Legal Protections for Anonymous Speech in Massachusetts

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.

McMann v. Doe, 460 F.Supp.2d 259 (D. Mass. 2006)

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.



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