Re: 5/26/00 - Frequently Asked Questions in the Anonymous Speech Case
Frequently Asked Questions in the Anonymous Speech Case
What is a subpoena?
A subpoena can take the form of a number of different court-ordered or court-authorized documents. Commonly, a subpoena refers to a court order which is commonly issued at the request of one of the parties to a lawsuit in order to compel the appearance of a particular witness at a judicial proceeding or trial. Subpoenas also are commonly issued by courts to force someone who has under his or her control documents relevant to the controversy to bring such items to the court or one of the involved parties. These types of subpoenas are referred to as subpoenas duces tecum . Here, the plaintiff served a number of subpoenas on Yahoo! and AOL in an effort to determine the identity of various third parties who posted information about him on the Internet.
What does amicus curiae mean?
Amicus curiae is Latin for "friend of the court." More specifically, amicus curiae refers to a qualified person who is not a party to a particular legal action but who gives information to the court on a question of law. One function of an amicus curiae is to call attention to some information that might escape the court's attention. An amicus curiae brief is one submitted by someone who is not a party to a lawsuit which is intended to give the court information needed to make a proper decision, or to urge a particular result on behalf of the public interest or of a private interest of third parties who will be affected by the resolution of the dispute. Here, the ACLU filed an amicus brief because of the constitutional issues implicated in the case and contends that the identity of someone who has anonymously posted information on the Internet should only be revealed when necessary.
What kinds of anonymous speech are protected on the Internet?
The First Amendment protects anonymous speech in all media, and as the ACLU maintains, anonymous speech on the Internet enjoys the same if not greater protection than in other contexts. While anonymous speech which is not defamatory is protected by the First Amendment, not all types of anonymous speech are necessarily protected. The same legal parameters which govern the level of constitutional protection to be afforded to "speech" in newspapers and on radio and television apply uniformly to speech which appears on the Internet. Thus, speech which is obscene, or which would and is intended to incite people to imminently commit a crime?whether it be anonymous or not?would fall outside of the First Amendment's reach and would not ordinarily receive constitutional protection.
Since the Internet is generally accessible anywhere in the world, why wouldn't it be proper for any county or state court to hear and determine a case like Mr. Hvide's?
Because issues relating to jurisdiction in Internet cases are of relatively recent origin, there is not yet a wealth of case law which has completely outlined the parameters of when jurisdiction is and is not proper. However, long before the Internet was ever created, the United States Supreme Court explained that the mere act of placing a physical product into the "stream of commerce," which stretches across the country, is insufficient to tie an individual or company to a particular state for purposes of jurisdiction. Therefore, without a purposeful act connecting someone to what is commonly referred to as a "forum state," a court in that state is without power and authority to hear any dispute that may arise.
Similarly, recent cases in both the state and federal courts have affirmed this same principle in the context of Internet-based disputes. That is to say, while the creation of a web site may be similar to placing a product into the stream of commerce?and thus be felt nationwide?without more, this is not an act purposefully directed toward the locale in question. Therefore, jurisdiction is not proper where the requisite "minimum contacts" do not exist. For example, simply because someone created a web site which is accessible in Miami-Dade County, Florida does not, by virtue of this one act, make jurisdiction proper in a Miami-Dade County Court. In order for jurisdiction to be proper in Miami-Dade County, there would need to be some additional, purposeful connection to some event in Miami-Dade County, such as where a company intended to sell products in Miami-Dade County and conduct its operations in the city of Miami.
What is the difference between an Internet Service Provider (ISP) such as AOL, and an Internet-based company like Yahoo!?
Internet Service Providers, like AOL, Prodigy, Earthlink, and Mindspring, are companies who, for a fee, provide dial-up access to the Internet for its customers. So, for example, if someone wanted to gain access to the Internet, they could purchase an AOL account for an hourly or monthly fee, and AOL would then provide them with a list of phone numbers on which they could access the Internet via computer modem. Most ISPs, like AOL and Earthlink, provide various other on-line services for their customers?e-mail, news, entertainment, etc.?but the main service that a customer is purchasing from an ISP is access to the Internet. Once someone purchases an AOL account, they can then hook-up to the Internet through AOL's network and additionally access the World Wide Web.
In contrast, an Internet-based, or Web-based, company such as Yahoo! Inc. is a company who maintains a website on the Internet which is generally accessible to the public at no charge. Companies such as Yahoo! generate the majority of its revenue through the sale of advertising space on its website to a number of different advertisers, as opposed to ISPs like AOL who generate a substantial amount of revenue from the access fees which its subscribers pay. While there may be certain features or services available on Yahoo!'s website, and other similar websites, which can require some payment, the distinguishing feature between a Web-based company and an ISP is that web-based companies generally don't maintain the physical networks and telephone lines through which people's modems actually dial into.
ACLU of Florida 3000 Biscayne Blvd. Suite 215
Miami, FL 33137 (305) 576-2336
General ACLU e-mail: aclufl@aclufl.org
Do not send e-mail about cases to the general ACLU e-mail.
aclufl.org
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Plaintiffs, Defendants
and Attorneys Involved
Plaintiff
Eric Hvide
Lawyers for the Plaintiff
Bruce D. Fischman, Fischman, Harvey & Dutton, P.A., Miami, FL
Defendants
John Does 1-8, including "justthefactsjack"
Lawyer for the Defendants
Christopher Leigh, Esq. ? English, McCaughan & O'Bryan, Fort Lauderdale, FL
Amicus Curiae
Lyrissa Lidsky - Associate Professor, University of Florida College of Law, Gainesville, FL
The American Civil Liberties Union Foundation: Christopher A. Hansen, Esq. - ACLU Foundation, New York, NY; Ann Beeson, Esq. - ACLU Foundation, New York, NY; Andrew H. Kayton, Esq. - ACLU Foundation of Florida, Miami, FL)
ACLU of Florida 3000 Biscayne Blvd. Suite 215
Miami, FL 33137 (305) 576-2336
General ACLU e-mail: aclufl@aclufl.org
Do not send e-mail about cases to the general ACLU e-mail.
aclufl.org |
