendment protection"). The specific circumstances
surrounding the speech serve to give context to the balancing exercise.

According to the frequency with which the issue arises in the case law, those

seeking disclosure of anonymous speakers normally have named them as defendants

using fictitious names and making specific claims against them, which is not the case

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here. In those cases, the standards for disclosure revolve around various factors

including the relative merits of the claims being made. Dendrite International , Inc. v.

Doe, 342 N.J. Super. 134, 775 A.2d 756 (N.J. Super. Ch. 2001); Mobilisa, Inc. v. Doe, 217

Ariz. 103, 170 P.3d 712 (Ariz App. 2007)( In summary, we hold that in order to compel

discovery of an anonymous internet speaker's identity, the requesting party must show:

(1) the speaker has been given adequate notice and a reasonable opportunity to respond

to the discovery request, (2) the requesting party's cause of action could survive a

motion for summary judgment on elements not dependent on the speaker's identity,

and (3) a balance of the parties' competing interests favors disclosure.); Doe v. Cahill,

884 A.2d 451 (Del.S.Ct., 2005)(adopting summary judgment standard); Solers, Inc. v.

Doe, 977 A.2d 941 (DC, 2009)(standard closely resembling summary judgment

standard).

This case involves anonymous speakers who are not parties to this action, against

whom no claim has been made, but who have First Amendment rights to remain

anonymous. In Doe v. 2TheMart.com, Inc., 140 F. Supp.2d 1088, 29 Media L.Rep 1970

(DC WD Washington 2001), the plaintiffs brought a shareholder derivative class action

against the defendant and its officers and directors alleging a fraud on the market. By

subpoena, the defendant sought to obtain the identity of 23 non-party anonymous

speakers who had posted on Internet message boards operated by InfoSpace. The court

granted a motion to quash. The court said,

The free exchange of ideas on the Internet is driven in large part by the
ability of Internet users to communicate anonymously. If Internet users
could be stripped of that anonymity by a civil subpoena and forced under
the liberal rules of civil discovery, this would have a significant chilling
effect on Internet communications and thus on basic First Amendment
rights. Therefore, discovery request seeking to identify anonymous
Internet users must be subjected to careful scrutiny by the courts.

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The standard for disclosing the identity of a non-party witness must be

higher than that articulated in [Columbia Ins. v.] Seescandy.Com, [ 185
F.R.D. 573, 578 (N.D.Cal.1999)] and [In re Subpoena Duces Tecum to]
America Online, Inc. [2000 WL 1210372, (Va. Cir. Ct.2000)] . When the
anonymous Internet user is not a party to the case, the litigation can go
forward without the disclosure of their identity. Therefore, non-party
disclosure is only appropriate in the exceptional case where the compelling
need for the discovery sought outweighs the First Amendment rights of the
anonymous speaker.

Accordingly, this Court adopts the following standard for evaluating a civil
subpoena that seeks the identity of an anonymous Internet user who is not
a party to the underlying litigation. The Court will consider four factors in
determining whether the subpoena should issue. These are whether: (1)
the subpoena seeking the information was issued in good faith and not for
any improper purpose, (2) the information sought relates to a core claim
or defense, (3) the identifying information is directly and materially
relevant to that claim or defense, and (4) information sufficient to
establish or to disprove that claim or defense is unavailable from any other
source. [FN5]

FN5. This Court is aware that many civil subpoenas seeking

the identifying information of Internet users may be
complied with, and the identifying information disclosed,
without notice to the Internet users themselves. This is
because some Internet service providers do not notify their
users when such a civil subpoena is received. The standard
set forth in this Order may guide Internet service providers
in determining whether to challenge a specific subpoena on
behalf of their users. However, this will provide little solace
to Internet users whose Internet service company does not
provide them notice when a subpoena is received.

This test provides a flexible framework for balancing the First Amendment
rights of anonymous speakers with the right of civil litigants to protect
their interests through the litigation discovery process. The Court shall
give weight to each of these factors as the court determines is appropriate
under the circumstances of each case. This Court is mindful that it is
imposing a high burden. "But the First Amendment requires us to be
vigilant in making [these] judgments, to guard against undue hindrances
to political conversations and the exchange of ideas." Buckley [v. Valeo],
525 U.S. 192, 119 S.Ct. 636.

As to the first factor of a proper purpose, Plaintiff has not identified in any court

filing his purpose in requesting the identities of Barbarossa or John Doe. Unless
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Plaintiff Tarazi identifies a good faith proper purpose, the motion should be granted. If

Plaintiff’s response identifies a purpose, we will address that purpose, whatever it is, in

our Reply.

As to branches two and three of the test, being the “direct and material” relation

to a “core claim or defense” in this case, the issues differ between Barbarossa and John

Doe.

Barbarossa. As to Barbarossa, it seems unlikely that the identity of Barbarossa

would relate to any “core claim or defense” in Plaintiff’s claims against Mr. Stemberger

or Ms. Geller. While Plaintiff’s stream-of-consciousness Amended Complaint is hardly

a model of clarity, Plaintiff’s core allegation appears to be paragraph 25:

25. Defendants' false and defamatory per se accusations against Plaintiff

have permanently harmed the personal and professional reputation of
Plaintiff both in Ohio and nationally, and have permanently harmed the
business and private law practice of Plaintiff in Ohio and intentionally or
recklessly caused Plaintiff severe emotional distress.

The amended complaint does not mention Barbarossa or any of Barbarossa’s blog

posts. As revealed by the Amended Complaint, any alleged defamation by Ms. Geller is

wholly independent of any blog postings by Barbarossa. As to claims against Mr.

Stemberger, the claims are based upon things Mr. Stemberger said or did not say. The

identity of Barbarossa does not relate to any claim of defense against either defendant.

Since it does not relate to a core claim or defense, there could be no direct and material

relation.

John Doe. As to John Doe, the amended complaint makes reference to a June

24, 2010, letter to the Florida bar in which Mr. Stemberger refers to a confidential

informant. Plaintiff’s Amended Complaint does not reveal how the disclosure of the

identity of this confidential informant could possibly relate to a “core claim or defense.”

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The June 24, 2010, letter was a confidential communication in a confidential matter

which appears to be an absolutely privileged communication pursuant to Hecht v.

Levin, 66 Ohio St.3d 458, 613 N.E.2d 585 (Ohio, 1993). Although there is an allegation

in the Amended Complaint about the June 24, 2010, confidential letter, it cannot

directly and materially relate to any claim or defense because the information is

contained in an absolute privileged communication to the Florida Bar.

Plaintiff must make a showing that the information Plaintiff seeks, to the extent

that it is “materially and directly” related to a “core claim for defense” is not available

from other sources. At this stage of discovery, it is not at all clear how Plaintiff believes

that the identities of Barbarossa or John Doe will lead to evidence that is materially and

directly” related to a “core claim or defense” and is not available from other sources.

First Amendment Privilege Cases

In this case, the disclosures are likely to subject the speakers to harassment and

even death threats. See Exhibit A, Affidavit of Barbarossa and Exhibit B, Affidavit of

former FBI Special Agent John Guandolo.

“A party who objects to a discovery request as an infringement of the party's First

Amendment rights is in essence asserting a First Amendment privilege.” Perry v.

Schwartzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010). In Perry, Plaintiffs sought the

disclosure of internal communications leading to the identification of non-party high

ranking members of an organization supporting California’s Proposition 8, that could

define marriage as being between one man and one woman. Applying the usual Rule 26

standards, the trial court ordered disclosure. Reversing the trial court,

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In this circuit, a claim of First Amendment privilege is subject to a

two-part framework. The party asserting the privilege "must demonstrate
... a `prima facie showing of arguable first amendment infringement.'"
Brock v. Local 375, Plumbers Int'l Union of Am., 860 F.2d 346, 349-50
(9th Cir.1988) (quoting United States v. Trader's State Bank, 695 F.2d
1132, 1133 (9th Cir.1983) (per curiam). "This prima facie showing requires
appellants to demonstrate that enforcement of the [discovery requests]
will result in (1) harassment, membership withdrawal, or discouragement
of new members, or (2) other consequences which objectively suggest an
impact on, or `chilling' of, the members' associational rights." Id. at 350.6

The First Amendment infringement is clear: Barbarossa and John Doe have First

Amendment rights to speak anonymously, and Plaintiff Tarazi seeks to trample that

right to anonymity. According to the Exhibit B, Affidavit of John Guandolo, the concept

of “slander” in Islam includes making any statements not beneficial to Islam. Verifiably

true statement that do not benefit Islam constitute slander under Islamic law. Thus

statements by Barbarossa or John doe, regardless of truth constitute Slander under

Islamic law, the penalty for which includes capital punishment. [Exhibit B ¶12.] The

likely death threats and harassment arising from disclosure establishes the second part

of the Perry test.

In dealing with counter-terrorism, one must understand that Islam has a

principle known as “taqqiya” which justifies lying in a cause of Islam. As a result, it

becomes impossible to separate the true terrorist sympathizers from those who

denounce terrorism, based simply upon what they may say.

Plaintiff Tarazi’s father, Mohamed Tarazi, has been an imam at the Masjid Omar

ibn El Khattab in Columbus, which was home to one of the largest Al-Qaeda cells in the

country since 9/11. The leaders of this cell who have been charged, pled guilty, and were

sentenced on terrorism charges were not only active attendees of Mohamed Tarazi’s

mosque, but he direct contact as imam with each of these terrorists. The convicted

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terrorists include Iyman Faris, Nuradin Abdi, and Christopher Paul, who has been

identified as one of the longest-serving Al-Qaeda operatives in the U.S. Details of Mr.

Mohamed Tarazi’s association may be found in the Affidavit of Barbarossa. (Affidavit of

Barbarossa).

Mr. Tarazi’s plaintiff’s mother, Norma Tarazi, is listed as recently as May 2007 in

the Council on American-Islamic Relations (CAIR) Ohio chapter’s IRS Form 990 filings

as the organization’s corporate secretary. CAIR is an unindicted co-conspirator (per the

United States Justice Department) in the criminal trial of the terrorist-supporting Holy

Land Foundation. (Affidavit of Barbarossa).

Mr. Tarazi has been a speaker at and is believed in the past to be an attendee at

the Noor Islamic Center Mosque in Hilliard, Ohio.

According to a report submitted to the Circuit Court in Florida in the Rifqa Bary

case (copy attached), the CEO for the Noor Mosque was Dr. Hany Saqr, whose telephone

number was found in a directory for the leadership the radical Muslim Brotherhood,

disclosed during the Holy Land Foundation prosecution. The directory identifies Dr.

Saqr in the Board of Directors section, the Executive Office section and as the “Masul”

(leader) of the Eastern Region. Dr. Saqr had also served as imam of the Omar Ibn El-

Khattab Mosque near the Ohio State University campus where convicted terrorist

Christopher Paul taught martial arts. Dr. Salah Sultan who has been refused United

States citizenship presumably because of his radical activities (such as a television

appearance on Arabic television inciting violence against Jews) was apparently “scholar-

in-residence” at the Noor Islamic Center. During that tenure, he made several

appearances with known international terrorists. The Noor Islamic Center has invited

numerous extremist speakers, as listed in the attached report, Exhibit C.

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Although one might reasonably wonder why Mr. Tarazi would attend such a

radical mosque 1, attendance does not make Mr. Tarazi a terrorist, or even a terrorist

sympathizer. His father’s contacts as imam with terrorists do not automatically make

Mr. Tarazi a terrorist or terrorist sympathizer. However, those activities and

associations – especially coupled with the lack of any material purpose for the

information in connection with Plaintiff’s Amended Complaint -- cause Barbarossa and

John Doe to reasonably fear for their safety and fear harassment is likely if identities

were revealed to Mr. Tarazi in this litigation.

In any event, this case presents an invocation of the First Amendment privilege

where that is a very real fear that disclosure even if only to the pro se plaintiff will result

in harassment or endanger the safety of the anonymous bloggers.

Conclusion

Barbarossa and John Doe the confidential informant have First Amendment

rights to avoid disclosure of their identities to anyone, particularly attendees of the

radical Noor Islamic Center. They reasonably fear death threats and harassment.

Plaintiff Tarazi neither has nor can make any showing that could overcome their

First Amendment rights to remain anonymous.

Any balancing of interests between plaintiff and Barbarossa and John Doe

militates in favor of nondisclosure.

1 It is unlikely that Mr. Tarazi has a positive relationship with Dr. Saqr presently, because
Mr. Tarazi is representing a party bringing fraud claims against Dr. Saqr in the Franklin County Common
Pleas Court, case no. 10 CVA-05-7164.

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Respectfully submitted,

/s/ David W. T. Carroll

____________________
David W. T. Carroll (#0010406)
Carroll, Ucker & Hemmer, LLC
7100 N. High St, Ste. 301
Worthington, OH 43085
dcarroll@cuhlaw.com
614-547-0350; fax 614-547-0350

Attorney for Barbarossa and John Doe

Certificate of Service

I hereby certify that a true copy of the foregoing which was filed on February 15,
2011, using the ECF system, and was therefore served via electronic court notice to
Patrick K. Dunphy, Trial Attorney, E-mail: dunphy@falkedunphy.com; David
Yerushalmi, Esq., E-mail: David.yerushalmi@verizon.net, Robert J. Muise, Esq., E-
mail: rmuise@thomasmoore.org; Grey Jones, E-mail: grey@jonesandryan.com;
Plaintiff Omar Tarazi, email: otarazi@sbcglobal.net; Thomas P. Coffee,
coffee@nationwide.com; David R. Langon, email: dlangdon@langdonlaw.com; Joshua
B. Bolinger, jbolinger@langdonlaw.com

/s/ David W. T. Carroll

_______________________
David W. T. Carroll

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