Speech: Anonymity

It is well-settled that the First Amendment shelters the right to speak anonymously. See Buckley v. Am. Constitutional Law Foundation, 525 U.S. 182, 200 (1999) (invalidating, on First Amendment grounds, state statute requiring initiative petitioners to wear identification badges); Talley v. California, 362 U.S. 60, 65 (1960) (holding anonymity protected under the First Amendment because forced “identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance”). These cases celebrate the important role played by anonymous or pseudonymous writings through history, from the literary efforts of Shakespeare and Mark Twain through the explicitly political advocacy of the Federalist Papers.

As the Supreme Court has held, “Anonymity is a shield from the tyranny of the majority,” that “exemplifies the purpose” of the First Amendment: “to protect unpopular individuals from retaliation. at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (holding that 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”).

Therefore, courts must “be vigilant. [and] guard against undue hindrances to political conversations and the exchange of ideas.” Buckley, 525 U.S. at 192. This vigilant review “must be undertaken and analyzed on a case-by-case basis,” where the court’s “guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.” Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756, 760-761 (N.J. App. Div. 2001). Moreover, that review must take place whether the speech in question takes the form of political pamphlets or Internet postings. Reno v. ACLU, 521 U.S. 844, 870 (1997) (there is “no basis for qualifying the level of First Amendment protection that should be applied to” the Internet).

Right to Speak Anonymously on the Internet

“Against the backdrop of First Amendment protection for anonymous speech, courts have held that civil subpoenas seeking information regarding anonymous individuals raise First Amendment concerns." Sony Music Entertainment v. Does, 326 F.Supp.2d 556, 565 (S.D.N.Y. 2004). Accordingly, "the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.” Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1097 (W.D. Wash. 2001).

Each of the courts to consider the issue has found that the First Amendment requires a heightened evidentiary showing from the subpoenaing party before enforcement of subpoenas to identify anonymous Internet speakers. See, e.g., Dendrite, 775 A.2d at 771 (strict procedural safeguards must be imposed “as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet").

“People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.” Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). Otherwise, “[i]f Internet users could be stripped of that anonymity by a civil subpoena enforced under the liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights.” 2theMart.com at 1093.

Right to Read Anonymously on the Internet

It "is now well established that the Constitution protects the right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citation omitted). That right is unacceptably chilled when the government has unchecked access to reading records. See United States v. Rumely, 345 U.S. 41, 57 (1953) (Douglas, J., concurring) (“Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears,” replaced by the speech-chilling “spectre of a government agent” looking over every reader’s shoulder.). The following citations also support the right to read anonymously on the Internet.

  1. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1053 (Colo. 2002) (finding that search warrant for bookstore records reflecting a customer’s purchases intruded on customer’s First Amendment right to read anonymously).
  2. Schneider v. Smith, 390 U.S. 17, 24-25 (1968) (First Amendment forbids "'abridging' freedom of speech," by "prob[ing] of reading habits, political philosophy, beliefs, and attitudes on social and economic issues.").
  3. Lamont v. Postmaster General,381 U.S. 301, 308 (1965) (BRENNAN, J., concurring) (“The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”).
  4. Martin v. Struthers, 319 U.S. 141, 143 (1943) ("The right of freedom of speech and press . . . embraces the right to distribute literature, and necessarily protects the right to receive it.") (citation omitted).
  5. Lubin v. Agora, Inc., 389 Md. 1, 22, 882 A.2d 833, 846 (2005) (denying enforcement of subpoenas that would have compelled a publisher to disclose the identities of subscribers to their materials).
  6. Julie Cohen, A Right to Read Anonymously: A Closer Look at “Copyright Management” In Cyberspace, 28 CONN. L. REV. 981 (1996) (summarizing First Amendment protections for anonymity and concluding “that the close interdependence between receipt and expression of information and between reading and freedom of thought make recognition of such a right sound constitutional policy”).

Tests for Unmasking Anonymous Speakers

    In Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. A.D. 2001), a New Jersey appeals court required the plaintiff to: (1) use the Internet to notify the accused of the pendency of the identification proceeding and to explain how to present a defense; (2) quote verbatim the allegedly actionable online speech; (3) allege all elements of the cause of action; (4) present evidence supporting the claim of violation; and (5) show the court that, on balance and in the particulars of the case, the right to identify the speaker outweighs the First Amendment right of anonymous speech. Greenbaum v. Google, Inc., 845 N.Y.S.2d 695, 698+, 18 Misc.3d 185, 185+, (N.Y.Sup. Oct 23, 2007) (following Dendrite but "not reach[ing] the issue of the quantum of proof that should be required on the merits because, here, the statements on which petitioner seeks to base her defamation claim are plainly inactionable as a matter of law"). See also Indep. Newspapers, Inc. v. Zebulon J. Brodie, 407 Md. 415, 966 A.2d 432 (Md. Ct. App. 2009) (citing with approval test from Dendrite and reversing lower court’s order to compel discovery of identities of five anonymous Internet forum participants in defamation action.) Doe 1 et al v. Ciolli et al, No. 3:2007cv00909 (D. Conn. filed June 8, 2007) (following the Dendrite test, but finding that the fifth element of the test did not fall in Defendant's favor.); A.Z. v. Doe, 2010 WL 816647 (N.J. Super. App. Div. March 8, 2010); Indep Newspapers, Inc v Brodie, 407 Md 415, 454-456; 966 A2d 432 (2009) (adopting the Dendrite standard); Mortgage Specialists, Inc v Implode-Explode Heavy Indus, Inc, 160 NH 227, 239; 999 A2d 184 (2010) (adopting the Dendrite standard);

Non-Party Anonymous Speakers

Doe v. 2theMart.com, 140 F.Supp.2d 1088 (W.D. Wash. 2001) was the first case to address the right to speak anonymously in the context of non-party speakers. The Western District of Washington found that "non-party disclosure is only appropriate in the exceptional case where the compelling need for the discovery sought outweighs the First Amendment rights of the anonymous speaker." 2TheMart.com, 140 F.Supp.2d at 1095. The Constitutionally required test is a judicial balancing of four factors before a subpoena can be used to identify anonymous Internet speakers: "[W]hether: (1) the subpoena . . . was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) [adequate] information . . . is unavailable from any other source." See also Enterline v. Pocono Medical Center, 2008 WL 5192386 (M.D.Pa. 2008) (applying 2theMart test to quash a subpoena for the identities of commenters on a newspaper message board), Sedersten v. Taylor, 2009 WL 4802567 (W.D.Mo. 2009) ("a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party.")