Internet Law: Federal Case Law: Anonymous Speech: Two female Yale law students recently brought suit in the United States District Court in Connecticut, in Doe I and Doe II v. Individuals, whose true names are unknown, 2008 WL 2428206 (D. Conn. 2008). Through the lawsuit the students alleged that they had been defamed, threatened and harassed on the website. The problematic statements were posted on the website forum utilizing monikers, and therefore the identity of the speakers was unknown. The plaintiffs issued a subpoena duces tecum to AT&T as the Internet Service Provider for the website in order to identify the individuals utilizing those monikers.

In evaluating the motion to quash the subpoenas, the District Court noted that the “First Amendment generally protects anonymous speech,” and that such protections extend to Internet speech. The Court acknowledged that many other courts have quashed subpoenas seeking the identifying subscriber information based on First Amendment concerns and protection of anonymous speech. However, the Court specifically noted that the First Amendment right to anonymous Internet speech “is not absolute and must be weighed against [Plaintiff’s] need for discovery to redress alleged wrongs.

The Court outlined several factors to be examined in making this determination: (1) whether the plaintiff undertook efforts to notify the anonymous posters that they are the subject of the subpoena; (2) whether the exact “problematic” statements would constitute actionable speech; (3) the specificity of the discovery request and “whether there is an alternative means of obtaining the information called for in the subpoena;” (4) whether there is a “central need for the subpoenaed information to advance the plaintiffs’ claims;” (5) whether the subpoenaed party had an expectation of privacy when the online material was posted; and (6) whether the plaintiffs have made an “adequate showing” as to their claims. Notably, the Court held that the notice requirement had been met because notice of the subpoena was placed on the website itself. Moreover, the Court outright rejected other courts’ interpretations as to what constitutes an “adequate showing.” Instead, the Court adopted the threshold requirement that the plaintiffs “make a concrete showing as to each element of a prima facie case against the defendant.” Specifically, the Court noted that “[u]nder such a standard, ‘[w]hen there is a factual and legal basis for believing [actionable speech] has occurred, the writer’s message will not be protected by the First Amendment.”

Examining the statements at issue, the Court determined that the plaintiff had made such a showing and that her interests in pursing discovery outweighed the defendant’s First Amendment right to anonymous speech. Finally, the Court also denied the defendant’s request to proceed in the litigation as an anonymous party. In so ruling, the Court noted that the defendant had not made a “showing of any substantial privacy right or of any potential physical or mental harm as a result of being a named party in the litigation.”


© 2008 Nissenbaum Law Group, LLC

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