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Matthew Zagaja Media & Law Research Paper FINAL
Unmasking Anonymous Speech Online
Anonymous speech has played a role in the public discourse o America since !he
Re"olution# !homas Paine anonymously published his amous pamphlet $ommon %ense
and the
Federalist Papers were anonymously penned using the name Publius in New 'or( newspapers#)
!his tradition continued on in newspapers throughout early American history and also e*tended to
other mediums such as boo(s#+ !his paper will e*plore the unmas(ing standards currently in use
by "arious courts in the ,nited %tates in ci"il actions# First the paper will articulate the principles
laid out by the ,#%# %upreme $ourt or anonymous speech# !hen it will lay out bac(ground issues
on unmas(ing anonymous speech in an online conte*t# Ne*t it will loo( at unmas(ing anonymous
deendants in the conte*t o commercial speech# !his will be ollowed by an analysis o
unmas(ing anonymous deendants or political speech# Finally it will attempt to reconcile the
"arious standards and recommend a standard or adoption by the ,#%# %upreme $ourt#
I# !-.RI/-!!0%P.A1AN0N'M0,%L'& !-.,#%# %,PR.M.$0,R!
!he ,nited %tates %upreme $ourt has decided two major cases that address anonymous speech
rights generally# 2oth Talley v. California4andMcIntyre v. Ohio Elections Commission5in"ol"e
3ill Lepore4 The Sharpened Quill4 !-.N.5'0R1.R60ct# 74 )88794
http:;;www#newyor(er#com;archi"e;)887;8;7;8787crbo McIntyre4 >? ,#%# ++?#
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the distribution o handbills that do not contain an attribution# In both cases the courts loo(ed to
historical precedent in order to cement the right to spea( anonymously in its First Amendment
jurisprudence#
In Talley v. Californiathe $ourt addressed the uestion o whether an ordinance4 in the
city o Los Angeles4 that restricted the distribution o handbills unless their sponsor was identiied
on them abridged the reedom o speech and o the press secured by the First and Fourteenth
Amendments#7!he %upreme $ourt granted certiorari and held that the ordinance was "oid on its
ace#BIn the majority opinion 3ustice 2lac( e*pounded upon the "alue o anonymous pamphlets
throughout history# In doing so he noted that persecuted groups ha"e utiliCed anonymous speech
to criticiCe oppressi"e laws and practices#D2lac( concluded by pointing out that in two recent
decisions the $ourt held states cannot compel members o groups engaged in the dissemination o
ideas to be identiied because Ethe identiication and ear o reprisal might deter perectly peaceul
discussions o public matters o importance#@
McIntyre v. Ohio Elections Comm#n$%arri"ed at the $ourt as a result o Margaret McIntyre=s
distribution o lealets at a public meeting at 2lendon Middle %chool in 5ester"ille4 0hio#!he
lealets e*pressed opposition to a proposed reerendum on le"ying a school ta* and did not carry
the disclaimer reuired by 0hio election law#)%he was subseuently ined and challenged the law
7 !alley "# $aliornia4 +7) ,#%# 78 6@789#
BId at 7>#
DIdat 7?#
@Id.at 7>#
8 McIntyre "# 0hio .lections $omm=n4 >? ,#%# ++? 6@@>9#
Idat ++B#
)Id#
)
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most commonly bring a speech related tort claim such as deamation and may combine it with
other claims such as trademar( or copyright inringement#@0ten the speech occurs on a website
owned by a thirdGparty# !hese third parties are immuniCed rom liability or the speech posted to
their website under )+8 o !he $ommunications Jecency Act4 which states in part:
6c9 Protection or E/ood %amaritan bloc(ing and screening o oensi"e material69 !reatment o publisher or spea(er
No pro"ider or user o an interacti"e computer ser"ice shall be treated as
the publisher or spea(er o any inormation pro"ided by another
inormation content pro"ider#)8
!he Act also immuniCes the third parties rom ci"il liability or remo"ing content they do not
wish to ha"e published on their website#
)
%ince this statute protects the intermediary pro"iders
rom liability4 the plaintis must ile a lawsuit against the anonymous indi"idual who posted a
deamatory remar( directly#))!he plainti can then ile a disco"ery subpoena to attempt to orce
the intermediary to re"eal the deendant#)+!his is oten a twoGpart process# First the plainti must
subpoena the oending website or the internet protocol 6IP9 address o the user who made the
oending comments#)?I the plainti is able to procure the IP address then it must subpoena the
Internet ser"ice pro"ider 6I%P9 who owns the IP address to determine who was using it at the time
the oending comments were made#)>
@Id#
)8 $ommunications Jecency Act4 ?B ,#%#$# )+8 6)8879#
)Id#
)) Supranote D at D?)#
)+Id#
)? Nathaniel /leicher4 Note4 3ohn Joe %ubpoenas: !oward a $onsistent Legal %tandard4 D
'AL.L#3# +)8#
)> Supra note D at D?).
?
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%ome I%Ps may pro"ide notice to the anonymous party so that they may ha"e an opportunity to
contest the subpoena while others may choose to gi"eGup the deendant "oluntarily#)7-owe"er the
ability to gi"eGup the IP address automatically is limited by ederal statute# $able companies are
go"erned by the $able $ommunications Pri"acy Act)Bwhich reuires a court order to a cable I%P
and notice to the I%P subscriber beore an I%P can disclose the identity o the subscriber to a third
party#)DNonGcable I%Ps are not bound by this statute and thus ree to release the IP addresses
"oluntarily i the jurisdiction does not reuire notiication otherwise#
0riginally the courts did not hesitate to unmas( anonymous deendants#)@-owe"er as time
progressed concerns began to rise about the use o subpoenas by corporations as strategic lawsuits
against public participation 6%LAPP9 against anonymous critics#+8!his has lead to an increased
sensiti"ity in the courts o balancing the right to remain anonymous with the right to see( redress
or harmul speech#+5hile there has been some consensus on some actors such as gi"ing notice
and an opportunity to respond to the target o the subpoena4 others actors such as the strength and
detail o the plainti=s pleadings remain contested#+)
)7Id#
)B $able $ommunications Pri"acy Act4 ?B ,#%#$# >>#
)D Joe "# $ahill4 DD? A# )d ?>4 ?>> 6Jel# )88>9#
)@Id# See also/leicher4supra note )?4 at ++@ 6noting that the earlier standards adopted by courts
were more deerential to plaintis than the standards that were adopted later9#
+8 $ahill4 DD? A#)d at ?>>#
+Idat D?>#
+) %ee /leicher4supranote )?4 at +?+#
>
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III# ,NMA%1IN/$0MM.R$IAL%P.A1.R%
Most common ha"e been cases o unmas(ing anonymous deendants engaging in
commercial speech# !hese cases ha"e arisen in actions or trademar( inringement4 deamation4
and raud# $ourts ha"e adopted "arying standards or these commercial speech cases# !o reconcile
these4 this paper loo(s irst to the highly inluential*endritestandard and then to the two ederal
circuit cases that ha"e directly addressed the issue#
A *efamation + The *endrite Standard
0ne o the irst cases that is oten cited by lower courts in unmas(ing cases in"ol"ing deamation
is*endrite International v. ,ohn *oe#++In*endritethe plainti attempted to use a subpoena to
disco"er the identity o an anonymous poster o criticism o its company on a 'ahooK bulletin
board#+?!he court upheld the denial o Jendrite=s reuest or a subpoena because it ailed to
establish harm as an element o its deamation claim# +>!he court then ga"e the ollowing
guidance or deciding whether to unmas( anonymous spea(ers on the Internet:
!he trial court should irst reuire the plainti to underta(e eorts to notiy the
anonymous posters that they are the subject o a subpoena or application or anorder o disclosure4 and withhold action to aord the ictitiouslyGnamed deendants
a reasonable opportunity to ile and ser"e opposition to the application# !hese
notiication eorts should include posting a message o notiication o the identitydisco"ery reuest to the anonymous user on the I%Ps pertinent message board#
!he court shall also reuire the plainti to identiy and set orth the e*act
statements purportedly made by each anonymous poster that plainti allegesconstitutes actionable speech#
!he complaint and all inormation pro"ided to the court should be careully
re"iewed to determine whether plainti has set orth a prima acie cause o actionagainst the ictitiouslyGnamed anonymous deendants# In addition to establishing
++ Jendrite Int=l4 Inc#4 BB> A#)d B>7#
+?Id#
+>Id#
7
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that its action can withstand a motion to dismiss or ailure to state a claim upon
which relie can be granted pursuant to R# ?:7G)694 the plainti must produce
suicient e"idence supporting each element o its cause o action4 on a prima aciebasis4 prior to a court ordering the disclosure o the identity o the unnamed
deendant#
Finally4 assuming the court concludes that the plainti has presented a prima acie
cause o action4 the court must balance the deendants First Amendment right o
anonymous ree speech against the strength o the prima acie case presented andthe necessity or the disclosure o the anonymous deendants identity to allow the
plainti to properly proceed#+7
!he court noted that Jendrite=s deamation claims could ha"e sur"i"ed a motion to dismiss but
they would not sur"i"e this new standard that the court laid out#+BAs this was one o the irst
standards it inluenced subseuent decisions4 but has not been uniormly adopted#
+D
A. In re Anonymous Online Spea-ers
!his case dealt with a business dispute between ui*tar4 Inc# and %ignature Management
!.AM# ui*tar sued !.AM alleging that !.AM had organiCed a smear campaign "ia
anonymous postings and "ideos posted to the Internet that disparaged ui*tar and its business
practices#+@Juring disco"ery ui*tar sought testimony rom 2enjamin Jic(ie4 a !.AM
employee4 to re"eal the identity o anonymous online spea(ers who allegedly made deamatory
comments about ui*tar#?8Ater Jic(ie reused to identiy the spea(ers on First Amendment
grounds the district court ordered him to disclose the identity o three o the spea(ers#
+7Id.
+BId#
+D SeeMaCCota4supranote )).
+@ In re Anonymous 0nline %pea(ers4 7 F#+d 7>+4 7>> 6@th $ir# )889#
?8Id#
B
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In its analysis the Ninth $ircuit held that online speech stands on the same ooting as other
speech#?It then proceeded to categoriCe the speech at issue as commercial speech since it was
solely related to the economic interests o the spea(er at issue#?)-owe"er the court also noted that
the decision to remain anonymous is one to be considered in weighing the protection o the First
Amendment#?+
In it analysis the Ninth $ircuit noted that the district court utiliCed the standard set out in
*oe v. Cahill44:
!he court pointed to its Econcern that setting the standard too low will chill
potential posters rom e*ercising their First Amendment right to spea(
anonymously4 and reasoned that Ethe summary judgment standard moreappropriately balances a deamation plaintis right to protect his reputation and a
deendants right to spea( anonymously#?>
!he Ninth $ircuit held that the bar set by Cahillis too high but allowed it to be used because the
district court had not clearly erred in applying the standard#?7%ince the court did not reach the
uestion o what standard to use4 all that can be inerred is that it would be something less than
Cahill# For guidance it also cited two cases as being analogous:ational 'aor &elations /oard
v. Midland *aily e0s41and'ef-o v. ,os A. /an-42#
?Idat 7>B 6citing Reno "# Am# $i"il Liberties ,nion4 >) ,#%# D?? 6@@B9 6Ethere is no basis or
ualiying the le"el o First Amendment scrutiny that should be applied to online speech99#
?)Idat 7>B#
?+Id6citing McIntyre4 >? ,#%# +?)9#
?? Joe "# $ahill4 DD? A#)d ?> 6Jel# )88>9#
?> In re Anonymous 0nline %pea(ers4 7 F#+d 7>+4 778 6@th $ir# )889#
?7Id#
?B National Labor Relations 2oard "# Midland Jaily News4 > F#+d ?B) 67th $ir# @@D9#
?D Le(oe "# 3os# A# 2an(4 >BB F#+d )?8 6?th $irc# )88@9#
D
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# National Labor Relations 2oard "# Midland Jaily News
!he irst analogous case the Ninth $ircuit cited wasational 'aor &elations /oard v.
Midland *aily e0s# In that case the %i*th $ircuit considered whether to unmas( the identity o
an ad"ertiser in a newspaper#?@An employer had placed an ad in the Midland Jaily News loo(ing
or potential electricians# Members o the International 2rotherhood o .lectrical 5or(ers
responded to the ad by sending their resumes#>8Ater three days had passed without response rom
the ad"ertiser the ,nion iled an unair labor practice charge against it#>!he NLR2 issued an
in"estigatory subpoena ordering the production o documents that would identiy the ad"ertiser#>)
!he newspaper chose to ignore the subpoena as Ean unconstitutional inringement o its right o
ree commercial speech and the NLR2 iled an application in ederal district court to order
compliance#>+!he district court denied the application and the %i*th $ircuit airmed#>?
In its analysis the %i*th $ircuit noted that this was commercial speech and turned to the
test articulated in Central 3udson as v. "ulic Serv. Comm#n of or the protection o
commercial speech>>:
At the outset4 we must determine whether the e*pression is protected by theFirst Amendment# For commercial speech to come within that pro"ision4 it at least
must concern lawul acti"ity and not be misleading# Ne*t4 we as( whether the
asserted go"ernmental interest is substantial# I both inuiries yield positi"e
?@ National Labor Relations 2oard4 > F#+d ?B)#
>8Id#
>Id#
>)Id#
>+Id#
>?Id#
>>Idat ?B?#
@
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answers4 we must determine whether the regulation directly ad"ances the
go"ernmental interest asserted4 and whether it is not more e*tensi"e than is
necessary to ser"e that interest#>7
!he court was ultimately uncon"inced that the e*ercise o subpoena power was the Eleast
e*tensi"e means by which the 2oard could reasonably e*pect to proceed without unnecessarily
burdening Midland=s constitutional right to ree e*pression#>B
)# Le(oe "# 3os# A# 2an(
!his case in"ol"ed the identiication o a nonparty witness that had written a letter alleging
3os# A 2an(=s business practices deied common business sense#>D!his caused 3os A# 2an(
to conduct an internal in"estigation and delayed an earnings report#>@Ater ma(ing Joe=s
identity a"ailable to counsel the Maryland district court made a decision to also ma(e it
a"ailable to the parties in the litigation which lead to the interlocutory appeal# 78
In its analysis the court held that the anonymous letter was commercial speech because it
related solely to the economic interests o the writer and the company#7!his court also
applied the Central 3udsonstandard stating4 E5e thus conclude that the Joe $lients
claimed First Amendment right to anonymity is subject to a substantial go"ernmental
interest in disclosure so long as disclosure ad"ances that interest and goes no urther than
>7 $entral -udson /as "# Public %er"# $omm=n o N'4 ??B ,#%# >>B4 >77 6@D89#
>B National Labor Relations 2oard4 > F#+d ?B)4 ?B>#
>D Le(oe4 >BB F#+d )?8#
>@Id#
78Id#
7Idat )?D#
8
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reasonably necessary#7)!he substantial go"ernment interest stemmed rom the act that
3os A# 2an( reuired inormation rom the anonymous party in order to raise deenses in
its lawsuit and such an interest was codiied in Rule )7 o the Federal Rules o $i"il
Procedure#7+
/. Solers v. *oe
!he other ederal circuit court to consider an anonymous Internet speech case was the
J#$# $ircuit# In this case the %otware Industry & Inormation Association recei"ed inormation
rom an anonymous online orm that suggested that %olers4 a sotware company4 was engaging in
sotware piracy#7?As a result %olers iled a lawsuit against the anonymous indi"idual alleging
deamation and tortious intererence with prospecti"e business acti"ity and ser"ed a subpoena on
the %otware Industry & Inormation Association in order to learn the identity o the indi"idual#7>
In its analysis the court loo(ed at the "arious standards and speciically rejected the last prong o
the Jendrite test# -owe"er4 it laid out a standard that closely resembled the summary judgment
standard laid out in Cahill:
5hen presented with a motion to uash 6or to enorce9 a subpoena which see(s
the identity o an anonymous deendant4 the court should: 69 ensure that the
plainti has adeuately pleaded the elements o the deamation claim4 6)9 reuirereasonable eorts to notiy the anonymous deendant that the complaint has been
iled and the subpoena has been ser"ed4 6+9 delay urther action or a reasonable
time to allow the deendant an opportunity to ile a motion to uash4 6?9 reuire
the plainti to proer e"idence creating a genuine issue o material act on eachelement o the claim that is within its control4 and 6>9 determine that the
inormation sought is important to enable the plainti to proceed with his lawsuit#
5e do not reuire a separate balancing test at the end o the analysis4 nor do we
7)Idat )?@#
7+Id#
7? %olers "# Joe4 @BB A#)d @? 6J#$# $irc# )88@9#
7>Id#
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reuire a showing that the plainti has e*hausted alternati"e sources or learning
the inormation#77
!he court noted that unli(e many o the cases it cited this case did not in"ol"e publication in the
open but transmission to a single entity "ia an online orm# Furthermore4 unli(e Cahill4 it did not
decide whether the test would apply to act patterns that do not in"ol"e the Internet#7B-owe"er it
suggested that the act the communication was intended or a single entity as opposed to being
openly published should be actored into assessing the proo o deamation# 7D!he court restricted
the standard to claims o deamation and noted that other claims might reuire dierent standards
or tests or other injuries#7@It did not restrict its test to commercial speech cases and nowhere in its
holding did the court suggest that the test is or should be dierent depending on the type o
speech#B8%ince the standard articulated by the court was new it "acated and remanded the case#
C. The inth Circuit and *.C. Circuit Split
!he Ninth $ircuit and J#$# $ircuit are thus split on the issue as to whether the*oe v. Cahill
standard should apply to unmas(ing anonymous speech in a commercial conte*t# !he Ninth
$ircuit would apply something less than $ahill and analogiCed the situation to commercial speech
cases that were decided by other circuits#B!hese cases were cited without regard or the act that
they in"ol"ed raud as opposed to deamation#B)."en with those dierences these cases both
adopted the Central 3udson test# !he Ninth $ircuit emphasiCed the importance o using a
77Id#
7BIdat @>B#
7DIdat @>D#
7@Idat @>)#
B8 See 6enerally %olers4 @BB A#)d @?#
B In Re Anonymous 0nline %pea(ers4 7 F#+d at 7>@#
)
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dierent standard depending on the type o speech in uestion# It also would apply a higher
standard to subpoenas o nonGparty witnesses#B+
In contrast the J#$# $ircuit in Solerslaid out its standard without any regard or the type o
speech# 'et the court in Solerspointed out that the standard that might be applied would "ary
based on the type o claim#B?-owe"er Solersdid suggest agreement with the Ninth $ircuit on the
point o subpoenaing nonGparty witnesses in two ways# First it stated that the court should Eensure
the inormation sought is important to the litigation#B>%econdarily it noted that in the case o a
subpoena o a nonGparty journalist it would reuire e*haustion o alternati"e sources#B7
."en though Solersdid not reach the issue o political "ersus commercial speech4 the precedent
laid out by the Ninth $ircuit strongly suggests that the %upreme $ourt would apply a dierent
standard to commercial speech cases than political speech cases#BB-owe"er the %upreme $ourt
would not be li(ely to adopt a standard that diers based on the type o claim# Solerscontention
in dicta that its test would be modiied based on the type o claim is not well supported by
B) Seeidat 7>@ 6Noting that Ethe courts e*plicitly recogniCed that the anonymous speech at issue
was commercial speech4 but declined to establish or ollow any particular standard4 other than the
general and longGstanding precepts go"erning commercial speech9#
B+Idat 778#
B? %olers4 @BB A#)d at @>) 6E2ecause the interests at sta(e will "ary4 a trial court may need to
modiy the test we adopt depending on the type o injury alleged#9#
B>Idat @>>#
B7Idat @>7#
BB See$entral -udson4 ??B ,#%# at >7+ 6E!he $onstitution thereore accords a lesser protection
to commercial speech than to other constitutionally guaranteed e*pression9#
+
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precedent#BDFurthermore elements such as notice and an opportunity to contest the unmas(ing
could be uni"ersally applicable without regard or the cause o action# Finally the element o
pleading and proering e"idence is uni"ersal but what is plead and the (ind o e"idence proered
could "ary based on the cause o action#
*. Adoption of *endrite y Other Courts
Most courts ha"e adopted the component o*endritethat reuires the plainti to ma(e
reasonable eorts to gi"e adeuate notice and an opportunity to be heard to the target o the
subpoena#B@!his burden to notiy has so ar only been put on the plainti4 although cable I%Ps are
BD Most Internet unmas(ing cases ha"e in"ol"ed deamation claims or deamation claims
combined with other claims# See /leicher4supranote )?# !he pure raud Internet unmas(ing
cases tried so ar ha"e only in"ol"ed unmas(ing nonGparty witnesses# SeeJoe "# )!heMart#com
Inc#4 ?8 F#%upp#)d 8DD 65#J#5ash# )8894 %edersten "# !aylor4 )88@ 5L ?D8)>7B4 65#J#Mo
)88@94 and .nterline "# Pocono Med# $tr#4 +B Media L# Rep# 8>B 6M#J# Penn# )88D9#/ut see
National Labor Relations 2oard4 > F#+d ?B) 6in"ol"ing unmas(ing an anonymous deendant in
a pure commercial raud case that did not occur on the Internet9# Furthermore4 there has only been
one trademar( inringement action# $olumbia Ins# $o# H# %eescandy#com4 D> F#R#J# >B+ 6N#J#
$al# @@@9# -owe"er %eescandy has oten been cited by deamation cases without distinction#
E.6.7Jendrite Int=l4 Inc#4 BB> A#)d at B7B 6upholding the*endritedecision as being consistent
with Seescandyon appeal9#
B@ MaCCota4supranote D4 at D+D.
?
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reuired to notiy their customers i they recei"e a subpoena#D80ther I%Ps also will ollow this
practice "oluntarily#D'et the notiication reuirement still is not uni"ersal#D)
Furthermore most standards reuire an e"aluation o the strength o the plainti=s claim#D+Four
dierent tests ha"e been used by courts to e"aluate the claim: E9 a showing that the claim was
brought in good aith )9 a showing that the claim could withstand a motion to dismiss +9 a
showing that the claim could withstand a motion or summary judgment or ?9 a showing o prima
acie e"idence or all elements o the claim#D?A majority o the courts ha"e as a part o
e"aluating the strength o the claim reuired the pleading o the statements that are alleged to be
deamatory#
D>
2eyond that portion4 courts ha"e "aried in their application o the e"aluation o the
actual strength o the claim#D7-owe"er most ha"e adopted something a(in to the summary
judgment standard such as the one deined in Cahill#DB
D8 See$able $ommunications Pri"acy Act4 ?B ,#%#$# >>#
DId#
D) /leicher4supranote )?#
D+Id at 85%#
D? MaCCota4supranote D4 at D>8G>#
D> See/leicher4supranote )?4 at +>)G>?#
D7 SeeIndependent Newspapers Inc4 "# 2rodie4 @77 A#)d ?+)4 ?>?G>B 6Md# )88@9 6discussing the
"aried application o the*endritestandard and noting that what e*actly satisies the summary
judgment or prima acie standard "aries based on the jurisdiction9#
DB See MaCCota4supranote D4 at D>)# See also%olers @BB A#)d at @>? 6e*plaining that labeling
the test Esummary judgment or Eprima acie may be conusing because o jurisdictional issues
but suggesting that it is in line with the standard articulated in/rodieand Cahill9#
>
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*endritedid not include a prong that reuired the showing o a need or the inormation# Solers
enumerated such a prong directly but in cases where the deendant is the target o the unmas(ing
the necessity o unmas(ing the deendant to continue the lawsuit is selGe"ident# !his prong is also
included in the standards or unmas(ing nonGparty witnesses described later#
Finally4 a minority o courts ha"e adopted the prong that reuires balancing the First
Amendment right to the prima acie case and the showing o need#DD!his prong was not employed
in Cahill4 which the Ninth $ircuit cited as being too high o a standard or commercial speech4
and also rejected by Solers#D@
A A Standard for (nmas-in6 Anonymous Commercial Spea-er *efendants
/i"en the adoption and guidance by the courts a standard or unmas(ing an anonymous
commercial spea(er deendant should include the elements o notice4 an opportunity to contest the
subpoena4 and inally an e"aluation o the strength o the claim as deined in Solersthat includes
pleading the elements o the claim and pro"iding e"idence to o"ercome a deendant=s motion or
summary judgment# !hese prongs do not elegantly it into the Central 3udsontest4 which is the
test the Ninth $ircuit suggests it might use4 but e"aluating whether speech is misleading may
easily be subsumed into the analysis o the strength o the deamation claim# !he notice pro"ision
does not at all it into Central 3udsonbut is statutorily reuired or cable I%Ps and the concept o
notice and an opportunity to be heard is deeply rooted in our legal system#@8A showing o need is
not justiied by Central 3udsonand as e*plained earlier would not be necessary in unmas(ing an
anonymous deendant# Finally gi"en that the balancing prong would pro"ide greater protection
DD See /leicher4supranote )?4 at +7# See alsoMaCCota4supranote D4 at D>>#
D@ SeeIn Re Anonymous 0nline %pea(ers4 7 F#+d 7>+ and %olers4 @BB A#)d @?#
@8 See,#%# $0N%!# AM.NJ# H & HIH#
7
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than CahillandIn &e Anonymous Online Spea-ersarticulated a desire or less protection than
Cahilland urther gi"en the act that the prong was rejected by Solersthis element would not and
li(ely should not be included when deciding whether to unmas( anonymous deendants in
commercial speech cases#
IH# N0NGPAR!'5I!N.%%.%
A small subset o cases has dealt with the issue o corporate raud and subpoenaing nonG
party witnesses# Neither o these cases ha"e adopted the standards and protections o*endriteor
Cahill# Instead they ha"e adopted their own test as described below#
A *oe v. 9TheMart.com
In*oe v. 9TheMart.com Inc.:$the plaintis attempted to subpoena nonGparty witnesses in
lawsuit alleging raud# !he court applied strict scrutiny#@)It also asserted that in cases in"ol"ing
nonGparty witnesses the standard applied to unmas(ing the target o the subpoena must be higher
than the standard applied in Seescandy.com#@+%ince the litigation can go orward without the
presence o the nonGparty witness4 EnonGparty disclosure is only appropriate in the e*ceptional
case where the compelling need or the disco"ery sought outweighs the First Amendment rights
o the anonymous spea(er#@?!he court then adopted a ourGactor test in order to determine
whether a subpoena or a nonGparty witness would be "alid:
69 the subpoena see(ing the inormation was issued in good aith and not or any
improper purpose4 6)9 the inormation sought relates to a core claim or deense4
@ Joe "# )!heMart#com Inc#4 ?8 F#%upp#)d 8DD 65#J#5ash# )889#
@)Id#
@+Idat 8@>#
@?Id#
B
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6+9 the identiying inormation is directly and materially rele"ant to that claim or
deense4 and 6?9 inormation suicient to establish or to dispro"e that claim or
deense is una"ailable rom any other source#@>
!his test was subseuently adopted by another case in"ol"ing the subpoena o a nonGparty
witness4 Sedersten v. Taylor#@7
E. Enterline v. "ocono Medical Center
!his case not only is one or subpoenaing a third party that ailed but also allowed
the deendant to assert the rights o anonymous posters# InEnterline v. "ocono Medical
Center:12renda .nterline had iled a lawsuit against the Pocono Medical $enter alleging
se*ual harassment#@DAnonymous commenters on !he Pocono Record website made posts
that suggested they had (nowledge o the acts in the lawsuit# @@%ubseuently .nterline
subpoenaed the anonymous commenters#88!he court ruled that !he Pocono Record had
standing to challenge the subpoena on behal o the anonymous commenters and
subseuently applied the standard rom*oe v. 9TheMart.com#8!he court uashed the
subpoena#8)
@>Id#
@7 %edersten "# !aylor4 )88@ 5L ?D8)>7B4 65#J#Mo )88@9#
@B .nterline "# Pocono Med# $tr#4 +B Media L# Rep# 8>B 6M#J# Penn# )88D9#
@DId#
@@Idat 8>@#
88Id#
8Id#
8)Id#
D
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!. A Standard for Third "arty Supoenas
/i"en the small number o courts that ha"e dealt with the issue o subpoenaing third
parties they ha"e managed to remain consistent and ollow the*oe v. 9TheMart.comstandard#
!he our prongs in 9TheMart.comcould ha"e easily been satisied in the'ef-oecase that had
been cited by the Ninth $ircuit# In ci"il cases this appears to be a reasonable consensus standard
to ollow# As the court in 9TheMartnoted4 EnonGparty disclosure is only appropriate in the
e*ceptional case where the compelling need or the disco"ery sought outweighs the First
Amendment rights o the anonymous spea(er#8+2y insuring that the inormation is materially
rele"ant and can not be obtained rom any other source the court protects the First Amendment
rights o the spea(ers while balancing them against the rights o the litigants#
H# ,NMA%1IN/P0LI!I$AL%P.A1.R%
In &e Anonymous Online Spea-ershas suggested that a dierent standard apply based on
the type o speech employed by the spea(er# !his paper e*plores what (ind o standard might
apply to political speech below# It will do so by going through the ew cases that ha"e dealt with
the issue and then considering their holdings and analysis in light o the guidance gi"en by the
%upreme $ourt and the circuit courts#
A *oe v. Cahill
*oe v. Cahillis the irst state supreme court case to deal with unmas(ing an anonymous
deendant in the case o political speech on the Internet#$%4!he case arose when Joe posted
allegedly deamatory comments about Patric( $ahill4 a member o the city council in %myrna4
8+ 9TheMart.com7?8 F#%upp )d at 8@>#
8? $ahill4 DD? A#)d at ?>#
@
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Jelaware on a local news blog#8>!he $ahills wanted to bring suit against Joe or the comments
and attempted to disco"er his identity by subpoenaing his Internet ser"ice pro"ider#875hen the
ser"ice pro"ider recei"ed the reuest it notiied Joe as reuired by the $able $ommunications
Pri"acy Act#8BIn response Joe iled an .mergency Motion or a Protecti"e 0rder to attempt to
pre"ent $ahill rom disco"ering his identity# !he trial judge applied a good aith standard in
allowing Joe=s identity to be disco"ered and on appeal the Jelaware %upreme $ourt re"ersed#8D
In re"ersing the decision the court asserted that anonymous Internet speech in blogs or chat rooms
has become the modern "ersion o pamphleteering#8@!he court noted that there were a large
spectrum o standards rom which it could choose and that it was the irst state supreme court to
address the issue o unmas(ing in the conte*t o political speech online# 8It then e*plained that a
good aith standard and a motion to dismiss standard did not properly protect the right to
anonymous speech#!he court adopted the test articulated in*endrite Int#l v. ,ohn *oe$$9insoar
as the claim must be supported with acts suicient to deeat a summary judgment motion#+
%peciically it adopted the irst three parts o the test:
8>Id#
87Id#
8B ?B ,#%#$# >>#
8D $ahill4 DD? A#)d at ?>#
8@Idat ?>7#
8Id#
Idat ?>B#
) Jendrite Int=l4 Inc# "# 3ohn Joe4 BB> A#)d B>7#
+ $ahill4 DD? A#)d at ?78#
)8
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69 to underta(e eorts to notiy the anonymous poster that he is the subject o a
subpoena or application or an order o disclosure4 and to withhold action to aord
the anonymous deendant a reasonable opportunity to ile and ser"e opposition tothe application# In the internet conte*t4 the plaintis eorts should include posting
a message o notiication o the disco"ery reuest to the anonymous deendant on
the same message board as the original allegedly deamatory posting
6)9 to set orth the e*act statements purportedly made by the anonymous poster
that the plainti alleges constitute deamatory speech and
6+9 to satisy the prima acie or Esummary judgment standard#?
-owe"er the court rejected the ourth prong rom the*endritecase that reuired balancing the
First Amendment right o anonymous ree speech against the strength o the prima acie case and
necessity or disclosure#
>
In doing so the court reasoned that it adds no protection abo"e and
beyond the summary judgment test and needlessly complicates the analysis#7
. 'assa v. &on6stad
In'assa v. &on6stadthe 5isconsin %upreme $ourt decided a case in"ol"ing the
unmas(ing o anonymous Joe deendants that were in"ol"ed in publishing a political mailer that
allegedly deamed a potential candidate or state senate#B!he court chose to adopt a motion to
dismiss standard instead o the summary judgment standard used by the Cahillcourt#DIn doing
so the court noted that unli(e Jelaware4 5isconsin reuires particularity in pleading a cause or
deamation#@0ther than noting that similar to the Cahilltest a motion to dismiss in 5isconsin
?Id#
>Id#
7Id#
B Lassa "# Rongstad4 BD N#5#)d 7B+4 7B@ 65isc# )8879#
DIdat 7DB#
@Id#
)
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not satisied#)B-owe"er the Illinois %upreme $ourt rejected the*oe v. Cahillstandard and
instead adopted a motion to dismiss standard#)DIn Illinois this reuires the plainti to "eriy their
complaint and state with particularity the acts that are cause or deamation#)@!hen the
complaint is subjected to a hearing to "eriy it states all the elements o a claim or deamation#+8
Furthermore Illinois %upreme $ourt stated that a trial court may reuire the plainti to pro"ide
whate"er notice is within its power to the subject o the petition#+!he court articulated that the
motion to dismiss standard was appropriate in a act pleading jurisdiction li(e Illinois but implied
this might not be enough in a notice pleading jurisdiction#+)!his put Illinois in line with the
5isconsin court#
,. Standard for (nmas-in6 "olitical Spea-ers
/i"en the bac(ground and tradition articulated in TalleyandMcIntyre4 history suggests
that a standard de"eloped or political speech should pro"ide at least the same i not a higher
burden than a standard de"eloped or commercial speech#++'et other than in*oe v. Cahillthe
courts in these political speech cases ha"e not imposed high bars to unmas(ing# 0nly two o the
courts decided to ma(e the element o notice and an opportunity to be heard mandatory# !here
was uni"ersal agreement among the courts that a plainti must plead the particular statements that
)BIdat 7B)#
)DIdat 7B7#
)@Id#
+8Id#
+Idat 7B>#
+) SeeIdat 7B7#
++ SeeIn Re Anonymous 0nline %pea(ers4 7 F#+d 7>+4 778#
)+
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are alleged to be deamatory# 2eyond that the majority o the courts did not adopt the reuirement
that e"idence be pro"ided to deeat a summary judgment# !hese low standards may not be
appropriate gi"en the de"elopments in precedent or commercial speech considering the role and
heightened scrutiny that the %upreme $ourt has articulated or political speech#+?At a minimum
the %upreme $ourt should ollow precedent and protections laid out by the test or commercial
speech in Solers# !his is bolstered by the act that it is based on the Cahilltest which the Ninth
$ircuit implied might be a good standard or political speech#+>%ince deendants are necessary
or lawsuits to proceed the e*haustion actor would not apply here# Finally it could reuire that
rather than simply reuiring the creation o enough e"idence to create a genuine issue o material
act4 it could reuire suicient e"idence supporting each element o its claim on a prima acie
basis#+7Also implementing the last balancing prong rom*endriteto consider the importance o
the right to anonymous speech "ersus the strength o the prima acie claim would pro"ide urther
protection that is justiied or political spea(ers#
HI# $0N$L,%I0N
$ourts ha"e adopted a large spectrum o standards and principles in cases in"ol"ing
unmas(ing anonymous online spea(ers in a ci"il conte*t# !hese standards ha"e been described
and implemented dierently based on local rules and also based on the type o speech at issue#
'et the one area where courts ha"e managed to ind agreement is in the standard or subpoenaing
thirdGparty witnesses# !he courts ha"e been ma(ing some mo"ement towards a consensus
standard4 which was e*empliied by Solersbut almost ignored byIn &e Anonymous Online
Spea-ers# Finally4 regardless o what standards the courts do decide to adopt or unmas(ing
+? See id.
+> See idat 77#
+7 %ee /leicher4supranote )?4 at +>+#
)?
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anonymous deendants4 the standard or political speech should be at least slightly higher than the
standard or commercial speech#