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Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views.[1]

Overview Edit

Inherent in the panoply of protections afforded by the First Amendment is the right to speak anonymously in diverse contexts.[2] This right arises from a long tradition of American advocates speaking anonymously through pseudonyms, such as James Madison, Alexander Hamilton, and John Jay, who authored the Federalist Papers but signed them only as "Publius."

The U.S. Supreme Court has stated that "an author's decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment."[3] This is because "the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry."[4] The Supreme Court has also held that there is "no basis for qualifying the level of First Amendment scrutiny that should be applied to . . . [the Internet] medium."[5] Accordingly, "[i]t is clear that speech over the internet is entitled to First Amendment protection" and that "[t]his protection extends to anonymous internet speech."[6]

One question is whether the right to anonymity is absolute, or if there are circumstances where the right must give way to other more paramount interests, such as obtaining information to facilitate a plaintiff's pursuit of a civil lawsuit.

Applicable tests Edit

The Supreme Court has required both proof of a compelling interest and a narrowly tailored restriction serving that interest where compelled identification of speakers threatens the First Amendment right to remain anonymous.[7] Hence, recognizing these First Amendment interests and the chilling effect that subpoenas seeking the disclosure of anonymous speakers can have on dissenters.[8] Courts have applied a three-part test for a qualified privilege against disclosure of anonymous sources in the analogous area of libelous speech: the party seeking the identity of an anonymous speaker must show:

(1) the issue as to which disclosure of the source is sought goes to the heart of the case;
(2) disclosure is necessary to prove the issue because the party seeking the information is likely to prevail on all other issues; and
(3) all other means of proving the issue have been exhausted.[9]

Discovering the identity of anonymous Internet speakers Edit

Applicable tests Edit

Drawing on this case law, two similar standards have emerged in cases involving discovery seeking the identification of anonymous Internet speakers. In Dendrite Int'l v. Doe No. 3,[10] a five-part balancing test was articulated, requiring

(1) that the plaintiff undertake to notify the anonymous posters that they are the subject of a subpoena seeking their identity;
(2) that the plaintiff specify the exact statement alleged to constitute actionable speech;
(3) that the court review the complaint and other information to determine whether a viable claim against the anonymous defendants is presented;
(4) that the plaintiff produce sufficient evidence to support, prima facie, each element of its cause of action; and
(5) that the court then balance the First Amendment right of anonymous speech against the strength of the plaintiff's prima facie claim and the need for disclosure of the anonymous defendant's identity.

Several courts have adopted this test or some close variant of it.[11]

A second, less-exacting standard foregoes an explicit balancing of interests but still requires the plaintiff to come forward with sufficient evidence to establish a prima facie case on all elements of a claim that are supportable without discovery.[12] As stated in Doe v. 2TheMart.com Inc.:[13]

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.[14]

The court further stated that "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."[15] Similar balancing approaches weighing anonymous Internet posters' First Amendment right to anonymity against plaintiffs' need to learn that identity have also been adopted by state courts.[16]

Qualified privilege Edit

Because the First Amendment protects both anonymous speech and the freedom of association, efforts to use the power of the courts to pierce anonymity are subject to a qualified privilege. Courts must "be vigilant . . . [and] guard against undue hinderance to . . . the exchange of ideas."[17] This vigilant review "must be undertaken and analyzed on a case-by-case basis," where the court's "guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue."[18] Just as in other cases in which litigants seek information that may be privileged, courts must consider the privilege before authorizing discovery.[19]

People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discovery their identity.[20]

References Edit

  1. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (full-text).
  2. Watchtower Bible & Tract Soc'y of New York v. Village of Stratton, 536 U.S. 150, 166-67 (2002 (full-text); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42 (1995) (full-text).
  3. McIntyre, 514 U.S. at 342.
  4. Id. See also Talley v. California, 362 U.S. 60, 64 (1960) (full-text) (finding a municipal ordinance requiring identification of hand-bills unconstitutional, noting that "[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.").
  5. Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997) (full-text). See also Doe v. 2theMart.com, Inc., 140 F.Supp.2d 1088, 1093 (W.D. Wash. 2001) (full-text) ("The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas.")
  6. Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005) (full-text). See also Doe v. 2TheMart.com Inc., 140 F.Supp.2d 1088, 1092-93 (W.D. Wash. 2001) (full-text); Global Telemedia Int'l, Inc. v. Doe 1, 132 F.Supp. 2d 1261, 1264-66 (C.D. Cal. 2001) (full-text); American Civil Liberties Union v. Johnson, 4 F.Supp.2d 1029, 1033 (D.N.M. 1998) (full-text). See generally Reno v. ACLU, 521 U.S. 844, 853 (1997) (full-text)..
  7. McIntyre, 514 U.S. at 347; see also Bates v. City of Little Rock, 361 U.S. 516, 524 (1960) (full-text) (due process requires a showing of a compelling interest where compelled disclosure threatens fundamental rights).
  8. See, e.g., Fed. Election Comm'n v. Florida for Kennedy Comm., 681 F.2d 1281, 1284-85 (11th Cir. 1982) (full-text).
  9. Lee v. Dep't of Justice, 413 F.3d 53, 59-60 (D.C. Cir. 2005)(full-text); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (full-text).
  10. 775 A.2d 756, 760-61 (N.J. Super. Ct. App. Div. 2001) (full-text).
  11. See, e.g., Independent Newspapers v. Brodie, 407 Md. 415. 966 A.2d 432, 457 (2009) (full-text); Mobilisa, Inc. v. Doe, 217 Ariz. 103, 170 P.3d 712, 718-20 (App. 2007) (full-text); Greenbaum v. Google, Inc., 18 Misc. 3d 185, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2997) (full-text); Highfields Capital Mgmt., L.P. v. Doe, 385 F.Supp.2d 969, 974-76 (N.D. Cal. 2005) (full-text); Doe v. Cahill, 884 A.2d at 460; In re Baxter, 2001 WL 34806203, at *12, US Dist. LEXIS 26001 (W.D. La. Dec. 20, 2001).
  12. See Doe v. Cahill, 884 A.2d at 460; accord Best Western Int'l, Inc. v. Doe, 2006 WL 2091695, at *4-5 (D. Ariz. July 25, 2006); Krinsky v. Doe 6, 159 Cal.App.4th 1154, 72 Cal.Rptr.3d 231, 245-46 (2008) (ful-text).
  13. 140 F.Supp.2d 1088 (W.D. Wash. 2001) (full-text).
  14. Id. at 1095.
  15. Id.
  16. See Immunomedics, Inc. v. Doe, 342 N.J.Super. 160, 165, 775 A.2d 773 (App. Div. 2001) (full-text) (instructing judges to balance First Amendment rights against the strength of a plaintiff's case when deciding whether to disclose the identity of Internet users).
  17. Buckley v. American Constitutional L. Found., Inc., 525 U.S. 182, 192 (1999) (full-text).
  18. Dendrite Int'l, 775 A.2d at 761.
  19. See, e.g., [[Sony Music Entertaiment v. Does|Sony Music Entertainment, Inc. v. Does 1-40, 326 F.Supp.2d 556, 565 (S.D.N.Y. 2004) (full-text) ("Against the backdrop of First Amendment protection for anonymous speech, courts have held that civil subpoenas seeking information regarding anonymous individuals raise First Amendment concerns.").
  20. Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999).

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