Note: This page covers information specific to Arizona. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

In both cases where Arizona courts have considered attempts to unmask an anonymous online speaker, Arizona courts have applied tests that are highly protective of anonymous speech. The two cases are discussed below:

In deciding whether to compel discovery, the trial court applied the "summary judgment" test from Doe v. Cahill, 884 A.2d 451 (Del. 2005). This standard requires a plaintiff to make reasonable efforts to notify the anonymous poster about the pending discovery request and to put forward sufficient evidence for each element of its claim (other than those that are dependent on knowing the identity of the defendant). Initially, the court ruled against Mobilisa, but several months later it determined that Mobilisa had made a sufficient showing to justify unmasking the anonymous defendant. The email provider and anonymous defendant appealed.

On appeal,the Arizona Court of Appeals adopted the "summary judgment plus" standard set forth in Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). There are two levels to this test. First, as in the summary judgment test, the plaintiff must put forward sufficient evidence to support its claim. Second, if the plaintiff has put forward enough evidence, the court then must independently balance the strength of the plaintiff's case and need for disclosure against the strength of the speaker's claim to First Amendment protection. Only if the plaintiff's interests outweigh the First Amendment values at stake should the court order disclosure. The appellate court indicated that the balancing test would consider "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." The court rejected Mobilisa's argument that a more lenient standard should apply because the lawsuit was based on a property claim (unauthorized "hacking" of a computer system) rather than defamation.

Applying this standard, the appellate court upheld the trial court's earlier determination that Mobilisa had produced sufficient evidence to pass the "summary judgment" test. It remanded the case, however, so that the trial court could apply the extra balancing test.

Best Western International (BWI) is a non-profit corporation whose members own and operate hotels under the Best Western name. Some of these members used a forum site -- www.freewrites.com -- to communicate amongst themselves, often anonymously. When BWI proposed some changes in company policy, a flurry of commentary went up on the forum. BWI sued the forum's anonymous administrator and several anonymous posters over messages on the site, which BWI claimed were defamatory, revealed confidential information, infringed Best Western's trademark, and harmed the company in a variety of other ways. BWI filed a motion for expedited discovery, requesting permission to serve subpoenas on various Internet service providers to uncover the identities of the anonymous defendants.

Following Doe v. Cahill, 884 A.2d 451 (Del. 2005), the court adopted a "summary judgment" standard and denied BWI's motion to expedite discovery. It concluded that BWI had not produced sufficient evidence to overcome the defendants' qualified First Amendment right to engage in anonymous speech. The court stressed that BWI had failed to identify a single false statement made by the anonymous defendants, a single item of confidential information posted on the site by them, or a single instance where BWI's mark was improperly used. The court left open the possibility that BWI could meet its required evidentiary showing on a renewed motion.

Note: This page covers information specific to California. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

The court decisions on anonymity in California are mixed. Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), established a "motion to dismiss" standard that puts a relatively low burden on a plaintiff seeking to unmask an anonymous speaker, and other courts have followed it. Highfields Capital Management v. Doe, 385 F.Supp.2d 969 (N.D. Cal. 2005), applied a test influenced by Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). Finally, in Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008), a California appellate court applied a standard that requires a plaintiff to make a "prima facie" showing on its underlying legal claim, where "prima facie" means bringing forward sufficient evidence for each of element within his or her control.

The Columbia Insurance Company owned the trademark rights associated with See's Candy Shops. Several unknown persons registered the domain names seescandy.com and seescandys.com with Network Solutions. Columbia Insurance sued these anonymous persons for a variety of claims, including trademark infringement and unfair competition. The company requested a temporary restraining order against the defendants' activities. Because imposing the restraining order would be impossible without knowing the defendants' identities, the court considered whether to allow "pre-action" discovery to obtain this information from Network Solutions.

The court announced four criteria for plaintiffs to satisfy before allowing such discovery: (1) the plaintiff should identify the anonymous party specifically enough that the court can determine that the defendant is a real person or entity that could be sued in federal court; (2) the plaintiff should identity all steps previously taken to find the defendant; (3) the plaintiff should establish that their suit could withstand a motion to dismiss; (4) the plaintiff should inform the court of the reasons for its discovery request and identify parties the parties upon which it requests the discovery be served.

The court rendered the "motion to dismiss" standard somewhat vague by indicating that a plaintiff "must make some showing that an act giving rise to liability actually occurred." Ordinarily, a plaintiff can survive a motion to dismiss simply by making allegations in the complaint that, if true, would entitle them to a legal remedy. The "some showing" language suggests that some kind of evidence might be required. On the other hand, the court stated that the "some showing" requirement was satisfied precisely because "[p]laintiff has demonstrated that their trademark infringement claim could survive a motion to dismiss." This injects some uncertainty into the test.

Later decisions by courts in California have not cleared up this uncertainty. In Rocker Management v. John Does 1 Through 20, the court was able to reject the plaintiff's claims under a "motion to dismiss" standard based on the plaintiff's insufficient pleadings alone. The court in Highfields Capital Management, meanwhile, cited Seescandy.com as requiring the plaintiff to make at least some evidentiary showing.

Highfields Capital Management (HCM) was the largest shareholder of the company Silicon Graphics. In a Yahoo! Finance chat room devoted to Silicon Graphics, an anonymous poster using the pseudonym "highfieldscapital" made statements implying that HCM was profiting at the expense of the company's other investors. HCM sued the anonymous poster in Massachusetts for commercial disparagement and trademark infringement and subpoenaed Yahoo! in the Northern District of California for information regarding the identity of highfieldscapital and another poster. The anonymous defendant moved to quash the subpoena. A federal magistrate judge considered the motion and recommended quashing the subpoena.

The magistrate used a test akin to that applied in Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and Mobilisa v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007). Under this test, first the plaintiff is required put forward substantial evidence that "if unrebutted, tend[s] to support a finding of each fact that is essential to a given cause of action." Second, if the plaintiff passes this hurdle, the court is required balance the competing potential harms to the plaintiff versus to the defendant. The plaintiff must succeed on both counts in order to obtain disclosure.

In this case, the magistrate found that the plaintiff had not put forward enough evidence to pass the first hurdle, and so recommended quashing the subpoena. Further, although the plaintiff did not reach the second hurdle, it stated that the plaintiff would not satisfy it because of the strong First Amendment interests of the defendant and minimal threat to the plaintiff.

The district court accepted the magistrate's reasoning over HCM's objection and granted the anonymous defendant's motion to quash.

Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008)

Lisa Krinsky, a former officer of SFBC International, Inc., sued ten anonymous defendants over comments about her posted to a Yahoo! message board. According to court papers, the anonymous forum posters made "scathing verbal attacks" against SFBC, Krinsky, and fellow corporate officers. Krinsky filed a lawsuit in Florida state court in January 2006, alleging defamation and intentional interference with contractual relations. She served a subpoena on Yahoo! in California, seeking the identities of the anonymous forum posters.

After Yahoo! notified the posters, one of them -- Doe 6 -- filed a motion to quash the subpoena in California state court. The court denied the motion to quash, noting (quite strangely) that Doe 6's conduct "appeared to be similar to federal cases involving "'pump and dump' stock manipulation efforts," although no claim to that effect was in Krinsky's complaint.

In February 2008, a California appellate court reversed the lower court's ruling. In doing so, it applied a test that requires a plaintiff to make a "prima facie showing" that he or she has a valid legal claim against the anonymous speaker before allowing disclosure of the speaker's identity. The court made it clear that a prima facie showing required Krinsky to bring forward evidence (not just allegations) to support each element of her defamation and interference with contract claims, except for those elements that were beyond her control or dependent on the identity of the defendant.

Applying this standard, the court held that Krinsky had not made a prima facie showing on her defamation claim because the message board comments, viewed in context, constituted opinion protected by the First Amendment rather than statements of fact about Krinsky. The court further held that Krinsky could not make a prima facie showing on her interference with contract claim because this claim was based on the same constitutionally protected opinion.

Note: This page covers information specific to Connecticut. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

In Connecticut, the law on what test or standard to apply when a plaintiff seeks to uncover the identity of an anonymous Internet speaker is not entirely clear. One court, in La Societe Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857 (Conn. Super. Ct. 2003), applied an unusual standard that derives from Connecticut's case law on an obscure procedure known as a "bill of discovery." A federal case, Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008), applied a test similar to that applied in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001).

La Societe Metro Cash & Carry France sought a "bill of discovery" in Connecticut state court compelling Time Warner Cable to disclose the identity of an individual who allegedly sent an anonymous email to several of its regional directors accusing the company of deceptive and unethical business practices.  The request was based on an ex parte order of a French court requiring Time Warner to give up this information.  Time Warner notified its subscriber of the Connecticut action, and she intervened through counsel to oppose the bill.

The court granted the bill of discovery.  It applied an unusual standard with two requirements.  First, the plaintiff must show that what it seeks is necessary to mount a claim or defense in another action, and that it has no other way of obtaining the desired material.  Second, the plaintiff must "demonstrate by detailed facts that there is probable cause to bring a potential cause of action." It defined "probable cause" as "knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action . . . Its existence or nonexistence is determined by the court on the facts found."

The court found that La Societe Metro had put forward enough evidence to establish probable cause that it had suffered damages as a result of the defamatory action of the anonymous emailer (potentially under French law), and that it was seeking information about her identity in good faith and not for any improper purpose.

Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008)

In Doe I v. Individuals, the plaintiff, a former Yale law school student, sought the identity of a pseudonymous comment going by "AK47", who allegedly made defamatory, threatening, and harassing comments about her on the AutoAdmit website. 

The court applied a test similar to that applied in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001).  The court looked at the following factors: (1) whether the plaintiff has undertaken efforts to notify the anonymous posters and withheld action to afford the fictitiously named defendants a reasonable opportunity to file and serve opposition;  (2) whether the plaintiff has identified and set forth the exact statements purportedly made by each anonymous poster that the plaintiff alleges are actionable speech; (3) the specificity of the discovery request and whether there is an alternative means of obtaining the information called for in the subpoena; (4) whether there is a central need for the subpoenaed information to advance the plaintiff's claims; (5) the subpoenaed party's expectation of privacy at the time the online material was posted; and (6) whether the plaintiff has made a concrete showing as to each element of a prima face case against the defendant.

The court concluded that the plaintiff satisfied all these requirements, including producing sufficient evidence supporting a prima face case for libel, and thus denied the defendant's motion to quash.

Note: This page covers information specific to Delaware. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Delaware courts apply a protective standard before permitting disclosure of an anonymous Internet speaker's identity. The leading case is Doe v. Cahill, 884 A.2d 451 (Del. 2005), in which the Supreme Court of Delaware announced a "summary judgment" standard, which requires a plaintiff to bring forward sufficient evidence on those elements of its claim that are within its control. This is one of the most influential cases in this area of law.

Several anonymous Internet users posted negative comments about local politician Patrick Cahill on a blog. Cahill and his wife sued four anonymous defendants for defamation. Through discovery, the plaintiffs determined that Comcast was the ISP for one of the anonymous posters and subpoenaed Comcast for information about the poster's identity. After being notified of the subpoena, the anonymous defendant filed a motion for a protective order to prevent disclosure.

The trial court, in Cahill v. John Doe-Number One, 879 A.2d 943 (Del. Super. Ct. 2005), applied a "good faith" standard to the subpoena, citing the Virginia case In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000). The court found that the plaintiffs had satisfied this standard and ordered Comcast to comply with the subpoena. The anonymous defendant appealed.

On appeal, the Supreme Court of Delaware rejected the trial court's "good faith" test as "too easily satisfied to protect sufficiently a defendant's right to speak anonymously." Instead, it announced a more rigorous standard. Under this standard, first the plaintiff must make reasonable efforts to notify the anonymous defendant of the subpoena. Second, the plaintiff must put forward enough evidence on each element of the claim that it would survive a motion for "summary judgment." Surviving a motion for "summary judgment" mean that the plaintiff can bring forward enough evidence to demonstrate the existence of a factual dispute on each of the key elements of its claim. The court loosened the standard in one important respect: a plaintiff need not put forward evidence on those elements of its claim that are beyond its control (meaning that they are difficult to prove without knowing who the defendant is), such as elements involving the defendant's state of mind.

Applying this test, the court found that the defendant's statements were "incapable of a defamatory meaning," and therefore the plaintiffs' evidence was not sufficient to pass the summary judgment test. Moreover, because the defendant's statements were not defamatory, the court ordered the trial court to dismiss the plaintiffs' entire claim.

The CMLP has not identified any relevant cases addressing the level of protection for anonymous speech in Florida.  For information about the legal protections courts have applied in other jurisdictions, please see the Legal Protections for Anonymous Speech section of this guide.

If you know about an Internet anonymity case in Florida, please contact us.

The CMLP has not identified any relevant cases addressing the level of protection for anonymous speech in Georgia. For information about the legal protections courts have applied in other jurisdictions, please see the Legal Protections for Anonymous Speech section of this guide.

If you know about an Internet anonymity case in Georgia, please contact us.

Illinois has relatively little case law on the First Amendment right to anonymous/pseudonymous speech, though a decision is expected soon in Holsten v. Uptown Update and What the Helen. 

One decision, Alton Telegraph v. Illinois, 08-MR-548 (Ill. Cir. Ct. May 15, 2009), deals with whether a newspaper can invoke the Illinois shield law to protect the identity of anonymous commenters.

Maxon v. Ottawa Publishing Co., 3-08-0805 (Ill. App. Ct. June 1, 2010)

Plaintiffs had sought the identities of a pseudonymous commenter that had posted allegedly defamatory statements in comments on articles posted on the website of a local newspaper. The lower court applied a modified version of the Dendrite and Cahill test and dismissed plaintiffs' petition for discovery of the commenter's identity. The appeals court rejected the proposition that "anonymous speech, in and of itself, warrants constitutional protection," and accordingly found that there was "no need for the additional procedural requirements articulated in the Dendrite-Cahill test." Slip op. at 11-12. Instead, the court determined that the only test a lower court should apply to a petition seeking the identity of an anonymous commenter was that set forth in Supreme Court Rule 224, which requires the plaintiff to establish all elements of a claim for defamation. Id. at 13-14. The court specifically rejected any additional requirement to balance the commenter's First Amendment rights, and further rejected the application of a summary judgment standard, rather than a motion to dismiss standard, to test the sufficiency of the plaintiff's claims. Id

AltonTelegraph v. Illinois, 08-MR-548 (Ill. Cir. Ct. May 15, 2009)

In Alton Telegraph v. Illinois, an Illinois trial court denied in part the Alton Telegraph’s motion to quash a subpoena issued by state prosecutors seeking the identity of five pseudonymous posters who commented on a Telegraph story about an ongoing murder investigation. The court rejected the Alton Telegraph’s argument that the pseudonymous commenters were “sources” protected by the Illinois shield law.

While acknowledging in the abstract that commenters could serve as sources, the court ruled that these commenters were not sources because the Telegraph reporter did not use any information supplied by them “in researching, investigating, or writing the article,” and “none of the comments were written until after the article was published.” Slip op. at 5. In the alternative, the court ruled that, even if the shield law did apply to the case, the state had “satisfied its burden to divest the Telegraph of its privilege” because it had exhausted all other sources of information and the sources were relevant. Id. at 6. Nevertheless, the court granted the motion to quash with respect to three of the commenters because their comments did not contain the same highly relevant information and “appear[ed] to be nothing more than conversation/discussion.” Id. at 7.  Neither the court nor the parties raised the issue of the commenters’ First Amendment rights to speak anonymously. 

The CMLP has not identified any relevant cases addressing the level of protection for anonymous speech in Indiana.  For information about the legal protections courts have applied in other jurisdictions, please see the Legal Protections for Anonymous Speech section of this guide.

If you know about an Internet anonymity case in Indiana, please contact us.

Note: This page covers information specific to Louisiana. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

One Louisiana court has addressed the situation of a plaintiff seeking to compel an ISP to disclose the identity of an anonymous Internet speaker. The court applied an ill-defined test, requiring the plaintiff to show either a "reasonable probability" or "reasonable possibility" of success on its claim, depending on the type of speech involved.

Anonymous Internet users criticized Richard Baxter, an administrator at the University of Louisiana-Monroe, on a website called "Truth@ULM.com," which was hosted by Homestead Technologies. In preparation for a lawsuit against the anonymous posters for defamation, Baxter filed a "miscellaneous case" in federal court seeking to take discovery from Homestead Technologies about the anonymous posters' identities. In that action, Baxter moved for a court order compelling Homestead to provide this information, and one of the anonymous defendants moved to intervene in order to object.

In deciding the two motions, the district court announced its own, unique test for determining when disclosure of an anonymous defendant's identity is justified. Unfortunately, the test is confusing, and the court's description of it is muddled. The test has different requirements based on whether the speech in question relates to a matter of public or private concern, and whether the plaintiff is a public figure. When the speech relates to a matter of public concern or the plaintiff is a public figure, the plaintiff must show a "reasonable possibility" of success on the merits of the claim. When the speech relates to a matter of private concern, the plaintiff must show a "reasonable probability" of success on the merits of the claim. Apparently, a "reasonable possibility" is less demanding than a "reasonable probability," but the court never makes clear the precise distinction.

More importantly, the court never explains whether actual evidence or mere allegations are required to show either a "reasonable possibility" or "reasonable probability." In deciding to grant Baxter's motion to compel disclosure, the court relied on the offending Internet postings (i.e., actual evidence), but it seemed to assume that some statements were false and that they caused Baxter harm without requiring Baxter to bring forward evidence on these points. Overall, it is difficult to tell exactly what this test requires. Additionally, this test appears limited to defamation cases.

Note: This page covers information specific to Maryland. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Maryland courts apply a protective test before permitting disclosure of an anonymous Internet speaker's identity. Among other things, the courts require a plaintiff to bring forth sufficient evidence for each element of its claim in order to justify disclosure. In addition, and assuming the plaintiff can meet this burden, the courts apply a balancing test, under which the strength of the speaker's claim to First Amendment protection is balanced against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity. The leading case is the Maryland Court of Appeals decision in Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009), discussed below.

Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009)

In Brodie, the Court of Appeals of Maryland reversed the trial court’s order denying Independent Newspapers’ motion to quash a subpoena seeking the identity of five pseudonymous commenters. The plaintiff, Zebulon Brodie, sought the identities of the commenters to pursue a defamation action against them over statements on a website forum criticizing Brodie for selling his historic home to another developer who allegedly burned it down and accusing Brodie of maintaining a dirty Dunkin' Donuts franchise. The Court of Appeals ruled that Brodie’s subpoena should have been quashed. In the process, it clarified the appropriate standard for the lower courts, indicating that “a test requiring notice and opportunity to be heard, coupled with a showing of a prima facie case and the application of a balancing test,” such as the Dendrite standard, “most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks.” 966 A.2d at 456.

The Court of Appeals spelled out a five-part test, under which a court should take the following steps before ordering disclosure of the identity of an anonymous or pseudonymous speaker: (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5) if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity. Id. at 457.  

The Court of Appeals ruled that Brodie did not have a valid cause of action against the posters because statements made by certain posters were not actionable and the statute of limitations had run against other posters not named in Brodie’s complaint. See id. at 449.

For additional analysis, see CMLP: Maryland High Court Joins Growing Consensus Protecting Anonymous Speech Online.

Note: This page covers information specific to Massachusetts. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

It is not yet clear what standard applies in Massachusetts when a plaintiff seeks to subpoena an ISP for information about an anonymous poster's identity. The one relevant Massachusetts case, McMann v. Doe, 460 F.Supp.2d 259 (D. Mass. 2006), indicated a willingness to adopt a Cahill-like "summary judgment" standard, but this reasoning was not necessary to its decision. The case thus has uncertain value as precedent.

According to court documents in the litigation, an anonymous internet user created a website critical of Paul McMann, a Massachusetts real estate developer. The website allegedly contained a photograph of Mr. McMann, the statement that he "turned lives upside down," and a suggestion to "be afraid, be very afraid." The website announced that it would soon be updated with specific evidence of McMann's alleged misdealings. McMann filed suit in federal court in Massachusetts, claiming that the unknown website operator defamed him, violated his statutory and common law right of privacy, and infringed his common-law copyright. McMann sought to subpoena two ISPs to discover the identity of the website operator.

The federal court held that it lacked subject-matter jurisdiction over the case because McMann asserted only state-law claims and did not identify the citizenship of the anonymous defendant. Although this was sufficient to dispose of the case, the court stated alternative grounds for denying McMann's request for a subpoena and dismissing the case. The court indicated a willingness to follow Doe v. Cahill, 884 A.2d 451 (Del. 2005), in which the Delaware Supreme Court held that a plaintiff must bring forth evidence sufficient to survive a motion for "summary judgment" on those claims within its control before obtaining disclosure of an anonymous speaker's identity. (Surviving a motion for summary judgment means that a plaintiff must bring forth sufficient evidence to support its claim, such that the case would ordinarily go to trial, with certain limitations.)

The McMann court expressed some reservations about this standard, but ultimately determined that "it is reasonable to apply some sort of screen to the plaintiff's claim before authorizing the subpoena." The court determined that the plaintiff's claims failed under a summary judgment standard, but also under the more lenient "motion to dismiss" standard. (A motion to dismiss standard just looks at whether the allegations in the complaint are sufficient, without requiring any evidence.) This reasoning creates uncertainty as to whether the court applied a summary judgment or motion to dismiss standard. The court's holding on subject-matter jurisdiction further casts doubt on the precedential value of this ruling.

Note: This page covers information specific to Michigan. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

In Michigan, there is little case law on the First Amendment right to anonymous/pseudonymous speech, so the issue of what test or standard to apply when a plaintiff seeks to uncover the identity of an anonymous Internet speaker is not entirely clear. The Michigan Court of Appeals, in Thomas M. Cooley Law School v. Doe et al., No. 307426 (Mich. Ct. App. Apr. 4, 2013), declined to adopt any special test providing additional First Amendment protection for anonymous speakers. Instead, it held that Michigan’s discovery rules adequately protect First Amendment interests. The Michigan Supreme Court has yet to rule on this issue.

Thomas M. Cooley Law School v. Doe et al., No. 307426 (Mich. Ct. App. Apr. 4, 2013)

In Cooley, a former Cooley Law School student (“Doe 1”, posting pseudonymously as Rockstar05) posted allegedly defamatory statements about the law school on his website, “Thomas M. Cooley Law School Scam.” After filing a complaint against Doe 1 in a Michigan state trial court (Ingham County), the law school petitioned the San Francisco County Superior Court for a subpoena to obtain Doe 1’s identity from California-based Weebly, host of Doe 1’s website. The subpoena was issued, and Doe 1 filed a motion to quash the subpoena in . Doe 1’s motion was denied by the Michigan trial court, which adopted the a form of the First Amendment balancing test in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). Doe 1 appealed this order.

On appeal, the Court rejected the trial court’s application of a traditional First Amendment balancing test with respect to anonymous speech online, declining to adopt a test from either Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001) or Doe v. Cahill, 884 A.2d 451 (Del. 2005). The Court of Appeals held that Michigan’s procedural rules already protected the anonymous speaker’s first amendment interests: “We conclude that Michigan procedures for a protective order [under Michigan Court Rule 2.302], when combined with Michigan procedures for summary disposition [under Michigan Court Rule 2.116(C)(8)], adequately protect a defendant's First Amendment interests in anonymity.” Under this standard, the Court held that the trial court need have only considered whether good cause existed to prevent enforcement of the subpoena and to what extent to grant relief. The Court of Appeals therefore reversed the trial court’s application of out-of-state law, and sent the case back to the trial court for a determination as to whether Doe 1 was entitled to have the subpoena quashed under Michigan’s own rules of procedure.

Note: This page covers information specific to Missouri. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Missouri law is unclear about exactly what test a court should apply in deciding whether to permit disclosure of an anonymous Internet speaker's identity to name that speaker as a defendant in a John Doe lawsuit. One case, Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009), addressed a situation where a party sought the identity of an online speaker to serve as a witness, rather than as a defendant.

Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009)

In Sedersten, a federal district court in the Western District of Missouri denied John Sedersten’s motion to compel The Springfield News-Leader to divulge the identity of "bornandraisedhere," a pseudonymous commenter who commented on an article on the News-Leader's website. The subpoena issued in conjunction with Sedersten's civil lawsuit against the City of Springfield, Missouri, Springfield's police chief, and a former Springfield police officer. The News-Leader article discussed county prosecutors' decision to drop charges against the police officer, a decision that "bornandraisedhere" sharply criticized.  Gannett Missouri Publishing, the publisher of the News-Leader, objected to the subpoena, and Sedersten moved to compel the newspaper to turn over information.  

The district court briefly reviewed the various standards applied by other courts in anonymous speech cases and determined that “a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party.” 2009 Wl 4802567, at *2 (citing  Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001)). The court adopted the four-part test applied in 2TheMart.com, which requires the court to consider whether (1) the subpoena was issued in good faith; (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 the claim or defense is unavailable from any other source. Id. The court also explained that it would “keep in mind other First Amendment principles, such as the strict scrutiny applied to restrictions on political speech.” Id.

Applying this test, the court determined that “this is not the exceptional case that warrants disclosure of an anonymous speaker’s identity.” Id. The court found that the evidence Sedersten sought to elicit from bornandraisedhere was cumulative, and that Sedersten could rely on the comments in making out his negligent hiring/retention case against the City without knowing the identity of the speaker. In addition, the court commented that, if bornandraisedhere was in fact the chief of police (a named defendant), then Sedersten could simply question the chief on the comments during a deposition. Id. at *2 n.5.

The court also rejected Sedersten’s argument that bornandraisedhere had waived First Amendment protection by agreeing to the News-Leader’s privacy policy, which reserved to the newspaper "the right to use, and to disclose to third parties, all of the information collected from and about [users] while [using] the Site in any way and for any purpose." Id. at *1, 3. The court was unconvinced by Sedersten’s reliance on “two sentences in a two-page document in which the overarching theme is that information provided by a user of the site may be used for various commercial purposes.” The court further explained that “[n]othing on the face of the privacy policy even hints a user may be waiving his or her constitutional right to anonymous free speech by posting comments or materials on the News-Leader’s website.”  Id. at *3.

Note: This page covers information specific to Montana. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Montana has little case law on the First Amendment right to anonymous/pseudonymous speech, but one decision, Doty v. Molnar, No. DV 07-022 (Mont. Cir. Ct. Sept. 3, 2008), deals with whether a newspaper can invoke the Montana shield law to protect the identity of anonymous commenters.

Doty v. Molnar, No. DV 07-022 (Mont. Cir. Ct. Sept. 3, 2008)

 Note: This page covers information specific to New Hampshire. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

We are eagerly awaiting the New Hampshire Supreme Court's decision on appeal from The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 08-E-0572 (N.H. Super. Ct. Mar. 11, 2009), a case in which a New Hampshire trial court ordered the publishers of the mortgage industry watchdog site, The Mortgage Lender Implode-O-Meter ("ML-Implode"), to turn over the identity of an anonymous source who provided ML-Implode with a copy of a financial document prepared by The Mortgage Specialists, Inc. for submission to the New Hampshire Banking Department. The court also ordered ML-Implode to reveal the identity of a pseudonymous commenter who allegedly posted defamatory statements about the company, and enjoined ML-Implode from re-posting the financial document or the allegedly defamatory comments. 

Although ML-Implode argued that both New Hampshire’s common law reporter’s privilege and the First Amendment right to speak anonymously protected the identities of the source and commenter, the Superior Court Judge ordered disclosure without dealing with either of these arguments directly. Instead, the court reasoned that the case was not a “press issue” because Mortgage Specialists was “willing to hold [ML-Implode] harmless with respect to the publication of [the objectionable] information,” and “[a]ll it wants from the respondent is the identity of the individual or entity which provided unauthorized information to [ML-Implode] and also the identity of the entity or individual that made allegedly defamatory statements about the petitioner to the respondent.” Slip op. at 4. With respect to the pseudonymous comments, the court made no findings of fact or conclusions of law regarding the elements of the underlying defamation claim.  

For details on the lower court's decision, see CMLP, New Hampshire Court Tramples on Constitution, Reporter's Privilege, Section 230,What Have You

Note: This page covers information specific to New Jersey. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

New Jersey courts apply a protective test before permitting disclosure of an anonymous Internet speaker's identity. Among other things, the courts require a plaintiff to bring forth sufficient evidence for each element of its claim in order to justify disclosure. In addition, and assuming the plaintiff can meet this burden, the courts apply a balancing test, under which the strength of the speaker's claim to First Amendment protection is balanced against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

Three New Jersey cases applying this standard are discussed below:

Dendrite International, a company that developed and serviced software for the pharmaceutical industry, brought a "John Doe" lawsuit in New Jersey state court against fourteen unnamed defendants, complaining about critical messages that they posted on Yahoo! message boards under pseudonyms. Dendrite claimed the messages were defamatory and revealed company trade secrets and sought permission from the court to take discovery from Yahoo regarding the identity of certain of the anonymous posters. The trial court allowed Dendrite to conduct limited discovery to find out the identities of John Does 1 and 2, who were current or former employees of the company, but rejected its request for an order compelling Yahoo to identify John Doe 3.

Dendrite appealed, and the New Jersey appellate court affirmed the lower court's ruling. In its opinion, the court set out guidelines for lower courts to follow when faced with a request for an order compelling an ISP to reveal the identity of an anonymous Internet poster. The court developed a five-part test: (1) the plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him/her to respond; (2) the plaintiff must identify the exact statements made by the poster; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must bring forth sufficient evidence for each element of its claim; and (5) the court must balance the strength of the speaker's claim to First Amendment protection against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

Applying the standard to the facts of the case, the appellate court held that Dendrite had failed to produce sufficient evidence for each element of its defamation claim. Specifically, the court held that Dendrite had not produced sufficient evidence of harm resulting from John Doe 3's statements.

An unknown internet user posted information on a Yahoo! message board about the company Immunomedics under the pseudonym moonshine_fr. Immunomedics claimed that moonshine_fr's postings suggested that she was a company employee, and therefore her postings breached the confidentiality agreement she had signed with the company. Immunomedics sued her in a "Jane Doe" suit and subpoenaed Yahoo! for information regarding moonshine_fr's identity. When informed of the subpoena, moonshine_fr filed a motion to quash it. The trial court denied the motion, and she appealed.

The appellate court applied the test created in Dendrite. The court determined that Immunomedics had produced sufficient evidence to support its claim that moonshine_fr was an employee and was thus subject to the company's confidentiality agreement. Without extensive analysis, the court also concluded that Immunomedics's need to identify moonshine_fr in order to enforce its confidentiality agreement outweighed her right to speak anonymously. Therefore, it affirmed the trial court's ruling allowing Immunomedics to subpoena Yahoo! for her identifying information.

A.Z. v. Doe, 2010 WL 816647 (N.J. Super. Ct. App. Div. Mar. 8, 2010)

In A.Z. v. Doe, a mid-level appeals court in New Jersey affirmed an order quashing a subpoena seeking subscriber information for a Gmail account. The plaintiff was a member of her high school’s “Cool Kids & Heroes” program, comprised of students of high academic achievement who pledged to maintain standards of “exemplary personal conduct.” An anonymous individual set up a Gmail account and sent an email to the faculty advisor for the Cool Kids & Heroes program stating that seven students, including the plaintiff, were “breaking their contracts, and breaking the law.” The email attached several photographs taken off Facebook showing students drinking and smoking pot. Only one of the photographs included the plaintiff, and it showed her standing at a ping pong table about to throw a ping pong ball, but it did not show her drinking or smoking.
 
The plaintiff filed a John Doe lawsuit against the sender of the email and subpoenaed Google, and the Doe defendant filed a motion to quash. The trial court granted the motion, reasoning that the plaintiff failed to show that the strength of her prima facie case and the necessity for disclosure outweighed Doe’s First Amendment right to anonymous speech.

On appeal, the court adhered to the Dendrite standard and affirmed the trial court, though on different grounds. The appeals court ruled that the plaintiff was not entitled to unmask the defendant because she could not make out a prima facie case of defamation. Specifically, the court found that the plaintiff presented no evidence that the statement she was “breaking [her] contract[], and breaking the law” was false. The court noted that the plaintiff “never provided a sworn statement that she was not consuming alcohol while underage, that the photograph was a forgery, that the photograph had been altered, or that she was not the person who was depicted in the photograph.”  2010 WL 816647, at *5. The court also found compelling additional photographs taken off Facebook that Doe submitted in support of the motion to quash.  These photographs showed plaintiff holding and drinking alcoholic beverages along with the other students.  Id. at *6.  The court concluded: “We are satisfied that regardless of whether the balancing test embodied in Dendrite’s fourth prong is applied or not, no plaintiff is entitled to an order unmasking an anonymous author when the statements in question cannot support a cause of action for defamation.” Id. at *7.

Note: Another New Jersey court rejected an attempt to obtain information about the identity of anonymous Internet speakers in Donato v. Moldow. The court applied the Dendrite standard.

Note: This page covers information specific to New York. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

New York law is unclear about exactly what test a court should apply in deciding whether to permit disclosure of an anonymous Internet speaker's identity. New York courts have applied a variety of different tests, though they all essentially require the plaintiff to make a substantial legal and factual showing before obtaining the identity of an anonymous Internet speaker. A number of the key cases are discussed below.

Greenbaum v. Google, 845 N.Y.S. 2d 695 (N.Y. Sup. Ct. 2007)

The blog "Orthomom" is operated anonymously. Comments critical of Pamela Greenbaum, a local school board member, appeared on the blog in January 2007. Greenbaum objected to both primary blog content and a user comment. In February 2007, Greenbaum filed a motion for "pre-commencement discovery" in New York state court, seeking to compel Google to disclose identifying information about the operator of the blog and a user. (Google owns Blogger, which is the blog hosting service for the Orthomom blog.) After being notified of Greenbaum's discovery request, Orthomom intervened and objected to disclosure of her identity, invoking First Amendment protection for anonymous speech.

In October 2007, the court denied Greenbaum's request for pre-commencement discovery and dismissed the lawsuit. In its order, the court recognized that the First Amendment protects the right of an anonymous poster to engage in speech on the Internet, and that courts must balance this right with the plaintiff's right to pursue a valid cause of action for defamation. The court expressed a willingness to follow the standard set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), in which a New Jersey appellate court held that a plaintiff must produce evidence on each element of its claim and that the court must independently balance the need for disclosure against the First Amendment values at stake. The Greenbaum court indicated that it was not necessary to decide the precise standard to be applied, however, because "the statements on which [Greenbaum] seeks to base her defamation claim [were] plainly inactionable as a matter of law."

Thus, Greenbaum provides some support for applying the Dendrite test in New York, but it is not conclusive.

Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. 2009)

In Cohen, a New York state trial court granted model Liskula Cohen pre-suit discovery from Google to reveal the identity of the anonymous publisher of the “Skanks in NYC” blog. Cohen alleged that the blog author defamed her by calling her a “skank” and a “ho” and posting photographs of her in provocative positions with sexually suggestive captions, all creating the false impression that she is sexually promiscuous.

The court analyzed the discovery request under New York CPLR § 3102(c), which provides for discovery “to aid in bringing an action.” The court ruled that, under CPLR § 3102(c), a party seeking pre-action discovery must make a prima facie showing of a meritorious cause of action before obtaining the identity of an anonymous defendant. See 887 N.Y.S.2d at 426-27 & n.5.  While acknowledging the First Amendment issues at stake and citing Dendrite, the court opined that New York law’s requirement of a prima facie showing “appear[s] to address the constitutional concerns raised in this context.” Id. at 427 n.5.

The court held that Cohen adequately made this prima facie showing of defamation, finding that the “skank” and “ho” statements, along with the sexually suggestive photographs and captions, conveyed a factual assertion that Cohen was sexually promiscuous, rather than an expression of protected opinion. Id. at 428-29. Somewhat confusingly, in rejecting the blogger’s argument that her statements should be viewed as opinion because “as a matter of law . . . Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting,” the court cited an old case from Virginia,  In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Va. Cir. Ct.), rev’d on other grounds, 542 S.E.2d 377 (Va. 2001), which applied a lenient “good faith” standard to a discovery request seeking the identity of an anonymous commenter. This reference is best understood as dicta, however, because the court invoked the case in dealing with a peripheral point. Furthermore, the AOL test is inconsistent with CPLR § 3102’s requirement of a “prima facie showing of a meritorious cause of action,” which the court invoked to sidestep First Amendment analysis. Id. at 427 n.5.

Ottinger v. The Journal News, No. 08-03892 (N.Y. Sup. Ct. July 1, 2008)

In Ottinger v. The Journal News, former House Representative Richard Ottinger and his wife, June Ottinger, sought the identity of three pseudonymous posters to LoHud.com, an online news site operated by The Journal News that focuses on New York's Lower Hudson Valley.  A New York state trial court denied the newspaper's motion to quash and ruled that it had to turn over the subpoeanaed information. 

The court applied the standard for protecting the First Amendment right to anonymous speech set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), and found that the Ottingers had satisfied the standard. 

A second judge later dismissed the Ottingers' subsequent defamation lawsuit against Stuart Tiekert, the commenter unmasked in the previous proceeding. In its ruling, the court invoked New York's anti-SLAPP law and ruled that the Ottingers "failed to demonstrate that their action has a substantial basis in fact or law." 

Zherka v. Bogdanos, 08 Civ. 2062 (S.D.N.Y. Feb. 24, 2009)

In Zherka, a federal district court in the Southern District of New York granted The Journal News’ motion to quash subpoenas seeking the identities of three pseudonymous posters to a forum on the LoHud.com website. In ruling on the motion to quash, the court applied a multi-part test derived from Dendrite, Sony Music Entertainment v. Does, 326 F.Supp.2d 556 (S.D.N.Y. 2004), and Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008), which has the following elements: (1) the plaintiff must make a reasonable attempt to provide notice to the anonymous poster; (2) the plaintiff has to provide the court with the full statements which are at issue; (3) the plaintiff must make a concrete showing of a prima facie case; (4) the court should consider whether the information is available through alternate means; and (5) if all the other elements are satisfied, the court must balance the First Amendment interests of the anonymous posters against the need for disclosure in order to allow the plaintiff to proceed. Zherka, Tr. at 28-31.

Interestingly, the court indicated that the First Amendment interests of the posters under prong five would be diminished if the website privacy policy warned that identifying information would be disclosed in response to court order or other legal process.  Id. at 28.  The court did not provide detailed reasoning on this point.

In applying this standard, the court gave considerable weight to prong four, finding that the plaintiff had failed to pursue alternative means of identifying the posters and suggesting that the named defendants likely knew the posters’ identities. Id. at 30-31. The court gave the plaintiff permission to re-serve the subpoena after discovery between the named parties and stated that “it should be done with appropriate notice as outlined above, and with concurrent filing to me showing the full statements, laying out the prima facie case, and describing why there are no effective alternative means to get the information.” Id. at 32. 

A number of anonymous internet users used a peer-to-peer network to exchange copyrighted music. Sony and other recording companies who owned the copyrights sued the anonymous internet users for copyright infringement and subpoenaed their ISP, Cablevision, for information that would reveal the defendants' identities. Cablevision notified the anonymous defendants, and several of them filed motions to quash.

In deciding on the motion to quash, the court held that peer-to-peer file sharing "qualifies as speech, but only to a degree." Therefore, the court determined that anonymous file-sharing activity should receive some First Amendment protection, but only to a limited degree. The court identified five factors for determining whether to allow disclosure of an anonymous Internet user's identity: (1) whether there is "a concrete showing of a prima facie claim of actionable harm"; (2) the specificity of the discovery request; (3) the absence of alternative means to gain the information; (4) whether the information subpoenaed is central to the plaintiff's claim; and (5) the anonymous party's expectation of privacy. The court found all five factors here to weigh towards the plaintiffs, and thus denied the defendants' motions to quash.

It is not entirely clear whether "a concrete showing of a prima facie claim of actionable harm" requires a plaintiff to put forth evidence, or whether a plaintiff can satisfy it with allegations alone. At times the court seems to suggest that allegations are enough, such as in the paragraph at page 9 of the linked opinion that begins, "Plaintiffs have alleged ownership of the copyrights ...." However, in the next paragraph, the court mentions the plaintiff's evidence, implying an evidentiary component to the "prima facie" inquiry. The "concrete showing" language itself also suggests an evidentiary requirement.

Later courts have interpreted Sony Music in different ways. The Greenbaum court described Sony Music as a "lesser standard" (as compared to Dendrite), and the general trend is for courts to consider Sony Music's standard to be plaintiff-friendly, with the "prima facie" requirement satisfied with little or no evidence. On the other hand, one court has characterized Sony Music as applying a test comparable to the summary judgment standard from Doe v. Cahill, 884 A.2d 451 (Del. 2005). See Best Western International v. Doe, 2006 WL 2091695 (D. Ariz. 2006).

Note that, although Sony Music is a copyright infringement case, courts have applied its standard in other types of cases. For example, a federal court in New York applied the Sony Music test in General Board of Global Ministries of the United Methodist Church v. Cablevision, 2004 WL 2904405 (E.D.N.Y. 2006), which involved anonymous "hacking" of a computer system. A New York state court applied it to a defamation case in Public Relations Society of America v. Road Runner High Speed Online, 799 N.Y.S. 2d 847 (N.Y. Sup. Ct. 2005), which is discussed below.

A staff member of the Public Relations Society of America (PRSA) sent an anonymous email to PRSA's board of directors that was highly critical of the board and its executive director, Catherine Bolton. Bolton and PRSA brought a special proceeding in New York state court seeking "pre-action" discovery from Road Runner, the anonymous emailer's ISP. The anonymous defendant moved to intervene in the action in and to dismiss the petition for discovery.

In deciding whether to allow PRSA and Bolton to compel disclosure of the emailer's identity from Road Runner, the court adopted the Sony Music standard (discussed above). The court found all factors weighed in favor of granting disclosure, noting in particular that the defendant had no legitimate expectation of privacy in this situation. The court applied Sony Music's "prima facie" standard as being roughly equivalent to a "motion to dismiss" standard, which looks at whether the allegations in the complaint are sufficient, without requiring any evidence.

This case is significant because it applied a standard developed in the copyright infringement context to a defamation case.

Note: This page covers information specific to North Carolina. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Only one North Carolina case, Alvis Coatings v. John Does One through Ten, 2004 WL 2904405 (W.D.N.C. 2004), has considered what standard to apply before permitting disclosure of an anonymous Internet speaker's identity. The court applied a "prima facie" standard, but it is not entirely clear what that standard requires in North Carolina.

According to court documents, ten anonymous internet users made postings on two online message boards that suggested that the company Alvis Coatings was deceiving its customers. Alvis Coatings sued the anonymous defendants for defamation, violations of federal trademark law, unfair competition, and other claims. Alvis Coatings successfully subpoenaed the websites that ran the message boards for the posters' IP addresses, and then subpoenaed two ISPs, Comcast and Roadrunner, for information revealing the identities of some of the posters. Comcast notified one of the posters, who filed a motion to quash the subpoena.

The district court's opinion is not a model of clarity. The court identified the applicable legal standard as follows: "where a plaintiff makes a prima facie showing that an anonymous individual's conduct on the Internet is otherwise unlawful, the plaintiff is entitled to compel production of his identity in order to name him as a defendant and to obtain service of process." The court did not, however, explain exactly what "prima facie" means. Some statements in the opinion suggest that mere allegations might be sufficient -- for instance, the court characterized the relevant legal question as "whether an anonymous Internet speaker is entitled to maintain his anonymity in the face of allegations that his statements falsely impugned a federally-registered trademark or otherwise disparaged the complaining party's business."

On the other hand, in applying its standard, the court relied on statements made by the plaintiff's Chief Operating Officer, apparently in an affidavit (or maybe in a hearing). Unfortunately, the court used the word "avers" repeatedly when describing the Chief Operating Officer's testimony, which obscures the fact that these statements were evidence, not allegations in the complaint. The court concluded that the Chief Operating Officer had "credibly averred that the statements are both false and damaging to the Plaintiff's trademark and to its business generally," and that this was sufficient to compel disclosure of the defendant's identity. The court did not do any analysis explaining how this testimony satisfied the particular elements of any of the plaintiff's claims.

The CMLP has not identified any relevant cases addressing the level of protection for anonymous speech in Ohio. For information about the legal protections courts have applied in other jurisdictions, please see the Legal Protections for Anonymous Speech section of this guide.

If you know about an Internet anonymity case in Ohio, please contact us.

Note: This page covers information specific to Oregon. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Oregon has little case law on the First Amendment right to anonymous/pseudonymous speech, but one decision, Doe v. TS, No. CV08030693 (Or. Cir. Ct. Sept. 30, 2008), deals with whether a newspaper can invoke the Oregon shield law to protect the identity of anonymous commenters.

Doe v. TS, No. CV08030693 (Or. Cir. Ct. Sept. 30, 2008)

In Doe v. TS, an Oregon state judge ruled that Oregon's media shield law, found at Or. Rev. Stat. §§ 44.510 to 44.540, protected the identity of anonymous commenters who posted allegedly defamatory statements on The Portland Mercury and Willamette Week websites.

According to the Portland Mercury, staff writer Amy Ruiz wrote a post in January 2008 about Portland mayoral candidate Sho Dozono.  In the comments section, a site user going by "Ronald" posted negative comments about Dozono's ties to a local businessman, Terry Beard.  The same commenter allegedly posted similar statements on the Willamette Week site. Proceeding anonymously, Beard filed a lawsuit against "Ronald" and other anonymous commenters and served a subpoena on The Portland Mercury and Williamette Week, seeking documents and records identifying them. When the two newspapers failed to produce responsive documents, Beard moved to compel them to produce documents identifying the anonymous commenters. The two newspapers teamed up to oppose the discovery request and won. 

Judge James E. Redman of Clackamas County Court did not treat the anonymous commenters as confidential sources. Section 44.520(a) of the Oregon Revised Statutes protects from disclosure "[t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public." Instead, the court relied on section 44.520(b), which protects "[a]ny unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public."  Section 44.510(1) defines "information" as including "any written, oral, pictorial or electronically recorded news or other data." The court characterized "Ronald's" IP address as data.

On the question of whether the newspapers obtained this data in the course of newsgathering, Judge Redman drew a line based on the relevance of the blog comment to the post it's attached to:

If the comment had been totally unrelated to the blog post, then the argument could be made that the Portland Mercury did not receive it in the "course of gathering, receiving, or processing information for any medium of communication to the public." (source)

Concluding that the IP address fit within the shield law's "broad statutory language," the court denied Beard's motion to compel. Presumably, Beard will not be able to pursue the underlying lawsuit without the identity of the anonymous commenters.

Note: This page covers information specific to Pennsylvania. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Pennsylvania law is not entirely clear on what standard the courts will apply before permitting disclosure of an anonymous Internet speaker's identity. The most recent case on the subject, Reunion Industries v. Doe 1, 2007 WL 1453491 (Pa. Com. Pl. 2007), applied a "summary judgment" standard based on Doe v. Cahill, 884 A.2d 451 (Del. 2005). However, courts in other cases have imposed less protective standards.

Pennsylvania courts also have dealt with situations where a party seeks the identity of an online speaker to serve as a witness, rather than as a defendant in a John Doe lawsuit.  Two cases, McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010), and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008), are discussed below.

Several anonymous Internet users posted negative comments about the company Reunion Industries on a Yahoo! Finance message board. Reunion Industries sued the anonymous posters for commercial disparagement and found out from Yahoo! that AOL was the ISP for one of the defendants ("Doe 1"). Reunion Industries moved for a court order compelling AOL to reveal Doe 1's identity, and Doe 1 moved for a protective order that would prevent AOL from revealing the information.

The court applied a summary judgment standard, similar to that in Doe v. Cahill, 884 A.2d 451 (Del. 2005). Applying a summary judgment standard means that the plaintiff must bring forward sufficient evidence for each element of his claim. As in Cahill, however, the plaintiff in this case was not required to meet that standard on elements of the claim that were entirely within the defendant's control, specifically those involving the defendant's state of mind.

In this case, the court found that plaintiff had not put forward enough evidence to compel disclosure from AOL.

Putting this case in the context of Pennsylvania law generally, there are two additional points worth noting:

• The court explicitly adopted a Cahill-style summary judgment test, but then stated that the plaintiff may be able to compel discovery eventually if it makes a "prima facie" showing of its claim. This suggests that, for this particular court, a summary judgment standard and a prima facie standard mean the same thing, and both represent a high-burden standard requiring the plaintiff to put forward substantial evidence. This is different from the approach used by the Court of Common Pleas for Lackawanna County in Polito v. AOL, 2004 WL 3768897 (Pa. Com. Pl. 2004) discussed below, which appears to use "prima facie" to indicate a standard that the plaintiff could satisfy through allegations alone.

• The court cited one of its earlier decisions, Melvin v. Doe, 2000 WL 33311704 (Pa. Com. Pl. 2000) as adopting a summary judgment standard. However, the Reunion Industries decision is more explicit about applying a summary judgment standard than is Melvin, which does not use the actual words "summary judgment." Further, the Court of Common Pleas' decision in Melvin was overruled in a complex series of cases that did not definitively answer what standard should apply to online anonymity cases. Therefore, Reunion Industries is stronger support than Melvin for an argument that Pennsylvania courts should apply the protective summary judgment standard.

One or more anonymous Internet users sent Michele Polito a series of upsetting emails and instant messages from various AOL accounts. Ultimately seeking to sue the anonymous Internet users, Ms. Polito first filed suit against AOL to compel disclosure of the identities of the subscribers who were harassing her.

The court announced a four-part test for deciding whether AOL was required to disclose its subscribers' identities. Under this standard, the plaintiff must establish that (1) she has a "prima facie" claim under Pennsylvania law against the anonymous parties; (2) the information requested is directly relevant and necessary to her claim; (3) she is seeking the information in good faith; and (4) she cannot discover the anonymous parties' identities otherwise. The court found her to have satisfied all the criteria, and thus ordered AOL to disclose the subscribers' identities.

In this opinion, the court used the term "prima facie" to mean that the plaintiff "satisfactorily states a cognizable claim under Pennsylvania law entitling her to some form of civil or criminal redress for actionable speech of the unknown declarant(s)." This strongly suggests that the prima facie standard here is one that the plaintiff can satisfy through allegations alone. It is worth noting, however, that the court did examine some evidence that the plaintiff had put forward.

Further, the court found that Polito had satisfied the prima facie test even though she did "not assert a particular cause of action against the anonymous subscribers." In the court's view, it was enough that the emails and messages she received "arguably constitute harassment or stalking by communication under Pennsylvania law," and also that she had a "conceivable claim" of intentional infliction of emotional distress (despite the fact that "the Supreme Court of Pennsylvania has never expressly recognized a cause of action" for this claim).

As noted, the Polito court's interpretation of the term "prima facie" is different from the Reunion Industries court's interpretation. This suggests that Pennsylvania law in this area is not settled, and a court's invocation of a prima facie standard does not clearly indicate whether it is applying a high-burden or low-burden test.

In this case, the court used Pennsylvania's own discovery rules to decide on a subpoena directed at an ISP and superficially rejected the Cahill and Dendrite standards. However, because of the case's highly unusual factual background and procedural posture, it is hard to draw any conclusion about the standard it uses. A brief summary is below.

The company JPA Development was involved in litigation, and the law firm Klehr Harrison Harvey Branzburg & Ellers represented their opponent. JPA's owner, Jerry Pantelidis, and its employees created and posted content on two websites that accused Klehr Harrison and its attorneys of fraud. Klehr Harrison sued JPA, Pantelidis, and their ISPs for defamation and other claims. In this suit, Klehr Harrison served discovery requests on JPA, Pantelidis and the ISPs to discover the identities of posters on the website, which the court noted was most likely Pantelidis or people acting at his direction. JPA and Pantelidis responded with a motion for protective order to prevent this discovery. The court denied that motion and offered this opinion to the superior court handling the appeal, urging it to affirm its ruling.

In deciding on the discovery requests, the court declined to use the tests from either Cahill or Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and instead relied on a Pennsylvania civil procedure law forbidding discovery that (1) is sought in bad faith, (2) would cause unreasonable annoyance, embarrassment, oppression, burden, or expense to any party, or (3) is beyond the scope of discovery. The court found that the plaintiffs had satisfied this standard. While such "good faith" standards generally do not require the court to look at the plaintiff's evidence, in this case the court had already taken evidence and used it to reach its decision.

McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010)

In McVicker, a federal district court in the Western District of Pennsylvania denied William McVicker’s motion to compel Trib Total Media, the publisher of the South Hills Record and YourSouthHills.com, to disclose identifying information for seven identified screen names. McVicker, the plaintiff in an employment discrimination case, sought the posters’ identities in order to impeach the testimony of city council members who made the decision to fire him. 

In ruling on the motion to compel, the district court reviewed the various standards applied by other courts in anonymous speech cases and determined that “a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party.” McVicker, 2010 WL 786275, at *3 (citing  Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001)). The court adopted the four-part test applied in 2TheMart.com and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008), which requires the court to consider whether (1) the subpoena was issued in good faith; (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 the claim or defense is unavailable from any other source. McVicker, 2010 WL 786275, at *5.

The court determined that McVicker failed to show that the identifying information was directly and materially relevant to his employment claim because it was primarily useful for impeachment purposes. Id. The court also found that the identities of the commenters and information in their possession were not strictly necessary for McVicker to impeach the city council members effectively, and that the same or similar information might be obtained through "normal, anticipated forms of discovery." Id. at *6. 

In the course of its analysis, the court also “summarily rejected” McVicker’s argument that the YourSouthHills.com's privacy policy created no expectation of privacy, finding that the policy “clearly reflects that [the website publisher] will disclose its users’ personally identifiable information only in very limited situations.” Id. at *5. 

The district court also ruled that Trib Total Media had standing to assert the First Amendment rights of individuals posting to its website. See id. at *4 

Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008)

Note: This page covers information specific to Tennessee. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Tennessee has one case, Swartz v. Doe, No. 08C-431 (Tenn. Cir. Ct. Oct. 8, 2009), which applied a protective test derived from Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). This court required a would-be plaintiff to bring forth sufficient evidence for each element of its claim in order to justify disclosure. In addition, the court applied a balancing test, under which the strength of the speaker's claim to First Amendment protection is balanced against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

Swartz v. Doe, No. 08C-431 (Tenn. Cir. Ct. Oct. 8, 2009)

 In Swartz, a Tennessee trial court ruled that plaintiffs Donald and Terry Keller Swartz were entitled to discover the identity of the anonymous blogger behind the “Stop Swartz” blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities.

In ruling on the defendant’s motion to quash, the court adopted the Dendrite standard, which requires the following five-part test: (1) the plaintiff must notify the poster that he or she is the subject of a subpoena or discovery request; (2) the plaintiff must give the poster reasonable time to file opposition to the application; (3) the plaintiff must identify the exact statements purportedly made by each anonymous poster that give rise to each claim; (4) the plaintiff must make a prima facie or substantial showing of proof for each element of each cause of action; and (5) the court must balance the First Amendment interests of the anonymous poster against the strength of the plaintiff’s prima facie case and the need for disclosure to allow the claims to proceed. Slip op. at 7. With respect to prong four of this test, the court indicated that the factual showing “must be made by affidavit, deposition, or sworn statement, and that mere allegations of fact are insufficient.”  Id. at 8. 

In characterizing the test, the court cut through the semantic differences between the various standards available to courts in anonymous speech cases:

As the Solers and Krinsky courts have noted, the labels of "summary judgment" or even "prima facie" are potentially confusing.  By adopting the Dendrite analysis, the Court does not focus on the terminology, but rather the requirement that a plaintiff make a substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant's identity.

Id. The court determined that the Swartzes succeeded in making this substantial legal and factual showing, pointing out that they submitted copies of the offending blog posts and testified regarding the falsity of the statements and damages. Id. at 9-10.

Note: This page covers information specific to Texas. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

The one published decision from Texas to consider the right to anonymous speech adopted a Cahill-like "summary judgment" standard that requires a plaintiff to bring forward evidence on each element of its claim (other than those dependent on the defendant's identity) before permitting disclosure of an Internet' speaker's identity. This case is described below.

Additionally, in February 2009, a Texas court ordered Topix to turn over the identities of 178 anonymous and pseudonymous commenters to Mark and Rhonda Lesher based on claims that the comments were defamatory. It is not clear what standard this court applied.

In June 2007, a subsidiary of Essent Healthcare, Inc. filed suit in Texas state court against an anonymous blogger and an undefined number of anonymous posters to his blog. Essent's petition contained claims for defamation, trade disparagement, breach of contract, and breach of the duty of loyalty. The dispute revolved around a blog called "The-Paris-site," which focuses on an Essent-run hospital in Paris, Texas. The operator of the blog goes by the pseudonyms "Frank Pasquale" and "fac_p". He posted critical remarks about the hospital on the blog, including statements that, according to Essent, assert or imply that the hospital is engaged in Medicare fraud. He also posted statements that allegedly accuse the hospital of having a high incidences of bacterial infections and post-surgical complications. Anonymous users also posted comments on the blog. Some of the comments included information that Essent claims was confidential patient health information.

Essent filed an ex parte request with the court for an order compelling the anonymous blogger's Internet service provider to disclose his identity. After being notified of the discovery request, the anonymous blogger objected through counsel. The trial court rejected his arguments, however, and ordered the ISP to reveal his identity. Counsel for the anonymous blogger filed a special kind of appeal called a petition for a "writ of mandamus" with a Texas appellate court.

In December 2007, the appellate court conditionally granted the writ of mandamus, ordered the trial court to vacate its previous order, and sent the case back to the trial court for further consideration. The appellate court held that the lower court had lacked authority to issue its previous order and offered the lower court guidance on what standard to apply to the case on remand. The appellate court indicated that it would follow Doe v. Cahill, 884 A.2d 451 (Del. 2005), in requiring that a plaintiff produce evidence sufficient to survive a motion for summary judgment before ordering disclosure. "Summary judgment" is a legal term of art, and it means that the plaintiff must show that it has sufficient evidence for each element of its claim. The Texas court, like the court in Cahill, loosened this standard somewhat, indicating that a plaintiff at this preliminary stage of a lawsuit need not provide evidence for elements of its claim that are nearly impossible to show without knowing the defendant's identity (such as whether the defendant acted with the requisite degree of fault).

For more on this case, see the CMLP's database entry: Essent v. Doe.

Note: This page covers information specific to Virginia. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Virginia follows a “good faith” test before unmasking an anonymous Internet speaker. The good faith test was first announced by a Virginia circuit court in In re Subpoena Duces Tecum to America Online and codified by the Virginia General Assembly in 2002 as Va. Code §8.01-407.1.

Va. Code § 8.01-407.1 requires that a party seeking the identity of an anonymous poster show that the poster has made one or more communications that are or may be tortious or illegal, (such as defamatory statements) or that the party requesting the subpoena has a legitimate, good faith basis to contend that it is the victim of “conduct actionable in the jurisdiction where the suit was filed” – i.e., has a legitimate claim recognized by the jurisdiction where the suit was filed. The party seeking the information must submit a copy of the communications at issue.

The Court of Appeals of Virginia has held that Va. Code § 8.01-407.1 does not require a plaintiff to submit evidence sufficient to demonstrate that statements are actionable in order to obtain the identity of an anonymous speaker. Rather, it is sufficient if the plaintiff submits sufficient evidence to support a good faith belief that the statements at issue may be actionable. In Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., No. 0116-13-4 (Va. Ct. App. Jan. 7, 2014), the Court considered a plaintiff's attempt to discover the identity of anonymous Yelp users who posted negative reviews of plaintiff's services. The Court found that if the anonymous users were not in fact former customers of the plaintiff, their negative reviews would be actionably defamatory; however, the plaintiff was not able to submit evidence proving that the users were not former customers. Nevertheless, the Court upheld a subpoena for the users' identities upon the plaintiff's showing that it was unable to confirm that the users were customers after a good faith review of the records in its possession. Slip op. at 21-22.

The party may be seeking the poster’s identity in regards to a claim the party is bringing against the poster, or the party may mean to use the poster as a witness. Either way, the statute requires that the party seeking the information show that other “reasonable efforts” to identify the anonymous communicator have failed and that the anonymous poster’s identity is important, central, or directly and materially relevant to a claim or defense.

What The Subpoenaed Entity Must Tell You 

When an ISP or other entity receives a subpoena requesting your identifying information, the statute requires that the ISP notify you of the subpoena within five business days of receipt. The ISP must notify you by e mail, if it has your e mail address, and it must also send a copy of the subpoena to your last known address, if available on file. The statute provides a form that the party requesting the information must send to the ISP. The ISP must in turn send the form to you by e mail, if available, and mail. The form states who is seeking the subpoena, that the ISP will be required by law to respond by providing the requested information if no written objection is filed with the court, and that you have a right to file a written motion opposing the subpoena with the clerk of court, as discussed below.

How to File a Motion to Quash

Any “interested person,” such as an anonymous poster whose identity is a target of the subpoena, may file a written objection, motion to quash (a motion requesting that the subpoena be voided or terminated), or motion for a protective order (a court order protecting against the disclosure of your information). If you are the anonymous poster, this means that the ISP or other entity to which the subpoena is addressed may file a written motion opposing the subpoena on your behalf, or that you may file such a motion yourself. The statute indicates that you may file your motion anonymously, signing it “John Doe” and including your e mail nickname or other relevant online alias.

You must file such a motion at least seven business days before the date on which disclosure is sought under the subpoena. Because of the various deadlines set by statute, you could have as few as 10 days to respond to a subpoena after you receive notice of it. As a result, if you receive notice of a subpoena for your identity from your ISP, you should contact a lawyer immediately to ensure there is sufficient time to respond to the subpoena. You also may want to refer to the section on Responding to Lawsuits for more information.

If no written motion opposing the subpoena is filed, the ISP will be required by law to respond to the subpoena by providing the information sought.

You must serve any papers related to your motion on the party seeking the subpoena and the party to whom the subpoena is addressed on or before the date you file the motion with the court. If the ISP seeks to quash the subpoena on your behalf, it must serve any papers relating to the motion on the party seeking the subpoena and you, the anonymous poster, on or before the date of filing.

In addition to stating the grounds relied upon for denying the disclosure, the motion to quash must address “to the extent feasible”:

1. whether the identity of the anonymous communicator has been disclosed in any way;
2. whether the subpoena fails to allow a reasonable time for compliance;
3. whether the subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies, or
4. whether the subpoena subjects a person to undue burden.

After a written motion is filed, any interested person may also request a hearing from the court. If you are the anonymous poster, you must be informed of the hearing by registered mail at your last known address.

When the Subpoenaed Entity Can Comply to the Subpoena

If the ISP or other entity to whom the subpoena is addressed wishes to comply with the subpoena and reveal your personal identifying information, the statute prohibits it from doing so earlier than three business days before the date on which disclosure is due. This rule is designed to give you the opportunity to object before disclosure is made. The ISP must still notify you of the subpoena by e mail, if available, and by mail, giving you the opportunity to object on your own behalf.

Because there have been no cases involving Code § 8.01-407.1, no court has interpreted its provisions. If you know about a cases involving Code § 8.01-407.1 in Virginia, please contact us.

Note: This page covers information specific to Washington. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Washington law with regard to the protection of anonymous online speech is unclear. The only relevant Washington case is Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001), which considered a subpoeana to discover the identity of an anonymous witness, as opposed to the usual situation of an anonymous defendant. For this situation, the court adopted a "good faith" standard with a few extra protections. It is not clear how this case applies to a subpoeana asking for disclosure of the identity of an anonymous defendant.

Stockholders of the company 2TheMart.com sued its directors, claiming that they were responsible for a recent fall in the company's stock price. The directors tried to defend themselves by arguing that the fall in stock price was actually caused by negative comments about the company posted on an online message board by anonymous users. To support this argument, the directors subpoenaed InfoSpace, the Seattle-based company that ran the website, for the identities of the posters. InfoSpace notified the anonymous posters, and one of them filed a motion to quash the subpoena.

The court announced a standard for deciding when a court should allow disclosure of the identity of an anonymous witness. The court required the plaintiff to satisfy the following four requirements: (1) the plaintiff seeks the subpoena in good faith and not for an improper purpose; (2) the information requested relates to a core claim or defense; (3) the information is directly and materially relevant to the claim or defense; and (4) the information that the plaintiff needs for that claim or defense is not available anywhere else.

Applying that test, the court found that information about the identities of the anonymous posters was not directly and materially relevant to a core claim or defense. Therefore, it granted the anonymous poster's motion to quash the subpoena.

Note: This page covers information specific to Wisconsin. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

The one relevant Wisconsin case, Lassa v. Rongstad, 718 N.W.2d 673 (Wis. 2006), did not consider an Internet-based claim. However, the Supreme Court of Wisconsin's adoption of a "motion to dismiss" standard may be applicable to future Internet anonymity cases. Overall, this test places a higher burden on plaintiffs than do most other "motion to dismiss" standards, owing to special features of Wisconsin law, but it is not as protective of anonymity as tests that require the plaintiffs to put forward evidence, such as the "summary judgment" test used in Doe v. Cahill, 884 A.2d 451 (Del. 2005).

Todd Rongstad was the president of Alliance for Working Wisconsin (AWW), a political organization. The organization sent out a mailing that accused Julie Lassa, a state representative, of various kinds of wrongdoing. Lassa sued Rongstad, AWW, Rongstad's company, and five anonymous defendants for their involvement in the mailing, which she claimed was defamatory. After several motions regarding whether Rongstad would be compelled to disclose the anonymous defendants' identities, the parties settled. However, the court had already imposed discovery sanctions on Rongstad for not giving up the names. Rongstad appealed to the Supreme Court of Wisconsin, arguing that the sanctions were illegal because they were applied over his assertion of a constitutional privilege. The appeal required the court to consider standards for compelling disclosure of an anonymous defendant's identity.

The Wisconsin Supreme Court adopted a "motion to dismiss" standard as the test for compelling disclosure of an anonymous defendant's identity. Like "motion to dismiss" standards generally, this is a test the plaintiff can satisfy by stating a claim in its pleadings, without having to put forth evidence. The court noted with approval the summary judgment standard applied by the Supreme Court of Delaware adopted in Doe v. Cahill, 884 A.2d 451 (Del. 2005), but found that a motion to dismiss standard would provide the necessary protection for anonymous speakers under Wisconsin law. It reasoned that Wisconsin law -- apparently unlike Delaware law -- requires a plaintiff to plead the defamatory statements with particularity, and it requires the court to determine whether the pleaded statements are "capable of a defamatory meaning" at the motion to dismiss stage. (Note that lack of defamatory meaning was the basis the Cahill court invoked for quashing the subpoena and dismissing the case.) Despite this reasoning, it appears that the Wisconsin standard is significantly less protective of anonymous speech than the Cahill test.

Courts in the District of Columbia apply a protective test before permitting disclosure of an anonymous Internet speaker's identity.  One case in state court and another in federal court, Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) and Sinclair v. TubeSockTedD, 2009 WL 320408 (D.D.C. Feb. 10, 2009), both require a substantial legal and factual showing before ordering the unmasking of an anonymous defendant. 

Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009); Software & Information Industry Association v. Solers, Inc., No. 10-CV-1523 (D.C. Jan. 12, 2012)

In Solers, a software developer sued a John Doe defendant for defamation and tortious interference over an anonymous tip submitted to an industry watchdog group claiming that the software developer had engaged in software privacy. Solers subpoenaed the watchdog group, seeking information about the anonymous defendant’s identity. On appeal, the D.C. Court of Appeals adopted a protective standard for its lower courts to follow and emphasized that a plaintiff "must do more than simply plead his case" to unmask an anonymous speaker claimed to have violated the law. 977 A.2d at 958. 

The D.C. Court of Appeals’ test most closely resembles those set out in Doe v. Cahill, 884 A.2d 451 (Del. 2005), and Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008). It requires a court to follow five steps before ordering the disclosure of an anonymous or pseudonymous speaker's identity: (1) ensure that the plaintiff has adequately pleaded the elements of a defamation (or other) claim; (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served; (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash; (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control; and (5) determine that the information sought is important to enable the plaintiff to proceed with his/her lawsuit. 977 A.2d at 954-56. With respect to the fifth prong, the court indicated that it would not require a showing that the plaintiff had exhausted alternative sources for the information, so long as the other elements of the test had been satisfied. The D.C. Court of Appeals remanded the case to the trial court for application of this test. 

On remand, the trial court reluctantly held that the D.C. Court of Appeals' decision required enforcement of the subpoena, because the appellate court had noted that Solers had properly pleaded damages.  Nevertheless, the trial court noted its disquiet with enforcing the subpoena when Solers had admitted that it could not identify lost business or customers from the alleged defamation, and so the trial court urged another appeal. 

A second appeal was duly filed with the D.C. Court of Appeals under the name Software & Information Industry Association v. Solers, Inc., No. 10-CV-1523. The D.C. Court of Appeals took the opportunity to clarify the plaintiff's burden when seeking an anonymous speaker's identity, stating the plaintiff must not only plead but produce evidence of damages that resulted "as a direct consequence" of the anonymous speaker's action. Internal costs that the plaintiff incurs as a result of the anonymous speech, such as expending resources to investigate the anonymous claims, do not suffice. Moreover, the damages must be shown to exist independently of any action the plaintiff took to counteract the anonymous speech; lost profits, reluctant customers, or specific examples of impaired business reputation would help show the required damage.  Because Solers failed to present such evidence, the appellate court reversed the trial court's order enforcing the subpoena.

Sinclair v. TubeSockTedD, 2009 WL 320408 (D.D.C. Feb. 10, 2009)

In Sinclair, a federal district court in the District of Columbia quashed a subpoena seeking the identities of three pseudonymous Internet users. In early 2008, plaintiff Lawrence Sinclair published a YouTube video and blog claiming that he had engaged in sexual activities and done drugs with then-presidential candidate Barack Obama. In response, “TubeSockTedD” uploaded a video to YouTube stating that Sinclair was “spreading lies about Obama.” Another Internet user, “mzmolly,” posted a comment on Democratic Underground.com stating that Sinclair was a mental patient who was institutionalized on the date in 1999 when he claimed to have encountered Obama. A third, “OWNINGLIARS,” posted a comment on Digg.com stating that Sinclair was a liar and was in a mental hospital when he claimed he met Obama. Sinclair filed a John Doe lawsuit for defamation against all three and sought identifying information from the relevant Internet service providers, and the pseudonymous posters moved to quash.

The court granted the motion to quash and dismissed the complaint in its entirety. It surveyed the case law on the First Amendment right to speak anonymously and held that, under either the Cahill or the Dendrite standard, Sinclair was not entitled to the requested discovery because his complaint was facially invalid. Specifically, the court determined that Sinclair's complaint did not plead facts necessary to establish the court's subject-matter jurisdiction over the case or personal jurisdiction over the pseudonymous defendants. In addition, the court ruled that Sinclair's defamation claims failed as a matter of law because he did not plead either actual malice or special damages, and because section 230 of the Communications Decency Act protected mzmolly and OWNINGLIARS for "simply summarizing and reporting information obtained from" a third party. In conclusion, the court stated: “Where the viability of a plaintiff’s case is so seriously deficient, there is simply no basis to overcome the considerable First Amendment interest in anonymous speech on the Internet. Sinclair has provided no ground to do so here.” 596 F. Supp. 2d at 134.

Although the court quashed the subpoena and dismissed the complaint, it refused to award mzmolly and Democratic Underground sanctions against Sinclair because of the novel areas of law involved. Id. at 134 n.4.