Speech: Anonymity

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Consitutional Underpinning

It is well-settled that the 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 Int’l, Inc. v. Doe No. 3, 775 A.2d 756, 760-761 (N.J. App. Div. 2001). 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).

Right to Speak Anonymously on the Internet

“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).

Each of the courts to consider the issue has found that the First Amendment requires a heightened evidentiary showing from the subpoenaing party before enforcement of subpoenas to identify anonymous Internet speakers. See, e.g., Dendrite, 775 A.2d at 771 (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").

“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.

Right to Read Anonymously on the Internet

It "is now well established that the Constitution protects the right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citation omitted). That right is unacceptably chilled when the government has unchecked access to reading records. See United States v. Rumely, 345 U.S. 41, 57 (1953) (Douglas, J., concurring) (“Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears,” replaced by the speech-chilling “spectre of a government agent” looking over every reader’s shoulder.). The following citations also support the right to read anonymously on the Internet.

  1. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1053 (Colo. 2002) (finding that search warrant for bookstore records reflecting a customer’s purchases intruded on customer’s First Amendment right to read anonymously).
  2. 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.").
  3. 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.”).
  4. 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).
  5. Lubin v. Agora, Inc., 389 Md. 1, 22, 882 A.2d 833, 846 (2005) (denying enforcement of subpoenas that would have compelled a publisher to disclose the identities of subscribers to their materials).
  6. 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”).

Tests for Unmasking Anonymous Speakers

The desire to protect the identity of online speakers has led to courts adopting multi-part tests. A recent trend has seen many courts applying the Dendrite test in determining whether to quash a subpoena that seems to reveal an anonymous identity. Cahill is the next most common test, while some courts create their own tests based on an amalgam of the major tests. See e.g. Doe I v. Individuals, 561 F.Supp.2d 249, 254-55 (D.Conn. 2008) (setting forth a seven-factor test); Pilchesky v Gatelli, 12 A.3d 430, 442-446 (Pa Super, 2011) (adopting a "modified version" of the Dendrite and Cahill standards).

  1. In Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. A.D. 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. Greenbaum v. Google, Inc., 845 N.Y.S.2d 695, 698+, 18 Misc.3d 185, 185+, (N.Y.Sup. Oct 23, 2007) (following Dendrite but "not reach[ing] the issue of the quantum of proof that should be required on the merits because, here, the statements on which petitioner seeks to base her defamation claim are plainly inactionable as a matter of law"). See also Indep. Newspapers, Inc. v. Zebulon J. Brodie, 407 Md. 415, 966 A.2d 432 (Md. Ct. App. 2009) (citing with approval test from Dendrite and reversing lower court’s order to compel discovery of identities of five anonymous Internet forum participants in defamation action.) Doe 1 et al v. Ciolli et al, No. 3:2007cv00909 (D. Conn. filed June 8, 2007) (following the Dendrite test, but finding that the fifth element of the test did not fall in Defendant's favor.); A.Z. v. Doe, 2010 WL 816647 (N.J. Super. App. Div. March 8, 2010); Indep Newspapers, Inc v Brodie, 407 Md 415, 454-456; 966 A2d 432 (2009) (adopting the Dendrite standard); Mortgage Specialists, Inc v Implode-Explode Heavy Indus, Inc, 160 NH 227, 239; 999 A2d 184 (2010) (adopting the Dendrite standard);

    Some courts, however, do not follow the Dendrite test exactly, but are still influenced by the test and rely heavily on several of the Dendrite test's elements. For example, like Dendrite, where the test requires evidence in support of the claim of violation, as well as a balancing of the parties' interests, the established tests in Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz.App. Div. 1, 2007) and Highfields Capital Management, L.P. v. Doe, 385 F.Supp.2d 969 (N.D.Cal., 2005) also require balancing and evidentiary aspects to their tests. The Arizona Court of Appeals held 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." Similarly, Highfields Capital Management, L.P. v. Doe, 385 F.Supp.2d 969 (N.D.Cal., 2005) requires more from the Plaintiff than allegations. The Northern District of California mirrors the 3rd element of the Dendrite test and requires that the plaintiff adduce evidence that, if "unrebutted, tend to support a finding of each fact that is essential to a given cause of action." Further, borrowing 4th element of the Dendrite test, the court notes that, it's "primary responsibility in a dispute like this is to strike an appropriate balance between competing interests and public policies." Accordingly, the court in Highfield recommended that the District Court quash Plaintiff's subpoena to uncover the anonymous message board participant's identity.
  2. 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) ("[T]he 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. Reunion Industries Inc. v. Doe 1, 2007 WL 1453491, *1453491+, 80 Pa. D. & C.4th 449, 454+, 35 Media L. Rep. 1917, 1917+ (Pa.Com.Pl. Mar 05, 2007) (adopting summary judgment standard similar to that in Cahill but also stating that plaintiff may be able to compel discovery eventually if plaintiff makes a prima facie claim. ); Lassa v. Rongstad, 718 N.W.2d 673 (Wis. 2006) ("[U]nder 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"); Klehr Harrison Harvey Branzburg & Ellers, LLP v. JPA Development, Inc., 2006 WL 37020, *4+ (Pa.Com.Pl. Jan 04, 2006) ("[T]his court believes that a balancing of John Does' First Amendment rights against the plaintiff's rights to the information sought is built into our Commonwealth's existing civil procedure. Accordingly, this court will not apply the Dendrite or the Cahill standards."); Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) ("the test we now adopt closely resembles the "summary judgment" standard articulated in Cahill.") See also In re Anonymous Online Speakers, __ F.3d __, 2011 WL 61635 (9th Cir. January 07, 2011) (finding no clear error when district court used Cahill standard, without adopting standard).
  3. In Krinsky v. Doe 6, 72 Cal.Rptr.3d 231 (Cal. Ct. App. Feb. 6, 2008), the California Court of Appeals held that for issuance of a subpoena to attain the identity of anonymous internet posters, a prima facie allegations of a tort must be made. In Krinsky, Plaintiff alleged defamation as a result of Defendant's internet postings and sought the anonymous Defendant's identity. The court noted that, "[w]hen there is a factual and legal basis for believing libel may have occurred, the writer's message will not be protected by the First Amendment . . . Accordingly, a further balancing of interests should not be necessary to overcome the defendant's constitutional right to speak anonymously."
  4. In 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 so 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.
  5. 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 a subpoena to an Internet service provider seeking identifying information for an 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).
  6. Mobilisa, Inc. v. Doe, 217 Ariz. 103, 170 P.3d 712 (Ariz.App. Div. 1 2007). The Arizona Court of Appeals held 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"

Non-Party Anonymous Speakers

Doe v. 2theMart.com, 140 F.Supp.2d 1088 (W.D. Wash. 2001) was the first case to address the right to speak anonymously in the context of non-party speakers. The Western District of Washington found 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." 2TheMart.com, 140 F.Supp.2d at 1095. The Constitutionally required test is 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." See also Enterline v. Pocono Medical Center, 2008 WL 5192386 (M.D.Pa. 2008) (applying 2theMart test to quash a subpoena for the identities of commenters on a newspaper message board), Sedersten v. Taylor, 2009 WL 4802567 (W.D.Mo. 2009) ("a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party.")

Chapter 2 - Content And Speech Regulation
Obscenity · Communications Decency Act - Obscene Materials · Children's Online Protection Act (COPA) · Children's Internet Protection Act (CIPA) · State Attempts At Regulation · First Amendment · Anonymity · International Content Regulation

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