II. THE FIRST AMENDMENT PROTECTS ANONYMOUS SPEECH OVER THE
INTERNET AND REQUIRES A HEIGHTENED SHOWING BEFORE
ANONYMITY MAY BE BREACHED.
A. Requiring the Disclosure of an Anonymous Speaker’s Identity Threatens
to Infringe on the Well-Established First Amendment Right to Speak
Anonymously.
The First Amendment safeguards the right of individuals to speak without revealing
their identities. As the United States Supreme Court has explained, “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.”
13
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995); see also 1621, Inc. v. Wilson,
402 Pa. 94, 103, 166 A.2d 271, 275 (1961) (First Amendment “protection has been broadly
extended to include . . . anonymous speech and association.”). The decision to maintain
anonymity “may be motivated by fear of economic or official retaliation, by concern about
social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”
McIntyre, 514 U.S. at 340. Anonymous speech “thus exemplifies the purpose behind the Bill
of Rights, and of the First Amendment in particular: to protect unpopular individuals from
retaliation — and their ideas from suppression — at the hand of an intolerant society.” Id. at
357. Because of the potential for retaliation and ostracism, “[t]here can be no doubt that
[requiring identification of anonymous authors] would tend to restrict freedom to distribute
information and thereby freedom of expression.” Talley v. State of California, 362 U.S. 60,
64-65 (1960) (holding unconstitutional a state law prohibiting the distribution of anonymous
handbills); see also Hynes v. Mayor and Council of the Borough of Oradell, 425 U.S. 610,
624-625 (1976) (Brennan, J., concurring).7/
The strong tradition of protecting anonymous communications is equally — and
perhaps even more — important on the Internet and other online fora. The United States
Supreme Court has unequivocally held that speech on the Internet is entitled to the highest
7/ The constitutional protection of anonymity extends not only to speech, but also to the
closely related right of freedom of association. As the United States Supreme Court has
observed, “t is hardly a novel perception that compelled disclosure of affiliation with
groups engaged in advocacy may constitute as effective a restraint on freedom of association”
as other forms of government action. NAACP v. Alabama, 357 U.S. 449, 462 (1958). Thus,
the “Court has recognized the vital relationship between freedom to associate and privacy in
one’s associations. . . . Inviolability of privacy in group association may in many
circumstances be indispensable to preservation of freedom of association . . . .” Id.; see also
Buckley v. Valeo, 424 U.S. 1, 64 (1976) (“[W]e have repeatedly found that compelled
(continued)
14
form of First Amendment protection. See Reno v. ACLU, 521 U.S. 844, 870 (1997). As the
Supreme Court aptly recognized, through the Internet and interactive services such as AOL,
“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.” Id.
The extensive use of screen names and other online pseudonyms is critical to the
development of the Internet as a vehicle for individual expression. Users may wish to speak
anonymously online for a variety of reasons: to criticize the activities of public officials or
corporations without fear of retaliation, to “blow the whistle” on an employer who is engaging
in unlawful or otherwise improper activity, to voice unpopular opinions on topical issues, to
avoid harassment or even stalking by other online users, or to obtain advice or counseling on
difficult problems or medical conditions. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 849
(E.D. Pa. 1996) (“Anonymity is important to Internet users who seek to access sensitive
information . . . .”), aff’d, 521 U.S. 844 (1997). As one commentator has explained,
anonymity not only allows speakers to experiment with unconventional or unpopular ideas
without fear of ridicule or retaliation, but also “promises to make public debate in cyberspace
less hierarchical and discriminatory than real world debate to the extent that it disguises status
indicators such as race, class, gender, ethnicity and age which allow elite speakers to
dominate real-world discourse.” Silencing John Doe, 49 Duke L.J. at 896.
Accordingly, as many courts have recognized, the First Amendment protects the
freedom to speak anonymously over the Internet just as it does anywhere else. See, e.g.,
(continued from previous page)
disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by
(continued)
15
ACLU v. Johnson, 4 F. Supp.2d 1029, 1033 (D.N.M. 1998) (recognizing a First Amendment
right to “communicat[e] and access[] information anonymously” on the Internet), aff’d, 194
F.3d 1149 (10th Cir. 1999); ACLU v. Miller, 977 F. Supp. 1228, 1233 (N.D. Ga. 1997)
(striking down as unconstitutional a state statute that, inter alia, prohibited “such protected
[online] speech as the use of false identification to avoid social ostracism, to prevent
discrimination and harassment, and to protect privacy”); In re Subpoena Duces Tecum to
America Online, Inc., Misc. Law No. 40570, 2000 WL 1210372 at *6 (Va. Cir. Ct. 2000)
(“To fail to recognize that the First Amendment right to speak anonymously should be
extended to communications on the Internet would require this Court to ignore either United
States Supreme Court precedent or the realities of speech in the twenty-first century.”)
(Attachment B); Dendrite Int’l v. John Does, No. MRS C-129-00, at 18-19 (N.J. Sup. Ct.
Nov. 23, 2000) (“Inherent in First Amendment protections is the right to speak anonymously
in diverse contexts,” including online.) (Attachment C).
B. Because of the First Amendment Interests at Stake, a Party Asking a
Court to Compel Disclosure of the Identity of an Anonymous Speaker
Must Satisfy a Heightened Standard of Scrutiny.
Courts have made clear that where compelled disclosure — whether in the context of
civil discovery or other instances in which the government seeks to compel the release of
information — would infringe First Amendment rights, the party seeking the disclosure must
meet a heightened standard of scrutiny. Courts “long have recognized that significant
encroachments on First Amendment rights of the sort that compelled disclosure imposes
cannot be justified by a mere showing of some legitimate governmental interest.” Buckley,
(continued from previous page)
the First Amendment.”).
16
424 U.S. at 64. Instead, the state may require disclosure of identity information only if the
disclosure is “narrowly tailored to serve an overriding state interest.” McIntyre, 514 U.S. at
347; see also Bates v. City of Little Rock, 361 U.S. 516, 524 (1960) (First Amendment permits
compelled disclosure of private membership list “only upon showing a subordinating interest
which is compelling”); NAACP v. Alabama, 357 U.S. 449, 462-63 (1958) (same); New Jersey
Citizen Action v. Edison Township, 797 F.2d 1250, 1265 (3d Cir. 1986).
This same heightened standard applies where, as here, a party asks a court to compel
discovery of otherwise confidential identity information in the context of an ongoing legal
proceeding. In this realm, “as in all others, such disclosure of confidential associational
affiliations and activities must be justified by a compelling state interest and must be precisely
tailored to avoid undue infringement of constitutional rights.” Britt v. Superior Court of San
Diego County, 574 P.2d 766, 779 (Cal. 1978) (en banc). Thus, “in supervising discovery . . .
[a] court has a duty to consider First Amendment interests as well as the private interests of
the plaintiff.” Herbert v. Lando, 441 U.S. 153, 178 (1979) (Powell, J., concurring). “Indeed,
in some respects, the threat to First Amendment rights may be more severe in a discovery
context, since the party directing the inquiry is a litigation adversary who may well attempt to
harass his opponent and gain strategic advantage by probing deeply into areas which an
individual may prefer to keep confidential.” Britt, 574 P.2d at 774; see also Seattle Times Co.
v. Rhinehart, 467 U.S. 20, 35 (1984) (“There is an opportunity . . . for litigants to obtain —
incidentally or purposefully — information that not only is irrelevant but if publicly released
could be damaging to reputation and privacy. The government clearly has a substantial
interest in preventing this sort of abuse of its processes.”).
17
III. COURTS SHOULD PROTECT ANONYMOUS ONLINE SPEAKERS’ FIRST
AMENDMENT RIGHTS BY REQUIRING PLAINTIFFS TO DEMONSTRATE
THAT THEY HAVE VIABLE CLAIMS BEFORE COMPELLING
DISCLOSURE OF IDENTITY INFORMATION.
As the court below and a number of other courts have recognized, because the
compelled disclosure of an anonymous speaker’s identity threatens to infringe the speaker’s
First Amendment rights, courts should assure themselves that the claims asserted against such
a speaker have merit — and are not merely a pretext for obtaining discovery — before
permitting plaintiffs to employ judicial processes to breach the veil of anonymity. At a
minimum, this threshold screening must require the plaintiff to demonstrate that the claims
would survive a motion to dismiss, are supported by evidence, and cannot be pursued without
breaching anonymity. Moreover, at least where, as here, the Doe defendants are represented
in the litigation, a court should permit the defendants to litigate as much of the merits as
possible through the summary judgment stage before permitting discovery aimed at
unmasking the defendants’ identities.8/ Engaging in this process — and not simply permitting
plaintiffs to file a suit and thereby compel disclosure of identity information without
demonstrating that their claims are viable — appropriately balances the legitimate interest in
8/ AOL recognizes that the John Doe defendants asked the court below to bifurcate the
case to allow certain issues to be litigated all the way through trial before permitting Melvin
to take discovery relating to defendants’ identities, and that the court below denied that
request. See Trial Ct. Op. at 3-4. AOL endorses the proposition that, in general, John Doe
litigants in cases such as this one should be afforded the opportunity to litigate as fully as
possible all issues that do not turn on their identities before such discovery is allowed. AOL
does not take a position on whether, in this particular case, the court below could have done
even more than it did to permit the defendants to contest the merits of Melvin’s claims before
permitting discovery into their identities.
18
unmasking actual wrongdoers with the First Amendment rights of citizens to speak
anonymously.9/
The court below rightly recognized that there is no legitimate reason — much less a
compelling interest — that justifies the unmasking of an anonymous online speaker’s identity
if, notwithstanding the filing of a suit, no tort (or other illegal act) has been committed. See
Trial Ct. Op. at 2 n.2 (“A plaintiff should not be able to use the rules of discovery to obtain
the identity of an anonymous publisher simply by filing a complaint that may, on its face, be
without merit.”). Several courts have applied this principle to test the merits of a claim before
compelling the identification of anonymous online speakers. For example, in In re Subpoena
Duces Tecum to America Online, Inc., a plaintiff caused a subpoena to issue to AOL in an
effort to learn the identity of an online speaker. In adjudicating a motion made by AOL to
quash the subpoena, the Virginia court held that “before a court abridges the First Amendment
right of a person to communicate anonymously on the Internet, a showing, sufficient to enable
that court to determine that a true, rather than perceived, cause of action may exist, must be
made.” 2000 WL 1210372 at *7. The court further explained that, before ordering disclosure
of a speaker’s identity, a court must be “satisfied by the pleadings or evidence supplied to that
court . . . that the party requesting the subpoena has a legitimate, good faith basis to contend
that it may be the victim of conduct actionable in the jurisdiction where suit was filed and . . .
the subpoenaed identity information is centrally needed to advance that claim.” Id. at *8.
9/ In some cases — such as where a Doe defendant has yet to appear and a valid
subpoena has issued requiring the disclosure of the defendant’s identity — litigation through
the summary judgment stage may not always be feasible, although even there some screening
of the evidence by the court often will be appropriate. Indeed, in circumstances where no one
is present to represent the Doe defendants and discovery is being sought on an entirely ex
(continued)
19
Similarly, in Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999),
the court explained that the need to provide a forum for injured parties “must be balanced
against the legitimate and valuable right to participate in online forums anonymously or
pseudonymously . . . .” Id. at 578. Accordingly, the court required that the plaintiff
demonstrate that it had a prima facie case before the court would authorize the plaintiff to
seek discovery aimed at identifying a pseudonymous defendant, who had purportedly
infringed the plaintiff’s trademarks by registering an Internet domain name virtually identical
to the trademark. Significantly, the court evaluated whether the plaintiff had met this test not
by simply accepting its allegations, but by independently evaluating the evidence. See id. at
579. The court reasoned that this screening mechanism was necessary as “a protection against
the misuse of ex parte procedures to invade the privacy of one who has done no wrong. . . .
[It] is necessary here to prevent abuse of this extraordinary application of the discovery
process and to ensure that plaintiff has standing to pursue an action against defendant.” Id. at
579-80.
Most recently, the New Jersey Superior Court denied a plaintiff’s request for
authorization to conduct out-of-state discovery to learn the identity of two John Doe
defendants whose anonymous online postings were alleged to be defamatory and to violate
confidentiality provisions in employment agreements. Dendrite Int’l v. John Does, No. MRS
C-129-00 (N.J. Super. Ct. Ch. Div. Nov. 23, 2000) (Attachment C). After examining the
posted statements and the evidence presented, the court, applying the Seescandy test, held that
the plaintiffs had “failed to provide this Court with ample proof from which to conclude that
(continued from previous page)
parte basis, meaningful judicial scrutiny before discovery is permitted may serve as the only
(continued)
20
[the two John Doe defendants] have used their constitutional protections in order to conduct
themselves in a manner which is unlawful or that would warrant this Court to revoke their
constitutional protections.” Id. at 22.
The principles adopted by these cases involving anonymous online speech are
consistent with and build on prior case law establishing similar threshold tests before
permitting governmental power to be used to unmask the identity of an anonymous speaker.
One case exemplifying this point is National Labor Relations Bd. v. Midland Daily News, 151
F.3d 472 (6th Cir. 1998), in which the NLRB subpoenaed a newspaper publisher to identify
the party who had placed an anonymous classified ad seeking electricians. The Sixth Circuit
affirmed the district court’s denial of the NLRB’s motion to compel enforcement on the
grounds that the subpoena would violate the First Amendment rights of both the newspaper
and the advertiser. Id. at 473. The Court of Appeals held that, because the NLRB had sought
a subpoena before it had developed “any factual support for its action, and before it had
developed or implemented a less intrusive means to conduct its investigation,” the NLRB had
“facially failed to demonstrate a substantial state interest which outweighs the danger to the
free speech rights of [the newspaper], its anonymous advertiser, and the countless similarly
situated entities across the nation.” Id. As the court further explained, “permitt[ing] the
Board to obtain the identity of [the newspaper’s] advertiser, without demonstrating a
reasonable basis for seeking such information, [would create a] chilling effect on the ability of
every newspaper and periodical to publish lawful advertisements [that] would clearly violate
the Constitution.” Id. Likewise, in Rancho Publications v. Superior Court, 81 Cal. Rptr. 2d
(continued from previous page)
available safeguard against abuse of judicial process.
21
274, 279-82 (Ct. App. 1999), a court declined to permit discovery of the identity of
anonymous advertisers because the plaintiff had failed to show “compelling need” for the
information.
Similarly, in cases involving the reporter’s qualified First Amendment privilege not to
reveal anonymous sources,10/ some courts have required that the party seeking disclosure
demonstrate that its claim “is not frivolous [or] a pretense for using discovery powers in a
fishing expedition. In this case, plaintiff should show that it can establish jury issues on the
essential elements of its case not the subject of the contested discovery.” Bruno & Stillman,
Inc. v. Globe Newspaper Co., 633 F.2d 583, 597 (1st Cir. 1980); see also Cervantes v. Time,
Inc., 464 F.2d 986, 994 (8th Cir. 1972); Southwell v. Southern Poverty Law Center, 949 F.
Supp. 1303, 1310-11 (W.D. Mich. 1996) (“[O]rdering 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.”).
All of these cases demonstrate that a plaintiff cannot overcome the First Amendment
interests in anonymity without first showing that he or she has viable claims. Before
permitting discovery of an anonymous speaker’s identity, a court at a minimum must be
satisfied that the plaintiff has stated a prima facie case. The court should not simply rest on
10/ See generally Branzburg v. Hayes, 408 U.S. 665, 709-10 (1975) (Powell, J.,
concurring). Under both federal and Pennsylvania law, a journalist may not be required to
reveal the identity of an anonymous or confidential source unless (1) the information is
relevant and necessary, (2) the information cannot be obtained by alternative means, and (3)
the information is crucial to the plaintiff’s case. See, e.g., Riley v. Chester, 612 F.2d 708,
716-17 (3d Cir. 1979); Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997). The trial
court found that these requirements were satisfied in the present case. See Trial Ct. Op. at 21-
28.
22
the conclusory allegations of the complaint, but instead should independently evaluate the
viability of plaintiff’s claims. In cases such as this one, where the Doe defendants have
appeared, courts should test that viability by permitting litigation of as much of the merits as
possible without disclosure of the defendants’ identities so that the defendants may first have
the opportunity to demonstrate that the plaintiff could not prevail as a matter of law. In that
way, courts will protect the First Amendment right of anonymity and prevent abuse of legal
processes, while still allowing plaintiffs to obtain appropriate redress in cases of actual
actionable wrongdoing.
In the present case, the trial court recognized the important First Amendment interests
at stake and appropriately determined that “plaintiff should not be permitted to engage in
discovery to learn the identity of the Doe defendants until the Doe defendants [have] had an
opportunity to establish that, as a matter of law, plaintiff could not prevail in this lawsuit.”
See Trial Ct. Op. at 2. The trial court accordingly permitted the Doe defendants to litigate
some merits issues through the summary judgment stage before permitting discovery
concerning the Doe defendants’ identities. AOL urges this Court to recognize that the trial
court’s decision to proceed in this manner was a necessary and appropriate means for
protecting the First Amendment rights of online speakers.
23 |
