Re: 2/18/00 - ACLU amicus brief in Hvide v. Does 1-8
ACLU amicus brief in
Hvide v. Does 1-8
IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR MIAMI, DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO: 99-22831 CA01
ERIC HVIDE,
Plaintiff,
vs.
JOHN DOES 1 through 8, persons presently unknown to Plaintiffs but whose true identities will be included in the amendments hereto when those identities are discovered,
Defendants,
BRIEF OF AMICUS CURIAE
AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION OF FLORIDA
INTRODUCTION
This case presents novel issues of national importance. Amici, the American Civil Liberties Union and the American Civil Liberties Union of Florida, seek to address the difficult and important issues raised by defamation cases brought against anonymous Internet posters. Most of the defendants in this case are unrepresented and may not even know they have been sued. Amici offer this brief to be of assistance to the Court as it addresses the issues presented by the motions of "justhefactsjack," "inquizitrl1," and "inquiziter1" to quash the subpoenas issued by Plaintiff. The instant case requires the Court to carefully accommodate both the state's interest in protecting Plaintiff's reputation and Defendants' First Amendment right to speak anonymously. Amici therefore suggest that if a Complaint is filed that is facially sufficient, the Court should do the following. First, the Court should not enforce any subpoena that would disclose Defendants' identities until Defendants have received notice of the Complaint and subpoena. Second, the Court should structure the case in order to balance the Plaintiff's right to proceed with Defendants' right to communicate anonymously. Specifically, the Court should require the Plaintiff to litigate those issues that can be resolved without disclosure of Defendants' identities prior to ordering disclosure. Finally, amici suggest that the Court should require Plaintiff to establish that he has suffered actual, financial damages before breaching Defendants' anonymity.
INTEREST OF AMICI
The ACLU is a nationwide, nonprofit, nonpartisan organization with nearly 300,000 members dedicated to preserving the principles of individual liberty embodied in the Bill of Rights. The ACLU of Florida is a state affiliate of the ACLU.
The ACLU and the ACLU of Florida maintain a strong and abiding interest in defending citizens' fundamental civil liberties from unconstitutional and unwarranted governmental intrusion. This case raises constitutional issues that are of central importance to the ACLU and its affiliates. The ACLU and its affiliates have been involved in virtually all of the leading Internet free speech cases including ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), aff'd, 521 U.S. 844 (1997) and ACLU v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997).
Movant has consented to the filing of this Brief. Plaintiff does not consent to the filing of this Brief.
STATEMENT OF FACTS AND STATEMENT OF THE CASE
Amici have no independent knowledge of the facts of this case. Amici rely entirely on the pleadings and motions previously filed.
Yahoo!, Inc. (Yahoo!) maintains a number of computer bulletin boards at its Internet site. Anyone with Internet access may access these bulletin boards, read the messages that have been posted there, and post a message of his or her own. There are literally hundreds of thousands of bulletin boards accessible on the Internet including those offered by Yahoo!. Yahoo! follows standard procedure for Internet bulletin boards; each message identifies the person speaking by a self-designated screen name, which is rarely the person's actual name. In addition, many individuals use more than one screen name. Thus, messages posted under two different screen names may have been posted by one individual. Similarly, it is possible for more than one person to post a message under a single screen name. See generally Miller , 977 F. Supp. 1228; Reno, 929 F. Supp. 824.
Plaintiff alleges that Defendants have posted messages about him on these bulletin boards. (Complaint ô 4). Plaintiff further alleges that these messages have caused legally cognizable harm, for which he seeks compensatory and punitive damages. (Complaint ôô 12-30). Because the people who posted the messages did so using screen names only, Plaintiff asserts that he does not know their actual identity. (Complaint ô 2). Thus, he sued "John Does 1 through 8" rather than any specific person.
Strikingly, the Complaint does not identify the screen names of all of the people alleged to have posted defamatory messages. The Complaint does not specify the bulletin board on which the postings were made. The Complaint also does not identify the specific postings which Plaintiff believes to be legally actionable. Indeed, it does not identify a single specific statement uttered by a single person. Instead, the Complaint merely asserts, in a conclusory fashion, that there were "numerous false and defamatory statements messages" (sic) and lists five categories of allegedly defamatory messages, such as "false statements indicating that Hvide is unfit to work at his place of business." (Complaint ôô 3, 6). The Complaint does not link any specific statement to any screen name or any person. Thus, it is not possible from the face of the Complaint for any person (except those two specifically identified) to know if he or she is intended to be named as a defendant or to know what speech the Plaintiff believes is legally actionable. It is also not possible from the face of the Complaint for any person to know if he or she might have a defense to the Complaint, such as that the statements were true or were constitutionally protected opinion.
After filing the Complaint, Plaintiff served a number of subpoenas to Yahoo! and America Online (AOL) in an effort to determine the identity of persons who posted information about Plaintiff on the Internet. There appear to have been anywhere from 4 to 11 subpoenas:
1. On September 29, 1999, Plaintiff issued a subpoena directed at Yahoo! seeking information about "The 1 Quiz" and "mbfna." The papers submitted do not indicate whether the people who use those screen names received any notice of the subpoena or whether Yahoo! has disclosed any information about those individual(s).
2. On October 25, 1999, Plaintiff issued a subpoena directed at Yahoo! seeking information about eight screen names, including "justthefactsjack" but not including the two mentioned in the first subpoena. A person who alleges he used the screen name "justthefactsjack" has specially appeared and moved to quash this subpoena. Yahoo! apparently has not turned over information about the other seven screen names pending disposition of the motion. (Letter from Elizabeth Banker to David Harris of 12/10/99; Pl.'s Mem. ô 6). The papers submitted do not indicate whether any individual (other than Movant) who has used any of the screen names has received notice of the subpoena.
3. On November 22, 1999, Plaintiff issued a subpoena(s) directed at Yahoo! seeking information about from one to eight screen names. It is clear a subpoena was issued on this date seeking information about "justthefactsjack," but is not clear whether the other screen names (or yet additional screen names) were also the subject of separate subpoenas. Again, it appears Yahoo! has not turned over information pending disposition of the motion. (Letter from Elizabeth Banker to David Harris of 12/10/99). The papers do not indicate whether any individual (other than Movant) who has used any of the screen names has received notice of the subpoena(s).
4. On December 7, 1999, Plaintiff issued a subpoena directed at AOL seeking information about two additional screen names, not identified in any prior subpoena. One of those screen names may or may not be an alternate screen name for "justthefactsjack." The same counsel who represents "justthefactsjack" has filed a Motion to Quash the AOL subpoena on behalf of the people who hold the screen names "inquizitrl1" and "inquiziter1." The record does not reflect whether these are the screen names of two additional individuals, additional screen names for "justthefactsjack," or some other possible variation. It appears that AOL has not turned over the information pending disposition of the motion. (Letter from Patrick Carome to David Harris of 12/23/99). The papers do not indicate whether any individual (other than Movant) who has used any of the screen names has received notice of the subpoena.
The Court initially heard argument on the motions to quash on Tuesday, January 25, 2000. The Court has set the motions for reargument on Thursday, February 24, 2000.
SUMMARY OF ARGUMENT
Suits for defamation (or similar causes of action) against anonymous or pseudonymous Internet posters present unique and novel issues of law. In order to resolve those issues, courts must consider two major values: the First Amendment right to speak anonymously on the Internet and the state's interest in protecting citizens from defamatory communications in this important new medium of communication.
The Internet embodies the First Amendment ideal of a "marketplace of ideas." The Internet gives ordinary citizens inexpensive access to a medium of mass communication, allowing them to speak directly "to an audience larger and more diverse than any the Framers could have imagined." ACLU v. Reno, 31 F. Supp. 2d 473, 476 (E.D. Pa. 1999). The Internet has developed distinctive conventions of communication that foster "uninhibited, robust and wide-open" debate. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Many speakers employ pseudonymous "screen names" online. The widespread use of pseudonyms forces the audience to evaluate a speaker's ideas based solely on content; it also permits Internet users to experiment with controversial and unpopular ideas. In addition, different Internet discussion fora tend to develop specific conventions governing the tenor and tone of discussion. Discourse on financial message boards, for example, tends to resemble informal spoken conversation more than it does formal written communications, and anyone who regularly frequents the message boards learns to interpret what is posted accordingly. The Internet also gives users a unique right to reply to speech on the Internet they believe to be wrong or defamatory. A bulletin board user can promptly post a reply to an objectionable posting and, in many (though by no means all) cases, the reply will reach the exact audience that read the initial posting. These unique features of the Internet suggest that defamation law should be applied carefully to Internet communications, lest the threat of being held liable for defamation chill Internet users from engaging in the types of spirited discussions that have become the norm.
In determining what rules to apply to Internet defamation, the Court also must weigh the potentially chilling effect of any rule that would allow breach of the constitutional right to speak anonymously without notice and without any showing of need or merit. Traditional defamation cases typically involve speakers whose identity is readily ascertainable. In contrast, Internet defamation cases, or at least those that involve interactive fora such as bulletin boards, typically involve anonymous speakers. The Supreme Court has recently reaffirmed the constitutional right to speak anonymously, see McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342 (1995), and at least one federal court has recognized the importance of protecting anonymous speech in the Internet context. See Miller, 977 F. Supp. at 1231.
After weighing these values, amici believe that anonymity should be breached only when necessary. In this case, there are two deficiencies on the face of the Complaint that should cause the Court to reject an attempt to breach anonymity. First, the Complaint does not have sufficient specificity to identify the persons sued (even by screen name) or the statements alleged to be defamatory. Second, the Complaint does not establish that this Court has jurisdiction. Until those deficiencies are cured, the Court ought not take an action that breaches anonymity.
If a Complaint is filed that is facially sufficient in this case, amici suggest that the Court take the following steps to protect the Defendants' rights. First, to protect the Defendants' rights to procedural due process, the Court should not enforce any subpoena that would disclose Defendants' identity until each Defendant has received notice of the Complaint and the subpoena. Notice could be effected in at least two ways. The Court could order Plaintiff to provide notice by posting the relevant information on the online bulletin board that contained the allegedly offending statements, or by sending notice to e-mail addresses associated with the relevant screen names. In addition, the Court could order Yahoo! and AOL to notify the persons identified by the screen names listed in Plaintiff's subpoena.
Second, the Court should structure the case in order to balance Plaintiff's right to proceed with Defendants' right to communicate anonymously. For example, several issues in the case should be resolved without the need to breach Defendants' anonymity. The Court should require Plaintiff to litigate these issues before allowing disclosure of Defendants' identity. It is difficult to predict such issues without more specific information than Plaintiff has provided in the Complaint, but these issues may include the defense that Defendants' statements were constitutionally protected opinion, a defense that can be decided by the Court as a matter of law without regard to the identities of Defendants. In addition, amici argue that the Court should require Plaintiff to establish actual, financial damages before breaching Defendants' right to anonymity.
ARGUMENT
I. THE COURT SHOULD GRANT THE MOTIONS TO QUASH AND SUA SPONTE DISMISS THE COMPLAINT WITHOUT PREJUDICE OR REQUIRE THAT AN AMENDED COMPLAINT BE FILED.
A. The Complaint Is So Lacking in Specificity That the Court Should Dismiss It Sua Sponte or Require that An Amended Complaint Be Filed.
A complaint must plead the facts with sufficient specificity that a defendant can determine that he or she is being sued and the facts that form the basis for the action. Fla. R. Civ. P. 1.110(b)(2) ("A pleading which sets forth a claim for relief . . . must state a cause of action and shall contain . . . (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.") (emphasis added). This Complaint fails in both respects. First, it is not possible for any individual to determine if he or she is a defendant in this case. Understandably, no actual persons are named. Less understandably, eight people are sued, but only two screen names are even mentioned. The bulletin board on which the allegedly offending messages were posted is not mentioned. Most disturbingly, the content of the allegedly offending messages is not reproduced. Thus, if a person who had posted information about Plaintiff anywhere on the Internet were to read this Complaint, there is no means by which that person could determine if he or she is a defendant.
Because the messages are not mentioned, or linked to any particular speaker, it is not possible for anyone to determine what postings have offended the Plaintiff. If the person(s) who uses the screen names that are listed in the Complaint (or anyone else who suspects he or she might be a defendant) posted more than one message, it would not be possible to determine whether Plaintiff is alleging that one or more of the messages were offensive. It would thus not be possible to determine if any defenses existed.
In Columbia Insurance Co. v. SEESCANDY.COM, the court held that it would not breach the anonymity of an Internet poster without first requiring Plaintiff to establish the adequacy of the Complaint. 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). "[P]laintiff should establish to the Court's satisfaction that plaintiff's suit against defendant could withstand a motion to dismiss. A conclusory pleading will never be sufficient to establish this element." Id.
Because the Complaint is so lacking in specificity, it should be dismissed sua sponte or the Court should require that an adequate amended Complaint be filed.
B. The Court Should Dismiss the Complaint for Lack of Personal Jurisdiction.
This case must be dismissed if the Court lacks personal jurisdiction over Defendants. See Fla. R. Civ. P. 1.140(b)(2). The Complaint makes no allegations to establish that the Court has, or even that it could have, personal jurisdiction over Defendants. Based on the allegations of the Complaint, the only conceivable basis for personal jurisdiction is the mere posting of a message to an Internet bulletin board that is accessible in Dade County, Florida. The postings at issue in the case can be read by all Internet users worldwide, including those in Dade County, Florida. The overwhelming weight of authority holds that posting content on the Internet that is generally available to all Internet users is insufficient to establish personal jurisdiction over a defendant. See Bensusan Restaurant Corp. v. King, 126 F.3d 25 (2d Cir. 1997), aff'g 937 F. Supp. 295, 301 (S.D.N.Y. 1996) ("[C]reating a [web] site, like placing a product into the stream of commerce, may be felt nationwide - or even worldwide - but, without more, it is not an act purposefully directed toward the forum state"); Mink v. AAAA Dev. LLC, 190 F.3d 333 (5th Cir. 1999) (same); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997) (same); Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (same); see also Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So. 2d 1351 (Fla. 3d DCA 1994) (holding that out-of-state defendant's use of computer database physically located in Florida was insufficient to establish personal jurisdiction in Florida).
There is authority in Florida that would permit a party to file an action and then engage in discovery to establish jurisdiction. Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So. 2d 1282 (Fla. 1992). However, in Gleneagle, the plaintiff had obtained service on the defendant and had alleged a basis for jurisdiction. Moreover, the defendant's identity was known and the constitutional right of anonymous speech was not implicated. At the very least, this Court should refrain from permitting discovery to establish jurisdiction until the plaintiff proffers evidence to support the claim of personal jurisdiction. See, e.g., SEESCANDY.COM, 185 F.R.D. at 578 (requiring plaintiff in action against anonymous online defendant to "identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued" in order to "ensure that federal requirements of jurisdiction and justiciability are satisfied."). If Plaintiff proffers sufficient evidence, the Court should then consider additional actions to protect Defendants' right to communicate anonymously while determining whether personal jurisdiction has been established over Defendants. See infra at 22-31. For example, the Court could accept in camera evidence from Defendants to establish lack of personal jurisdiction without revealing Defendants' identity to Plaintiff.
B. THE COURT MUST CONSIDER THE VALUES IMPLICATED BY THE NOVEL CONTEXT OF THIS CASE.
A. The Nature of the Internet
The Internet promises to transform the First Amendment "marketplace of ideas" from ideal to reality. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ("[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market."); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) ("It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail . . . ."). With a relatively small initial investment, any Internet user can bypass editors and publishers to speak directly to an audience of millions. Freedom of the press, as one court noted, is no longer "limited to those who own one." Reno, 31 F. Supp. 2d at 476 (entering preliminary injunction against enforcement of 47 U.S.C. õ 231 of the Child Online Protection Act). The democratic nature of discussion on the Internet means that the Internet speakers need not win the approval of the mainstream media in order to be heard: Internet speakers are free to define for themselves what topics are worthy of discussion. Almost inevitably, therefore, Internet discussions tend to be more lively and free wheeling than discussions in the mainstream media, simply by the virtue of the fact they include more participants and more perspectives.
The democratic nature of Internet discussions is supported by the convention of anonymity. Most Internet speakers apply pseudonymous "screen names" when discussing a topic on an Internet bulletin board. The use of pseudonyms forces the audience to judge a speaker's arguments based on the words alone rather than the identity of the speaker. It also allows Internet users to experiment with unpopular ideas or opinions and to speak freely without fear of retaliation in the "real world."
Bulletin board conventions governing tone and tenor of discussions also foster debate that is "uninhibited, robust, and wide-open." New York Times Co., 376 U.S. at 270. A financial board like the one at issue here is typically devoted to discussion of a particular company (in this case, Hvide Marine, which is listed by the ticker symbol "HMAR"). Discussion of factual information about the company and its management is common, but so too is idle speculation about its future stock price, random musings about its prospects, and even "off-topic" trivia. See Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 184 (4th Cir. 1998) (noting the speculative nature of stock tips). Board discussion resembles informal spoken conversation more than formal written conversation, and speed and spontaneity are more important than precise factual accuracy. Indeed, speed and spontaneity are prized so much that grammar, spelling, and punctuation are often disregarded, and hyperbole, exaggeration, and other emotional rhetoric are as prevalent as (if not more prevalent than) rational deliberation. Any person who frequents the boards quickly learns to "read between the lines" to gauge a poster's credibility and to ascertain the poster's meaning, and any court seeking to determine the meaning of an allegedly defamatory posting must do the same.
In deciding how expansively to apply defamation law to the instant case, the Court should also consider a plaintiff's "self-help" remedy. Internet bulletin boards provide an opportunity to test the free speech principle that the answer to speech with which we disagree is more speech. New York Times Co. v. Sullivan, 376 U.S. at 270 ("[T]he fitting remedy for evil counsels is good ones."). Unlike someone defamed in the Miami Herald, someone who disagrees with a bulletin board post can go onto the bulletin board and post a message disagreeing with or correcting the prior message. See Miami Herald v. Tornillo, 418 U.S. 241 (1974) (holding unconstitutional Florida's "right of reply" law, which forced newspapers to give space to politicians to reply to criticism). Plaintiff in this case could go onto his company's bulletin board and respond to Defendants' statements; such a response would likely reach virtually all of those who read the criticisms he found objectionable. This is especially true because financial boards devoted to a single corporation (like Yahoo!'s "HMAR" board) are likely to have a limited number of repeat visitors, thereby increasing the chance that Plaintiff's response would reach many, if not all, of the original readers. This self-help remedy is concededly imperfect: any message board user can instantly republish a defamatory message simply by forwarding it to a different discussion forum. Nonetheless, the existence of an immediate right to reply to any defamatory statements suggests courts should exercise caution in evaluating a plaintiff's unsupported allegations that a defamatory posting caused him harm.
Courts also should be sensitive to the threat that breaching Defendants' anonymity will chill robust public discussion on the Internet. The democratic nature of the Internet means that unlike traditional media speakers, Internet speakers typically do not have professional training to judge the credibility of the information they post, editors to peruse their posts for problems, lawyers to advise them of the complexities of defamation law, or libel insurance to pay large judgments. If speakers face liability for casual remarks made on Internet bulletin boards, they are unlikely to hire counsel to review their speech before posting. Instead, they are likely to refrain from speaking entirely or to steer far away from any speech that might risk liability. See Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the "Chilling Effect", 58 B.U.L. Rev. 685, 693 (1978) ("Deterred by the fear of punishment, some individuals refrain from saying or publishing that which they lawfully could, and indeed, should."). Thus, liability in this context could easily chill speech, preventing the "breathing space" essential to the First Amendment. New York Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964) ("[T]he pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive.").
The potential chilling effect is magnified by the ease with which plaintiffs can bring a defamation action for any online criticism. In the last year and a half, plaintiffs have increasingly used the courts to seek to breach Internet anonymity. Eleanor Abreu, EPIC Blasts Yahoo for Identifying Posters, The Industry Standard, ô 2 (Nov.10,1999) <http://www.thestandard.com/articles/display/0,1449,7564,00 .html?02>; Bruce Keller and Peter Johnson, Online Anonymity: Who is John Doe, 5 BNA Electronic Com. and Law Rep. 70 (Jan. 10, 2000). As in this case, plaintiffs typically can make out a prima facie case for libel without any proof of financial harm. See Restatement (Second) of Torts õ 559 cmt. d (1977). Once a plaintiff files his complaint against anonymous John Does, it is a relatively simple matter to obtain a subpoena to have a web host such as Yahoo!, or an Internet service provider (ISP) such as AOL, turn over the names and addresses of the Doe defendant. Prior to responding to such a subpoena, web hosts and ISPs are not currently required to provide any notice to a poster that someone is seeking information about him. Some ISPs provide notice as a matter of policy; some do not. Posters often do not have an opportunity to file a motion to intervene to prevent breach of their anonymity. If the ISP does comply with the subpoena, it will normally do so before any court has had an opportunity to review the matter to determine if it is even facially sufficient. Thus, any party can potentially file a frivolous suit and use the court processes to breach the confidentiality of the speaker. Even if a plaintiff pursues his suit no farther, the person sued may have already surrendered important First Amendment rights.
The preceding discussion suggests courts must adapt defamation law to the unique nature of Internet discourse: the need for a remedy for defamation may be less compelling in the context of the Internet, and the danger of chilling robust participation may be greater. Courts also should be careful to prevent the misuse of court processes simply to breach online anonymity.
B. Anonymity
The First Amendment protects anonymous speech both in our society at large and on the Internet specifically. As described in the Supreme Court's most recent anonymous speech case, McIntyre v. Ohio Elections Commission , 514 U.S. 334 (1995), the United States has a strong tradition of anonymous speech in both literary and political contexts. The Court cited Mark Twain (Samuel Langhorne Clemens), O. Henry (William Sydney Porter), and Benjamin Franklin as examples of famous literary figures who wrote under pseudonyms. 514 U.S. at 341 n. 4. In the political arena, the Court found the tradition of anonymity to be "most famously embodied in the Federalist Papers, authored by James Madison, Alexander Hamilton, and John Jay, but signed 'Publius.'" 514 U.S at 343 n.6. The Court noted that the Anti-Federalists also used pseudonyms, id, , and that the tradition of anonymous political speech in America stretched back to"the pre-Revolutionary War English pamphleteer, 'Junius,' whose true identity remains a mystery." Id.
McIntyre struck down an Ohio law that prohibited the distribution of anonymous campaign literature, holding that the law encroached upon the First Amendment freedom to publish anonymously. See 514 U.S. at 342. The Court recognized that an author's motive for speaking anonymously may be "fear of economic or official retaliation," "concern about social ostracism, or merely . . . a desire to preserve as much of one's privacy as possible." Id. at 341-42. The Court nonetheless stated:
Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, 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.
Id. at 342; see also NAACP v. Alabama, 357 U.S. 449, 462 (1958) (holding that the NAACP could not be forced to disclose its membership list).
The right to anonymous speech is sufficiently strong that at least one court has relied on this right to deny a defamation plaintiff discovery about the identity of the speaker who placed an anonymous advertisement in a local newspaper. See Rancho Publications v. Superior Court, 68 Cal. App. 4th 1538 (1999) (holding that a hospital failed to establish a compelling interest in breaching the anonymity of the persons who placed the ad). The court found that the public interest in having anonymous works enter the marketplace of ideas "unquestionably outweighs any public interest in disclosure . . . ." Id. at 1547 (quoting McIntyre).
In a related context, a federal district court explained that "disclosure of anonymous news sources without first inquiring into the substance of a libel allegation would utterly emasculate the fundamental principles that underlay the line of cases articulating the constitutional restrictions to be engrafted upon the enforcement of state libel laws." Southwell v. Southern Poverty Law Center, 949 F. Supp. 1303, 1311 (W.D. Mich. 1996). The Southwell court thus held that summary judgment for defendant in a defamation case may be "proper even without disclosure of a confidential source, if the plaintiff fails to produce evidence that the article in question is either 1) inherently improbable, or is 2) published with serious doubts about the truth of its contents." Id. at 1311. Several cases have even stated that anonymity must be protected even if the plaintiff is thereby foreclosed from recourse for defamation. See Adams v. Frontier Broadcasting Co., 555 P.2d 556, 557 (Wyo. 1976) ("[W]e are compelled to reject the requirement of censorship in favor of safeguarding the fundamental right of free speech even though this result forecloses the individual from recourse for defamation"); see also SEESCANDY.COM, 185 F.R.D. 573, 578 (N.D. Cal. 1999) ("[T]he need to provide injured parties with a forum in which they may seek redress for grievances . . . must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously.").
In an analogous context, the right of reporters to protect their sources, courts have required defamation plaintiffs to prove the strength of their claim before allowing access to confidential information. For exam |
