The First Amendment Right to Anonymous Speech

The First Amendment Right to Anonymous Speech - DE Ruling as Text

By Pamela Jones
Groklaw

October 15 2005

There's an interesting First Amendment decision [ http://www.groklaw.net/pdf/266-2005.pdf ] out of Delaware Supreme Court, which is being noticed [ http://yro.slashdot.org/article.pl?sid=05/10/07/0626254&tid=153&tid=123&tid=17 ] by the press and by lawyers, John Doe No. 1 v. Cahill. At issue was anonymous speech on the Internet. A politician wanted to "out" four critics who, he claimed, had defamed him. One of them fought back. The ruling explains the setting:

The defendant-appellant, John Doe No.1, anonymously posted allegedly defamatory statements about the plaintiff-appellee, Cahill, on an internet blog. Cahill brought a defamation action. Seeking to serve process on Doe, Cahill sought to compel the disclosure of his identity from a third party that had the information. A Superior Court judge applied a good faith standard to test the plaintiff’s complaint and ordered the third party to disclose Doe’s identity. Doe appeals from the Superior Court’s order. Because the trial judge applied a standard insufficiently protective of Doe’s First Amendment right to speak anonymously, we reverse that judgment.

As you can see, the ruling speaks of a First Amendment *right* to speak anonymously.

A good faith standard requires a plaintiff to show the following, as the ruling explains: "(1) that they had a legitimate, good faith basis upon which to bring the underlying claim; (2) that the identifying information sought was directly and materially related to their claim; and (3) that the information could not be obtained from any other source." The court chose a higher standard. The article [ http://www.breitbart.com/news/2005/10/06/D8D2LHF06.html ] Slashdot linked to explains what happened:

In June, the lower court judge ruled that the Cahills had established a "good faith basis" for contending that they were victims of defamation and affirmed a previous order for Comcast to disclose the bloggers' identities.
One of the bloggers, referred to in court papers only as John Doe No. 1 and his blog name, "Proud Citizen," challenged the ruling, arguing that the Cahills should have been required to establish a prima facie case of defamation before seeking disclosure of the defendants' identities.

The Supreme Court agreed, reversing and remanding the case to Superior Court with an order to dismiss the Cahills' claims.

"Because the trial judge applied a standard insufficiently protective of Doe's First Amendment right to speak anonymously, we reverse that judgment," Chief Justice Myron Steele wrote.

The media and the ruling speak of bloggers, but actually the critics left messages on a public message board. However, the ruling applies to all Internet speech, including blogging.

The judge wrote this about why he chose a higher standard for a plaintiff to meet before the identity of the allegedly defaming defendant could be ordered revealed:

"We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously," Steele wrote. "The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."

He wrote that the internet is a "unique democratizing medium unlike anything that has come before" and equated blogs and chat rooms in some instances with the founding fathers' pamphleteering. For that reason, he held that a plaintiff alleging defamation would have to show evidence of defamation, not mere allegations, sufficient to overcome a defendant's motion for summary judgment. That is a very high standard. The judge was obviously aware that lawsuits are brought sometimes not for money or redress but as a weapon to suppress speech or to intimidate. Here is what he said about the matter:

A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics. The revelation of identity of an anonymous speaker “may subject [that speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes.” Plaintiffs can often initially plead sufficient facts to meet the good faith test applied by the Superior Court, even if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final decision. After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or retribution.
Indeed, there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has noted, “[t]he sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money.” “The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him.” This “sue first, ask questions later” approach, coupled with a standard only minimally protective of the anonymity of defendants, will discourage debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked. . . .

In a case like Ramunno where the plaintiff knows the defendant’s identity, no constitutional harm comes from allowing a silly or trivial claim to survive a motion to dismiss; the trial court can easily dispose of these cases on a motion for summary judgment. In a case like the one at bar, however, substantial harm may come from allowing a plaintiff to compel the disclosure of an anonymous defendant’s identity by simply showing that his complaint can survive a motion to dismiss or that it was filed in good faith. As we intimated in Ramunno, a summary judgment proceeding can dispense with weak or even “silly” libel cases before trial (but even then only after significant expense and anxiety to the parties). Applying a summary judgment standard to a public figure defamation plaintiff’s discovery request to obtain an anonymous defendant’s identity will more appropriately protect against the chilling effect on anonymous First Amendment internet speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass or to unmask their critics.

As you can see, this judge knows how some try to abuse the legal system.

I thought about transcribing the ruling right away, because it's a topic I consider vital, obviously, and because it is an important decision, being the first decision about protecting the anonymity of a blogger, as EFF points out [ http://www.eff.org/news/archives/2005_10.php#004038 ] in its coverage:

This is the first state supreme court to rule on a "John Doe" subpoena or to address bloggers' rights.
"Bloggers have a strong First Amendment right to speak anonymously," said Kurt Opsahl, staff attorney at the Electronic Frontier Foundation (EFF). "It is critical that plaintiffs' claims face a stringent test before a court unmasks online critics, lest we reduce the vibrant public debates on the Internet to the cautious views of a select few voices." . . .

Instead, the Court required a stricter standard: the plaintiff must (1) make reasonable efforts to notify the defendant; and (2) provide facts sufficient to defeat a summary judgment motion (i.e., submit enough evidence to show the Court that the case was strong enough to proceed to trial). The Court held that the plaintiffs had not shown that statements made by Proud Citizen met this test, in large part because they were likely to be seen by the Internet audience as statements of opinion.

EFF filed an amicus brief in the case, along with Public Citizen, the American Civil Liberties Union, and the American Civil Liberties Union of Delaware. The Delaware judge points out that anyone who doesn't like what is written about him on a blog or message board has a simple remedy: reach the same audience by writing your own comment, correcting anything you think is untrue.

So I started to transcribe it, but then I saw the decision has 78 footnotes in 34 pages, and while scholarly decisions are wonderful to read and are the kind that influence other courts, they are tedious to code in HTML, and I hand code everything. So, at first, I thought I'd just put the PDF of the ruling in News Picks and let you read it that way.

But then I saw that the Breitbart article has some misinformation which, ironically enough, makes the anonymous critic sound guilty of obscene speech, something the judge said explicitly in his ruling this anonymous defendant wasn't guilty of. I thought it would be a shame for the defendant, accused of defamation, to go down in history falsely represented in the media himself. You see, there was a message board, and a lot of things may have been said by other people, but only one, with the nym Proud Citizen, stood up and challenged the lower court ruling that their identities should be revealed to the politician. The Breitbart article explains, with the misinformation:

In a series of obscenity-laced tirades, the bloggers, among other things, pointed to Cahill's "obvious mental deterioration," and made several sexual references about him and his wife, including using the name "Gahill" to suggest that Cahill, who has publicly feuded with Smyrna Mayor Mark Schaeffer, is homosexual.

That is not accurate. If you note in the ruling, Proud Citizen did not use obscene speech in his comments, which were hardly tirades. I don't know what others did or didn't do. Proud Citizen did write "Gahill" but the judge said, quite correctly, that it could be just a typo: "Using a 'G' instead of a 'C' as the first letter of Cahill’s name is just as likely to be a typographical error as an intended misguided insult." The judge puts the two comments Proud Citizen posted in their entirety into the ruling, so judge for yourself:

The first of Doe’s statements, posted on September 18, 2004, said:
If only Councilman Cahill was able to display the same leadership skills, energy and enthusiasm toward the revitalization and growth of the fine town of Smyrna as Mayor Schaeffer has demonstrated! While Mayor Schaeffer has made great strides toward improving the livelihood of Smyrna’s citizens, Cahill has devoted all of his energy to being a divisive impediment to any kind of cooperative movement. Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration. Cahill is a prime example of failed leadership – his eventual ousting is exactly what Smyrna needs in order to move forward and establish a community that is able to thrive on its own economic stability and common pride in its town.

The next day, Doe posted another statement:

Gahill [sic] is as paranoid as everyone in the town thinks he is. The mayor needs support from his citizens and protections from unfounded attacks....
These were the only two internet postings attributed to Doe or mentioned in the Cahills’ complaint.

Does that sound like an "obscenity-laced tirade" to you? Me either.

And then I read some comments on the story on Slashdot, and I was surprised at how many people thought there was no right to anonymous speech, that you should be "man enough" to stand behind what you say by putting your name on it. So I decided to transcribe the ruling and also to explain a little about the fundamental legal principles on which the US was founded. Yes, anonymous speech is built into the US Constitution. This is a history lesson, not talking about any current events or delving into politics at all. It's about the First Amendment and how it might protect you too one day. Here's a relevant section from the ruling:

The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate. Unlike thirty years ago, when “many citizens [were] barred from meaningful participation in public discourse by financial or status inequalities and a relatively small number of powerful speakers [could] dominate the marketplace of ideas” the internet now allows anyone with a phone line to “become a town crier with a voice that resonates farther than it could from any soapbox.” Through the internet, speakers can bypass mainstream media to speak directly to “an audience larger and more diverse than any the Framers could have imagined.” Moreover, speakers on internet chat rooms and blogs can speak directly to other people with similar interests. A person in Alaska can have a conversation with a person in Japan about beekeeping in Bangladesh, just as easily as several Smyrna residents can have a conversation about Smyrna politics.
Internet speech is often anonymous. “Many participants in cyberspace discussions employ pseudonymous identities, and, even when a speaker chooses to reveal her real name, she may still be anonymous for all practical purposes.” For better or worse, then, “the audience must evaluate [a] speaker’s ideas based on her words alone.” “This unique feature of [the internet] promises to make public debate in cyberspace less hierarchical and discriminatory” than in the real world because it disguises status indicators such as race, class, and age.

It is clear that speech over the internet is entitled to First Amendment protection. This protection extends to anonymous internet speech. Anonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering. As the United States Supreme Court recently noted, “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.”

So, I did transcribe it after all, kind of fast, because I'm busy doing lots of other things, so please excuse any minor errors. But if Groklaw ever gets so busy I have no time or heart to write about the importance of anonymous speech, I might as well fold my tent and head on home. So, a little history about the First Amendment.

The founding fathers of the United States were predominantly people who came here seeking escape from religious and political persecution. Europe, you'll recall from your school days, had a long history of persecuting religious and political minorities, including by such things as torture, and on a larger scale, religious wars. I remember studying in school about England, and it seemed to me every time a new king or queen came to power, whatever the monarch's religion was, everyone else had to be that religion too, and then the next one would come to power, and if the previous ruler had been Catholic and the new one Protestant, everyone had to switch their loyalties or be persecuted. That's not an attack on Europe, and plenty has happened elsewhere before and since, including here, but those pilgrims who got on uncertain ships with all their worldly goods to seek a better life had experienced, or had relatives who had experienced, what it means to stand up for what you believe and knew what it can cost a man in an intolerant regime.

So when they got here, anonymous pamphleteering was a very popular method of publishing one's ideas, and I doubt the Revolutionary War could have happened without anonymous speech. How do you influence others if every time someone opens his mouth, he is jailed, executed, or humiliated or tortured into obedient silence?

The Federalist Papers [ http://www.law.ou.edu/hist/federalist/ ] were written anonymously, for example. One of the writers who used a pen name to contribute to the Federalist Papers, James Madison, often called the Father of the Constitution, went on to become President of the United States. Ben Franklin wrote anonymously [ http://www.time.com/time/2003/franklin/bffranklin1.html ] sometimes too. It's an American tradition, as American as apple pie. The prudent founding fathers coped with difficult times and intolerance with practical methods designed to protect a man's ability to keep speaking safely. The whole point of the Federalist Papers was to get readers to support the Constitution, and it worked.

So, anonymous speech in the US holds an honored place, some Slashdot readers notwithstanding. The very First Amendment to the Constitution says that the government has no authority to establish what is "proper" speech or to make people say things they don't believe or want to say. It was a revolutionary idea at the time, breaking completely with the European tradition.

Why did the founding fathers think this issue of anonymity was so vital they composed the First Amendment to protect speech? Here's how the Electronic Privacy Information Center Archive answers [ http://www.epic.org/free_speech/default.html#anony mity ], and I'm happy to say a thoughtful reader posted this on Slashdot:

"Anonymity is a shield from the tyranny of the majority ... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society."

From this one quotation alone, you can probably understand why I allow anonymous comments on Groklaw, despite the few that sometimes abuse it. The First Amendment applies to the government, but one can broadly apply the principle. People talk about their rights to say whatever they wish, but the true right is the right to speak honestly without being viciously attacked for it. That is the historic American tradition of free speech, that you can express your true beliefs, and there is no penalty for doing so.

The Constitution stands between the unpopular idea and any governmental entity wishing to punish anyone espousing that unpopular idea. The idea the founding fathers had is this: in a democracy, everything depends on an educated population, on a dynamic marketplace of ideas, and so protecting free expression was considered so vital, it was made a foundation legal value. They were sick of persecution and pressure to think or say anything but what they really did think or really want to say.

That foundation value comes under fire, naturally, from time to time, because some folks like to muscle other people, unfortunately. Sometimes, they use the courts to try to do that, which you'll see in this ruling, is well known to the courts. The court's job is to weigh the equities between the plaintiff and the defendant, or as the judge in this case put it, "Accordingly, we must adopt a standard that appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation." Above all else, the court's job is to hold inviolate Constitutional principles, and in this case the judge did so.

He had the opportunity to do so because one of the four accused, Proud Citizen, was willing to stand tall and defend his First Amendment right to anonymous speech. The case does not say, of course, that it is acceptable to defame. There is no First Amendment right to do so, and the ruling explains where the line is. The ruling does say that if you accuse someone of defamation, unless you have evidence to support your allegation, you can't abuse the legal system or use the courts by filing silly or trivial lawsuits just to threaten or intimidate or unmask the identify of a critic. You can file them, but they won't get very far.

Please note that I broke with my usual habit of putting all the footnotes at the end. In this case, the ruling is so long and complex, I thought it was more helpful to put footnotes on the page they are found on in the original.

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Decision [ PDF ]