Revisiting the “anonymous Speaker Privilege”

• Publication year: 2012

NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY VOLUME 14, ISSUE 1: FALL 2012

REVISITING THE “ANONYMOUS SPEAKER PRIVILEGE”

Marian K. Riedy* and Kim Sperduto**

Over the past few years federal and many state courts have generally adopted a new discovery privilege. This privilege protects against the disclosure of the identity of a “John Doe” defendant whose anonymous online speech has given rise to a claim of defamation, copyright infringement, or other civil wrongdoing. The privilege can be overcome, but only if the plaintiff meets a higher evidentiary standard than is required by the ordinary rules of pleading. That higher standard requires the plaintiff to prove the existence of a prima facie case, at least, if not more. In some instances, the plaintiff must submit to the court sufficient evidence to survive a motion for summary judgment before he can discover the identity of the alleged wrongdoer. This Article argues that this discovery privilege, derived from the principle that the First Amendment prohibits governments from requiring identification as a precondition to speech, does not, in fact, follow from that principle. But a discovery privilege against the disclosure of the identity of a John Doe defendant does fit squarely within the First Amendment’s long-standing “associational privilege.” This Article discusses how the associational privilege can and should be adapted to fit the online world.

• Marian K. Riedy, Esq., has practiced as a litigator since graduating from Harvard Law School in 1981; has an MBA from Georgetown University; and is an assistant professor of business law in the School of Business, Emporia State University.

  ** Kim Sperduto, Esq., is the managing director of The Sperduto Law Firm, a complex commercial litigation boutique in Washington, D.C. He is a graduate

  of Duke Law School, and also received his Masters in Public Policy from Duke.

  
  

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  1. INTRODUCTION

     The Federal Rules of Civil Procedure permit discovery of “nonprivileged matter that is relevant to any party’s claim or defense.”1 In most civil lawsuits, the identity of the defendant is most certainly relevant, if for no other reason than to effect service of process. Nonetheless, with increasing frequency, a plaintiff may be barred from obtaining discovery of the identity of a “John Doe” defendant—or at least confront a significant barrier to that discovery—when the lawsuit arises from that John Doe’s “anonymous” speech.2 This barrier was erected by the creation of a discovery privilege to protect anonymous online speech.

     With few real exceptions,3 the federal courts—and many state courts—during the last decade have adopted special rules governing the compelled disclosure of the identity of a John Doe defendant in private civil lawsuits when that John Doe is alleged to have committed some wrongdoing online, such as defamation, infringement of intellectual property, stock manipulation, tortious interference with contractual or prospective economic relations, or fraud.4 Specifically, the plaintiff must make some showing of the evidentiary sufficiency of her claims above and beyond the standard requirements of the rules of pleading.5 Because online

     
     

     1 FED. R. CIV. P. 26(b)(1).

     1. See infra Part II.

     2. See, e.g., Façonnable USA Corp. v. Does 1–10, 799 F. Supp. 2d 1202 (D. Colo. 2011) (finding no basis in the Constitution, Supreme Court decisions, or the Rules of Civil Procedure for any new discovery privilege against the disclosure of the identity of an anonymous online speaker, but nonetheless assessing the merits of the plaintiff’s claims against a higher standard than

        would ordinarily be required by those Rules).

     3. The identity of an online speaker may be sought for other reasons; for example, because the speaker is believed to have evidence relevant to the case, or to determine whether the speaker is or may have been acting as an agent or employee of the named defendant at the time of the events at issue. However,

     the discussion herein focuses on disclosing the identity of an anonymous defendant.

     5 Reno v. ACLU, 521 U.S. 844, 870 (1997).

     
     

     speech is treated no differently from speech in the “real world,”6 these new rules also, presumably, apply to any anonymous John Doe speaker. But because of the common—indeed, almost universal—practice of using a pseudonym or fictitious name on the Internet, this body of law has been developed almost exclusively in cases arising from online speech.

     These relatively new standards for obtaining discovery are the product of a deceptively “straightforward equation” derived from established Supreme Court precedent: The First Amendment protects anonymous speech; online speech is to be accorded the same degree of First Amendment protection as speech in other media; and, therefore, anonymous speech online is entitled to some degree of protection.7 That protection is provided by the anonymous speaker’s right to assert a “qualified privilege” to remain anonymous.8 A plaintiff seeking to expose the identity of an anonymous online speaker can overcome the privilege because “the right to speak anonymously is not absolute . . . .”9 However, the assertion of the privilege demands a heightened showing by the plaintiff of the validity of the claim that would not be required by the ordinary rules of discovery.10

     Despite the appealing simplicity of this First Amendment calculus, this Article argues that one of the components of this straightforward equation is inapposite. The courts are relying on

     
     

     1. Id.

     2. See, e.g., In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (holding that “it is now settled 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’ ” (quoting McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 343 (1995))); Arista Records, L.L.C. v. Doe 3, 604 F.3d 110, 118 (2d Cir.

        2010) (stating that “[t]he Supreme Court has recognized that the First

        Amendment provides protection for anonymous speech”).

     3. E.g., Lefkoe v. Jos. A. Bank Clothiers, Inc., 577 F.3d 240 (4th Cir. 2009).

     4. Best W. Int’l, Inc. v. Doe, No. CV-06-1537-PHX-DGC, 2006 U.S. Dist. LEXIS 56014 at *9 (D. Ariz. July 25, 2006).

     5. Amy P. Nickerson, Comment, Coercive Discovery and the First Amendment: Towards a Heightened Discoverability Standard, 57 UCLA L.

     REV. 841, 846 (2010).

     
     

     the Talley v. California11 line of cases, which struck down laws requiring the disclosure of identity as a precondition to speech. These cases do not, however, support the new discovery privilege as it is currently deployed.12 Imposing what is tantamount to a summary judgment standard before the defendant can even be identified errs in both reach and rationale.

     This Article further proposes that another body of First Amendment law—arising from NAACP v. Alabama ex rel. Patterson13—can and should be substituted for Talley and its progeny in the equation. Unlike Talley, these cases bear directly on the issue presented by the anonymous online defendants— whether there is a First Amendment discovery privilege protecting anonymous speech—and unambiguously hold that there is such a privilege, and that it arises from the First Amendment right of association.14 This is the privilege that the anonymous online speaker can assert.

     But the contours of the “associational privilege” differ markedly from the prevailing anonymous speaker privilege. In order to align the anonymous speaker privilege with its true provenance, the standards for asserting it must be substantially revised. The burden should shift from the plaintiff back to the defendant, who must make a prima facie showing of entitlement to invoke the privilege with evidence that the disclosure of identity

     
     

     11 362 U.S. 60 (1960).

     12 Another scholar has reached the same conclusion, but for different reasons than are proposed in this Article. See Michael S. Vogel, Unmasking “John Doe” Defendants: The Case Against Excessive Hand-Wringing Over Legal Standards, 83 OR. L. REV. 795 (2004). Most of the scholarly articles do not focus on the First Amendment underpinnings for the discovery privilege, but instead propose variations on the standards for applying it. See, e.g., Nathaniel

     Gleicher, John Doe Subpoenas: Toward a Consistent Legal Standard, 118 YALE

     L.J. 320 (2008); Erik P. Lewis, Note, Unmasking “ANON12345”: Applying An Appropriate Standard When Private Citizens Seek the Identity of Anonymous Internet Defamation Defendants, 2009 U. ILL. L. REV. 947 (2009); Lyrissa B. Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 NOTRE DAME L. REV. 1537 (2007).

     13 357 U.S. 449 (1958).

     1. Id. at 466.

        
        

        would have an adverse effect on the defendant’s associational rights.

        The anonymous speaker privilege needs a substantial redirection not only because of the shaky jurisprudential basis for the privilege as it has been constructed, but also because the policy considerations that originally justified the creation of the privilege have been undermined by the realities of today’s Internet. Early advocates of the privilege extolled anonymous speech on the grounds that “Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas.”15 It has been argued by many, however, that unbounded anonymous online speech is particularly dangerous, rather than worthy of special protection.16 Thus, for example, “[o]nline, bigots can aggregate their efforts even when they have insufficient numbers in any one location to form a conventional hate group. They can disaggregate their offline identities from their online presence, escaping social opprobrium and legal liability for destructive acts.”17 This Article does not take sides in this dispute, but it does presume that anonymous online speech is not an unalloyed good to be protected at any cost.

        Further, as discussed below, there are costs associated with according anonymous speakers a discovery privilege. In Doe v. Cahill,18 the Supreme Court of Delaware imposed a

        ...