We Need A New Test For Anonymous Internet Speech Law360 December 7, 2015 Law360, New York (December 7, 2015, 10:36 AM ET) -- The question of when the right to speak anonymously should give way to the right to preserve reputation recently made the news when actor James Woods, a caustic tweeter himself, sought an order requiring Twitter to disclose the identity of two anonymous Twitter users whom Woods sued after they tweeted he was a “cocaine addict” and “registered sex offender.” Whether Woods will be entitled to unmask his nemeses is yet to be definitively decided because the defendants have filed a special motion to strike Woods’ complaint pursuant to California’s anti-SLAPP statute, thus halting all discovery. Consequently, at least for the moment, the court denied Woods’ attempt to disclose the identity of the defendants.

The key question now for the parties is whether the allegedly defamatory statements are provable fact or “figurative rhetorical insult.” The answer to that question, and whether Woods will ever learn the identity of the defendants, may turn, at least in part, on the court’s assessment of whether the speakers’ choice of the Twitter platform itself rendered, in context, what otherwise might be clear statements of fact into opinion, immune from the reach of Woods’ defamation claims.

The right to speak anonymously has been a cherished tradition since the founding of the nation. Never before, however, have the tools to project anonymous speech been so robust or so ubiquitously used. As the U.S. Supreme Court recognized when it announced that the First Amendment applied to “the vast democratic forums of the Internet” no differently than to speech in other media, “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.”[1] However, just as the Internet allows messages to reach huge audiences, so does it magnify the potential damage that can be done when the right to speak anonymously is abused by defamatory speech.

The tension between the sheer power of this new and very democratic medium for anonymous speakers, on the one hand, and the societal interest in protecting reputation, on the other, has caused courts to struggle with the standard that ought to be met before the identity of an anonymous speaker is revealed. Set the bar too low, and anonymous speakers might self-censor their remarks or not speak at all for fear of the consequences of being unmasked upon the mere filing of a defamation claim. Set the bar too high, and legitimate claims of damage to reputation could go without a remedy.

Over time, tests announced in Dendrite Int’l Inc. v. Doe[2] and in Doe v. Cahill[3] became the leading tests for determining when it is appropriate to reveal the identity of an anonymous speaker. Although neither test is particularly old from a legal perspective, rapid changes in how people communicate online, and cases such as the one brought by James Woods, provide cause to examine whether the current tests are adequate given the prevalence of social media platforms such as Twitter.[4]

The Dendrite Test

In Dendrite, decided in 2001, a company sought to unmask anonymous defendants who posted negative comments about it on a Yahoo message board.[5] The court announced a four-prong test to determine whether the defendants’ identities should be revealed.

The court required that: (1) the plaintiff undertake efforts to notify the anonymous posters that they

were the subject of a subpoena or application for an order of disclosure and provide reasonable opportunity to oppose; (2) the plaintiff identify and set forth the exact statements purportedly made by each anonymous poster that the plaintiff argued constituted actionable speech; (3) the plaintiff set forth a prima facie case against the anonymous defendants by producing evidence for each element of the cause of action; and (4) the court balance a defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the defendant’s identity.[6]

In establishing the “prima facie” standard, the court rejected the “motion to dismiss” standard that other courts had been using to determine whether a plaintiff’s claim was strong enough to compel the revelation of an anonymous speaker’s identity, cautioning that the motion to dismiss standard failed to provide a basis for an analysis and balancing of the competing rights.[7]

The Cahill Test

In Cahill, decided in 2005, the Delaware Supreme Court adopted what it termed “a modified Dendrite standard” consisting of the first and third prongs of the Dendrite test that: (1) the plaintiff undertake efforts to notify the anonymous poster of the subpoena or order of disclosure and afford the anonymous defendant reasonable time to oppose; and (2) the plaintiff support his defamation claim with facts sufficient to defeat a summary judgment motion.[8] The court rejected the second prong of the Dendrite test because it believed it subsumed within the summary judgment “prima facie” test. Similarly, the court rejected any need for balancing, stating that the summary judgment test itself was the balance.[9]

Applying the Tests

Many courts have adopted the Dendrite and Cahill tests or a modified version of them. Others, however, still apply a “good faith” standard[10] or a “motion to dismiss” standard,[11] both of which are less stringent than either Dendrite or Cahill. Consequently, while both Dendrite and Cahill are influential, a number of tests remain that could apply to a case brought against an anonymous Internet speaker.

The selection of which of these tests to apply can be outcome determinative. For example, in Music Group Macao Commercial Offshore Ltd. v. Does,[12] a district court considered a claim that tweets posted about a company stating that the company encouraged domestic violence and misogyny were defamatory. When plaintiff sought to enforce a subpoena served on Twitter seeking the identity of the anonymous poster, the court applied a two-prong test of “middling rigor” which required (1) that the plaintiff provide evidence to support a finding of each fact essential to a given cause of action, and (2) a court assessment and comparison of the magnitude of harms.

Applying the first prong, the court found that the tweeted statements on their face satisfied the required evidentiary showing. However, when it purported to balance the competing harms, the court noted that immediately following the offending statement, the post included a Web address leading to a “comedic” video by Music Group promoting one of its products. In that video, a woman is killed by a bullet that ricochets off of a food mixer.[13] Accordingly, the court deemed the allegedly defamatory statements to be joking and ironic. Although unstated, the court evidently concluded that statements intended to be joking and ironic would be of little harm to plaintiff, and thus the balance of harms tipped in the defendant’s favor. Had the court applied a test such as the Cahill test, which does not allow for balancing, the opposite outcome could have resulted. Once the court concluded that the plaintiff

2 had met the required evidentiary showing, the analysis would end, and there would be no balancing of the type that led the court in Music Group Macao to find for the defendant and preserve anonymity.

The Need for a Uniform Test that Balances the Competing Rights at Stake

Certainty in the law provides important protection of constitutional rights. The exercise of First Amendment rights via the Internet and social media theoretically could give rise to claims in many different jurisdictions, each of which might apply different standards when determining whether cause exists to reveal the identity of a speaker. Such uncertainty has the potential to chill Internet speech.[14] As such, courts should strive to adopt a uniform standard.

That standard should look more like Dendrite than Cahill. The principal disagreement between the two involves the need for a separate balancing test even when the evidentiary standard has been met. As Dendrite recognized, a plaintiff has a right to “protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously- named defendants.”[15] However, courts have also recognized that if “Internet users could be stripped of that anonymity by a civil subpoena enforced under liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights.”[16] Because of these competing interests, a balancing test proves essential. An Arizona court in Mobilisa Inc. v. Doe noted the importance of balancing, specifying that it was necessary given the vast array of factually distinct cases involving anonymous speech.[17] In addition, the court cautioned that, without a balancing test, courts could not consider other facts such as the type of speech involved, expectations of privacy, and consequences of revealing identity for the speaker and others similarly situated.[18]

When applying the balancing test in an age dominated by social media, courts need to pay special attention to context to provide the First Amendment the protection it is due. In Cahill, the court stated that the forum where speech is posted, whether the Internet or other traditional forms of communication, did not matter and that the same test should apply for unmasking anonymous speakers regardless of the media at issue.[19] However, the court still recognized that certain factual and contextual issues relevant to the Internet are important in analyzing the actual claim.[20]

Recently, an Illinois court addressed a defamation case over tweets calling a product “poison,” “toxic” and “unregulated.”[21] The court noted that, while the words used in the tweets had precise and readily understood meanings, the tweets themselves were broad and conclusory and could easily be viewed as hyperbolic and dramatic in the context of the entire twitter feed.[22] Notably, the court stated that the “literary and social context” of the tweets implied that the statements contained opinion rather than factual content.[23]

The same may be true of the tweeted statements James Woods complains about. But whether his adversaries will be identified may well depend on the test the California court applies, and that should not be. Anonymous speakers should know the risks of being exposed when they press “send.” And, courts should have the ability to balance the relevant interests beyond simple application of an evidentiary standard to account for contextual circumstances that have become so important in an ever changing age of digital communication.

—By Bradley H. Ellis and Marisol Ramirez, Sidley Austin LLP

Brad Ellis is a partner at Sidley Austin and co-head of the firm's Los Angeles general litigation group.

3 Marisol Ramirez is an associate in the firm's Los Angeles office.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997).

[2] 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).

[3] 884 A.2d 451 (Del. 2005).

[4] Proof of how quickly technology is outpacing legal pronouncements is found in the Supreme Court’s reference to “phone lines” in the context of Internet use, which already seems quaint less than twenty years after it was penned. Reno, 521 U.S. at 870.

[5] Dendrite, 775 A.2d at 760.

[6] Id. at 760-61.

[7] Id. at 770.

[8] Cahill, 884 A.2d at 460-61.

[9] Id. at 461.

[10] See In re Subpoena Duces Tecum to Am. Online, Inc., No. 40570, 2000 WL 1210372 (Va. Cir. Ct., Jan. 31, 2000), rev’d on other ground sub nom, Am. Online, Inc. v. Anonymous Publicly Trade Co., 542 S.E.2d 377 (Va. 2001)

[11] See, e.g., Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 579 (N.D. Cal. 1999).

[12] Corrected Order on Subpoenas at 7, Music Group Macao Commercial Offshore Ltd. v. Does, No. 14 mc 80328 LB (N.C. Cal. Mar. 2, 2015).

[13] Music Group Macao at 8-9.

[14] See Sophia Qasir, Note, Anonymity in Cyberspace: Judicial and Legislative Regulations, 81 Fordham L. Rev. 3651, 3684 (2013) (“Such discordant standards create uncertainty regarding individuals’ speech rights as speakers’ rights will be affected both by the underlying action and applicable law.”)

[15] Dendrite Int’l, Inc. v. Doe, 775 A.2d 756, 760 (N.J. Super. Ct. app. Div. 2001)

[16] Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1097 (W.D. Wash 2001).

[17] Mobilisa, Inc. v. Doe, 170 P.3d 712, 720 (Ariz. Ct. App. 2007).

[18] Id.

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[19] Doe v. Cahill, 884 A.2d 451, 465 (Del. 2005).

[20] Id.

[21] Memorandum Opinion and Order at 4, Herbalife Int’l of America, Inc. v. Twitter, Inc, No. 15L7373 (Ill. Cir. Ct. Nov. 20, 2015).

[22] Id.

[23] Id. All Content © 2003-2015, Portfolio Media, Inc.

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