There Is A First Amendment Right To Post Anonymously on the Internet

What follows is a brief synopsis of the various cases that, taken together, prove that there is a First Amendment right to post anonymously. I will provide a link for each case to a more detailed discussion page. You should click to the discussion page for the highlights of each case. Be warned, however, that I have doctored the quotes from the cases slightly by making some passages bold for emphasis, and I have omitted citations and less relevant passages. I will be providing links to the original, undoctored cases, and you are encouraged to read the cases yourself to verify that I have not altered or misrepresented their meaning.

This can be broken down into two sets of cases. The first set recognizes the right to speak anonymously and that the internet has become a public forum for such speech. The second set recognizes that there must be some protection for defendants before the judicial system will strip them of their anonymity.

1. McIntyre v. Ohio Elections Commission (1995) The Supreme Court noted that there is a fundamental right to speak anonymously on political issues. It also noted that anonymous speech has had a positive impact on our society. The Court said, "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."
2. Buckley v. American Constitutional Law Foundation (1999) The Supreme Court ruled that it was unconstitutional to require petitioners garnering signatures of support for a referendum to wear badges bearing their names.
3. Reno v. ACLU (1997) The Supreme Court recognized the vital role that the internet plays as an arena for free and public speech." Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer." Furthermore, the Court was especially troubled that the Communications Decency Act was a content-based regulation of speech that was backed up by criminal penalties. This makes the original version of the CDA, which the Court found unconstitutional, similar to the DMCA, which transforms anyone who anonymously defends her fair usage of other people's work into a criminal who has committed perjury.

What follows is a series of cases where the Plaintiffs tried to seek aid from the judicial system in order to discover the true identity of anonymous posters so they could sue the defendants for infractions such as libel or stock manipulation. Read through these cases and you will notice a pattern emerging--courts seldom automatically order the disclosure of the identities of the defendants without at least some showing that they have done something wrong. A Plaintiff can't just go to a court and whine "John Doe hurt my feelings. Make his ISP cough up his name." In fact, as we shall see, at least one Court has recognized that Plaintiffs sometimes file bogus lawsuits for the sole purpose of discovering the identity of their critics. They may not have viable lawsuits--but that doesn't matter. Once they have the identity of their critics, they may be able to "take care" of them through extra-judicial means. (Translation: harass them, get them fired from their job, hunt them downs like dogs and slit their throats, etc.) Thus, most, Courts guard the identity of defendants unless the Plaintiff gives them some reason to believe that their case isn't just a sham. I have noted the level of the Court in each of the following cases, designating the lowest possible court as the trial court, an intermediary court as a Court of Appeals, and the highest court as the Supreme Court. This is oversimplifying a bit, but in general, decisions made at the trial court level will be less influential than those made at the appeals level, which in turn will be less influential than those made at the Supreme Court level.

1. Columbia Insurance Company v. Seescandy.com (1999) (Federal trial court--Northern District of California) The Court stated: "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 discover their identity. . . ." The Court went on to say that it was necessary "to prevent abuse of this extraordinary application of the discovery process and to ensure that  plaintiff has standing to pursue an action against defendant. …  Thus, plaintiff must make some showing that an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing specific identifying features of the person or entity who committed that act."
2. Dendrite International v. John Doe No. 3 (2001) (New Jersey State Court of Appeals) The Court held that "the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant. The Court further stated that "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed."
3. Doe v. Cahill (2005) (Delaware State Supreme Court) The Court recognized that Plaintiffs often file frivolous lawsuits for the sole purpose of discovering the identities of their adversaries so that they can take revenge outside the judicial system. The Court then considered three possible standards it could use in deciding whether to disclose the identity of the defendant to the Plaintiff. It chose the most stringent standard and concluded that the Plaintiff "must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within the plaintiff’s control."
4. Sony Music Entertainment , Inc v. Does (1 - 40) (2004) (Federal Trial Court--Southern District of New York) The Court determined that the Plaintiff must make "A concrete showing of prima facie claim of actionable harm" before the Court would disclose the identity of the anonymous Defendant.
5. Best Western International v. John Doe (2006) (Federal trial court-- District of Arizona) The Court followed the standard set in Doe v. Cahill by requiring the Plaintiff to make a prima facie case. The Court furter held that it "must examine facts and evidence before concluding that a defendant's constitutional rights must surrender to a plaintiff's discovery needs."
6. In re Does 1-10, -- S.W.3d --, 2007 WL 4328204 (Tex. Ct. App., Dec. 12, 2007) (Essent v. John Does) (Texas State Court of Appeals). The Court decided to follow the precedent set in Doe v. Cahill and Best Western International vs John Doe. It decided that before obtaining discovery of the defendant's identity, the Plaintiff must first make a prima facie case by "indtroduc[ing] evidence creating a genuine issue of material fact for all elements of a defamation claim within plaintiff's control."

Though most Courts require some sort of prima facie showing, there have been exceptions to this rule:

1. In re Subpoena Duces Tecum to America Online (2000) (Virginia trial court.) The Court determined that it would disclose the name of the defendant if the Plaintiff filed his lawsuit in good faith. This standard provides very little protection for the defendant because even relatively weak cases can meet the good faith standard. Most other courts require more than just a good faith showing before disclosing the identity of the defendant.
2. Alvis Coatings, Inc. v. Does (2004) 3:04CV374-H (W.D. N.C., December 2, 2004)(Federal trial court--Western District of North Carolina): This Court stated that the Plaintiff had to present a prima facie case before being allowed to discover the identity of the Does. However, it allowed the Plaintiff to conduct the discovery despite the fact that the "evidence" presented was weak. The Judge in Essent v. John Does characterized the evedince presented in Alvis Coatings, Inc. v. Does as a "mere allegation of libel."
3. Polito v. AOL Time Warner, Inc., No. 03CV3218, 2004 Pa. Dist. & Cnty. Dec. LEXIS 340 (Pa. D. & C. Jan. 28, 2004) The Judge in Essent v. John Does characterized the evedince presented in Polito v. AOL Time Warner as "no more than allegations made in good faith (or not in bad faith), with some evidence to support the allegations."

See here

To sum up, different courts require different standards of evidence before allowing the discovery of an anonymous defendant's true identity. It is hard to make a sweeping generality, but it seems that most require a significant showing of evidence before allowing discovery. The only solid conclusion one can make is that the DMCA does not even provide the safeguards of the least protective standard required by the judicial process before it forces the disclosure of a defendant's identity. The DMCA enables anyone to make an end-run around the judicial process by allowing a potential Plaintiff to force his adversary to either identify herself or give up her right to make fair use of the defendant's video. Indeed, the situation is even worse than this, because anyone can DMCA the video of ANYONE ELSE, EVEN IF THEY DON'T OWN THE COPYRIGHT OF THE VIDEO THEY ARE COMPLAINING ABOUT. Of course, anyone filing such a false DMCA would be committing perjury, but a little perjury is not going to stop someone who is intent on using intimidation to silence his opponents. Such a scoundrel has little incentive to even use his real name when filing a DMCA and the odds are low that he will ever be forced to face serious consequences. The only way the victim has of getting her video restored is to give up her anonymity or commit perjury by using a false name on her DMCA counternotice.

Contrast the situation where anyone can anonomously abuse the DMCA to obtain the identity of someone they don't like with the protections guaranteed when one must go through the Court system to pierce a defendant's anonymity. One can remain anonymous and totally unaccountable when filing a bogus DMCA in bad faith. If one files a lawsuit in bad faith at least the Court will know who you are and can hold you accountable. The Court will also usually require the Plaintiff to show at least some evidence or make very specific allegations which, if true, will be likely to win a case against the defendant. A Plaintiff's case may be weak, but there has to be at least something there before the Court will allow a Plaintif to pierce a defendant's veil of anonymity.

http://www.citmedialaw.org/legal-guide/pennsylvania/legal-protections-anonymous-speech-pennsylvania

http://www.cyberslapp.org/cases/page.cfm?pageID=17

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