Discovery of Anonymous Online Speakers

In In re: Anonymous Online Speakers v. Quixitar, the Ninth Circuit Court of Appeals addressed the standards guiding courts in balancing discovery and the right to anonymous online speech.

While starting from the premise that a trial court has wide latitude in controlling discovery, the Ninth Circuit Court “suggested” that the nature of the speech in question should be a driving force in choosing a standard by which to balance the rights of anonymous speakers in discovery disputes: commercial anonymous internet speech should receive less protection than religious, political or literary anonymous internet speech.  The specific circumstances surrounding the speech serve to give context to the balancing exercise.

In commercial anonymous online speech cases, a number of courts have required plaintiffs to make at least a prima facie showing of the claim for which the plaintiff seeks the disclosure of the anonymous speaker’s identity.

 A few courts have relied on a standard that falls somewhere between the motion to dismiss and the prima facie standards. In Doe v. 2TheMart.com, a Washington State court recognized that a higher standard should apply when a subpoena seeks the identity of an anonymous Internet user who is not a party to the underlying litigation.

 The district court in the 9th Circuit matter on appeal applied the most exacting standard, established by the Delaware Supreme Court in Doe v. Cahill (Del.2005).The Cahill standard requires plaintiffs to be able to survive a hypothetical motion for summary judgment and give, or attempt to give, notice to the speaker before discovering the anonymous speaker’s identity.  The court in Cahill therefore required that the city councilman plaintiff “ ‘submit sufficient evidence to establish a prima facie case for each essential element’ ” of his defamation claim. The court pointed to its “concern[ ] that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously,” id. at 457, and reasoned that “the summary judgment standard more appropriately balances a defamation plaintiff’s right to protect his reputation and a defendant’s right to speak anonymously.”

 In each of these commercial cases, the initial burden rests on the party seeking discovery and requires varying degrees of proof of the underlying claim. 

Even though it affirmed for other reasons, the district court’s application of the “exacting standard” of Doe v. Cahill in ruling on discovery of the anynomous speakers, the Ninth Circuit Court gave guidance to future courts that this test was too harsh.  The Ninth Circuit referred favorably to a Fourth Circuit case,  Lefkoe v. Jos. A. Bank Clothiers, Inc., for the proposition that commercial speech enjoys only limited First Amendment protection. 

The Lefkoe Court ruled that “the Doe Client’s claimed First Amendment right to anonymity [wa]s subject to a substantial governmental interest in disclosure so long as disclosure advance[d] that interest and [went] no further than reasonably necessary.” Id. at 248-49. The court highlighted the balance between discovery under Federal Rule of Civil Procedure Rule 26 and protection of anonymous speech: “the substantial governmental interest in providing Jos. A. Bank a fair opportunity to defend itself in court isserved by requiring the Doe Client to reveal its identity and provide the relevant information. Rule 26 explicitly expresses this interest.”

This standard expressed in Lefkoe seems to be the standard favored by the Ninth Circuit Court.  The idea is that because commercial speech receives less protection under the First Amendment than, e.g., political, religious or literary speech, the degree of protection afforded the identity of an anonymous speaker should be given correspondingly less protection in the discovery process.