This week, Harvard’s Cyberlaw Clinic filed an amicus brief with the Illinois Appellate Court in support of hefty procedural safeguards to protect the anonymity of online speakers in defamation lawsuits. The brief was a collaborative effort of a number of organizations, including Berkman’s Citizen Media Law Project, Gannett Corporation, and the Reporters Committee for Freedom of the Press. While I agree with the fundamental premise that plaintiffs should have to do more than simply serve a subpoena to compel the defendants to reveal the identity of online speakers, in my view, the position staked out by the amicus coalition simply goes too far.
My problem with the argument is simple – it creates a large imbalance between defamation cases involving identified and anonymous speakers by advocating a significantly higher pleading standard for plaintiffs who are defamed by anonymous speakers. Specifically, amici advocate a four-pronged standard to determine if the plaintiff is entitled to compel discovery as to the identity of the speaker: (1) plaintiff must attempt to notify the defendant and give him or her an opportunity to respond before going forward with the litigation; (2) plaintiff must state a claim sufficient to survive a motion to dismiss; (3) plaintiff must present prima facie evidence for each element of its defamation claim; and (4) the court must determine that the equities weigh in favor of disclosure. In other words, a plaintiff effectively must present evidence sufficient to survive a motion for summary judgment without the benefit of deposing the defendant or even knowing whom the defendant is. In addition, even if that evidentiary standard is met, the court may still decide that the First Amendment rights of the anonymous speaker outweigh the plaintiff’s right to compel disclosure of the defendant’s identity.
Amici justify this rigorous standard by arguing that it prevents plaintiffs from filing frivolous defamation lawsuits to reveal the identity of an anonymous speaker. This is certainly an important concern, but the threat of frivolous lawsuits designed to chill speech is hardly unique to defamation cases involving anonymous speakers.
For example, since 2007, the National Fair Housing Alliance (NFHA) has been fighting a defamation lawsuit brought by a real estate company that was the target of its fair housing testing. (Disclosure: I helped defend NFHA in this litigation at my prior firm.) NFHA conducted months of well-documented fair housing tests and then reported its results to the media. Despite NFHA’s due diligence, it has been subjected to the burden of ongoing litigation. Yet under amici’s proposed standard, it would likely not have faced this burden if it had reported the results anonymously on the Internet. By giving better protection to anonymous speakers, the heightened standard reflects an implicit judgment that anonymous speech should be valued more highly than regular speech. It also produces a perverse incentive for all speakers to withhold their name from reports, comments, and opinions online.
My point is not to argue that we should not try to prevent lawsuits designed to stifle free speech. I believe strongly that defamation cases often have a chilling effect, and it is important to have legal mechanisms to address this problem (e.g., anti-SLAPP statutes). Instead, I am arguing that in designing solutions to this problem, we must be careful not to place a premium on anonymous speech. While there are certainly circumstances under which anonymity is necessary, those situations are and should be limited. There is a reason why journalists are strongly discouraged from quoting anonymous sources – it prevents accountability. As we transition into an environment where more people than ever have the ability to communicate their ideas and opinions, it is more important than ever that we encourage accountability in the marketplace of ideas. Incentivizing anonymity is certainly not the way to do that.