Legal Protections for Anonymous Speech

Say that you receive notice that a someone has subpoenaed your ISP for information about your identity, and you move to quash (i.e., block or challenge) the subpoena. How will a court decide whether or not to allow the plaintiff to uncover your identity? This is a complex question that quickly brings us into a realm full of technical legal language and concepts. For those interested, this section and the State Law: Legal Protections for Anonymous Speech section that go with it delve into some of the details. If this makes your eyes glaze over, don't worry -- this section could be a good place for your lawyer to begin research.

So, what test or standard will the court apply? Courts have recognized that the right to speak anonymously is part of the First Amendment right to free speech and accordingly some level of scrutiny is required before stripping an anonymous Internet speaker of that right. At the same time, those harmed by unlawful anonymous speech -- whether by defamation, misappropriation of trade secrets, or whatever else -- also have a right to seek compensation for their injury. When considering a subpoena or other discovery request seeking to unmask a speaker, courts attempt to balance these two competing rights. But courts have struck the balance in different ways, and the result is a number of different legal tests for deciding whether or not to allow a speaker's identity to be revealed. These tests or standards can be placed into roughly two categories: (1) high-burden tests and (2) low-burden tests. We discuss them in turn below.

High-Burden Tests

High-burden tests require a plaintiff trying to unmask an Internet speaker to bring forward a substantial amount of evidence to support the underlying legal claim (i.e., evidence that the anonymous speaker actually defamed the plaintiff or committed some other unlawful act that injured the plaintiff). There are two notable types of high-burden tests:

Summary Judgment Test: Here, the plaintiff must show that he has sufficient evidence for each element of his underlying legal claim. The courts loosen this standard somewhat, acknowledging that a plaintiff should not be required to produce evidence on those elements of his claim that are dependent on knowing the defendant's identity. (This becomes important in defamation cases, where the plaintiff need not show "actual malice" at this early stage of the case. For details, see the Actual Malice and Negligence section of this guide.) Courts applying this standard also frequently require plaintiffs to make reasonable efforts to notify the anonymous speaker of the subpoena or other discovery request, if they have not already done so. The leading case here is Doe v. Cahill, 884 A.2d 451 (Del. 2005), from the Supreme Court of Delaware.

Summary Judgment Plus Balancing Test: This test is the most protective of anonymous speech. Here, a plaintiff must pass two hurdles in order to uncover the identity of an anonymous Internet speaker. First, as in a summary judgment test, she must put forward sufficient evidence to support each element of her underlying legal claim (with the limitation mentioned above) and make reasonable efforts to notify the speaker of the request. Second, if the plaintiff has put forward enough evidence, the court then independently balances the strength of the plaintiff's underlying legal claim and the need for disclosure against the strength of the speaker's claim to First Amendment protection. Only if the plaintiff's interests outweigh the First Amendment values at stake should the court order disclosure. The leading examples of this test are Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and Mobilisa v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007).

The recent and growing trend in anonymity cases is for courts to apply a high-burden test.

Low-Burden Tests

Low-burden tests generally allow a plaintiff to uncover the identity of an Internet speaker without brining forward evidence to support each element of his underlying legal claim. One example is Virginia's "good faith" test, which requires the plaintiff to show only that his claim is made in good faith, and not out of an intent to harass. See In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000). Note, however, that the AOL court's statement of the test leaves some ambiguity as to whether evidence is required. Another court has applied a "motion to dismiss" standard, which requires only that a plaintiff make allegations that, if true, would entitle her to a legal remedy. See Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999). Again, however, the Seescandy court's language leaves ambiguity about whether some evidence might be required.

Finally, there are many cases requiring plaintiffs to make out a "prima facie" case before uncovering the identity of an anonymous Internet speaker. Unfortunately, different courts have used this language to mean different things -- ranging from something close to a summary judgment-type test to a motion to dismiss standard. See, for example, Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004) (some evidence required); Public Relations Society of America v. Road Runner High Speed Online, 799 N.Y.S. 2d 847 (N.Y. Sup. Ct. 2005) (roughly equivalent to a motion to dismiss standard); Alvis Coatings v. John Does One through Ten, 2004 WL 2904405 (W.D.N.C. 2004) (relying on evidence). In some instances, the language of the decisions themselves are internally inconsistent. Despite the confusion, overall we can say that courts applying this "prima facie" standard require less in terms of evidence than courts applying the high-burden tests discussed above.

Will a high-burden or low-burden test apply?

The kind of test that a court will apply may depend on two factors. One is the state where the lawsuit happens. Some state high courts have already adopted a high-burden test, which will apply by force of precedent (e.g., Delaware). In other states, there is a trend in lower court cases that point in one direction or the other (e.g., Arizona, New Jersey - both in favor of a highly protective test). In many states, there are no court decisions on this topic at all, and it is not yet clear what test will apply. See the state pages for details.

Another factor that might affect what standard applies is the character of the speech activity over which you are sued. Some lawsuits clearly implicate important First Amendment concerns -- criticism of public officials or government policies, whistleblower activities, to name a few. There is no hard-and-fast rule on this point, but we can predict that a court is more likely to apply a high-burden standard when these types of "core" First Amendment values are involved, and less likely to do so when the issues appear personal or otherwise unrelated to matters of public concern.

Keep in mind that the cases discussed on this page are defamation cases and other lawsuits where speech played a critical role. Most copyright infringement lawsuits, especially those relating to peer-to-peer file sharing, fit into an entirely different category, even though they sometimes involve anonymous actors. According to an important case in this area, Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004), peer-to-peer file sharing "qualifies as speech, but only to a degree." Courts in copyright cases thus tend to impose relatively lenient standards on plaintiffs before allowing discovery of an anonymous defendant's identity. Additionally, it usually is relatively easy for a plaintiff in a copyright case to provide basic evidence to support its claim. Therefore, if you are involved in a copyright infringement case, you should not assume that the First Amendment will protect our identity, even if you are in a state that applies a high-burden standard in defamation cases.

Another wrinkle: be aware that a plaintiff may try to disguise a defamation claim by characterizing it as a copyright infringement claim in order to take advantage of more lenient standards for uncovering your identity. If you get sued for copyright infringement, but you believe that the dispute is really about your criticism of the plaintiff, you should should bring this to the attention of your lawyer and/or the court. In re Subpoena Issued Pursuant to the Digital Millennium Copyright Act to: 43SB.com, 2007 WL 4335441 (D. Idaho 2007), provides a good example of a plaintiff trying to use copyright law to get around First Amendment protection for anonymous speech.

Make sure to check your state's page for relevant anonymity cases in your jurisdiction.