McCall is a designer who creates parodies of the official seals of the National Security Agency ("NSA") and the Department of Homeland Security ("DHS") for use on T-shirts, mugs and similar merchandise. Merchandise containing McCall's designs were offered for sale on a website owned and hosted by Zazzle, Inc. In March 2011, Zazzle received a letter from the NSA, and in August 2011, an email from DHS, indicating that several different images offered by Zazzle, including those created by McCall, were in violation of federal law. Specifically, the NSA letter indicated that McCall's NSA parodies were in violation of 50 U.S.C. § 3613, prohibiting the misuse of federal agency names, initials, or seals. The DHS letter indicated that McCall's DHS parodies were in violation of 18 U.S.C. §§ 506, 701, and 1017, which similarly prohibit the wrongful use of seals of federal departments or agencies.

Thereafter, McCall filed a complaint for declaratory relief against the NSA and DHS regarding the designs which were the subject of the agency communications. In the complaint, McCall claimed that his parodies were not in violation of any federal law, as his use of the images of the NSA and DHS seals did not create any likelihood of confusion about the source or sponsorship of the materials on which they were available to be printed. McCall further claimed that the statutes cited by NSA and DHS must be construed narrowly to permit parodic use of the agencies' names and seals to avoid conflict with the First Amendment.

In February 2014, McCall entered into a settlement agreement ("Agreement") with both NSA and DHS. In the Agreement, the parties agreed to the following:

• McCall acknowledges that the Agreement is the result of a compromise and is not an admission by the United States of any liability or responsibility.
• McCall agrees to file a notice of voluntary dismissal to dismiss the Complaint with prejudice.
• NSA and DHS agrees to formally issue a letter to Zazzle and McCall indicating that they were not in violation of any federal law.
• Counsel for NSA and DHS will request from the United States Treasury Judgment Fund one check in the amount of $500 made payable to McCall for the court costs incurred by the plaintiff.

In November 2010, Mara Feld arranged for her thoroughbred gelding to be shipped to a horse farm. The horse was instead sent to a horse auction and may have been slaughtered in Canada. The horse's fate became a topic of great debate on Internet sites dealing with thoroughbred race horses and at some point Crystal Conway became involved in the ongoing online discussions. On December 11, 2010, Conway posted on her Twitter account: "Mara Feld aka Gina Holt - you are fucking crazy!"

On December 10, 2013, Feld filed a complaint alleging one count of libel. Afterwards, Conway filed a motion to dismiss, arguing that the complaint did not state a claim upon which relief can be granted because her statement was an opinion. Conway further argued that the use of vulgarity signaled its lack of clinical or factual significance. Feld responded that the statement in question was not obviously a statement of opinion, because it could be interpreted differently. Furthermore, Feld argued that the use of profanity did not transform the statement into mere opinion.

The court held that the tweet had to be read in the context of the ongoing online discussion, rather than in isolation. In that context, the court found that the tweet could not reasonably be understood to state actual facts about Feld's mental state. Therefore, the complaint could not support a claim of defamation and Conway's motion to dismiss was granted.

On July 2, 2012, Hadeed Carpet Cleaning, Inc., a Virginia rug cleaning company, filed a complaint for defamation and conspiracy to defame against seven anonymous Yelp reviewers in the Circuit Court for the City of Alexandria.

Hadeed claimed these users' reviews were false and defamatory because it "had no record that the negative reviewers were ever Hadeed Carpet customers." Additionally, Hadeed noted that many of the negative reviews contained similar "themes" (for example, that Hadeed had doubled the price) and that one of the reviewers was from an area where Hadeed does not do business. Based on this evidence, Hadeed alleged that the authors of the negative reviews "acted together for the purpose of willfully and maliciously injuring Hadeed Carpet's reputation." Hadeed requested $1.1 million in punitive and compensatory damages, attorney's fees and costs, and a permanent injunction.

On July 3, 2012, Hadeed issued a subpoena duces tecum to Yelp seeking information identifying the anonymous commenters.

Yelp responded with a written objection to the subpoena on July 19, 2012. It contended: (1) that Hadeed had not complied with Virginia's procedure for subpoenas to identify anonymous Internet users, Code § 8.01-407.1, because it did not list the allegedly defamatory comments with adequate specificity; (2) that the First Amendment prevented disclosure of the defendants' identities because Hadeed had failed to present a prima facie case that their speech was defamatory; and (3) that the subpoena could not be enforced against a foreign non-party company.

On July 30, 2012, Hadeed filed a renewed subpoena that complied with the procedural requirements of Code § 8.01-407.1 by attaching documents allegedly establishing the basis for Hadeed's belief that the challenged posts were actionable. In its accompanying Notice of Filing Supporting Material, Hadeed asserted that "determining whether or not Defendants were customers of Hadeed is centrally necessary for Hadeed to advance any defamation claim."

Yelp filed written objections to the renewed subpoena on September 5, 2012. Yelp again asserted that Hadeed had failed to meet the appropriate legal test for obtaining identifying information about anonymous speakers because it had not "produce[d] evidence sufficient to make out a prima facie case" of defamation. Yelp noted that numerous appellate courts, most notably in Dendrite v. Doe and Doe v. Cahill, had held that that this was the proper test under the First Amendment, and argued that to the extent that Virginia had set a more permissive standard than Dendrite, Virginia should "join the national consensus standard on this issue." Yelp also asserted that it was not subject to personal jurisdiction in Virginia because it had no property there, and because Hadeed had consented to exclusive jurisdiction in California by agreeing to Yelp's terms of service when it chose to advertise on Yelp. Finally, Yelp argued that the subpoena was overbroad because Hadeed sought all documents Yelp possessed for the users that "relate[d] in any way" to Hadeed, which could encompass private communications subject to other legal protections or not reasonably accessible to Yelp.

On September 26, 2012, Hadeed moved to overrule the objections and enforce the subpoena. Hadeed argued that the proper legal standard for obtaining information about Yelp's anonymous users came from Virginia Code § 8.01-407.1 and was satisfied by its good faith claim that "it reviewed its own detailed customer files and c[ould] find no evidence that these specific seven persons were ever Hadeed customers." Hadeed also claimed that its attempts to obtain those identities through publicly available information or through discussions with Yelp had been unsuccessful. Hadeed also maintained that it had properly subpoenaed Yelp's records by serving the subpoena on Yelp's registered agent for service of process in Virginia, and argued that "Yelp conducts business over the internet in Virginia, and is present in Virginia through its registered agent." Further, Hadeed argued, it had not waived jurisdiction in Virgina, claiming that Yelp's terms of service only pertained to disputes arising out of the advertising relationship. Finally, Hadeed argued that the subpoena was not overbroad, as it only requested "postings" relating to Hadeed, not "communications," and Yelp's objection that the subpoena might encompass private communications was therefore unfounded.

On October 22, 2012, Yelp filed a memo in support of its objections to the subpoena and opposing Hadeed's motion to compel discovery. Yelp reiterated that the First Amendment "provides special protections for anonymity on the Internet," and argued that the court should apply the Dendrite test. The subpoena could not be enforced under this test, Yelp argued, because Hadeed had "failed to produce any evidence that any of the statements made about it are false." Yelp also continued to assert that it was not subject to jurisdiction. It argued that "predicating personal jurisdiction on the mere fact that Yelp enables its users to make statements accessible in Virginia through the Internet offends traditional principles of state sovereignty."

Hadeed responded to Yelp's objections on Oct. 31, 2012, reiterating its previous arguments.

The trial court held oral arguments on November 14, 2012, and enforced the subpoena on November 19, 2012. According to the court, it had jurisdiction over the motion based on service of the subpoena on Yelp's registered agent. The court added, however, that "even if a registered agent alone was an insufficient basis for jurisdiction," the court had jurisdiction "in light of Yelp's conduct directing electronic activity in Virginia and business relationships with Virginia companies and residents." The advertising agreement between the parties, the court held, did not deprive the court of jurisdiction, because the motion to compel was not a dispute between Hadeed and Yelp but rather a dispute between Hadeed and the anonymous reviewers, parties not governed by the agreement.

Finally, the trial court held that the proper standard for compelling the identity of anonymous speakers was laid out in Virginia Code § 8.01-407.1, which requires a showing that the statements "may be tortious" and that the speaker's identity is "important" or "relates to a core claim." Hadeed had met the statutory standard, the court held, because "the statements [we]re tortious if not made by customers" and "the identity of the communicators [w]as essential to maintain a suit for defamation." The court found no constitutional problem with this result. Although the court "recognize[d] that anonymous speech and even false speech is entitled to protection under the First Amendment," it stated that such speech is "not entitled to the same level of protection as truthful or political speech." Without citing Dendrite or Cahill, the court therefore ordered Yelp to produce information identifying the anonymous speakers.

Yelp refused to enforce the subpoena and, on January 9, 2013, the court held Yelp in contempt and imposed a $500 fine and $1000 in attorney fees. The sanctions were stayed pending appeal.

Yelp appealed to the Court of Appeals of Virginia and filed its opening brief on May 7, 2013. Yelp argued that the circuit court violated the First Amendment by ordering Yelp to identify the defendants, because Hadeed should have been required to do more than articulate a good faith belief that the speech "may be tortious." Indeed, Yelp asserted, the constitution requires "a factual showing, . . . that the statements are actionable and that there is an evidentiary basis for the prima facie elements of the claim." Yelp also argued that the court erred in concluding that the speech at issue did not warrant First Amendment protection because it was defamatory, because that argument begged the question by relying on the defamatory nature of the speech to compel evidence to prove its defamatory nature. Yelp also pointed to the constitutional requirement of proof of fault in defamation cases.

Yelp next argued that, even if Hadeed had made a sufficient showing that the reviewers were not Hadeed customers, the statements were not actionable. The parts of the reviews that Hadeed alleged were false -- the identities of the reviewers -- were not the parts of the reviews that could negatively impact Hadeed's reputation. Under Fourth Circuit precedent, Yelp claimed, "the falsity of a statement and the defamatory ‘sting' of the publication must coincide" for a statement to constitute defamation. And in this case, "Hadeed never allege[d] that the substantive problems set forth in the reviews, such as charging twice the advertised price, [we]re themselves false." Additionally, Yelp argued that Hadeed was libel-proof and could not sue for defamation because, in light of the large number of negative Yelp reviews of Hadeed that were not included in the lawsuit, a few more negative comments "would [not] cause Hadeed any incremental harm."

Yelp finally argued that, if the statements could be actionable, Hadeed had not presented a sufficient factual basis for the subpoena. When a party is "seeking discovery of information protected by the First Amendment," Yelp claimed, it should be required to show that "there is reason to believe that the information sought will, in fact, help its case." Hadeed had failed to make this showing, Yelp stated.

On May 8, 2013, the Reporters Committee for Freedom of the Press, the American Society of News Editors, Gannett Co., and The Washington Post filed a brief in support of Yelp. They argued that: the court should recognize "a heightened standard for compelled disclosure of identities" consistent with a consensus that has developed in the courts; allowing plaintiffs to compel the identity of authors "of any speech that ‘may be tortious' simply based on an unsupported allegation is inconsistent with the First Amendment"; and a "heightened standard is important to news organizations and other Internet publishers in creating a meaningful exchange of ideas on their web sites."

Hadeed filed its appellee's brief on May 30, 2013, arguing that the Virginia statute "clearly meets the minimal constitutional protections required under the First Amendment." But even if the Dendrite test were constitutionally required, Hadeed contended that the test had been satisfied because its complaint had "provided the actual statements, and if the posters are not customers, their statements are defamatory per se." Even under Dendrite, Hadeed argued, it was not required to present "all evidence necessary to survive a tough cross examination, summary judgment, or even . . . a jury verdict." Hadeed claimed it could not present more detailed information rebutting the Yelp reviews because it "serves 35,000 customers per year and its staff encounters all variety of circumstances," and the experiences of its thousands of other customers would not be relevant to "whether one specific person was defrauded through a bait and switch." Hadeed also contested Yelp's argument that it was libel proof, arguing that the many other negative Yelp reviews were not reliable.

Yelp filed a reply brief on June 27, 2013. It asserted that "even apart from the fact that a state statute cannot overrule the requirements of the First Amendment, there is no inconsistency between section 8.01-407.1 and the Dendrite-Cahill line of cases." Under the statute, Yelp claimed, it "is not enough for the plaintiff to show good faith; it must have a ‘legitimate' basis for claiming that the speech was tortious." Yelp argued that Hadeed had "alleged defamation, but ha[d] of yet proved nothing," and pointed out that Hadeed had not filed an affidavit from any employee actually denying that Hadeed engaged in the misconduct alleged in the Yelp reviews.

The Court of Appeals of Virginia, by a vote of two to one, affirmed the trial court's decision on January 7, 2014.

First, the court stated that although anonymous speech is protected by the First Amendment, "defamatory speech is not entitled to constitutional protection." Therefore, the court stated, "if the reviews are unlawful in that they are defamatory, then the [reviewers'] veil of anonymity may be pierced." Further, the court found that the speech at issue was commercial speech, as it was "expression related solely to the economic interests of the speaker and its audience." Because courts have recognized a lower level of First Amendment protection for commercial speech," the court held that the anonymous reviewers' "right to anonymity is subject to a substantial governmental interest in disclosure." In contrast, the court stated, a "business's reputation is a precious commodity."

The court also rejected the argument that the reviews were non-actionable opinion. "Generally," the court stated, "a Yelp review is entitled to First Amendment protection because it is a person's opinion." However, the court explained, this protection "relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, . . . then the review is not an opinion; instead, the review is based on a false statement of fact."

The court next turned to Virginia law. It held that Virginia Code § 8.01-407.1 provided the proper test for uncovering the identity of an anonymous Internet communicator. The court noted that it was "reluctant to declare legislative acts unconstitutional" and ultimately refused to do so, because there was no constitutional infirmity that was "clear, palpable, and practically free from doubt." The court also refused to "adopt persuasive authority from other states," including Dendrite and Cahill, noting that the Virginia legislature had considered that authority and ultimately made its own policy decisions.

In applying the Virginia statute, the court held that Hadeed presented sufficient evidence to show that the reviews were or may have been defamatory by "indicating that it made a thorough review of its customer database" and could not match the defendants' reviews with customers. Further, the court believed that Hadeed acted on a "legitimate, good faith belief that the Doe defendants were not former customers," and "took reasonable efforts to identify the anonymous communicators." Finally, according to the court, the reviewers' identities were "not only important," but "necessary" because "without the identity of the Doe defendants, Hadeed cannot move forward with its defamation lawsuit."

The court also concluded that the trial court properly exercised subpoena jurisdiction over Yelp because Virginia statutes "explicitly allow for service on a registered agent of a foreign corporation that is authorized to do business in the Commonwealth."

Senior Judge James Haley dissented. Judge Haley agreed that Virginia Code § 8.01-407 provided the proper framework for analysis, and stated that correct analysis under the statutory framework properly "balances the First Amendment protection of an anonymous speaker and the right of redress for defamation." However, he concluded that, in this case, "the balance envisioned by [the statute] should weigh for the protection afforded by" the U.S. and Virginia constitutions. Judge Haley noted that Hadeed had not "claimed that any of the substantive statements [we]re false," and, at oral argument, "candidly admitted that it [could] not say the John Doe defendants are not customers." By arguing that the reviewers "may not have been customers, and, if they were not, the substantive statements may be tortious," Hadeed failed to provide sufficient supporting material to justify the subpoena, he asserted. Instead, Judge Haley said, Hadeed's claim was merely "a self-serving argument -- one that proceed[ed] from a premise the argument [wa]s supposed to prove."

The U.S. government filed three indictments, consisting of seventeen charges, against Barrett Brown, an independent journalist. The charges arose out of Brown's online publication of a link to data obtained by hacktivist collective Anonymous and his alleged subsequent conduct.

Anonymous hacked Stratfor, a global intelligence firm, in December 2011, obtaining millions of e-mails, some of which included credit card and personal identity data. WikiLeaks published a large collection of these emails in February 2012, and Brown linked to a zip file of the leaked data on his IRC (Internet Relay Chat) channel, #ProjectPM. In response to these events, in March and September 2012, the FBI raided Brown and his mother's residences. Brown responded with YouTube videos, including one entitled "Why I'm Going to Destory FBI Agent [RS]," and similar commentary on Twitter. 

The federal government filed a complaint against Brown in the U.S. District Court for the Northern District of Texas on September 12, 2012. According to the docket, the complaint alleged that Brown "knowingly counseled, commanded, and induced other individuals to make restricted personal information about a Special Agent (SA) of the Federal Bureau of Investigation (FBI) publically available with the intent to threaten, intimidate, and incite the commission of a crime of violence against that SA, in violation of 18 U.S.C. §§ 2 and 119." (The full text of this complaint is not available.) The first indictment included counts related to Brown's responses to the FBI raids on his social media accounts (on Twitter and YouTube), which the government alleged to be threatening the FBI Agent and exposing private information. Specifically, the three counts were: Internet threats under 18 U.S.C. § 875(c); conspiracy to make publically available restricted personal information of an employee of the United States under 18 U.S.C. § 371; and retaliation against a federal law enforcement officer under 18 U.S.C. §§ 115(a)(1)(B) and (b)(4). Brown pled not guilty to all three counts on November 15, 2012. 

The government filed a second indictment, case number 3:12-cr-00413-B, on December 4, 2012, arising out of the hyperlink to the leaked Stratfor data that Brown posted on his IRC channel. The government asserted that sharing this link constituted a transfer the credit card account information contained therein; accordingly, Brown was charged with: traffic in stolen authentication features under 18 U.S.C. §§ 1028(a)(2), (b)(1)(B), and (c)(3)(A); access device fraud under 18 U.S.C. §§ 1029(a)(3) and (c)(1)(A)(i); and ten counts of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). On December 17, 2012, Brown made a plea of not guilty to all of these charges. This second indictment was replaced by a superseding indictment on July 2, 2013, which made no substantive changes to the charges. 

During the 2012 FBI raids, Brown denied the presence of any laptops at his or his mother's residences, though two were later found. For this, he was charged with obstruction of justice in a third indictment on January 23, 2013 (case number 3:13-cr-00030-B). The indictment included two counts: concealment of evidence under 18 U.S.C. § 1519; and corruptly concealing evidence under 18 U.S.C. § 1512(c)(1). According to the case docket, Brown entered a not guilty plea on January 30, 2013. 

On January 30, 2013, the court held a hearing to determine Brown's competency to stand trial in his criminal cases, focusing on his mental health. In an order filed February 4, 2013, the court declared Brown competent to stand trial in all three pending cases.

On August 7, 2013, in the course of opposing a motion by Brown for a continuance of his trial date, the government asserted that Brown had repeatedly solicited "the services of the media or media-types to discuss his cases," and thereby demonstrated an "intent to continue to manipulate the public through press and social media comments, in defiance of the admonishment by the United States Magistrate Judge." Asserting that such "extrajudicial commentary" would undermine a fair trial, the government asked the court "to instruct the parties to refrain from making "any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record."

Brown opposed the government's request for a gag order in pleadings filed on August 9 and September 4, 2013, arguing that the government had not established a need for a gag order or that less restrictive measures were not available to responf to pretrial publicity. The defense pointed out that since appointment of counsel on his behalf, Brown had made no statements to the press, his counsel had made no statements except with respect to matters in the public record, and any statements made by associates of Brown could not be attributed to Brown himself. The defense further argued that cases supporting gag orders required evidence of statements by the defendant, and not merely a claim that the defense had condoned or attempted to coordinate media coverage. The defense also objected to the government's attempt to rely, as a basis for a gag order, on Brown's own journalistic work product unrelated to the pending charges against him. 

On September 4, 2013, the court entered an "Agreed Order Re: Extrajudicial Statements" signed by the judge and by counsel for Brown and the government. The order prohibits Brown and all attorneys for the government and the defense from making

any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere witha fair trial or otherwise prejudice Defendant, the Government, or the administration of justice, except that counsel for the Defendant may consult with Mr. Kevin Gallagher regarding the finances needed for Mr. Barrett Brown's defense.

The parties are further prohibited by the order from avoiding its effect through indirect, but deliberate, means. The order states that Brown is permitted continue to make statements and publish on topics not related to the counts on which he was indicted.

Two trials are set in the case. The first trial, relating to the threats allegedly made by Brown, is set to begin on April 28, 2014. The second trial, relating to the charges regarding hyperlinking to stolen data and obstruction of justice, was set to begin on May 19, 2014; however, on March 5, 2014, the Department of Justice voluntarily moved to dismiss the hyperlinking charges.  It is not clear whether this will affect the schedule of the second trial.