Speech: Anonymity

From Internet Law Treatise

Table of contents

3 Tests for Unmasking Anonymous Speakers

Consitutional Underpinning

It is well-settled that the U.S. First Amendment shelters the right to speak anonymously. See Buckley v. Am. Constitutional Law Foundation, 525 U.S. 182, 200 (1999) (invalidating, on First Amendment grounds, state statute requiring initiative petitioners to wear identification badges); Talley v. California, 362 U.S. 60, 65 (1960) (holding anonymity protected under the First Amendment because forced “identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance”). These cases celebrate the important role played by anonymous or pseudonymous writings through history, from the literary efforts of Shakespeare and Mark Twain through the explicitly political advocacy of the Federalist Papers.

As the Supreme Court has held, “Anonymity is a shield from the tyranny of the majority,” that “exemplifies the purpose” of the First Amendment: “to protect unpopular individuals from retaliation...at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (holding that an “author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment”).

Therefore, courts must “be vigilant... [and] guard against undue hindrances to political conversations and the exchange of ideas.” Buckley, 525 U.S. at 192. 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.” Dendrite, 775 A.2d at 760-761. Moreover, that review must take place whether the speech in question takes the form of political pamphlets or Internet postings. Reno v. ACLU, 521 U.S. 844, 870 (1997) (there is “no basis for qualifying the level of First Amendment protection that should be applied to” the Internet).

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Right to Speak Anonymously Online

“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”. Sony Music Entertainment v. Does, 326 F.Supp.2d 556, 565 (S.D.N.Y. 2004). Accordingly, "the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.” Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1097 (W.D. Wash. 2001).

Courts have determined that strict procedural safeguards must be imposed “as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet." Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756, 771 (N.J. Super. A.D. 2001).

“People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.” Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). Otherwise, “[i]f Internet users could be stripped of that anonymity by a civil subpoena enforced under the liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights.” 2theMart.com, at 1093.

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Right to Read Anonymously

Schneider v. Smith, 390 U.S. 17, 24-25 (1968) (First Amendment forbids ‘‘abridging’ freedom of speech,” by “prob[ing] of reading habits, political philosophy, beliefs, and attitudes on social and economic issues”); Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (BRENNAN, J., concurring) (“The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”); Martin v. Struthers, 319 U.S. 141, 143 (1943) (“The right of freedom of speech and press . . . embraces the right to distribute literature, and necessarily protects the right to receive it.”) (citation omitted); Julie Cohen, A Right to Read Anonymously: A Closer Look at “Copyright Management” In Cyberspace, 28 CONN. L. REV. 981 (1996) (summarizing First Amendment protections for anonymity and concluding “that the close interdependence between receipt and expression of information and between reading and freedom of thought make recognition of such a right sound constitutional policy.”).

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Tests for Unmasking Anonymous Speakers

The desire to protect the identity of online speakers has led to courts adopting multi-part tests:

In Doe v. Cahill, 884 A.2d 451, 33 Media L. Rep. 2441 (Del. 2005), the Delaware Supreme Court adopted a summary judgment standard, holding that the plaintiff must (1) make reasonable efforts to notify the defendant and (2) submit sufficient evidence to establish a genuine issue of material fact for each essential element of its claim within the plaintiff’s control. See also Best Western Int'l v. Doe, 2006 WL 2091695 (D.Ariz. 2006) ("the Court agrees with the Delaware Supreme Court in Cahill, and concludes that a summary judgment standard should be satisfied before BWI can discover the identities of the John Doe Defendants."); cf. Lassa v. Rongstad 718 N.W.2d 673 (Wis. 2006) ("under Wisconsin law, requiring the circuit court to decide a motion to dismiss before compelling disclosure and imposing sanctions best addresses the concerns expressed in Cahill."); McMann v. Doe, 460 F.Supp.2d 259 (D.Mass. 2006) (discussing Cahill summary judgment standard, but finding "[i]n this case, a preliminary screening of Plaintiff's assertions show that not only could they not pass summary judgment, but that they fail to state a claim.")
In Dendrite v. Doe, 342 N.J. Super. 134, 775 A.2d 756 (App. Div. 2001), a New Jersey appeals court required the plaintiff to: (1) use the Internet to notify the accused of the pendency of the identification proceeding and to explain how to present a defense; (2) quote verbatim the allegedly actionable online speech; (3) allege all elements of the cause of action; (4) present evidence supporting the claim of violation; and (5) show the court that, on balance and in the particulars of the case, the right to identify the speaker outweighs the First Amendment right of anonymous speech.
Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D.Cal. 1999), one of the first cases to address this issue, the Northern District of California required the plaintiff to (1) identify the missing party with sufficient specificity that the court could determine whether the defendant could be sued in federal court; (2) make a good faith effort to communicate with the anonymous defendants and to provide them with notice that the suit had been filed against them – thus assuring them an opportunity to defend their anonymity; and (3) demonstrate that it had viable claims against such defendants. 185 F.R.D. at 579.
In Doe v. 2theMart.com, 140 F.Supp.2d 1088 (W.D. Wash. 2001), the Western District of Washington found that the Constitution requires a judicial balancing of four factors before a subpoena can be used to identify anonymous Internet speakers: "[W]hether: (1) the subpoena . . . 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) [adequate] information . . . is unavailable from any other source."
Sony Entertainment Inc. v. Does, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004). The Southern District of New York denied a motion to quash subpoena to Internet service provider seeking identifying information for anonymous defendant. The Court applied the following criteria: “(1) a concrete showing of a prima facie claim of actionable harm... (2) specificity of the discovery request ... (3) the absence of alternative means to obtain the subpoenaed information... (4) a central need for the subpoenaed information to advance the claim ... and (5) the party’s expectation of privacy”) (internal citations omitted).