What We Often Take For Granted: Robust Protections for Speech

Over the past few weeks everyone at the CMLP and Harvard's Cyberlaw Clinic (with whom we share an office) has been focused on the question of what legal protections courts should apply to anonymous speech (see this post about our amicus participation in the Maxon v. Ottawa Publishing case).  When you are immersed in an issue like this, it is easy to forget how lucky we are to live in a country that has robust protections for speech.

In a post earlier this week, University of Ottawa law professor Michael Geist reminds us that our neighbor to the north is grappling with this same issue, but has come up with a very different answer.  In his post, Geist reports that an Ontario court has ordered the operators of the right-wing Canadian forum site, FreeDominion.ca, to turn over personally identifying information for eight anonymous posters to the site.

The case was brought by Richard Warman, a Canadian human rights lawyer who is best known for initiating human rights complaints against members of white supremacist and neo-Nazi movements for engaging in hate speech on the Internet.  In late 2007, Warman sued the owners and operators of Free Dominion and eight "John Doe" posters for defamation.  As part of discovery in the case, Warman sought identifying information for the eight anonymous posters.  

Free Dominion's operators resisted disclosure, arguing (much like service providers on this side of the border) that Warman "must establish a prima facie case in the affidavit evidence before disclosure can be applied." Warman v. Wilkins-Fournier, 07-CV-039927SR, slip op. at 2 (Ont. Sup. Ct. Justice Mar. 23, 2009).  The Canadian court rejected this argument and did not impose any evidentiary standard or other procedural safeguards before ordering disclosure.  The court reasoned that the anonymous commenters had no expectation of privacy in their IP addresses and other account information, and that, "[a]ccordingly, the paramount obligation in this matter is to follow the disclosure rules in the Rules of Civil Procedure." Id. at 8.

The Canadian court's framing of the inquiry as a question of privacy, without regard to the importance of anonymous speech or the intentions of the party seeking discovery, is markedly different from the approach of U.S. courts.  The United States Supreme Court has repeatedly affirmed that the First Amendment protects the right to speak anonymously.  Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960).  In upholding this right, the Supreme Court has honored the long tradition of anonymous speech in our nation's public discourse.  In McIntyre v. Ohio Elections Commission, the Court explained the importance of anonymous speech:

Anonymity is a shield from the tyranny of the majority.  It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression - at the hand of an intolerant society.  The right to remain anonymous may be abused when it shields fraudulent conduct.  But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

McIntyre, 514 U.S. at 357 (citation omitted).  The Court has detailed a history rife with examples of anonymous pamphleteering in favor of political causes, from "Junius" to "Cincinnatus" to "Federal Farmer" to "Philadelphiensis."  See McIntyre, 514 U.S. at 342-43 & n.6; id. at 360-67 (Thomas, J., concurring); Talley, 362 U.S. at 64-65.  Most famously, James Madison, Alexander Hamilton, and John Jay published The Federalist Papers under the pseudonym "Publius" to focus attention on the merits of their arguments in favor of ratification of the Constitution and away from their status as prominent Federalists.

The right to speak anonymously would be largely hollow, however, if would-be plaintiffs could simply dash off a subpoena and force disclosure of an anonymous speaker's identity.  The procedural safeguards imposed by U.S. courts protect not only against unjustified disclosure in individual instances, but against chilling the legitimate exercise of First Amendment rights in general. See 2TheMart.com v. Doe, 140 F. Supp. 2d 1088, 1093 (W.D. Wash. 2001) ("If Internet users could be stripped of that anonymity by civil subpoena enforced under the liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights.").

The potential chilling effect on speech is especially worrisome given evidence suggesting that plaintiffs sometimes pursue these measures simply to unmask their critics and take extra-judicial action, rather than to obtain redress for legally actionable speech.  See, e.g., Swiger v. Allegheny Energy, No. 05-5725-JCJ, 2007 WL 442383 (E.D. Pa. Feb. 7, 2007) (company subpoenaed poster's identifying information, dismissed lawsuit, and fired the employee); Jay Eisenhofer & Sidney S. Liebesman, Caught by the Net: What To Do If a Message Board Messes with Your Message, 10 Bus. Law Today 40, 46 (Sept./Oct. 2000) (encouraging companies to bring suit, even if they do not intend to pursue the action to a conclusion, because "[t]he mere filing of the John Doe action will probably slow the postings"); see also Doe v. Cahill, 884 A.2d 451, 457 (Del. 2005) ("After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits of fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies . . . .").  

Accordingly, nearly every court asked to order the unmasking of an anonymous speaker has recognized that the would-be plaintiff's right to recover for legally actionable speech must be balanced against the Internet speaker's First Amendment right to speak anonymously.  See, e.g., Indep. Newspapers, Inc. v. Brodie, No. 63, 2009 WL 484956, at *1 (Md. Feb. 27, 2009); Cahill, 884 A.2d at 456; Dendrite Intern. v. Doe, 775 A.2d 756, 760 (N.J. Super. Ct. App. Div. 2001); Quixtar Inc. v. Signature Mgmt. Team, 566 F. Supp. 2d 1205, 1211 (D. Nev., 2008).  In striking this balance, courts have paid special attention to ensuring that "the First Amendment rights of anonymous Internet speakers are not lost unnecessarily, and that plaintiffs do not use discovery to 'harass, intimidate or silence critics in the public forum opportunities presented by the Internet.'" Doe I v. Individuals, 561 F. Supp. 2d. 249, 254 (D. Conn. 2008) (quoting Dendrite, 775 A.2d at 771). 

The potential chilling effect from easy unmasking of anonymous speakers doesn't appear to have preoccupied the Warman court one bit.  Does this point to a hole in Canadian law?  It's hard to say.  We're not experts in Canadian law, but Geist (who is) suggests that the case is potentially an outlier: "This particular decision feels like a judge anxious to order disclosure, despite the weight of authority that provides some measure of privacy protection for anonymous posters."

(Photo courtesy of Ian Muttoo on Flickr.  Licensed under a CC Attribution-Share Alike 2.o Generic license.)


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