• This talk of a summary judgment standard is very misleading. How can a plaintiff show that there will be material issues of fact in dispute absent a responsive pleading? The court can decide whether a motion to dismiss would succeed, because there the plaintiff's factual allegations are assumed to be true, and the issue is whether a claim has been stated. But what possible assumptions can the court make about materiality of factual disagreement until there is disagreement? The Delaware Supreme Court opinion you cite is confusing on this point, because the Chief Justice (or perhaps a circus clown who was impersonating the Chief Justice that day) means what he says, that the plaintiff must show a prima facie case on each of the required elements to succeed at trial. That's not defeating a summary judgment motion, which requires a showing that there are no material issues of fact in dispute that must be resolved before plaintiff prevails. So what does the prima facie requirement actually require: (1) an allegation of falsity; (2) an allegation of publication; (3) an allegation of damage; and, in public figure cases, (4) an allegation of actual malice. Can the plaintiff really pass 12(b)(6) and yet somehow fail to allege sufficiently (1)-(4)? What would such a pleading look like? Of course, if he is forced to defend, the defendant will say that the statement is true, and offer to prove it; he will deny that plaintiff is damaged; and he will deny knowledge of falsity if asserted. No one knows who can or can't win a summary judgment motion until after discovery. And no defendant can undertake two-sided discovery while maintaining anonymity. So what is this nonsense actually about?

3. In cases requiring proof of “actual malice,” the plaintiff should demonstrate that the language of the challenged statement was so egregious in its nature that—irrespective of the defendant’s identity—actual malice is likely to be found.

• But that makes no sense. Proving actual malice requires a showing that the defendant knew or should have known that the defamatory statement was false. Actual knowledge cannot be shown without actual facts, and whether the defendant should have known depends on who the defendant is and what else he knew. Your reference above to "language" only confuses the issue further: "actual malice" has nothing to do with whether the expression was "egregious" or intemperate in expression--it has only to do with knowledge of factual falsity. Under your supposed rule, no plaintiff ever succeeds in unmasking any defendant.

An occasional exception-to-the-exception in Requirement #2. This is a difficult evidentiary hurdle. However, the public figures to whom it would apply should have enough credibility in the public sphere to rebut many an anonymous online critic. It is also especially important to deter “strategic,” bad-faith claims when they are being lodged by powerful figures against defendants who, absent Internet anonymity, might be unable to speak.

• I have no more sympathy for defamation lawsuits than you do, and if you had recommended taking the short way and prohibiting all defamation lawsuits everywhere on first amendment grounds I'd have been happy to agree with you. But this is supposed to be "careful law" you're recommending here, and it isn't. I think a little bit of technical reexamination and reformulation is in order.

Determining the appropriate standard for unmasking anonymous defendants in internet-defamation suits: what does the First Amendment require?

-- By SarahRogers - 28 Mar 2008

The right to speak anonymously is one of the free-speech principles most emphatically enshrined in First Amendment jurisprudence. And, the rise of the Internet has enabled millions to speak with (the perception of) an anonymity more comprehensive and conveniently maintained than ever before—offering a democratically accessible forum wherein the distinctions of age, race, gender, class, nationality and religion that inhibit our offline interactions can be effortlessly erased.

One development that has accompanied the flourishing exchange of ideas on the Internet is an increasing frequency of defamation suits against unnamed, “John Doe” defendants. As two sacrosanct rights—anonymous speech, and the right of a defamation plaintiff to redress the injurious disemmination of false facts—collide for the first time, courts have taken an interest-balancing approach to craft an evidentiary standard which a plaintiff must meet in order to obtain a subpoena identifying his adversary. Different jurisdictions have required different thresholds, ranging a mere assertion that an action is being brought in good faith (Virginia) to a standard approximating summary judgment (Delaware). My paper attemps to locate the ideal constitutional compromise.

Several considerations militate in favor of a high-burden standard. First, the general nature of Internet dialogue is that it is less inhibited, more outlandish, and more robust than terra firma speech. Many statements that would be defamatory if printed in traditional media are, therefore, likely to be interpreted by a “reasonable reader…[as] either ‘subjective speculation’ or ‘mere rhetorical hyperbole’” when they appear online. Although one response to this is that less-reliable discourse should not categorically merit heightened constitutional protection, it is also arguable that Internet be preserved as a space for a democratic and spirited (if sometimes coarse) exchange of ideas. While speculation that remains confined to the least-credible corners of the Internet is unlikely to inflict significant damage, discussion that begins there—but then gains traction and crosses over to other media—can yield benefits that would never have been realized absent an initial forum for speaking out. Many defamation claims against anonymous internet detractors conceal a David-and-Goliath dynamic, whereby a powerful entity brings suit merely in effort to unmask grassroots critics and seek extralegal reprisal against them. After defendants have been identified, these suits are often dropped.

Other characteristics of the Internet favor a low-burden standard. Unregulated and offering the illusion of unaccountability, the Internet is more conducive than traditional media to the publication of reckless and unlawful claims. The Internet is also pervasive—allowing rumors to circulate in seconds, or surface incidentally in a prospective employer’s Google search. This amplifies the damage that libelous postings might inflict and calls for an expedient means of recourse.

The best balancing of interests would, therefore, probably be served by a standard requiring the following.

1. Plaintiff must attempt to notify anonymous defendants of the intended subpoena, and allow reasonable time for them to respond. Most courts have already required this, and it serves the interests of both free speech and reputatational redress. The defendant gains extra protection because he can challenge the subpoena before his anonymity is jeaporadized. An increased likelihood of a pretrial compromise, meanwhile, benefits the plaintiff—for whom time is of the essence stemming the rapid spread of information across the Internet.

2. Plaintiff should demonstrate that its cause of action, as to each particular defendant sought to be unmasked, would survive a motion for summary judgment (except where an element of a claim is dependent on a defendant’s identity). This will discourage suits from being filed as a strategic means to unmask and silence, and mirrors high-burden standards enacted in Delaware, New Jersey, and elsewhere.

3. In cases requiring proof of “actual malice,” the plaintiff should demonstrate that the language of the challenged statement was so egregious in its nature that—irrespective of the defendant’s identity—actual malice is likely to be found. An occasional exception-to-the-exception in Requirement #2. This is a difficult evidentiary hurdle. However, the public figures to whom it would apply should have enough credibility in the public sphere to rebut many an anonymous online critic. It is also especially important to deter “strategic,” bad-faith claims when they are being lodged by powerful figures against defendants who, absent Internet anonymity, might be unable to speak.

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Footnotes (please let me know if you would like me to supply the original Word doc; these will be easier to read):_ See, e.g., Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 538 (U.S. 1960) (anonymous speech has “played an important role in the progress of mankind,” often providing an exclusive avenue for the expression of unpopular views); McIntyre v. Ohio Elections Com'n, 514 U.S. 334, 115 S.Ct. 1511 (U.S.Ohio,1995); Watchtower Bible v. Village of Stratton, 536 U.S. 150 (2002). See, e.g., Dendrite International v. Doe, 775 A.2d 756, 760 (N.J. App. Div. 2001) (Attempting to “strike a balance between the well-established First Amendment right to speak anonymously and the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendant”). In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000). Doe v. Cahill, 884 A.2d 451 (Del. 2005). Doe v. Cahill, 884 A.2d 451 (Del. 2005). See, e.g., Ben Arnoldy, “Anonymous Activists Gaining Strength Online,” The Christian Science Monitor (Mar. 17 2008). Lyrissa Barnet Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 876-877 (2000). See, e.g., Motion to Quash, Raytheon v. Does 1-21, No. 99-816 (Mass. Super. Ct. Middlesex County complaint filed Feb. 1, 1999); Rebecca Fairely Raney, “Judge Rejects Online Critic's Efforts to Remain Anonymous” The New York Times (June 15, 1999) (Raytheon sued anonymous message board posters—alleging that they had disemminated false and misleading information about the company—but dropped the suit after it identified the defendants. “John Does” who turned out to be Raytheon employees were immediately sent for “corporate counseling”). See, e.g., Ellen Nakashima, “Law Students Feel Lasting Effects of Capricious Remarks,” The Washington Post (Mar. 7, 2007). A similar rule , pertaining to political speech, was suggested in Ryan M. Martin, Freezing the Net: Rejecting a One-Size-Fits-All Standard for Unmasking Anonymous Internet Speakers In Defamation Lawsuits, 75 U. Cinn. L. Rev. 1217 (Spring 2007). No forumalation of this prong has been adopted by any court.

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