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Anonymous Speech and Civil Discovery – Toward a Unified Test?

By Joshua Koltun*

Introduction

In an earlier era, a citizen who wished to bring some matter to the attention of the public anonymously would likely to have done so by acting as a confidential source to a journalist. Perhaps she would extract a promise of confidentiality, or perhaps she would submit her information "over the transom." Today, the internet provides her with the option of directly addressing the public anonymously.

What sorts of protection does the First Amendment provide when someone upset by this anonymous speech seeks to learn the identity of that anonymous speaker by means of civil discovery? [1] The First Amendment guarantees the right to speak anonymously.[2] First Amendment rights are not absolute, so when the right to speak anonymously conflicts with a plaintiff's right to a legal remedy, the court has to figure out how to reconcile the competing rights.[3] Courts have been grappling with this question for the past decade and a half, as anonymous speech has become prevalent on the internet.[4]

Although a number of leading decisions have emerged in this area, the various jurisdictions are far from reaching a consensus on how to enforce protections for anonymous online speakers. Moreover, there are many jurisdictions without clear precedents in the area, and even in the jurisdictions with precedents there are many open questions.

One strangely influential decision by the Ninth Circuit – In re Anonymous Online Speakers – purported to synthesize all the preceding caselaw.[5] The Court reviewed the various tests that had been proposed, and classified them according to how "exacting" they were. Since the First Amendment is more protective of some sorts of speech than others, the Ninth Circuit reasoned that each of these tests should be placed on a hierarchy according to the "nature of the speech," with the most exacting test applicable to the category of speech that is most protected, and less exacting tests to less protected categories of speech.

In this article, I will argue that the haphazard multiplicity of standards is at least in part due to procedural peculiarities in many of the early precedents. I will argue that the hierarchy-of-tests approach is misguided, and that a relatively simple and uniform test can be used to protect the rights of anonymous speakers in all civil cases.

I. The mechanics of "Doe" actions

The issue generally arises when a party to litigation seeks to learn the identity of an anonymous speaker via subpoena. I use the term "party" loosely because lawsuits are often filed for the sole purpose of learning the identity of a speaker, and are not necessarily pursued to obtain any further relief than that.[6]

In many states and in the federal courts, this is accomplished by filing a "Doe" action, in which the anonymous speaker or speakers are sued with placeholder "Doe" designations, and in which the first order of business is to seek discovery of the identity of the speaker/defendants. In some states, the attorney may issue subpoenas immediately after filing the complaint. In federal court, since there is no party with whom one can conduct preliminary case management negotiations under Rule 26, the plaintiff typically petitions to allow early discovery. Some state procedures are similar. In other states, there is the possibility of seeking leave to obtain pre-litigation discovery.[7]

Typically, discovery will be sought via subpoena to the the speaker's internet service provider (ISP) or other party hosting the speech. The host may be a company that hosts blogs, for example, in which case the speaker may be the blogger that creates the blog, or it may be an anonymous speaker who leaves a comment on that blog. The comment may be on a consumer site (such as Yelp!), or on the comment section of a newspaper site, as discussed further below. Even though the user may not have given the host her name, the host may possess technical information, such as the IP address of the user's computer, from which the user may be identified.[8]

The host may be located in a different state than where the complaint is filed, and so the issue may come to a head on a motion to quash filed in the foreign state.

Whether the speaker is in a position to file a motion to quash, however, depends on whether the host has given notice to the speaker that his identity is being sought. Many of the larger ISPs and platforms will typically notify users that they have received a subpoena and give them some opportunity to move to quash before disclosing identifying information. But many hosts give no such notice before disclosing identifying information, and as a result, the speaker is effectively stripped of his First Amendment right to anonymity without ever having had any opportunity to protect that right.

Recognizing that this poses a due process problem, a number of courts have required that the plaintiff make some good faith effort to notify the speaker that the speaker's identity is being sought via subpoena, and give the speaker an opportunity to move to quash.[9] Some courts have ordered the ISP to serve such notice on the Doe defendant.[10] In cases involving copyright infringement by peer-to-peer filesharers, some courts have apparently allowed the copyright holder to seek to identify the purported infringer without requiring the ISP to give notice; one court has recently ruled that this practice is improper.[11] But whether the court is in a position to issue such an order depends on whether the rules of the jurisdiction require the plaintiff to seek leave of Court before it can issue a subpoena to the ISP. Thus countless speakers have been stripped of their anonymity without ever having had an opportunity to contest the subpoena in court.

In some jurisdictions and in some circumstances, there may be statutory requirements that an ISP or other recipient of a subpoena give notice to the anonymous user.[12]

As a practical matter, if the defendant receives any notice of the subpoena, it is usually as a result of the ISP having voluntarily adopted a policy of informing its customers of subpoenas and of not disclosing information until the speaker has had an opportunity to file a motion to quash. It would certainly seem to be a best practice to do so, given the impact on the customer's First Amendment rights. Even if such notice is given, however, it is often very difficult for the speaker to find counsel and put together a motion to quash in the limited window opened by such notice.[13]

II. Media companies/platforms seeking to protect the anonymity of commenters/users

Media companies and other platforms that receive subpoenas for the identities of anonymous commenters or users have the option of seeking to protect the anonymity of their users directly.

A. Invoking the Reporter's Privilege/Shield

The media company/platform may argue that the First Amendment reporter's privilege or a statutory reporter's shield protects the anonymity of that commenter. A number of courts have considered the question.

One question that arises is whether a commenter can be considered a "source" under a shield law. Some courts have held that commenters that purport to have knowledge of the subject matter of a news article cannot be a source, since the comments were made after the article was published.[14]

That reasoning ignores other possible ways in which a commenter may be a source. A comment on an article may provide suggestions or information that may render it a "source" for future reporting. The clearest situation is where a comment is published to Article A and Article B is later published relying in part on the comment. Even if no specific article was published as a followup to such an anonymous comment, reader comments may be encouraged precisely because of the possibility that such comments may provide ideas, suggestions or information upon which to base future reporting. Thus the overall purpose of reporters' shields supports protecting the anonymity of such commenters.[15]

Moreover, the statute may not turn on whether the the commenter is a "source." For example, in Doty v. Molnar the court quashed a subpoena seeking the identities of anonymous posters on a newspaper Web site.[16] The Montana Media Confidentiality Act is quite broad:

[N]o ... newspaper, magazine, press association, news agency, news service, radio station, television station, or community antenna television service or any person connected with or employed by any of these for the purpose of gathering writing, editing, or disseminating news ... may be required to disclose any information obtained or prepared or the source of that information in any legal proceeding if the information was gathered, received, or processed in the course of his employment or its business.[17]

The court held that the information fell within the statutory protection for information obtained or prepared by the news outlet.[18] In State v. Mead, the defendant in a criminal case sought to discover the identity of an anonymous poster to an article written by a newspaper article on the newspaper's website. The court found that based on North Carolina's Shield Law, the employee who wrote the article fell within the meaning of "journalist" and the blog posts were information which she received in relation to "newsgathering and news publishing activities."[19]

Whether a nontraditional media company or website is a proper entity to invoke a statutory reporter's privilege is a question that will also turn on the specific language of the statute.[20] Moreover, in the absence of a statute, a nontraditional media company/website may be able to persuade the court that a First Amendment newsgathering/reporter's privilege applies to its speech.[21]

B. Third party standing to assert the commenter's First Amendment rights

Even though the website/anonymous post may not fall within the protection of the reporter's shield or privilege, the media company may nevertheless assert third party standing to assert the underlying First Amendment rights of the anonymous commenter.[22]

Although some decisions upholding such third party standing have relied (at least in part) on the difficulty the commenters may face in asserting their own rights,[23] others have stated that the third party seeking such standing need not show that the speaker faces any hindrance in asserting its own rights.[24]

But whether the media company is in the best position to assert the rights of its users may depend on the circumstances.

On the one hand, media entities and other platforms have arguments that they are better suited to protect the right of anonymity than their users. Just as journalists consider any threat to the confidentiality of their sources as a threat going to the heart of journalism, many platforms (including media companies) may consider the ability of commenters to make comments anonymously essential to the free flow of information.[25] The anonymous user can invoke the "chilling effect" on other potential anonymous speakers, but this may seem somewhat abstract. By contrast, the media company can invoke the "chilling effect" with some concrete authority, and the concern may may go to the heart of its business model.

This "chilling effect" may give the media company/platform a powerful incentive to expend the necessary resources to mount an expensive battle to preserve the right to anonymity. As one court noted, the alternative is to "cast upon the anonymous speaker the potentially prohibitive cost of defending the right to anonymity. ...'The good news ... [is that] your message will be protected by the First Amendment and your identity will be protected by the court quashing a third party subpoena ... . The bad news: it may cost you tens of thousands of dollars to preserve your anonymity.'"[26]

On the other hand, as a substantive matter, a media company or other platform may not be in the best position to assert the speaker's First Amendment interests. For one thing, it may not have full information about the basis upon which the speaker made the challenged statement. Moreover, as explained below in section IV.B., the Doe defendant is in a position to waive service and appear in the underlying action, which may enable the Doe defendant to succeed in preserving her anonymity in situations in which the media company would fail. Thus where the user has the resources to mount an appropriate challenge, she may be better suited to do so directly rather than rely on the platform to do so on her behalf.

C. Protecting the commenter's ability to protect her own rights

At a minimum, the media company/platform should, if it can,[27] provide notice to the speaker that her identity is being sought by subpoena, so as to give the speaker the opportunity to intervene and assert her own rights to anonymity. The Electronic Frontier Foundation operates a referral that can assist such anonymous speakers in finding counsel. That organization, Public Citizen and the ACLU, have frequently represented the interests of anonymous speakers or have advocated the interests of such speakers as amici.

Assuming the media company/platform is in a position to provide such notice, it should resist disclosing any identifying information until the user has had a reasonable opportunity to obtain counsel and move to quash. If necessary, it should intervene and invoke third party standing for the minimal purpose of affording its users a reasonable period of time in which to obtain counsel and move to quash.

III. The most common tests for discovering the identity of an anonymous speaker

Courts have applied a variety of different tests in attempting to balance the right of a speaker to remain anonymous against the asserted rights of other claimants. In this section I will discuss common tests that have been applied where the party seeking the information is asserting (or at least purporting to assert) causes of action against the speaker. There are also a separate line of cases that have dealt with copyright infringement – specifically, peer-to-peer downloading, and a number of cases in which the Doe is subpoenaed as a witness rather than as a party. These cases are discussed in sections IV.C 2 and 3 below.

A. Motion to dismiss (plus)

Some early decisions applied what they sometimes refer to as a "motion to dismiss" test. On closer analysis, however, these courts generally required the plaintiff to show something more than a well-pled complaint.[28]

For example, in a leading case frequently cited as an authority calling for a "motion to dismiss" standard, the court required the plaintiff to (1) identify the Doe defendant "with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court," (2) "identify all previous steps taken to locate the elusive defendant," and (3) "that plaintiff's suit against defendant could withstand a motion to dismiss."[29] At the same time, however, the court analogized the requirement to the showing of probable cause in criminal proceedings, and stated that it was requiring plaintiff to "make some showing that an act giving rise to civil liability actually occurred."[30] At a minimum the court appeared to require that the facts giving rise to liability be set forth with particularity.[31]

Similarly, in another case, the court required the plaintiff to (1) satisfy the court "by the pleadings or evidence" (2) that it "has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed" and (3) that "the subpoenaed identity information is centrally needed to advance that claim."[32] Another decision, using the "motion to dismiss" test, applied the more rigorous variant set forth in Bell Atl. Corp. v. Twombly.[33]

Many jurisdictions have chosen to apply more stringent tests, however, following two leading cases Dendrite Intern., Inc. v. Doe[34] and Doe v. Cahill,[35] discussed in the next two sections. But some courts have considered and expressly declined to adopt the (more stringent) Dendrite or Cahill tests, reasoning that the existing procedural protections are sufficient, especially where local law requires defamation claims to be set forth with particularity.[36]

B. Prima facie plus "balancing of harms"

The first leading case to set out a more stringent test was Dendrite, discussed above. The court imposed five requirements. The first was a procedural requirement: (1) that the plaintiff show it had taken reasonable steps to give notice to the anonymous defendants. Substantively, the court required (2) the allegedly actionable statements be set forth with particularity, (3) the complaint must state a claim (4) plaintiff must produce prima facie evidence sufficient to support the claim, and (5) stated a further "balancing test," as follows:

the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.

Dendrite, 775 A.2d at 760-761.

In a similar and oft-cited case, Highfields Capital, the court essentially recharacterized the substantive Dendrite test as a two prong test, in which the first prong is the requirement that prima facie evidence be offered, and the second prong required the court to balance "the magnitude of the harms that would be caused to the competing interests by a ruling in favor of plaintiff and by a ruling in favor of defendant."[37]

For consistency and simplicity's sake, I will refer to this test – Dendrite's fifth and Highfield's second – as the "balancing of harms" or "balancing" test.

C. Prima facie without "balancing of harms"

The second leading case, Cahill, rejected the "good faith" test applied by the trial court.[38] The court in Cahill modified the Dendrite standard applying what it referred to a a "summary judgment" standard.[39] The first modification is relatively noncontroversial, which is that the plaintiff should not be expected to present a prima facie case on any element of his claim in which the relevant information is not within his control. Where, for example, plaintiff is a public figure, it will generally be impossible to prove "actual malice" without discovery of defendant, and thus prima facie evidence of actual malice would not be required, if plaintiff made a proper showing of the other elements of defamation.[40]

The second modification is more controversial. The court expressly rejected the need for an additional "balancing of harms," reasoning that the appropriate balancing was subsumed into the "summary judgment" standard.[41]

D. The split over whether to adopt Dendrite/Highfield's "balancing" test

Many of the decisions in the wake of Dendrite and Cahill, then, have been focused on the issue of whether to adopt this final "balancing of harms" prong.

Quite a number of courts have adopted the Dendrite standard.[42] One court has adopted the Dendrite test with the additional requirement that the plaintiff show that it is acting in good faith.[43] A number of other courts, following the reasoning in Cahill, have held that the "balancing of interests" prong is unnecessary.[44] Significantly, the leading California state court case has adopted the Cahill standard, whereas federal courts in California have adopted the Dendrite standard. [45]

The discussion is often confused, however. Some courts have cited Cahill and Dendrite in one breath as if they were precisely the same standard, and thus paper over the issue of whether there is a final balancing test.[46]

There is also some ambiguity as to whether the "summary judgment"/"prima facie" standard requires plaintiff to present admissible evidence of damages or harm. This question may depend on whether the substantive law of the underlying causes of action defines such damage as an element of the offense, as well as whether the applicable procedural law of summary judgment permits judgment to enter where plaintiff can show liability but is unable to show that it would be able to obtain injunctive or monetary relief. [47] There may be other respects in which the term "summary judgment" invokes procedural niceties in that jurisdiction that may not make sense in this context.

In the Mobilisa decision, the court gave one of the fuller explanations as to why the Dendrite "balancing" test is necessary. In that case, the trial court had applied the Cahill test, and having held that plaintiffs had made a prima facie case on the elements of the claim, ordered discovery. The Arizona Supreme Court reversed, adopting the Dendrite standard, and remanded to the superior court to apply the "balancing of interests" test. In adopting the Dendrite "balancing" test, the court explained why the test was necessary:

[w]ithout a balancing step, the superior court would not be able to consider factors such as the type of speech involved, the speaker's expectation of privacy, the potential consequence of a discovery order to the speaker and others similarly situated, the need for the identity of the speaker to advance the requesting party's position, and the availability of alternative discovery methods. Requiring the court to consider and weigh these factors, and a myriad of other potential factors, would provide the court with the flexibility needed to ensure a proper balance is reached between the parties' competing interests on a case-by-case basis.[48]

E. The Ninth Circuit's troublesome synthesis of the caselaw into a hierarchy of tests that turns on the "nature of the speech."

In In re Anonymous Online Speakers, the Ninth Circuit issued an influential opinion that purported to synthesize the preceding caselaw.[49] The case arose out of a dispute between two multi-level marketing companies. One company sought discovery to learn the identity of certain anonymous posters who had disparaged the company, believing them to have acted as agents of the other company. [50]

The court reviewed the various anonymous speech precedents up to that date, noting that they fell onto a spectrum from least "exacting" to most "exacting."[51] The least exacting was the "motion to dismiss" standard, the highest protection being a "prima facie" test, and other courts being "somewhere between" these highest and lowest tests.[52] The court did not, however, venture to determine whether any of these precedents had been wrongly decided. The court held that, since the district court had applied the "most exacting" test, and had nevertheless determined that the identity of the anonymous posters should be disclosed, the district court had not committed "clear error" and should therefor be affirmed.[53]

The court could simply have ended the analysis there, but it went on to comment that it was inappropriate to apply the most "exacting" test to the speech at issue. The most exacting test, in the view of the court, should be reserved for "political" speech, whereas the speech at issue was not "expressly political speech but rather speech related to the non-competition and non-solicitation provisions of [certain] commercial contracts." The court reasoned that "commercial speech should be afforded less protection than political, religious, or literary speech."[54] And the Court noted that there were categories of speech even less favored, such as "fighting words and obscenity."[55]

In the case before it, however, the court determined that there was no need to decide whether the speech at issue "constitutes commercial speech under the Supreme Court's definition," because the District Court had mistakenly applied a test even more favorable to the anonymous speakers and nevertheless determined that they should be stripped of their anonymity.[56] But the court issued what amounted to an advisory opinion that – in future cases – adjudicators should look to the "nature of the speech" in determining which standard to apply, with the most exacting standards for the category of speech that is accorded the most value under the First Amendment, and less exacting standards as one descends the hierarchy of First Amendment categories.[57]

Dictum or not, the Ninth Circuit's analysis has been followed by many courts, both within and outside the Ninth Circuit. But calibrating the panoply of existing standards based on the "nature of the speech" has proven troublesome. For example, the Anonymous Online Speakers decision itself assumes that there is some category of speech that may not meet the Supreme Court's definition of "commercial speech," but nevertheless is still "commercial" in some sense and thus falls short of the sort of "political" speech that is entitled to the most "exacting" protection of anonymity. What test should apply to this speech, and is it the same as that speech which does meet the Supreme Court's definition? [58]

Similarly, the court listed "motion to dismiss" cases as being at the bottom of the hierarchy, and then noted that there were tests in between, including the 2theMart test (discussed below in section IV.C.2), which has been applied when the Doe is a witness rather than a defendant.[59] But no explanation is given why anonymous witnesses, who are not accused of wrongdoing, should be subject to a less "exacting" test than those who have been so accused, and in fact may be guilty of wrongdoing.

But the problem is not simply that the hierarchy has been imperfectly defined or fine-tuned. More fundamentally, the problem is that the premise of the entire decision is misguided. There is no reason for courts to use different tests for different categories of anonymous speech.

It is true of course, that government regulation of political speech is subject to more exacting scrutiny than regulation of commercial speech. But these First Amendment considerations are already subsumed in the substantive law that is placed at issue in any given litigation. To apply another hierarchy of protections beyond what is already contained in the substantive law is double-counting. As the court in Anonymous Online Speakers itself noted, "as long as commercial speech is about lawful activity and is not misleading, it is protected." [60] Yet, according to the decision, truthful commercial speech that is entirely protected by the First Amendment is subject to less protection of anonymity than political speech, even though some political speech is not protected. Why should that be?

To see the convolutions that the nature-of-the-speech hierarchy causes, consider SI03, Inc. v. Bodybuilding.Com, a subsequent unpublished decision in which the Ninth Circuit and the District Court tried to apply Anonymous Online Speakers.[61] The case involves a bulletin board devoted to bodybuilding on which commenters discussed, among other things, various nutritional supplements. Plaintiff, a nutritional supplement company, sued various anonymous commenter Does and various Doe companies for defamation, alleging that the disparaging comments by the Does must have been made by agents of its various competitors in the nutritional supplement industry.[62]

The district court had applied a prima facie test and denied discovery of the Does' identities.[63] This, the Ninth Circuit held, was error. According to the Ninth Circuit, the Cahill standard was appropriate only if the speech was "political" and not "commercial."

To characterize the speech at issue here, we must know the true identities of the speakers. If the pseudonymous speakers indeed work for SI03's competitors, there is good reason to suspect that their harsh criticisms were intended to promote other, competing products, many of which are discussed in the messages SI03 has identified. In that case, a less-protective disclosure standard for commercial speech may be appropriate. ...But if these speakers are not agents of SI03's competitors, then the substance of these comments alone do not suggest that the speech is "commercial" in nature. It is not enough simply that the criticisms pertain to SI03's commercial practices.[64]

Of course we cannot know whether the speakers are agents of SI03's competitors unless and until their true identities are revealed.[65]

But this is circular. The speaker may be fully entitled to protect her anonymity, but how much protection she is entitled to depends on the nature of her speech, and one cannot know the nature of her speech unless one knows who she is, therefore, she must be stripped of her anonymity.[66]

To be sure, the Court indicated that the identity of the speakers should only be disclosed under an "attorneys only" protective order.[67] And in fact, the District Court on remand managed to avoid forcing the disclosure of the Does' identities at all, after engaging in a round of briefing with anonymous declarations in which the Doe's denied having any commercial interests in the industry.[68]

But what purpose did that inquiry serve? Keep in mind that the cause of action here was for defamation. In the course of applying the prima facie standard, the district court ruled that the statements at issue were statements of opinion rather than actionable statements of fact.[69] Thus, plaintiff had no cause of action to pursue, and this was true whether the speech at issue as "commercial" or "political" or anything else.[70]

There was no reason why the district court should not have simply applied the prima facie test without regard to the "nature of the speech." To see why that is so, consider the alternative scenario. Imagine that immediately upon filing of this lawsuit, the Does had filed a motion to quash together with a motion for summary judgment, on the grounds that the statements at issue were constitutionally protected opinion rather than statements of fact. Plaintiff opposes the motion and moves under Fed.R.Civ.P. 56(d) to learn the identities of Does. The court should certainly deny the discovery. The question of whether the statements are factual in no way turns on Doe's identity, and thus, Doe's identity is not "essential" to defeat the motion. Fed.R.Civ.P. 56(d).

The Ninth Circuit's hierarchy of tests adds unnecessary complexity and needlessly diminishes the rights of speakers. In the next section, I will set out an alternative test.

IV. Toward a unified test?

A. The procedural peculiarity of the dispute over "balancing the harms"

To understand my proposed unified test, it is useful to examine the somewhat empty debate between the courts over whether to adopt the final "balancing of the harms" prong.

A curious feature of the debate between the Dendrite/Highfields and Cahill tests is that it has occurred in a sort of a vacuum, making it difficult to discern what the "balancing of harms" really means.

One peculiarity is that in nearly all of the cases, the plaintiff failed to present prima facie evidence in support of its claim.[71] Thus the discussion whether to adopt Cahill or Dendrite was dictum – it was irrelevant to the court's disposition of the case before it. A striking example of this is the Brodie decision, in which the majority opinion adopted the Dendrite test, while a minority of justices advocated adoption of the Cahill test, but nevertheless concurred in the result, since adoption of the "balancing of interests" prong made no difference in the case.[72]

Similarly, a Washington court, applying the Cahill test, upheld the quashing of a subpoena because plaintiff had failed to present a prima facie case, but specifically reserved the question whether a further balancing prong might be needed in future cases.[73]

As a result, the courts have only rarely had any opportunity to flesh out, in any practical way, how the courts should apply the balancing of harms test.[74]

Another peculiarity is that the the anonymity issue has almost always been decided prior to service of the complaint. In some cases, Doe never appears at all, and her interests were represented by third parties, amici or both. [75] In other cases the court sua sponte considered the interests of Doe.[76] In other cases, the subpoena concerned an action filed in another state, and thus although Doe appeared to oppose the subpoena, that appearance did not constitute an appearance in the main action in the other state.[77] In other cases, even though the complaint and subpoena were filed in the same jurisdiction, Doe had only appeared on a motion to quash the subpoena and not (at least so far is reflected in the published decision), in the action itself. From a procedural standpoint, Doe has only made a a "special" appearance only, and has not made it clear that he is amenable to process. Thus, it appeared that plaintiff needed to learn Doe's identity in order to be able to pursue his case any further.[78]

This sheds important light on the decisions that have followed Cahill in rejecting Dendrite/Highfield's final "balancing" test. Where plaintiff has not yet been able to serve the complaint, he has a powerful argument that he should be required to do no more than make out a prima facie case, because otherwise he has no means of proceeding to vindicate his potential right to a judicial remedy. The decisions rejecting the Dendrite final balancing test have often specifically relied on plaintiff's inability to proceed any further.[79]

Indeed, some cases may be read as limiting the rejection of the final balancing test to the circumstance in which "it is clear to the court that discovery of the defendant's identity is necessary to pursue the plaintiff's claim."[80]

The vast majority of the cases have involved one or the other of these special circumstances, and often both of them.

B. Stronger protections for anonymity where Doe appears in the action to defend on the merits

Since most of the cases in the debate over "balancing harms" have involved special circumstances, let us consider two cases in which those special circumstances did not apply. These cases show concrete examples in which the courts determined anonymity can and should be protected, even where plaintiff can present a prima facie case.

Ordinarily, the consequence of surviving a summary judgment motion is that the "survivor" gets to live another day and continue to pursue his case. But the implicit – and false – assumption of many of these anonymity decisions is that there are only "two alternatives, (1) that the subpoena should be quashed and [plaintiff's] case dismissed, or (2) that the subpoena should not be quashed and the case should proceed with Doe['s] name on the complaint."[81]

To be sure, where Doe "specially" moves to quash and declines to accept service or appear in the action, these would appear to be the only two options available to the court. But Doe need not present the court with that stark choice. Alternatively, she can eliminate this false dichotomy by accepting service and appearing to defend the underlying case.

This was the tactic used by defendants in Art of Living Foundation v. Does,[82] where Doe defendants moved to quash the subpoena, but they also waived service, appeared in the action, stipulated to certain facts (for example, that Doe had posted the documents that were alleged to be copyrighted or trade secrets), and submitted to discovery, albeit resisting discovery as to their identities. The court recognized that, as a result, the circumstances of the case "differ[ed] significantly from those in which discovery as to an anonymous defendant's identity was necessary in order to effect service."[83] "In fact, this case appears to be unique among the relevant body of case law in that [Doe] has not only appeared through counsel and filed numerous dispositive motions, but also propounded and responded to interrogatories and requests for production."[84]

The task "resemble[s] the preliminary injunction inquiry, which requires the court to 'balance the competing claims of injury and ... consider the effect on each party of the granting or withholding of the requested relief.'"[85] This balancing could be reassessed at various junctures in the proceeding.

Significantly, the court in Art of Living assumed, without deciding, that plaintiff would be able to make out a prima facie showing of copyright infringement, and resolved the case solely under the Highfields "second prong" balancing of harms test.[86] At the time it adopted that test, the two Doe defendants had pending dispositive motions. But one of the Doe defendants (known by the pseudonym, "Skywalker"), subsequently lost his dispositive motion, the Court ruling that plaintiff had made a prima facie showing on one cause of action (trade secret).[87] Nevertheless, Skywalker was allowed to take the trade secret claim to trial without disclosing his identity, because his identity was not relevant to that claim, and thus, plaintiff had not shown what its interest was in discovering his identity before trial.[88] (The case settled before trial).

In Signature Management Team v. Doe, the court took Art of Living one step further. In that case, Doe had followed the same tactic, accepting service and appearing in the action.[89] Doe was a critic of multimarketing companies such as plaintiff, and in the course of extensive criticism of plaintiff had posted a copy of plaintiff's copyrighted work on the internet, but had removed it promptly upon learning of plaintiff's claim.[90] The trial court applied the "balancing of the harms" test of Art of Living and allowed plaintiff's attorneys, under an "attorneys only" protective order, to learn the identity of Doe.[91] Plaintiff was not only able to present a prima facie case of copyright infringement, plaintiff actually obtained summary judgment against Doe, defeating Doe's defenses of fair use and copyright misuse.[92] But Plaintiff failed to obtain any ongoing injunctive relief or monetary damages, in effect only obtaining a declaration that Doe's past action constituted infringement and an injunction (which Doe had satisfied) to destroy any copies of the work.[93] The trial court entered judgment against Doe but declined plaintiff's request to identify Doe in the judgment.[94]

Plaintiff appealed the failure to name Doe in the judgment, arguing that it had an absolute right at this point in the proceeding to learn the name of the person against whom judgment was entered. The Sixth Circuit rejected that argument, reasoning that although there was a presumption in favor of such disclosures, that presumption could be overcome by balancing a number of factors.[95] On remand, the trial court applied these balancing factors and declined to disclose Doe's identity.[96]

C. A proposed unified test

The Art of Living and Signature Management Team point to the possibility of a unified test for civil discovery of anonymous speakers, one that can be applied as part of the court's ongoing case management at a number of appropriate junctures as the case proceeds from an initial phase through discovery to trial and judgment.

1. First prong: plaintiff must show that it has a cognizable interest that will be prejudiced at this stage in the proceedings unless it learns Doe's identity

The first prong of the unified test is that plaintiff must show that it has a cognizable interest that will be prejudiced at this stage in the proceedings unless it learns Doe's identity. To understand how such a test would play out, consider a number of possible scenarios in which plaintiff fails to show a cognizable interest in learning the identity of Doe.

Scenarios in which plaintiff cannot meet the first prong

Scenario 1: Plaintiff cannot present a prima facie case

The first scenario is essentially that which has been presented in the vast majority of cases. In those cases, Doe (or a proxy) argues that plaintiff cannot present a prima facie case even on those elements as to which plaintiff has control of the relevant information. Both the cases following Dendrite/Highfields, and those following Cahill, agree that in this circumstance plaintiff has failed to show that it has a cognizable interest that would be prejudiced if plaintiff cannot discover Doe's identity.

This argument can be presented solely on a motion to quash (as has happened in most cases). Alternatively, Doe can waive service and combine the motion to quash with a summary judgment or SLAPP motion.

Consider a variant of this scenario, in which plaintiff claims that there is information outside of its control that it needs in order to present a prima facie case, but that information does not involve Doe's identity. In this situation, if Doe has appeared in the action, there is no reason why plaintiff cannot take discovery of the missing information. For example, plaintiff may contend that it needs to know how many viewers visited the offending post – to establish damages, or to negate fair use. This is information that Doe (or her ISP/platform) can disclose and document without identifying Doe.[97] If, at that point, plaintiff cannot present a prima facie case, the case should be dismissed as a matter of ordinary procedure and there is no need to learn Doe's identity.

Scenario 2: Discovery can be conducted in a manner that preserves Doe's anonymity without prejudicing Plaintiff

In the same vein, even if Doe's identity is relevant to some material disputed issue in the case, the trial court may very well be able to manage discovery so that it may both protect both Doe's anonymity and avoid prejudice to plaintiff, for example by issuing protective orders.[98]

The trial court should carefully consider restricting discovery (or access to discovery) because to treat the matter as an ordinary discovery dispute under Rule 26 "fails to give sufficient weight to the First Amendment interests at stake."[99] The trial court must determine whether plaintiff's "interest in obtaining the disclosures ... is sufficient to justify the deterrent effect . . . on the free exercise . . . of [the] constitutionally protected right."[100]

Such protective orders need not be limited to the summary judgment phase, but might in some circumstances apply at trial as well, if Doe's identity is not essential to any disputed issue.

Scenario 3: Defendant can show she is entitled to an affirmative defense

Imagine that the anonymous speaker is alleged to have defamed the plaintiff, but there is no genuine dispute of fact that the speech at issue took place prior to the relevant statute of limitations. Thus, although plaintiff has made out a prima facie claim, it has no right to judicial relief against the defendant. Without the "second prong" balancing test, the plaintiff could learn the identity of a defendant even though it had no legally cognizable claim.[101]

Scenario 4: Doe's identity is not material to any disputed issue of fact

Even where plaintiff can survive summary judgment, that would not necessarily show that Defendant has any right to learn Doe's identity. The question should be whether there is any disputed issue of fact as to which Doe's identity is relevant.

Consider the hypothetical situation posed by the court in Cahill, discussed above. The public figure plaintiff presents a prima facie case of defamation on all elements except actual malice. That is the equivalent to showing, under Rule 56(d), that certain information in the defendant's control is "essential" to plaintiff's claim.

To be sure, it would be unjust to require plaintiff to present evidence of defendant's actual malice and at the same time deny him the opportunity to take discovery of defendant. But perhaps defendant is quite confident that he can prevail on the issue of falsity. In that event defendant might be willing to waive his right to present the potential defense of actual malice. In that case plaintiff will not be prejudiced if he is forced to proceed to trial without learning defendant's identity.[102] Alternatively, the trial court might bifurcate the proceedings and only require trial on the issue of actual malice if and when plaintiff establishes falsity.[103]

Indeed, this precise scenario played out in later proceedings in the Art of Living case. The only claim in the case to survive dispositive motions was a trade secret claim. Defendant did not dispute that he had published the alleged trade secret, but he denied that it was a trade secret. Plaintiff had presented prima facie evidence that it was a protectible trade secret, so the matter was set for trial. But the District Court allowed Doe to go to trial anonymously. Plaintiff had not shown that it would be prejudiced, because defendant's identity had no relevance to any disputed issue of fact.[104] Indeed, there was no disputed issue of fact as to which Doe's testimony was needed, and thus no need for the factfinder to evaluate his demeanor.

Scenario 5: Plaintiff's purported need for Doe's identity is based on a conjectured set of facts that may prove to be untrue

Consider the following scenario. Plaintiff alleges a set of facts which, if true, might support a legal claim, but which, if not true, do not. The following fact pattern is actually quite common. A restaurant garners quite a few anonymous negative reviews on an internet review site, such as Yelp. If the restaurant sued Doe commenters for defamation, the case would be dismissed on the ground that the statements were constitutionally protected opinion. So instead the restaurant sues Doe "competitors" for unfair competition. The restaurant alleges, on information and belief, that the reviews were not genuine reviews written by actual patrons of the restaurant but rather were fake reviews planted by its competitors.[105]

Should the court allow discovery of the identity of the reviewers? If, in fact, the restaurant's purported "belief" is correct, it might have a valid legal claim. But if not, the restaurant will have hijacked the court's discovery process to learn the identity of actual patrons who had every right to maintain their anonymity, and may not wish to be harassed into taking down the negative reviews.[106]

One legitimate response by a court in this situation would be to deny plaintiff the requested discovery on the ground that its "belief" that the reviews are "fake" is mere speculation.[107]

Alternatively, if the Court finds that plaintiff has a substantial basis for its "belief," the Court has discretion to require that any discovery take place subject to an attorneys-only protective order.[108]

Indeed, it would be unfair – and would invite abuse – not to at least impose such an attorneys-only restriction. Otherwise there is an an easy path to evade the First Amendment protection of anonymity. For a plaintiff can always claim that its anonymous critic is actually a competitor masquerading as a dissatisfied customer.

Scenario 6: Some of Doe's speech is determined to be legally actionable, but Plaintiff is not entitled to any judicial remedy that requires him to learn Doe's identity

Nor does the balancing of rights necessarily shift in favor of plaintiff upon a judicial determination that some portion of the defendants' speech was legally actionable. Consider the following scenario. Defendant anonymously criticizes Plaintiff. Plaintiff sues for defamation, alleging that statements A through Z are defamatory. Defendant removes statement Z, but retains statements A through Y. Defendant defends the entire case on the ground that none of the twenty-six statements were false. The jury determines that the only statement that was false and defamatory was statement Z.

It does not necessarily follow that the defendant must be stripped of his anonymity. On the First Amendment side of the ledger, defendant has made twenty-five criticisms of plaintiff, all of which are fully protected by the First Amendment. To reveal his identity will still irreparably harm defendant, and still have a chilling effect on public discourse.

The court must consider what judicial relief to award, and then, in awarding that relief, determine whether the relief granted to plaintiff requires stripping defendant of his anonymity to be effective. On plaintiff's side of the ledger, its putative need to learn defendant's identity turns on two questions. First, to what judicial relief, if any, is Plaintiff entitled? Second, can that relief be crafted in such a way that it does not prejudice defendant's anonymity?[109]

A determination by the jury that statement Z is defamatory would not necessarily mean that plaintiff would obtain either monetary damages or any form of judicial relief.[110] If plaintiff obtains no relief, it will not be prejudiced if Doe continues to remain anonymous. This was the situation in Signature Management Team. [111]

But even if plaintiff obtains a monetary judgment, it doesn't necessarily follow that plaintiff is entitled to learn Doe's identity. Assume that the jury awards a thousand dollars in damages (or a million). Plaintiff would argue that he needs to know Defendant's identity to enforce the judgment. But Defendant protests – he is willing to pay off the judgment on the spot with a cashier's check. Surely the trial court has the discretion to permit him to do so, and to declare the judgment satisfied.[112] Alternatively, the Court could allow the defendant to pay within some reasonable time period, while preserving his anonymity.

2. Second prong: if so, are plaintiff's interests outweighed by Doe's interests in preserving her anonymity?

Under my proposed test, the court would proceed to the second prong only once plaintiff has shown that it has a cognizable interest in learning Doe's identity at that stage in the proceedings. In that event, the Court should balance plaintiff's interests against the interests of the speaker in preserving his anonymity.

I should first explain why I contend that this should be a two-prong test rather than a general balancing test – i.e. one in which in every case plaintiff's interest is balanced against that of defendant. The reason is that the First Amendment creates a baseline right to speak anonymously, and so this is a presumption that plaintiff needs to overcome. [113] Essentially all the precedents share this assumption, but differ as to what the threshold showing should be.

My argument in the preceding section was that this presumption should never be overcome where plaintiff cannot show that he has a cognizable interest in learning Doe's identity. But what if plaintiff can show such a cognizable interest, but it is de minimis? Are there First Amendment interests that might outweigh even a cognizable interest?

Consider first the defendant who can make an affirmative showing of a credible fear of harassment or persecution, perhaps because her ideas are unpopular, or because the person or entity she is criticizing has shown some tendency to intimidate or harass.

There is a well-developed caselaw in which the Courts have granted anonymous plaintiffs the right to proceed with their lawsuits anonymously after making an appropriate showing of a credible concern about harassment or other detrimental effects.[114]

The reason that the courts have required plaintiffs to make such an affirmative showing, but generally have not imposed that requirement on anonymous defendants or (witnesses) is that the plaintiff is voluntarily invoking the jurisdiction of the court in order to obtain a judicial remedy, whereas the defendant has been involuntarily haled into court against her will.[115] But although such a showing is not a prerequisite to the protection of a speaker's anonymity,[116] where such a showing can be made it is certainly something the court should weigh in the balance.[117] Moreover, privacy interests less weighty than those that were deemed sufficient in the context of anonymous plaintiffs might at least warrant consideration when shown by anonymous defendants.[118]

Moreover, even where Doe has made no affirmative showing of a special personal privacy concern, the court should always consider the potential chilling effect on other anonymous speakers.[119] To some extent this chilling effect is present in every anonymity case, which buttresses the rationale for the presumption on which the first prong of this test is premised. But where Doe can make an affirmative showing of a heightened chilling effect, that should weigh in the balance against disclosure.[120] This is analagous to the reporter's privilege. Courts may recognize the privilege even in the absence of an affirmative showing of a promise or expectation of confidentiality, but where a promise of confidentiality and reliance thereon is affirmatively shown, that weighs in favor of the privilege.[121]

The issue whether exposing defendant's identity will have a chilling effect is not necessarily negated if some of defendant's speech is held to be actionable, because defendant may also have participated in a significant amount of non-actionable speech.[122]

One situation presenting a powerful argument for a countervailing First Amendment interests is when the subpoena seeks the identity of an anonymous third party witness rather than an anonymous defendant. For whatever the interest shown by plaintiff, the witness has not even arguably committed any wrongdoing, and thus has done nothing that might waive her interest in maintaining her anonymity. This too, is directly analogous to the reporter's privilege, in which the law recognizes that the journalist called as a witness has a stronger claim to maintain the confidentiality of her sources than a journalist called as a party.[123]

In Doe v. 2theMart, a leading case concerning subpoenas to third party witnesses, the court applied the following balancing test, which bears some similarity to the a reporter's shield test:

(1) the subpoena seeking the information 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 claim or defense, and

(4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.[124]

So long as this test is interpreted stringently, it is compatible with, and might be subsumed into the two-prong test I am proposing here.

With respect to the first prong, an anonymous witness (like the anonymous defendant who waives service and appears), is not preventing the party seeking discovery from otherwise proceeding with his case. Thus the question whether the witness need be identified is one that might be revisited at various junctures in the proceeding. At a minimum the party seeking discovery should make a prima facie showing on its claim or defense on all elements as to which the witnesses information is not needed. In this sense, the requirement that the information sought be "directly and materially relevant" corresponds to the requirement that the person seeking to take discovery to defeat a pending summary judgment motion show that the information sought is "essential" to defeating the motion.[125] But even once that showing has been made, it does not necessarily follow that the subpoenaing party will be prejudiced if it cannot learn the identity of the witness.

As to the second prong, as noted the anonymous speaker witness has a particularly strong case to be made that disclosing her identity will have a chilling effect on other anonymous speakers. Thus the interest shown by the subpoenaing party must not only be technically cognizable, it must be particularly weighty. 2theMart's requirements that the claim be a "core" claim, and that the information is unavailable from any other source, are two criteria by which to weed out less weighty interests.[126]

At a minimum, where the subpoenaing party can make such a showing, the court should make use of whatever means it can to limit the intrusion on the witness' anonymity. This might include, for example, an "attorneys only" protective order, or an order that discovery be limited to interrogatories or written depositions.

3. Hypothetical application: downloading cases

There is a category of cases, on the other hand, in which the First Amendment interest appears to be low – the peer-to-peer copyright downloading cases. There are literally hundreds of these cases, all of them denying motions to quash, relying on the leading decision, Sony Music Entm't Inc. v. Does.[127] These cases tend to arise on an identical set of facts (the Doe is alleged to be mass-copying music or films, by means of a peer-to-peer network). Indeed, some courts appear to have adopted a standard cut-and-paste template decision for downloading cases.

In Sony Music, the court synthesized the existing precedents into an omnibus balancing test:

Cases evaluating subpoenas seeking identifying information from ISPs regarding subscribers who are parties to litigation have considered a variety of factors to weigh the need for disclosure against First Amendment interests. These factors include: [i] a concrete showing of a prima facie claim of actionable harm, see Seescandy.Com, Dendrite, 775 A.2d at 760 [ii] specificity of the discovery request, Seescandy.Com, 185 F.R.D. at 578, 580; Dendrite, 775 A.2d at 760; [iii] the absence of alternative means to obtain the subpoenaed information, see Seescandy.Com, 185 F.R.D. at 57efs9; [iv] a central need for the subpoenaed information to advance the claim, America Online, 261 Va. 350, 2000 WL 1210372, at *8; Dendrite, 775 A.2d at 760-61; and [v] the party's expectation of privacy.[128]

The Sony decision was cited with approval by the Second Circuit in another case involving music downloading, Arista Records, LLC v Doe.[129]

The Sony Music/Arista test has been followed in numerous cases, but almost every case involves identical facts. This is due to the unfortunately widespread phenomenon of sharing copyrighted files using "Peer-to-Peer" (P2P) file sharing. P2P technology enables a community of users to share their favorite music (films, etc.) through a decentralized network of computers.[130] Given the peculiar set of facts presented in these P2P file sharing cases, the decisions uniformly (and appropriately) reach the same conclusion as the court in Sony Music, which is that the identity of the P2P file-sharing defendants should be disclosed to the plaintiffs.

The Sony Music omnibus test bears some resemblance to the unified test that I propose. It is worth considering the factors that led the court in Sony Music (and progeny) to determine that disclosure of the Doe's identities was necessary.

Significantly the Sony Music court recognized that there was at least some value, from a First Amendment perspective, in the expressive act of downloading and sharing one's favorite music. (In other words, the copyright infringement itself has no First Amendment value but the implicit indication by the sharer of what music is worth copying has some expressive value).[131] The interest may have been minimal, but the court deemed the downloaders to be "speakers" in this minimal sense.

Turning to the first prong of my proposed test, the significant thing is that these are pre-service cases, in which the defendant has not agreed to accept service or appear in the underlying copyright action.[132] The court reasoned that since the copyright holder could not proceed with its case at all unless it identified the file-sharing defendants, it had a "central need" for the identifying information. In other words, plaintiff had shown a cognizable interest that would be prejudiced if it were not permitted to learn Doe's identity.[133]

To understand how my proposed "unified" test might play out differently, consider the following scenario. Doe is accused of downloading plaintiff's copyrighted videos. She moves to quash, but she also waives service and appears in the action through counsel. Moreover, she doesn't contest liability. She submits an affidavit that she is terribly sorry, she has disabled and deleted his peer-to-peer software and everything she ever downloaded, and is willing to pay statutory damages, even willful damages if the court determines that such damages are warranted.[134]

This presents a more difficult case under my proposed test. The need to serve Doe has been removed by her waiver of service and appearance. Thus, at least in the initial phases of the case, there would not appear to be a pressing need for the plaintiff to learn her identity. Plaintiff's best chance at prevailing might be to argue that it is entitled to an injunction against future infringement, but, depending on the facts, it might not be able to obtain one.[135]

Assuming for the moment that plaintiff can show prejudice to a cognizable interest in learning Doe's identity, let us turn to the second prong of the test. Certainly the First Amendment interest in the "expressive value" of Doe's preferences among videos is of minimal value, so it may seem unlikely that this interest might outweigh plaintiff's interest. [136] But let us add a fact. The videos at issue were pornographic. This of course doesn't add anything to the First Amendment value of Doe's "expression." But it raises a different sort of privacy interest: in avoiding the (potentially) embarassing disclosure of the fact that she watches pornography. Indeed, a number of courts in the pornography downloading context have expressed the concern that these cases might be a means of extracting extortionate payments to avoid the embarrassment of the defendants, and have imposed various protective measures to counteract that possibility.[137]

It would certainly seem that at least in some downloading cases, a court might rule that plaintiff is entitled to a money judgment for statutory damages, but at the same time protect the anonymity of Doe, conditioned on her paying the judgement.

Conclusion

As media and technology continue to evolve, fights over the First Amendment right to speak anonymously will be as important to the free flow of information and opinions as fights over reporters' sources have been in the past. I hope the foregoing discussion may shed some light as to how we might protect that right.


Notes

*Joshua Koltun is a First Amendment attorney in San Francisco. (www.koltunattorney.com). He has represented anonymous speakers in a number of cases, including the anonymous defendants in the Art of Living Foundation and the Signature Management Team cases mentioned here. He also advises media companies and internet platforms on issues related to subpoenas and search warrants for the identities of anonymous speakers.

[1] Interesting issues are also raised in the context of criminal proceedings, but these are beyond the scope of this article. See, e.g., In re Grand Jury Subpoena, No. 16-03-217 (United States v. Glassdoor, Inc.), 875 F.3d 1179 (9th Cir. 2017).

[2] Buckley v. American Constitutional Law Found, 525 U.S. 182, 197-99, 119 S.Ct. 636, 645-46, 142 L.Ed. 2d 599, 609-10 (1999); McIntyre v. Ohio Elections Comm., 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed. 2d 426 (1995); Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed. 2d 559 (1960).

[3] One court has reached the surprising conclusion that there was no need to balance the rights, reasoning that forcing the defendant to proceed in the litigation under its own name would not interfere with defendant's right to "speak anonymously." N. Jersey Media Group, Inc. v. Doe, 2012 U.S. Dist. LEXIS 167317, 13-20 (S.D.N.Y. Nov. 26, 2012) ("However, the defendant's proceeding in this litigation by using a pseudonym is not a necessary condition for the defendant's publishing anonymously on the Internet. ... The defendant does not explain how or why revealing the defendant's identity in this action would hinder the defendant's ability to publish anonymously on the Internet. ... The defendant remains free to publish anonymously on the Internet."). This decision is an outlier. In the decisions discussed below, the courts proceed from the obvious premise that forcing an anonymous defendant to identify herself publicly strips her of the right he has hitherto enjoyed to keep his identity a secret. See, e.g, Signature Mgmt. Team, LLC v. Doe, 323 F. Supp. 3d 954, 960 (E.D. Mich. 2018) (rejecting argument that Doe could start a new anonymous blog and thus would not have lost the right to speak anonymously).

Another court has chosen not to follow the precedents discussed herein on the grounds that the First Amendment right to anonymous speech only applies to speech in a public forum, not individual communications. Fisher v. Doe, 63 N.E.3d 1236, 1239-40 (Ct. App. 2016). This distinction does not appear sound, given that the Supreme Court's precedents protect anonymous door-to-door solicitations on private property. Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 153-54, 122 S. Ct. 2080, 2083 (2002).

[4] I use the term "anonymity" here to mean any situation in which the speaker attempts to conceal his or her identity, including situations in which the speaker adopts a pseudonym. I exclude, however, the situation where the speaker is fraudulently impersonating another actual person on the internet. Such conduct has generally not been treated as warranting the sort of First Amendment protection discussed in this article. See, e.g., Juice v Twitter, Inc., 44 Misc. 3d 1225(A), 1225A (N.Y. Sup. Ct. 2014); Chavan v. Doe, 2013 U.S. Dist. LEXIS 154497, 1 (W.D. Wash. Oct. 28, 2013); Amerisourcebergen Corp. v. Does, 2013 Pa. Super. LEXIS 3156, 18-19; Gen. Bd. of Global Ministries of the United Methodist Church v. Cablevision Lightpath, Inc., 2006 U.S. Dist. LEXIS 86826, 11 (E.D.N.Y. Nov. 30, 2006). But the sorts of First Amendment issues discussed in this article would be presented, for example, if the alleged impersonation were arguably merely a satire or parody of the plaintiff as opposed to a true impersonation.

[5] Anonymous Online Speakers v. United States Dist. Court (In re Anonymous Online Speakers), 661 F.3d 1168, 1176-77 (9th Cir. 2011).

[6] "Indeed, there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics." John Doe No. 1 v. Cahill, 884 A.2d 451, 457 (Del. 2005).

[7] See, e.g., Illinois Supreme Court Rule 224; NY CPLR 3102(c); La Societe Metro Cash v. Time Warner Cable, 2003 Conn. Super. LEXIS 3302, 16-18 (Conn. Super. Ct. Dec. 2, 2003) (allowing discovery of identity of anonymous speaker under "bill of discovery" procedure). The Digital Millenium Copyright Act also provides for pre-litigation discovery in the form of a subpoena. 17 U.S.C. 512(h). In Signature Mgmt. Team, LLC v. Automattic, Inc., the court denied the putative infringer's motion to quash such a subpoena, but issued a protective order that any identifying information be used solely for the purpose of protecting its rights under the Copyright Act, and barring the disclosure of the information to anyone other than the parties. Id., 2013 U.S. Dist. LEXIS 57434, 29-30 (N.D. Cal. Apr. 22, 2013). Plaintiff was unable to learn the identity of Doe from the ISP, which led to further litigation in the Eastern District of Michigan discussed herein.

[8] There are ways in which a technologically savvy user can avoid disclosing even such technical information. A user who is confident that she has taken appropriate precautions may not need to avail herself of the legal protections discussed in this article. However, even technically savvy users may be concerned that they have slipped up somewhere along the line.

[9] See Dendrite v. Doe, 775 A.2d 756, 760-61 (N.J. 2001); accord Cahill, 884 A.2d at 460-461 (requiring Plaintiff to post a notice on the message board itself); cf. Uber Techs., Inc. v. Doe, 2015 U.S. Dist. LEXIS 54915, at *9 (N.D. Cal. Apr. 27, 2015) (stating that the better practice is to require notice, but making exception in case of computer hacking).

[10] See, e.g. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 161 (D. Mass. 2008); Vision Films, Inc. v. Doe, 2013 U.S. Dist. LEXIS 38440, at *14-15 (D. Del. Mar. 20, 2013); Yelp Inc. v. Superior Court, 17 Cal. App. 5th 1, 14 (2017).

[11] Strike 3 Holdings, LLC v. Doe, 2019 U.S. Dist. LEXIS 69632, at *5-7 (E.D.N.Y. Mar. 21, 2019).

[12] See, e.g., Va. Code 8.01-407.1 (any recipient of subpoena identifying purportedly tortious anonymous internet speech); 47 U.S.C. 551(c)(2) (cable operator ISP needs court order before it can identify subscriber to third party).

[13] A Doe who appears through counsel in the action is always, to some extent, facing the risk that counsel will at some point be forced to disclose her identity. This is so whether counsel "specially appears" on a motion to quash or generally appears by accepting service and becoming counsel of record in the underling action. See, e.g., Doe v. Coleman, 497 S.W.3d 740, 753 (Ky. 2016) (holding that counsel who represents Doe on motion to quash may maintain confidentiality of client's identity so long as "remains viable.")

This issue is only of practical significance if (i) Doe has taken precautions to ensure that the host or other subpoenaed party does not possess technical information such as IP addresses from which Doe may be identified, but (ii) is unsure whether these precautions were effective. In that case the decision whether to intervene legally may be something of a gamble. If no precautions were taken, Doe's identity will be disclosed in the absence of a legal intervention.

[14] Indiana Newspapers Inc. v. Junior Achievement of Cent. Ind., Inc., 963 N.E.2d 534 (Ind. Ct. App. 2012); Alton Telegraph v. People, 37 Med.L.Rptr. 2084, 2086 (Ill. Cir. Ct. Madison County, May 15, 2009).

[15] Costello v SuperValu Inc., 38 Med.L.Rptr. 2407 (Fla. Cir. Ct. Manatee County Aug. 30, 2010) (Fla. Stat. 90.5015 "was enacted to address the chilling effect that discovery demands upon the news media have upon the exercise of free speech by the media and their sources. Demands for the identity of online commenters would have the same chilling effect.").

[16] Id., No. DV 07-022 (Mont. Dist. Ct., Yellowstone County, Sept. 3, 2008).

[17] Montana Code § 26-1-902.

[18] Id.

[19] No. 10 CRS 2160 (N.C. Superior Ct. August 16, 2010) (protecting identity of anonymous commenter on newspaper article, applying N.C. Gen Stat. § 8-53.11(c) and determining that defendant had not met the standards to overcome the privilege).

[20] O'Grady v. Superior Court, 139 Cal.App.4th 1423, 1458-60 (2006) (construing California reporter's shield liberally to cover website that reports on news concerning Apple products); see also Restatement (Second) of Torts § 611 cmt. c) ("The privilege stated in this Section is commonly exercised by newspapers, broadcasting stations and others who are in the business of reporting news to the public. It is not, however, limited to these publishers. It extends to any person who makes an oral, written or printed report to pass on the information that is available to the general public.").

[21] See Mortgage Specialists v. Implode-Explode Heavy Indus., 160 N.H. 227, 233-36 (2010).

[22] See, e.g., Rancho Publ'ns v. Superior Court, 68 Cal. App. 4th 1538, 1541, (1999) (anonymous purchasers of protest advertisement); McVicker v. King, 266 FRD 92 (WD Pa 2010); Enterline v. Pocono Med. Ctr.,751 F. Supp. 2d 782 (M.D. Pa. 2008); Matter of Nanoviricides, Inc. v Seeking Alpha, Inc., 2014 N.Y. Misc. LEXIS 2909, 1-2 (N.Y. Sup. Ct. June 26, 2014); see also In re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. 26 (Va. Cir. Ct. 2000) (ISP has standing to assert first amendment rights of its customers); In re Drasin v. Doe, Civil Action No. ELH-13-1140, 2013 U.S. Dist. LEXIS 103289, at *6-7 n.3 (D. Md. July 24, 2013) (blogger has standing to defend anonymity of commenters on his blog); Yelp Inc. v. Superior Court, 17 Cal. App. 5th 1, 8-9 (anonymous poster of reviews); see also Indep. Newspapers, Inc. v. Brodie 407 Md. 415, 439-40, 966 A.2d 432, 447 (2009) (implicitly assuming third party standing).

[23] See, e.g., E. Coast Test Prep LLC v. Allnurses.com, Inc., 167 F. Supp. 3d 1018 (D. Minn. 2016)

[24] See, e.g. Glassdoor, Inc. v. Superior Court, 9 Cal. App. 5th at 632; Yelp, 17 Cal. App. 5th 1, 10 (2017).

[25] See, e.g., Enterline v. Pocono Medical Center, 751 F.Supp.2d 782, 786 (M.D.Pa. 2008) (newspaper argues that anonymous commentary essential to "reader interest"); Glassdoor, 9 Cal. App. 5th at 630 (anonymous reviews of employers essential to business model); Awtry v. Glassdoor, Inc., No. 16-mc-80028-JCS, 2016 U.S. Dist. LEXIS 44804, at *46-47 (N.D. Cal. Apr. 1, 2016) (same).

[26] Glassdoor, Inc. v. Superior Court, 9 Cal. App. 5th 623, 632-33 (2017) (quoting Tendler v. www.jewishsurvivors.blogspot.com 164 Cal.App.4th 802, 810 (2008) (conc. opn. of McAdams, J.)). In the wake of Tendler, California enacted an anti-SLAPP-like procedural protection whereby an anonymous user moving to quash a subpoena originating in a foreign action may obtain attorney fees if successful in quashing the subpoena. C.C.P. 1987.2. Where the subpoena arises in a California action, the user is well-advised to file an anti-SLAPP motion, as discussed in section IV.B.

[27] The media company may not be able to do so, however, if it does not require the commenter to provide an email or other contact information as a condition to using the commenting functionality on the website. In that case, the media company may nevertheless possess potentially identifying information about the commenter, such as the IP address of the computer from which he logged on. This is not information that, in any practical sense, can be used by the ISP to promptly to notify the commenter of the pendency of the subpoena. It is, however, information that the plaintiff, with further discovery, might be able to use to identify the anonymous speaker.

[28] Moreover, these "motion to dismiss" precedents were generally decided prior to the Supreme Court's 2007 Iqbal and Twombly decisions, which rendered the 12(b)(6) standard more stringent. One court has suggested (without deciding) that the heightening of the "motion to dismiss" standard in federal court is a reason that standard (rather than the summary judgment standard) should be adopted in federal courts as the test for identifying anonymous speakers. Directory Assistants, Inc. v. Doe, 2011 U.S. Dist. LEXIS 128292, at *4-5 (D. Ariz. Nov. 3, 2011).

[29] Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-580 (N.D. Cal. 1999).

[30] Id.; see also Dendrite Intern., Inc. v. Doe, 775 A.2d 756, 770 (App.Div. 2001)(noting that the nominal "motion to dismiss" standard of Seescandy actually required something more than a motion to dismiss would require).

[31] Id. ("A conclusory pleading will never be sufficient to satisfy this element.")

[32] In re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. 26, 37 (Va. Cir. Ct. 2000). The decision in that case was later reversed on the ground that the complaining party there had also sought to proceed anonymously.

[33] Taylor v. Doe, 2014 U.S. Dist. LEXIS 63789, 5-10 (E.D.N.C. May 8, 2014) (citing Twombly, 550 U.S. at 555)

[34] 775 A.2d 756, 770 (App.Div. 2001).

[35] 884 A.2d 451 (Del.2005).

[36] See, e.g., Lassa v. Rongstad, 2006 WI 105 (Wis. 2006); Hadley v. Doe, 393 Ill. Dec. 348, 355-56, 34 N.E.3d 549, 556-57 (2015); Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va. App. 678, 701 (Va. Ct. App. 2014). rev'd on other grounds, 770 S.E.2d 440 (2015).

[37] Highfields Capital Mgmt LP v Doe, 385 F. Supp. 2d 969, 980 (N.D. Cal.2005); see also id. 385 F. Supp. 2d 969, 972 (N.D. Cal. 2004)(thoughtful discussion of two-prong test by Magistrate Judge). In Highfields the procedural question was not before the court as the defendants had received notice of the subpoena and had moved to quash, and steps 2 and 3 were considered part of the prima facie prong.

[38] Id., 884 A.2d at 454.

[39] Id. at 459-61.

[40] Id. at 464. Other courts have followed Cahill in holding that a plaintiff's prima facie burden only extends to those facts accessible to it. This includes both cases that have adopted the Cahill standard (e.g., Krinsky v. Doe, 159 Cal.App.4th 1154, 1172 (2008), and those that have adopted the Dendrite standard (e.g., Mobilisa v. Doe, 217 Ariz. 103, 111 (2007). However, as discussed further below, where the defendant has appeared in the lawsuit, it does not necessarily follow from the premise that plaintiff is entitled to discovery on the issue of actual malice in all circumstances.

[41] Id. at 461.

[42] See, e.g., Indep. Newspapers, Inc. v. Brodie, 407 Md. 415, 454-455 (Md. 2009) (majority opinion); compare id. (concurring justices agree with result but would adopt Cahill standard); Highfields Capital, 385 F. Supp. 2d 969 (N.D. Cal. 2004); Mobilisa, supra; Mortgage Specialists v. Implode-Explode Heavy Indus., 160 N.H. 227, 239 (2010); Ind. Newspapers Inc. v. Junior Achievement of Cent. Ind., Inc., 963 N.E.2d 534, 552 (Ind. Ct. App. 2012). In Michigan, a Dendrite/Highfields type "balancing' was accomplished through application of a combination of Michigan's pleading rules and ordinary procedures concerning protective orders. Thomas M Cooley Law Sch. v. Doe, 2013 Mich. App. LEXIS 610, 22-23 (Mich. Ct. App. Apr. 4, 2013); see also Ghanam v. Does, 303 Mich. App. 522, 530 (Mich. Ct. App. 2014) (following Cooley but also holding that plaintiff must make effort to notify defendant of lawsuit).

[43] Pilchesky v. Gatelli, 12 A.3d 430, 442-46 (Penn. Super. Ct. 2011) (requiring submission of an affidavit of good faith and that information is unavailable by other means, is directly related to the claim and is fundamentally necessary to secure relief.)

[44] See, e.g., Krinsky, 159 Cal. App. 4th at 1172; Solers, Inc. v. Doe, 977 A.2d 941, 956 (D.C. 2009).

[45] Compare Krinsky v. Doe, supra; with Highfields Capital, supra. This creates a tactical question for any plaintiff seeking to strip a Doe defendant of anonymity, whether to assert federal claims or not. See Art of Living Foundation, supra (federal jurisdiction over claim because of Copyright cause of action). This tactical question may be applicable even in a proceeding outside California, if the identity of Doe must be established via subpoena to an entity based in California, such as Google or Automattic (which host the Blogger and Wordpress blogging platforms, respectively). (Both Krinsky and Highfields Capital involved motions to quash subpoenas issued in underlying cases in other states.) Further complicating matters is that in California the Doe may be able to obtain attorney fees if it is able to quash/dismiss the case. See C.C.P. 425.16 (anti-SLAPP); 1987.2(c) (anti-SLAPP-like procedure if moving to quash foreign subpoena).

[46] In re Anonymous Online Speakers, 661 F.3d 1168, 1175-77 (9th Cir. 2011); Doe v. Individuals, 561 F. Supp. 2d 249, 256 (D. Conn. 2008); see also Mortgage Specialists v. Implode-Explode Heavy Indus., 160 N.H. 227, 239 (N.H. 2010) (expressly adopting Dendrite test, including final "balancing of interests," and erroneously citing Krinsky as adopting same test.)

[47] Thus, for example, in Solers, the court adopted the Cahill test, but under the circumstances, and under applicable District of Columbia law, the plaintiff was required to prove "special harm" as one of the elements of its prima facie case. In other defamation cases, however, such harm may not be an element of the defamation cause of action.

[48] Mobilisa, 217 Ariz. at 111.

[49] 661 F.3d 1168 (9th Cir. 2011).

[50] Ironically, the company associated with the anonymous posters was Signature Management Team, which, in the later Sixth Circuit case, was arguing against the right of an anonymous speaker to remain anonymous.

[51] Id. at 1175-76. The Ninth Circuit identified the most "exacting" test as being the prima facie test, which it associated with Cahill and Highfields. Id. As discussed above in section III.B., Highfields (like Dendrite) actually set forth a more exacting test than Cahill, namely prima facie plus an additional "balancing" test. The Ninth Circuit subsequently corrected the error, denominating Dendrite/Highfields as the most "exacting" test, but nevertheless continued to hold that Cahill was a too-exacting test to apply to "commercial speech." SI03, Inc. v. Bodybuilding.Com, LLC,441 F. App'x 431, 432 (9th Cir. 2011). This case is discussed further below. (In the meantime, the uncorrected hierarchy as set out in Anonymous Online Speakers has caused some confusion in courts attempting to follow it. See, e.g., Music Grp. Macao Commer. Offshore Ltd. v. Does, 82 F. Supp. 3d 979, 983 (N.D. Cal. 2015); Smythe v. Does, 2016 U.S. Dist. LEXIS 1348, at *6-7 (N.D. Cal. Jan. 5, 2016)).

[52] Id. at 1175-76.

[53] Id, at 1177.

[54] Id. at 1176-77.

[55] Id. at 1173.

[56] Id. at 1177.

[57] Id. at 1177.

[58] See, e.g., Art of Living, U.S. Dist. LEXIS 129836, at *17 (N.D. Cal. Nov. 9, 2011) (criticism of religious organization was not "religious" but was nevertheless a matter of public interest and entitled to the Highfields "balancing" test); In re Drasin v. Doe, 2013 U.S. Dist. LEXIS 103289, at *13 (D. Md. July 24, 2013) (allegedly false and disparaging anonymous comments were about plaintiff's business and therefore were "commercial" and entitled to less protection); Thomson v. Doe, 189 Wash. App. 45, 57 (2015) (determining that Cahill was an intermediate standard, less exacting than Dendrite, applicable to speech that was more than "commercial" but less than "political"); Music Grp. Macao Commer. Offshore Ltd. v. Does, 82 F. Supp. 3d 979, 983 (N.D. Cal. 2015) (Highfields test – mistakenly identified as a test of "middling rigor"– applies to derogatory statements about CEO and "legitimate commercial criticism"); Smythe v. Does, 2016 U.S. Dist. LEXIS 1348, at *6-7 (N.D. Cal. Jan. 5, 2016) (same); Si03, Inc. v. Bodybuilding, 2013 U.S. Dist. LEXIS 203037, at *10-11 (D. Idaho Apr. 11, 2013) (on remand, determines that speech is higher than commercial but lower than "religious or political" speech, and so applies Sony Music test.); Kuwait & Gulf Link Transp. Co. v. Doe, 92 A.3d 41, 49-50 (Pa. Super. Ct. 2014) (criticism of alleged wrongdoing of government contractor by anonymous agent of contractor's competitor was political speech entitled to most exacting protection); but see id. (dissenting opinion; speech at issue related to dispute between competitors and therefore "commercial"); Taylor v. Doe, 2014 U.S. Dist. LEXIS 63789, at *6-7 (E.D.N.C. May 8, 2014) (Doe's speech is "commercial" because it disparages plaintiff's business and plaintiff has alleged that Does are agents of his competitors, thus apply the least exacting "motion to dismiss" standard).

[59] Id. at 1176.

[60] Anonymous Online Speakers, 661 F.3d at 1175 (citing NLRB v. Midland Daily News, 151 F.3d 472, 475 (6th Cir. 1998) and Central Hudson Gas & Elec. Corp., 447 U.S. at 566).

[61] Id. 441 F. App'x 431, (9th Cir. 2011).

[62] Si03, Inc. v. Bodybuilding, 2013 U.S. Dist. LEXIS 203037, at *1-2 (D. Idaho Apr. 11, 2013).

[63] Si03, 441 F.Appx at 432.

[64] Part of the problem with the opinion is that it is premised on a dubious definition of commercial speech, whereby a criticism of a company's practices, however legitimate, might be regulated as "commercial speech" if made by a competitor, but would not be deemed commercial speech if made by a consumer or labor union. The Supreme Court initially granted certiorari to review a related question – whether a corporation's defense of its commercial practices could be deemed "commercial speech," but later dismissed the grant of certiorari as having been improvidently granted. Nike, Inc. v. Kasky, 539 U.S. 654, 657 (2003) (dismissing certiorari); Id., 27 Cal. 4th 939 (2002) (adopting definition of commercial speech at issue).

[65] Id. at 432. In another case following Anonymous Online Speakers, the court deemed the speech to be "commercial," on the ground that it disparaged plaintiffs' business, and plaintiff had alleged that the speakers were his competitors. (It is not clear on what basis he could make such an allegation – after all, he didn't know who they were.) Since the speech was deemed "commercial," the court reasoned that it warranted the least protective test, "motion to dismiss." Although plaintiff failed to meet the Iqbal standard on a motion to dismiss, he was given leave to amend his complaint and try again. Taylor v. Doe, 2014 U.S. Dist. LEXIS 63789, at *6-7 (E.D.N.C. May 8, 2014).

[66] In some ways this sounds a bit like Scenario 5 discussed below in section IV.C.1. But Scenario 5 involves a situation in which the cause of action may actually depend on whether Doe is an agent of a competitor. It may well be an act of unfair competition for a competitor to hire fake reviewers to falsely claim that they had had meals in a competitors restaurant and had not liked the food, even though whether the food in a restaurant is good or bad is a statement of opinion rather than fact.

[67] Id. at 432 n.1.

[68] Si03, Inc. v. Bodybuilding, 2013 U.S. Dist. LEXIS 203037, at *3-9 (D. Idaho Apr. 11, 2013).

[69] Id. at *13.

[70] Note that in Highfields Capital, which imposed the "exacting" balancing test, the court had commented:

Before turning to our discussion of the legal significance of the facts described in the preceding paragraphs we should identify several facts that we do not know. We do not know the identity of the person or persons who posted the challenged messages. We do not know how that person makes a living, whether he or she owns or trades any stocks, whether he or she has any connection with SGI or with Highfields Capital or with any of their competitors. The messages invite no one to contact the person who posted them and make no reference to any service or product that person might sell. Nor are the messages accompanied by hyperlinks to other web sites – or by any encouragement to visit any other such sites.

Highfields Capital, 385 F. Supp. 2d at 974.

[71] See, e.g., Cahill, 884 A.2d at 467; Krinsky, 159 Cal. App. 4th at 1179; Highfields, 385 F. Supp. 2d at 979.

[72] Brodie, 407 Md. at 431 (court notes that fifth prong is dictum since prima facie test disposes of case, but for guidance of future courts adopts Dendrite "balancing" test); See also Doe v. Coleman, 497 S.W.3d 740, 752 (Ky. 2016)(adopting Dendrite but noting that the final balancing test made no difference in the disposition of the case); Ron Paul 2012 Presidential Campaign Comm., Inc. v. Does, 2012 U.S. Dist. LEXIS 30911, at *2-5 (N.D. Cal. Mar. 8, 2012)(declining to decide whether to apply Dendrite/Highfields or a lesser test where under either test the plaintiff would fail to obtain discovery of the Doe's identity.).

[73] Thomson v. Doe, 189 Wash. App. 45, 61-62, 356 P.3d 727, 736 (2015).

[74] One decision that did, at least arguably, apply the balancing, is the Dendrite decision itself. Although the ruling is somewhat ambiguous, the court appears to have relied both on a determination that the prima facie test had not been met and on an alternative holding that there had been an insufficient evidentiary showing of actual harm. Id., 775 A.2d at 772.

Mobilisa is one of the rare cases in which the final prong was applicable, because plaintiff had presented a prima facie case. It arose in a pre-service context – on a motion to quash an out-of state subpoena. Id. 217 Ariz at 106. The appellate court remanded, but the Superior Court never had an opportunity to apply the final balancing test because the case was dismissed upon stipulation.

In Music Grp. Macao Commer. Offshore Ltd. v. Does, the court purported to apply the Dendrite/Highfields balancing test. Id., 82 F. Supp. 3d 979, 986-87 (N.D. Cal. 2015). But since ultimately the court determined that the speech in question was protected by the First Amendment – a "comedic" statement not literally intended as a statement of fact – and was not actionable, the case should properly be understood as disposing of the case on the ground that plaintiff had failed to make a prima facie case.

Fodor v. Doe purported to apply the "balancing of the harms" prong. Id., 2011 U.S. Dist. LEXIS 49672, 12-13 (D. Nev. Apr. 27, 2011). However, in that case the Doe defendant's interests were not represented, either by Doe or a third party or amicus, and moreover, plaintiffs believed they knew who Doe was and were actively seeking to serve that individual, who had been evading process. Id. Under the circumstances, the decision has limited value.

[75] See, e.g. Dendrite, 775 A.2d at 763-764 (Doe's interests represented by amicus, at least in the trial court); Indep. Newspapers, Inc. v. Brodie, 966 A.2d at 447 (Doe interests represented by motion to quash filed by newspaper defendant); Solers, Inc. v. Doe, 977 A.2d 941, 946 (D.C. 2009) (third party motion to quash pre-service subpoena); Mortgage Specialists v. Implode-Explode Heavy Indus., 160 N.H. 227, 237 (2010) (website asserts third party standing to defend First Amendment rights of commenter); Yelp, 17 Cal.App.5th 1.

[76] In some cases no one appears on behalf of the Doe. In such cases the court will have only heard a one-sided argument and may issue a questionable decision. See, e.g., Getaway.com LLC v. Doe, 2015 U.S. Dist. LEXIS 99455, at *7 (D. Del. July 30, 2015) (ruling that plaintiffs met Cahill standard by "pleading prima facie case of defamation" – rather than presenting prima facie evidence).

[77] Mobilisa, 217 Ariz. at 103, 107; Thomson v. Doe, 189 Wash. App. 45, 61-62, 356 P.3d 727, 736 (2015); Krinsky, 159 Cal.App.4th at 1159-60.

[78] Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556, 559-561 (S.D.N.Y. 2004) (amici move to quash pre-service subpoena, later joined by Does; court states that identities were needed to serve process on Does); Cahill, 884 A.2d at 454-55 (Doe notified of pre-service subpoena by ISP and files motion for protective order to prevent disclosure of identity).

[79] See, e.g. Solers, 977 A.2d at 955; Maxon v. Ottawa Publ'g Co., 402 Ill. App. 3d 704, 714, 341 Ill. Dec. 12, 22, 929 N.E.2d 666, 676 (2010) (plaintiff must be allowed to "seek a remedy."); see also Mobilisa, 217 Ariz. at 117 (Barker, J., dissenting and urging adoption of Cahill test).

[80] ZL Techs., Inc. v. Does 1–7, 13 Cal. App. 5th 603, 617, (2017) (citing Krinsky, 159 Cal.App.4th at p. 1172, and italicizing the words quoted above); accord Yelp Inc. v. Superior Court, 17 Cal. App. 5th 1, 14-15, (2017). In ZL Techs and Yelp,, the Doe's interests had been represented by a third party (Glassdoor). Krinsky involved a California subpoena in which the underlying case was in Florida. Doe specially appeared in California to move to quash.

[81] Thomas M. Cooley Law Sch. v. Doe, 300 Mich. App. 245, 267-68, 833 N.W.2d 331, 344 (2013). In the above quote, the appellate court was criticizing the false dichotomy underlying the trial court's reasoning. This case involved unusual facts in which plaintiff had actually learned Doe's identity due to a mistaken disclosure, and the issue was whether the court could proceed pursuant to a protective order in which Doe's identity was not disclosed publicly. But the court's point about the false dichotomy applies equally to the more generally applicable question of whether Doe could appear and proceed anonymously without disclosing his identity to plaintiffs.

[82] Id., 2011 U.S. Dist. LEXIS 129836 (N.D. Cal. Nov. 9, 2011).

[83] Id at 29.

[84] Id. at 29-30.

[85]Id. at 12-13 (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008)).

[86] Id. at 25-31.

[87] Art of Living, 2012 U.S. Dist. LEXIS 61582 (N.D. Cal. May 1, 2012).

[88] Art of Living, 2012 U.S. Dist. LEXIS 159619 (N.D. Cal. May 9, 2012).

[89] Id., 876 F.3d 831, 834 (6th Cir. 2017).

[90] Id. at 834.

[91] Id.

[92] Id. at 834-35.

[93] Id. at 835.

[94] Id. Plaintiff's attorneys had learned Doe's identity and had disclosed it to the Court in a sealed filing.

[95] Id. at 836-39.

[96] Signature Mgmt. Team, LLC v. Doe, 323 F. Supp. 3d 954 (E.D. Mich. 2018).

[97] See, e.g., Art of Living, 2011 U.S. Dist. LEXIS 129836, at *30 (N.D. Cal. Nov. 9, 2011) (Doe had responded to interrogatories concerning matters other than identity).

[98] See Art of Living, 2011 U.S. Dist. LEXIS 129836, 29 & n. 7 (plaintiff's need for discovery might be accommodated by interrogatory responses or taking of defendant's deposition telephonically or in writing); Mobilisa, 217 Ariz. at 111 (court must consider "the availability of alternative discovery methods."); Anonymous Online Speakers, 661 F.3d at 1177-78 (district court may use protective orders, including "attorneys only" orders, to balance Doe's right to anonymity against plaintiff's needs); Signature Management Team, 876 F.3d at 834 (trial court allows discovery under "attorneys only" protective order).

[99] Perry v. Schwarzenegger, 591 F.3d 1147, 1164 (9th Cir. 2010).

[100] Id.

[101] In Thomson v. Doe, a Washington appellate court stated in dictum that the "summary judgment" standard should only apply in cases where the defendant has appeared and can actually file such a motion, but where it has not done so, only a prima facie standard should apply. Id., 189 Wash. App. 45, 59-60 & nn.9 &10 (2015). But there is no reason a court couldn't entertain the issue of a dispositive affirmative defense on a motion to quash.

[102] Waiving an important element or defense may seem like a drastic step in order to protect one's anonymity. Consider, however, that Doe may reside outside the United States. If Doe is identified, plaintiff would be able to bring suit in a jurisdiction in which the law is far less favorable to free speech. Indeed, Doe may fear for her safety if her identity is revealed, whether she lives in the United States or abroad.

[103] "[T]rial courts are understandably wary of allowing unnecessary discovery where First Amendment values might be threatened . . . the District Court may in its discretion limit discovery to the threshold issue of falsity, thereby delaying and possibly eliminating the more burdensome discovery surrounding evidence of 'actual malice.'" Weyrich v. New Republic, Inc., 235 F.3d 617, 628 (D.C. Cir. 2001) (citing McBride v. Merrell Dow & Pharm., Inc., 255 U.S. App. D.C. 183, 800 F.2d 1208, 1214 (D.C. Cir. 1986)).

[104] Art of Living, 2012 U.S. Dist. LEXIS 61582 (N.D. Cal. May 1, 2012) (denying anti-SLAPP motion on trade secret claim); id., 2012 U.S. Dist. LEXIS 159619 (N.D. Cal. May 9, 2012) (denying discovery of identity, closing discovery, setting trial).

[105] Cf. Reybold Grp. of Cos. v. Doe, 2017 U.S. Dist. LEXIS 160688, at *13-14 (D. Del. Sep. 29, 2017) (dismissing Lanham Act complaint that failed to allege that anonymous reviewers were competitors).

[106] A different but analogous situation was presented in Awtry v. Glassdoor, Inc., No. 16-mc-80028-JCS, 2016 U.S. Dist. LEXIS 44804, at *1, 8-9 (N.D. Cal. Apr. 1, 2016). Plaintiff had brought a defamation action in Illinois against a named defendant, and defendant sought discovery of the identity of Does who had posted certain reviews on Glassdoor, on the theory that they might turn out to be plaintiff, which (defendant argued), would support defendant's defense of truth in the Illinois action. See also the discussion of the Si03 decision below in section V.

[107] See, e.g., Midland Daily News, 151 F.3d at 474-75 (district court properly quashed subpoena to learn identity of anonymous speaker where allegation that discovery might uncover wrongdoing was speculative); Awtry v. Glassdoor, Inc., 2016 U.S. Dist. LEXIS 44804, at *42-43 (N.D. Cal. Apr. 1, 2016) (speculative evidence that negative reviews had been posted by defendant insufficient to constitute "real evidentiary basis"); Sarkar v. Doe, 2016 Mich. App. LEXIS 2242, at *44-46 (Dec. 6, 2016) (declining to permit discovery of the identities of anonymous internet commenters, where plaintiff believed commenters to be the same persons as had circulated a defamatory flyer); Muslim Cmty. Ass'n v. Pittsfield Twp., 2014 U.S. Dist. LEXIS 184684, at *13-16 (E.D. Mich. July 2, 2014) (speculative contention that subpoena would disclose relevant information outweighed by chilling effect that disclosure of anonymous speech would have on target of subpoena and others who wish to join public discourse); see also Crawford-El v. Britton, 523 U.S. 574, 598-99, (1998) ("Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery[, or] even [to] bar discovery altogether on certain subjects.")

[108] The above scenario explains why the court in Signature Management Team allowed discovery of Doe's identity on an attorney's only basis. Id., 876 F.3d at 834. See also In re Times Picayune, L.L.C., 561 F. App'x 402, 402-03 (5th Cir. 2014) (where "reasonable possibility" that anonymous comments about criminal defendants had been made by prosecutors, raising an inference of prosecutorial misconduct, district court did not err in requiring in camera disclosure of identities of commenters).

[109] The Sixth Circuit, in Signature Management Team, ruled that in addition to the parties interests' the public interest in learning who the Court has issued a judgment against must also be considered. Id., 876 F.3d at 836. How strong an interest this is will depend on the public interest in the subject matter of the litigation and the seriousness of the wrongdoing alleged. Id.

[110] See, e.g., Coastal Abstract v. First Am. Title Ins. Co., 173 F.3d 725, 732-33 (9th Cir. 1999) (damage must be caused by actionable statement in isolation from constitutionally protected statements); Tory v. Cochran, 544 U.S. 734, 738 (2005) (injunction against future defamation would be a highly disfavored prior restraint).

[111] Per the Sixth Circuit, once plaintiff had obtained a judgment against Doe, there was a presumption in favor of identifying Doe, but that presumption be overcome. The presumption derives from the general public interest inaccess to judicial proceedings. Among the factors in favor of preserving Doe's anonymity was that, in addition to his "infringing" speech, which was not subject to First Amendment protection, that speech occurred in the context of anonymous blogging activities that [were] entitled to such protection. Id., 876 F.3d at 839. Thus an "order unmasking Doe would therefore unmask him in connection with both protected and unprotected speech and might hinder his ability to engage in anonymous speech in the future." Id.

[112] See Signature Mgmt. Team, 876 F.3d at 837-38 (where the public interest [in learning Doe's identity] is minimal and the Doe defendant's interest in remaining anonymous is substantial, a district court could reasonably enter a judgment that conditions a defendant's continued anonymity on the satisfaction of the judgment within a certain timeframe"); Rule 60(b)(5) (court may relieve a party from final judgment if it has been satisfied).

[113] A strand of the Supreme Court's anonymous speech/association precedents involved circumstances in which those seeking anonymity had made a showing of a risk of harassment or persecution if their identities were revealed. NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 462-63, 78 S. Ct. 1163, 1172 (1958). But more recent precedents have held that the right to speak anonymously is not necessarily predicated on such risks. Thus, for example, in McIntyre v. Ohio Elections Comm'n, the Court reasoned that the right to chose to reveal (or not) one's identity was simply part of the speaker's editorial freedom to decide which information to publish or omit to publish. Id. at 341-42 (1995); see also id. at 379 (dissenting opinion of Scalia, J.)(reasoning that there was no general right to speak anonymously and distinguishing cases such as NAACP on the ground that the right there derived from the showing of a likelihood of threats or harassment).

[114] See, e.g., Does v. Advanced Textile Corp., 214 F.3d 1058, 1067-1068 (9th Cir. 2000) (plaintiff seeking to proceed anonymously must show that anonymity "is necessary . . . to protect a person from harassment, injury, ridicule or personal embarrassment."); accord Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) (citation and internal quotation marks omitted). These cases are similar to the NAACP strand of precedents discussed in the previous footnote.

[115] In one unusual case, the court imported the standard for anonymous plaintiffs and applied it to an anonymous defendant. Doe v. Individuals, 561 F. Supp. 2d 249, 257 (D. Conn. 2008). But the court only did so after rejecting a motion to quash on a more conventional basis, and was ruling on a separate motion by the defendant to be allowed to "proceed anonymously." In this unusual case involving online harassment of the plaintiffs, the plaintiffs also appeared anonymously. It seems likely that on his separate motion to "proceed anonymously," defendant simply adopted the arguments and precedents that had been cited by the anonymous plaintiffs.

[116] Art of Living, 2011 U.S. Dist. LEXIS 129836, at *24-28 (N.D. Cal. Nov. 9, 2011) (it is "self-evident" that a discovery request for an anonymous speaker's identity would implicate "important First Amendment interests") (citing and quoting Perry, 591 F.3d at 1163).

[117] Signature Mgmt. Team, 323 F. Supp. 3d at 960 (finding Doe has reasonable fear of harassment).

[118] Some courts have held that the user has little or no expectation of privacy where the platform's terms of use contain the boilerplate caveat that platform may identify the user if required to do so by subpoena or other court process. See, e.g. Doe v. Individuals, 561 F. Supp. 2d 249, 254-55 (D. Conn. 2008). But the reasoning is unsound, since that caveat is entirely consistent with the possibility that the user may move to quash and assert whatever rights to privacy/anonymity she may have. Indeed, as one court has pointed out, "the clear implication" of such a boilerplate term is that the platform will not disclose the users identity "willingly, without a compelling reason." Yelp, 17 Cal. App. 5th at 9 n.2

[119] See, e.g., Art of Living, 2011 U.S. Dist. LEXIS 129836, at *19-20.

[120] See, e.g., Awtry v. Glassdoor, Inc., No. 16-mc-80028-JCS, 2016 U.S. Dist. LEXIS 44804, at *46-47 (N.D. Cal. Apr. 1, 2016) (disclosure of reviewers' identity is likely to chill the willingness of future reviewers to post candid reviews).

[121] See, e.g., Mitchell v. Superior Court, 37 Cal. 3d 268, 282-83 (1984); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597 (1st Cir. 1980).

[122] Signature Mgmt. Team, 876 F.3d at 837.

[123] See, e.g., Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981) (where the reporter is only a witness, "the civil litigant's interest in disclosure should yield to the journalist's privilege in all but the most exceptional cases," for otherwise "its value will be substantially diminished," since "potential sources" must have confidence that "compelled disclosure is unlikely."); accord, Mitchell, 379 Cal. 3d at 279-80.

[124] 140 F. Supp. 2d 1088, 1094-95 (W.D. Wash. 2001). This test has been invoked by media companies responding to requests for information concerning the identity of a poster, where the poster was not itself the defendant in the suit. McVicker, 266 FRD 92; Enterline,751 F. Supp. 2d 782. It is not always easy to determine, however, whether the person whose identity is requested is being sought as a witness or as a potential defendant. Mount Hope Church v. Bash Back, 2012 U.S. App. LEXIS 24233, 7-8 n.4 (9th Cir. Nov. 26, 2012) (trial court applies hybrid approach where it is uncertain whether identity to be discosed is that of a witness or a defendant).

[125] Fed.R.Civ.P. 56(d).

[126] 2themart.com, 140 F. Supp. 2d at 1096 ("core" defense must go to the "heart of the matter," and does not include pro forma affirmative defenses).

[127] 326 F. Supp. 2d 556 (S.D.N.Y. 2004).

[128] Id at 564-565.

[129] 605 F.3d 110, 119 (2d Cir 2010).

[130] See MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919-921 (2005) (explaining P2P technology).

[131] Id. at 564.

[132] Id. at 566.

[133] Sony Music and Arista are somewhat ambiguous as to whether plaintiff must actually present evidence of copyright infringement. The court refers to plaintiffs as having "adequately pled" the infringement, and states that the plaintiffs in that case "allege" the downloading and distribution of particular copyrighted recordings set forth in an exhibit to the complaint (including dates, times, IP address of each defendant), but at the same time notes that plaintiffs submitted declarations supporting the allegations. Sony Music, 326 F. Supp. 2d at 565. The Court of Appeals in Arista specifically reserved the question whether a "'concrete showing of a prima facie claim of actionable harm,' would be satisfied by a well-pleaded complaint unaccompanied by any evidentiary showing," since in that case as well the plaintiff had submitted supporting declarations. Arista Records, 604 F.3d at 123. Generally speaking, though, the P2P cases have not involved any contention by the file-sharer that the file-sharing constitutes fair use, or that the plaintiff does not in fact hold a valid copyright in the material being shared. In general, we may reasonably assume that if required to do so, plaintiffs would be able to present such evidence.

[134] In some respects these facts correspond to those in Signature Management Team, but that was an easier case. In that case, the defendant had engaged in a single, arguably inadvertent act of copyright infringement rather than mass peer-to-peer sharing, and defendant was also speaking on an issue of public concern.

[135] Where plaintiff obtains an ongoing injunction, the court may well be inclined to require that Doe's identity be disclosed. However, in the event that plaintiff subsequently believes that another anonymous speaker is actually the old Doe violating the injunction under a new pseudonym, plaintiff will have to engage in the whole discovery process again to determine whether, indeed, the new Doe is the old Doe. (See Scenario 5). It may also make sense to have Doe's identity revealed on an attorney's only basis, as her identity will not be needed unless there is a purported violation of the injunction.

[136] In Sony Music (and its progeny) this minimal interest was easily outweighed by plaintiff's need to serve the defendants. Id. at 566.

[137] Strike 3 Holdings, LLC v. Doe, No. 18-CV-2648 (VEC), 2019 U.S. Dist. LEXIS 587, at *10-12 (S.D.N.Y. Jan. 2, 2019); Vision Films, Inc. v. Doe, 2013 U.S. Dist. LEXIS 38440, at *13-14 (D. Del. Mar. 20, 2013) (collecting cases; imposing protective order); cf Strike 3 Holdings, LLC v. Doe, No. 18-CV-0449 (ENV) (JO), 2019 U.S. Dist. LEXIS 69632, at *8 (E.D.N.Y. Mar. 21, 2019) (denying ex parte discovery to copyright holder based on concerns about extortion).

 
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