Maintaining the mask of the First Amendment: procedural and legislative approaches to protecting anonymous online speech.

• Author: Conery, Benjamin

"Our nation has long prized a citizen's right to speak anonymously. With the proliferation of the seemingly limitless vehicles for such speech on the Internet and the various forms of social media, our citizens now have outlets for anonymous free speech that were quite simply unimaginable only a decade ago." (1)

1. Introduction

   Defamation suits involving anonymous online speech swing between extremes: Some cases involve vulgar postings meant to harass and ridicule, while others take on a whistleblower-like significance in exposing possible political or corporate malfeasance. (2) Despite the prevalence of such cases, there are no national standards guiding a judge's determination of when to reveal the identities of anonymous posters. (3) Instead, courts have applied a jumble of tests. (4) Some worried observers see the lack of uniformity and the accompanying uncertainties as threats to speak anonymously--a right the Supreme court has jealously guarded. (5)

   Complicating the issue is the variety of scenarios present in these defamation cases. (6) These suits can be broadly separated into two factions: legitimate defamation suits sometimes called "cybersmears," and illegitimate suits aimed merely at intimidating critics that resemble illegal Strategic Lawsuits Against Public Participation (SLAPPs), which are sometimes called "cyber-SLAPPs." (7) Cybersmear suits are typical defamation actions brought against an anonymous poster who has sought to sully the reputation of his or her target; such speech is not constitutionally protected. (8) CyberSLAPPs, on the other hand, are baseless lawsuits that corporations, politicians, or others bring to silence critics engaged in constitutionally protected political speech online. (9) Legitimate cybersmear cases and illegitimate cyberSLAPPs are both filed as defamation claims and can appear indistinguishable at first glance, making it difficult to balance one person's right to speak anonymously against another person's right to protect his or her reputation against defamation. (10)

   This Note will trace the history of anonymous speech in the United States. (11) It will discuss the development of constitutional protections for anonymous speech and how the Supreme Court has applied those protections to online speech. (12) This Note will also discuss the development of defamation suits involving anonymous Internet posters and the varying approaches courts have employed in identifying such defendants. (13) This Note will further argue against adopting national standards for determining when to identify an anonymous poster during defamation cases. (14) Instead, this Note will posit that such decisions are best left to the courts to decide on a case-by-case basis. (15) In analyzing cyberSLAPPs, however, this Note will advocate for robust antiSLAPP laws to protect anonymous political speech against powerful interests. (16) This Note will further argue that anti-cyberSLAPP laws can be powerful weapons to protect all-important political speech. (17)

2. History

   Anonymous speech has a vaunted place in the establishment of the United States Constitution. (18) More recently, the Supreme Court held "an author's decision to remain anonymous ... is an aspect of the freedom of speech protected by the First Amendment." (19) The rise of the Internet in recent decades, however, has created novel challenges to this right. (20) Courts assessing these challenges have applied varying approaches to protect anonymous online speakers. (21) At the same time, Congress has not passed legislation creating uniform protections. (22)

   1. Anonymous Speech Protection and Its Extension to the Internet

      From Thomas Paine's Common Sense pamphlet to Publius's pseudonymously-written Federalist Papers, many of the fledgling ideals that forged the nation were first expressed anonymously, thereby illustrating the profound place of anonymous speech in the United States. (23) The right to speak anonymously does not appear within the text of the First Amendment, but the Supreme Court has recognized it in two landmark cases as an implicit free-speech right. (24) In Talley v. California, the Supreme Court recognized for the first time a right to speak anonymously by holding unconstitutional a city ordinance that prohibited the distribution of any handbills that did not include the name and address of the person who distributed, printed, or sponsored them. (25) The case stemmed from Talley's conviction under the ordinance after he passed out handbills urging people to boycott businesses that sold products from "manufacturers who will not offer equal employment opportunities to Negroes, Mexicans, and Orientals." (26) The handbills included the name of an organization--"National Consumers Mobilization"--and a post office box number, but a municipal court decided that information did not meet the ordinance's requirements and fined Talley ten dollars. (27) The Court held that the ordinance targeted all speech too broadly to meet its supposed purpose of identifying those engaged in fraud, false advertising, and libel. (28)

      Thirty-five years later in McIntryre v. Ohio Elections Commission, the Court reaffirmed the right to anonymous political speech, calling it "a shield from the tyranny of the majority." (29) The Court in McIntyre struck down an Ohio law that required disclosure of who "paid for" election pamphlets, advertisements, and other publications in elections. (30) The Ohio election law was narrower than the law invalidated in Talley, and the Court's ruling helped further solidify First Amendment protections for anonymous speech. (31) In McIntyre, the petitioner, Margaret McIntyre, had been fined one hundred dollars for passing out leaflets at a public meeting opposing a proposed local tax hike that did not clearly identify the pamphlet's sponsorship. (32) The Ohio Supreme Court upheld the conviction and distinguished the law from the ordinance in Talley on the basis that the Ohio law was narrower because its explicit purpose was the identification of people who distribute election materials containing falsehoods. (33) The U.S. Supreme Court held, however, that the law did not pass "exacting scrutiny" because Ohio did not show its interest in protecting voters from false statements justified banning all use of anonymous election-related speech. (34)

      The Supreme Court first applied broad free-speech protections to online speakers in 1997 in Reno v. ACLU. (35) A federal district court in ACLU of Georgia v. Miller (36) then specifically applied anonymity protections to online speakers. (37) These rights developed mainly in response to the emergence of defamation suits against online posters. (38)

   2. Defamation and the Internet

      Defamation is a common-law tort aimed at allowing a person to protect his or her reputation from false attacks. (39) Additionally, the defamatory statement must be published. (40) Public figures face greater difficulty than private persons in proving defamation. (41) In either case, the truth of a statement is an absolute barrier to proving defamation. (42)

      The rise of the Internet during the past twenty years has led to the creation of an entirely new body of defamation cases involving online speech. (43) Courts applied traditional frameworks in some of the earliest online defamation cases involving statements made in chat rooms or posted on message boards. (44) Specifically, courts treated Internet service providers (ISPs) the same way it treated newspapers or other media publishers. (45) This line of reasoning reached a critical apex in Stratton Oakmont, Inc. v. Prodigy Services Co., (46) a case that within a year helped spark congressional action. (47)

      In Stratton Oakmont, Inc., an anonymous poster on Money Talk, Inc.--a bulletin board hosted by an early ISP named Prodigy--accused investment bank Stratton Oakmont, Inc. of fraud and other criminal activities. (48) When it began providing Internet services in 1990, Prodigy billed itself as a "family oriented computer network" and pledged to exercise "editorial control" over the postings on its message boards. (49) This level of control proved difficult, as Prodigy had two million subscribers by 1995 who made 60,000 message-board posts each day. (50) Stratton Oakmont sued Prodigy for libel and moved for summary judgment, claiming Prodigy was the publisher of the defamatory remarks, and thus liable for them. (51) A New York Supreme Court held that, due to its policy of controlling the content of its bulletin boards, Prodigy met the definition of publisher. (52) The decision raised concerns that any effort by an ISP to control content could result in liability. (53)

      In part to remedy the decision in Stratton Oakmont, Inc., Congress passed the Telecommunications Act of 1996, which shielded ISPs from liability in online defamation cases. (54) In practice, the law frequently left anonymous "John Does" as the only potential defendants in online defamation cases. (55) Plaintiffs filed these cases against anonymous posters to fight what came to be known to some as cybersmears. (56)

      Cybersmears are defamation cases generally filed against unknown defendants--listed in court papers as "John Doe"--for making derogatory posts online. (57) While frequently hyperbolic, the global and instantaneous reach of the Internet has caused much concern about the statements giving rise to cybersmears. (58) Corporations initially claimed to be the victims of most cybersmears, but individuals have increasingly filed suits in which they claim to be victimized. (59) A pair of 2008 cases--Krinsky v. Doe 6 (60) and Doe I v. Individuals (61)--illustrate how corporations and individuals file defamation suits to combat cybersmears. (62)

      In Krinsky, the plaintiff--a former high-ranking executive for a publicly traded "'global development drug service company'" named Lisa Krinsky--sued ten anonymous defendants, "John Does," for alleged defamatory postings on Yahoo; one "John...