Academic journal article Brigham Young University Law Review

Digitally Unknown: Why the Ninth Circuit Should Wish to Remain Anonymous in in Re Anonymous Online Speakers

Academic journal article Brigham Young University Law Review

Digitally Unknown: Why the Ninth Circuit Should Wish to Remain Anonymous in in Re Anonymous Online Speakers

Article excerpt

I. INTRODUCTION

Anonymous speech has a long and rich history in the United States. For example, the Federalist Papers, drafted by James Madison, John Jay, and Alexander Hamilton, were published under the pseudonym "Publius."1 The value of the Federalist Papers to civil dialogue is undisputed, and it is likely that they would not have had the same effect had the drafters been forced to disclose their identities.2 As the Supreme Court has stated, "It is plain that anonymity has sometimes been assumed for the most constructive purposes."3 Some of these purposes are to avoid chilling effects on freedom of expression4 and to allow an unpopular speaker to speak without others prejudging her message.5 Nearly two centuries after the Federalist Papers were published, the Supreme Court embodied in the First Amendment this long-respected right to speak anonymously.6

The anonymous speech doctrine, as it has come to be known, has remained vibrant in the United States - protecting individuals from laws that would require them to disclose their identities on handbills7 and campaign literature.8 Since the advent of the Internet, the anonymous speech doctrine has taken on an increasingly prominent role in society because anyone with Internet access can become a town crier or a pamphleteer.9 While this increased access to a figurative pulpit ought to be celebrated in the marketplace of ideas, anonymous online speech also brings new challenges and problems. For example, the ease of access to an authence and the general permanence of content posted online create numerous opportunities for individuals to act maliciously behind the cloak of Internet anonymity. Thus, piercing the cloak of anonymity to identify anonymous speakers has been litigated with increasing frequency since the advent of the Internet.10

In early 2011, the Ninth Circuit addressed the conflict of anonymous speech in the Internet context in In re Anonymous Online Speakers.11 This case presented the issue whether the veil of anonymity could be pierced for five speakers' allegedly defamatory statements that were anonymously posted to various blogs.12 In resolving this issue, the Ninth Circuit had to decide whether the circumstances warranted issuing writs of mandamus either to protect the speakers' identities or to require their disclosure in discovery.13 While the court ultimately declined to issue either of the writs (leaving the district court ruling unaltered),14 the court's analysis raises two key questions. First, does anonymous online speech deserve more or less protection than traditional anonymous speech? Second, what standard should courts apply to balance the interests of disclosing the anonymous defamers' identities with maintaining the First Amendment protections afforded to anonymous speakers?

This Note argues that the Ninth Circuit's decision in Anonymous Online Speakers answered both of these questions erroneously. First, the court suggested that anonymous online speech deserves less protection than other anonymous speech because the Internet's speed increases the likelihood that harm or lies will be perpetuated.15 The court's approach is problematic because it directly cuts against Supreme Court precedent suggesting that anonymous online speech should not be treated differently than other anonymous speech.16 Second, despite pointing out the inconsistent standards used by other courts, the Ninth Circuit failed to articulate which standard should govern whether to disclose an anonymous speaker's identity in pretrial discovery.17 The Ninth Circuit passed up a valuable opportunity to resolve some confusion - at least for the courts within its jurisdiction - with there being no direct Supreme Court precedent and numerous standards used by different courts.

This Note proceeds as follows. Part II provides the facts and procedural history of the Ninth Circuit's decision in Anonymous Online Speakers. Part III summarizes the three main areas of analysis in the Ninth Circuit's opinion. …

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