The following collection of court opinions were issued in cases where Internet speakers were sued for their online speech, or where the identities of Internet speakers were sought by subpoena. To the extent that Internet speech defendants seek to invoke these opinions for their own situations, it is important to be mindful of the fact that, especially for cases under state law, each state has different procedures and laws that must be given careful consideration.
In re 2TheMart.com, Inc. Securities Litigation
In a precedent-setting ruling, a federal court in Seattle upheld the right
to speak anonymously on the Internet. U.S. District Court Judge Thomas
Zilly quashed a subpoena seeking to force an Internet service provider to
disclose the identity of persons who spoke anonymously on an Internet
message board. The decision was the first in the country to address the
standard for compliance with a subpoena where the "J. Doe" (who used the
pseudonym NoGuano) was not a party to the case, and no allegations of
liability against Doe had been made. The court held that the identities
would not be turned over unless (1) the subpoena was issued in good faith
and not for any improper purpose; (2) the information sought relates to a
core claim or defense; (3)the identifying information is directly and
materially relevant to that core or defense; and (4) information sufficient
to establish or disprove that claim or defense is unavailable from any
other source.
Tiff File:
Dendrite International v. Doe
A software development and servicing company sued four individuals who posted critical comments on a Yahoo! bulletin board, allegedly including defamatory statements and disclosing trade secret information. The plaintiff then sought to subpoena the identities of the four defendants. Adopting the arguments advanced by Public Citizen and the ACLU of New Jersey as amicus curiae, the trial judge and then the appellate court set forth standards for judging such subpoena requests, including requirements of notice, specification of actionable statements, review of claims for legal validity, testing the factual support for the claims, and balancing the interest in anonymity against the plaintiff's interest in proceeding.
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Equidyne Corp. v. Doe
Equidyne Corporation sued several anonymous posters alleging that, in violation of their employment agreements, they posted confidential inside information on the Raging Bull and Yahoo! message boards about Equidyne. After one of the Does, Aeschylus_2000, moved to quash arguing that he was not an employee, Equidyne changed theories and argued that, by urging viewers to give their proxies to a recently announced slate of challengers for the company's board, Aeschylus has violated the SEC's proxy rules both by not disclosing his identity, his shareholdings, and similar data, and by supporting a slate that has itself not complied with the disclosure rules. The district judge agreed to apply a standard similar to the one adopted by the New Jersey courts in Dendrite v. Doe, but found that Equidyne had shown a prima facie case under federal securities laws, and that the prima facie case did not include a showing of actual damages.
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La Societe Metro Cash & Carry France v. Time Warner Cable
A French company obtained an order requiring Time Warner to identify one of its cable subscribers who had used its services to send an email accusing the plaintiff of improper business practices. The subscriber invoked her rights under 47 U.S.C. § 551, which forbids cable companies from identifying subscribers without notice and a court order, and objected to disclosure without an order from a United States court. The French company then filed a bill of discovery seeking the same information in Connecticut state court. The subscriber invoked by analogy the rulings of various state and federal courts in Internet cases, requiring that the right to obtain a remedy for defamation be balanced against the First Amendment right to anonymity. The court declined to follow the French court's order, applied a balancing test and found probably cause to believe that plaintiff had suffered damages as a result of tortious conduct by the Doe, and the requested discovery was granted.
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Marvin v. Shell
Radio host filed a defamation suit against three defendants based on their
statements about him on internet bulletin boards. The suit was brought in
federal court, with subject matter jurisdiction based on diversity of
citizenship: the plaintiff lived in Illinois, and one of the three
defendants was known to live out of state. The residence of the other two
John Doe defendants was not known. On its own motion, the Court dismissed
the action, because there cannot be any certainty that the parties are from
different states if their place of residence is not alleged in the
complaint.
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Melvin v. Doe
An anonymous online newsletter accused a Pennsylvania state court judge of
improperly lobbying the governor on behalf of a friend for a judicial
appointment. Judge Melvin sued the web site operator for libel. The John
Doe defendant argued that his anonymity should not be breached unless Judge
Melvin could prove she suffered actual economic harm from the alleged libel.
The trial court rejected this argument, but held that "plaintiff should not
be permitted to engage in discovery to learn the identity of the Doe
defendants until the Doe defendant has an opportunity to establish that, as
a matter of law, plaintiff could not prevail in this lawsuit." The Court
also said that a protective order should be entered to prevent disclosure of
defendant's identity to third parties until the plaintiff prevails in the
lawsuit. Doe recently filed a petition for review to the Supreme Court of
Pennsylvania appealing the trial court's decision to require disclosure of
Doe's identity to the plaintiff.
The Pennsylvania Supreme Court ruled that the order requiring disclosure of the defendant's name was appealable even though the case was not over. Although the case was send back to the intermediate appeallate court, its discussion of the underlying right to speak anonymously suggested sympathy with the defendant's claimed right to remain anonymous in the particular case: "in the context of this case, we find that the court-ordered disclosure of Appellantsd' identities presents a significant risk of trespass on their First Amendment rights."
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People of the State of Illinois v. Schrock
In a criminal prosecution, the defendant sought to identify the authors of postings on a message board maintained by a local internet service provider, to show the bias of certain witnesses for the prosecution by discovering whether they were the persons who had posted critical comments. The ISP objected to the subpoena on First Amendment grounds, and the court refused to enforce it.
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Recording Industry Association of America v. Verizon Internet Services
The Recording Industry Association of America served a subpoena on Verizon
Internet, invoking the Digital Millennium Copyright Act to demand that the
ISP identify one of its subscribers who, RIAA believes, is using access to
the Internet gained through Verizon to share infringing music files with
peer-to-peer software. An amicus brief from privacy advocates explains why
this subpoena procedure violates constitutional rights to anonymous speech,
privacy and due process. A separate amicus brief from Yahoo! and others
explains why the service of such a subpoena, free of any complaint alleging
that the subscriber has violated the law or any evidence of wrong-doing,
would be outside the proper functioning of a court under Article III of the
Constitution and violate due process.
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SPX Corp. v. Doe, No. 1:02cv0919 (N.D. Ohio)
SPX, a multinational company, sued an anonymous Internet poster in Ohio state court for making scathing criticisms on a Yahoo! message board. The comments, although they implied serious criminal misconduct, were phrased in highly opinionated terms. The Doe responded to the notice he received from Yahoo! by removing the action to the United States District Court for the Northern District of Ohio (the removal notice is provided below), then moving to quash (this brief is provided). The judge postponed a ruling on that motion (order is provided) based on defendant's representation that he could secure dismissal of the complaint on its face. The judge then dismissed the complaint under Rule 12(b)(6), holding that the language of the posts, coupled with the nature of the forum in which they were posted, supported the contention that they were pure opinion and hence protected by both Ohio law (which gives more expansive protection to opinion than the First Amendment) as well as the First Amendment itself. This opinion is also provided.
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