Re: [TNB] 5/12/00 - Memorandum (Part 2 of 2)
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. (McIntyre, 514 U.S. at 341-342, 356.)
These rights are fully applicable to speech on the Internet. The Supreme Court has treated the Internet as a public forum of preeminent importance, which places in the hands of any individual who wants to express his views the opportunity, at least in theory, to reach other members of the public hundreds or even thousands of miles away, at virtually no cost, and has held that First Amendment rights are fully applicable to communications over the Internet. (Reno v. American Civil Liberties Union, supra, 521 U.S. 844.) Several cases have upheld the right to communicate anonymously over the Internet. (ACLU v. Johnson (D.N.M. 1998) 4 F. Supp.2d 1029, 1033; ACLU v. Miller (N.D. Ga. 1997) 977 F. Supp. 1228, 1230; see also ApolloMEDIA Corp. v. Reno (1999) 119 S. Ct. 1450 aff'g (C.D. Cal. 1998)19 F. Supp.2d 1081 [protecting anonymous denizens of a web site at www.annoy.com, a site "created and designed to annoy" legislators through anonymous communications].)
The references in these cases to people who communicate anonymously, because they are afraid of economic retaliation, are not merely theoretical. Several anonymous posters in Yahoo!'s TNB Message Board, like WatchingTNB, identify themselves as TNB employees, and such employees could face retaliation from TNB. Once they are identified by Yahoo!, the plaintiff could take immediate extra-judicial action against them by firing them, even if the Court ultimately holds that each and every one of their statements on the Message Board was legally protected. Surely, the Court should not permit plaintiff to abuse the judicial process by bringing a frivolous action against one of its employees, using judicial process to identify her, and then using its economic clout to silence her, regardless of whether the suit is ultimately deemed lacking in merit.
Moreover, at the same time that the Internet gives individuals the opportunity to speak anonymously, it creates an unparalleled capacity to monitor every speaker and discover his or her identity. That is because the technology of the Internet is such that any speaker who sends an e-mail, or visits a website, leaves behind an electronic footprint that can, if saved by the recipient, provide the beginning of a path that can be followed back to the original sender. (See Lessig, The Law of the Horse (1999) 113 Harv. L. Rev. 501, 504-505.) Thus, anybody with enough time, resources and interest, if coupled with the power to compel the disclosure of the information, can snoop on communications to learn who is saying what to whom. As a result, many informed observers have argued that the law should provide special protections for anonymity on the Internet. (E.g., Post, Pooling Intellectual Capital: Thoughts of Anonymity, Pseudonymity, and Limited Liability in Cyberspace, 1996 U. Chi. Legal F. 139.)
Because compelled identification of anonymous speakers trenches on their First Amendment right to remain anonymous, the First Amendment creates a qualified privilege against disclosure. When deciding whether to compel the production of documents that would reveal the name of an anonymous source, the courts apply a three-part test, under which the person seeking to identify the anonymous speaker has the burden of showing that (1) the issue on which the material is sought is not just relevant to the action, but goes to the heart of its case; (2) disclosure of the source to prove the issue is "necessary" because the party seeking disclosure can prevail on all the other issues in the case, and (3) the discovering party has exhausted all other means of proving this part of its case. (Carey v. Hume (D.C. Cir. 1974) 492 F.2d 631; 1974); Cervantes v. Time (8th
Cir. 1972) 464 F.2d 986; Richards of Rockford v. PGE (N.D. Cal. 1976) 71 F.R.D. 388, 390-391.
The California courts apply a similar balancing test to determine whether to override the qualified privilege of speaking anonymously. "Courts carefully balance the 'compelling' public need to disclose against the confidentiality interests to withhold, giving great weight to fundamental privacy rights. Mere relevance is not sufficient; indeed, such private information is presumptively protected. The need for discovery is balanced against the magnitude of the privacy invasion, and the party seeking discovery must make a higher showing of relevance and materiality than otherwise would be required for less sensitive material." (Rancho Publications v. Superior Court, supra, 68 Cal. App. 4th at pp. 1549-1550.)
Federal District Judge Lowell Jensen recently applied these principles in a case where the plaintiff was seeking to identify John Doe defendants against which it had filed a lawsuit. (Columbia Ins. Co. v. Seescandy.com, (N.D. Cal. 1999) 185 F.R.D. 573.) The court required the plaintiff to make a good faith effort to communicate with the anonymous defendants and provide them with notice that the suit had been filed against them, thus giving them an opportunity to defend their anonymity. The court also compelled the plaintiff to demonstrate that it had viable claims against such defendants. (Id., at p. 579.)
Plaintiff did not meet either of these requirements. First, plaintiff has made no effort to notify the John Doe defendants of its claims against them. WatchingTNB learned of the lawsuit only from Yahoo!, which has recently adopted the policy of notifying its customers of attempts to identify them. It would have been simple for plaintiff to have posted the complaint itself on the TNB Message Board, so that each of the Doe defendants would have known the exact nature of plaintiff's claims and would have had the opportunity to appear in this Court to file a special motion to strike, as WatchingTNB has done, and to defend their right not to be identified. Nor has plaintiff filed a sufficiently specific complaint to permit the Court to conclude that it has viable claims against most of the anonymous posters that plaintiff TNB seeks to identify. As Judge Jensen stated in Seescandy, "a conclusory pleading will never be sufficient to satisfy this element." (185 F.R.D. at p. 579.) Surely, no viable claim has been shown against defendant WatchingTNB.
CONCLUSION
The special motion to strike should be granted, and the Court should deny enforcement of the subpoena to Yahoo!. In addition, defendant should be awarded her reasonable costs and attorney fees incurred in bringing this special motion to strike.
1. Reference to WatchingTNB using a feminine pronoun is simply a matter of convenience, and should not be taken to identify the actual gender of WatchingTNB.
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