|UFDC Home||myUFDC Home | Help|
This item has the following downloads:
1 THE WHO, WHAT, WHY AND WHERE OF ONLINE ANONYMITY: TOWARD A JUDICIAL RUBRIC FOR CHOOSING ALTERNATIVE UNMASKING STANDARDS By KEARSTON WESNER A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PA RTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2012
2 2012 Kearston Lee Wesner
3 To Julian
4 ACKNOWLEDGMENTS The author acknowledges and expresses gratitude to her dissertation co chairs, D r. Clay Calvert and Dr. Debbie Treise, and her committee members, Dr. John Wright, Dr. Norman Lewis, and Dr. Charles Collier, for their unwavering support and guidance. The author also thanks her family and friends for their tremendous assistance during th e dissertation process. Without them, this dissertation could never have been completed. A special thanks goes to Julian Bingham for patience beyond his years, Marty Rabens for his invaluable assistance, Bailey Wesner for her sacrifices to ensure this diss ertation was completed, and Bonnie Wesner for instilling in the author the desire to accomplish this goal.
5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ .. 4 LIST OF FIGURES ................................ ................................ ................................ .......... 9 ABSTRACT ................................ ................................ ................................ ................... 10 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ .... 11 Objective ................................ ................................ ................................ ................. 17 Statement of the Problem ................................ ................................ ....................... 18 Research Question ................................ ................................ ................................ 22 Methodology ................................ ................................ ................................ ........... 22 Roadmap of Chapters ................................ ................................ ............................. 23 2 THE FOUNDATIONS OF A NONYMOUS SPEECH PROT ECTIONS IN FIRST AMENDMENT JURISPRUDE NCE ................................ ................................ ......... 25 Why Protect Anonymous Speech? ................................ ................................ ......... 26 Reasons to Protect Anon ymous Speech ................................ .......................... 26 Reasons Weighing Against Protecting Anonymous Speech ............................ 30 The History of Anonymity Jurisprudence Political Speech ................................ ... 33 Anonymous Speech Online ................................ ................................ .................... 38 Why Does Online Speech Warrant Special Analysis? ................................ ...... 39 What Protection Does Anonymous Online Speech Receive? .......................... 40 The Relative Value of Anonymity ................................ ................................ ............ 41 3 THE TESTS FOR UNMASK ING ANONYMOUS SPEAKE RS ................................ 43 Analysis of the Unmasking Standards ................................ ................................ .... 46 The America Online Good Faith Approach ................................ ....................... 47 Facts ................................ ................................ ................................ .......... 48 ................................ ............................. 51 Critique of the America Online decision ................................ ..................... 52 The Dendrite International v. Doe Motion to Dismiss Approach ....................... 54 Facts ................................ ................................ ................................ .......... 55 Parameters of the Dendrite motion to dismiss test ................................ .... 60 Analysis of the Dendrite approach ................................ ............................. 63 Summary Judgment Approach ................................ ................. 72 Facts ................................ ................................ ................................ .......... 72 Parameters of the summary judgment approach ................................ ....... 75 Analysis of Doe v. Cahill ................................ ................................ ............ 77 Interrelationship Among the Tests ................................ ................................ .......... 79
6 4 RUBRICS AS VIABLE M ODELS FOR ANALYZING COMPLEX LEGAL ISSUES 81 Using Models to Engage in Analytical Behavior ................................ ...................... 82 The Use of Models in Mass Communication Research ................................ .......... 86 ................................ ................................ .... 87 The Agenda Setting Mode l ................................ ................................ ............... 88 The Elaboration Likelihood Model ................................ ................................ .... 90 Rubrics as Organizational Tools ................................ ................................ ............. 91 Adopting Models for Legal Analysis ................................ ................................ ........ 96 Adoption of a Rubric ................................ ................................ ............................. 104 5 ESTABLISHING A RUBRI C FOR REVELATION ANA LYSIS ............................... 105 Methodology ................................ ................................ ................................ ......... 106 ................................ .................. 110 Who is Seeking the Identity of the Poster? ................................ ..................... 110 Is the requ ester an individual or a business entity? ................................ 111 Is the requester a public or private figure? ................................ ............... 114 Why ................................ .................... 118 Personal harm ................................ ................................ .......................... 119 Interference with business practices ................................ ........................ 121 Copyright infringement ................................ ................................ ............. 122 Who Is the Anonymous Poster? ................................ ................................ ..... 122 Is the poster a party or non party? ................................ ........................... 123 agreement? ................................ ................................ ........................... 125 What Is the Subject Matter of the Underlying Speech of the Poster? ............. 128 Is the underlying speech commercial in nature? ................................ ...... 128 Does the speech contain particular characteristics that warrant (or fail to warrant) disclosure? ................................ ................................ ............. 131 Where Was the Underlying Spee ch Posted? ................................ ................. 132 What control is exercised over forum content? ................................ ........ 133 What is the context of the forum? ................................ ............................ 134 Establishing a Rubric ................................ ................................ ............................ 141 How the Rubric Functions ................................ ................................ ..................... 142 Advocating a Rubric for Analy tical Purposes ................................ ........................ 146 6 APPLYING THE RUBRIC ................................ ................................ ..................... 148 The Hypothetical: Computer Disrepair Despair ................................ ..................... 148 Application of the Rubric to the Hypothetical ................................ ........................ 152 What is the Nature of the Speech? (10%) ................................ ...................... 152 Core speech (4 points) ................................ ................................ ............. 152 Expressive speech (3 points) ................................ ................................ ... 153 Commercial speech (2 points) ................................ ................................ 154 Who Posted the Informatio n? (20%) ................................ .............................. 155 Non party; unlikely to become a party (4 points, doubled to 8 points) ...... 155
7 Non party; requester seeking information to ascertain claims (2 points, doubled to 4 points) ................................ ................................ .............. 155 Putative defendant (1 point, doubled to 2 points) ................................ ..... 156 Is There a Preexisting Applicable Agreement? (20%) ................................ .... 156 Where Is the Information Posted? (10%) ................................ ....................... 156 How Can the Speech Be Characterized? (10%) ................................ ............ 157 Obviously inactionable speech (4 points) ................................ ................. 157 Appears inactionable, but requires additional discovery (3 points) .......... 158 Appears actionable, but requires additional discovery (2 points) ............. 159 Obviously actionable on its face (1 point) ................................ ................ 159 Who Is the Requester? (10%) ................................ ................................ ........ 160 Public corporate figure claiming harm to business practices (4 points) .... 161 .......... 162 Public individual plaintiff (2 points) ................................ ........................... 162 Private figure suffering personal harm (1 point) ................................ ....... 162 Is the Information Available Elsewhere? (10%) ................................ .............. 162 Are The re Any Other Relevant Fact Specific Considerations? (10%) ............ 163 Final Analysis ................................ ................................ ................................ ........ 164 Applicability of the Finalized Rubric ................................ ................................ ...... 166 7 CONCLUSION ................................ ................................ ................................ ...... 167 Research Question ................................ ................................ ............................... 168 Rubrics are Viable Models for Legal Analysis ................................ ................ 168 Structure of the Rubric ................................ ................................ ................... 169 Substance of the Rubric ................................ ................................ ................. 170 Who ................................ ....................... 170 Why is the post ................................ ............... 171 Who posts the anonymous information? ................................ .................. 173 What is the subject matter of the underlying speech? ................................ .... 174 Where is the information posted? ................................ ................................ ... 175 Potential Limitations of the Research ................................ ................................ ... 177 Future Research ................................ ................................ ................................ ... 177 Overview ................................ ................................ ................................ ............... 178 LIST OF REFERENCES ................................ ................................ ............................. 180 Primary Sources ................................ ................................ ................................ ... 180 Cases ................................ ................................ ................................ ............. 180 Court Orders/Decisions ................................ ................................ .................. 183 Court Rules ................................ ................................ ................................ .... 184 Federal Statutes ................................ ................................ ............................. 184 State Statutes ................................ ................................ ................................ 184 Secondary Sources ................................ ................................ .............................. 184 Books and Book Chapters ................................ ................................ .............. 184 Court filings (Briefs, motions, etc.) ................................ ................................ .. 186 Journal Article s ................................ ................................ ............................... 186
8 News Articles ................................ ................................ ................................ .. 189 Practice Materials ................................ ................................ ........................... 189 Press Releases ................................ ................................ .............................. 189 Restatements of the Law ................................ ................................ ................ 190 Website references ................................ ................................ ........................ 190 BIOGRAPHICAL SKETCH ................................ ................................ .......................... 191
9 LIST OF FIGURES Figure page 3 ................................ ......... 88 5 1 Chart reflecting freq uency of adoption of Dendrite America Online and/or Cahill standards for unmasking online anonymous speakers. .......................... 107 5 2 Sample blank rubric for unmasking test analysis. ................................ ................ 145 5 3 Chart showing weighting of factors for unmasking rubric. ................................ .... 146 6 1 Completed unmasking analysis rubric for Doe 1, yielding the application of Dendrite ................................ ................................ ................................ ........... 165
10 A bstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy THE WHO, WHAT, WHY AND WHERE OF ONLINE ANONYM ITY: TOWARD A JUDICIAL RUBRIC FOR CHOOSING ALTERNATIVE UNMASKING STANDARDS By Kearston Wesner May 2012 Chair: Clay Calvert Co chair : Debbie Treise Major: Mass Communication iden tities revealed a n initial systemic application of ad hoc analyses, coalescing in the general adoption of one of three unmasking tests. Yet courts failed to agree which standard should apply in a given situation, creating unacce ptable confusion and uncertainty with significant First Amendment interests at stake. The dissertation proposes and defends the application of a systematized rubric to guide ons. The rubric is created by culling and consolidating the sa lient thorough analysis of the judicial opinions citing these unmasking tests. The rubric is the n applied to a hypothetical scenario to demonstrate its utility for legal analy sis.
11 CHAPTER 1 INTRODUCTION Rosemary Port, a 29 year old student at the Fashion Institute of Technology in of five posts by Port and user comments about them. 1 s centered on and included sexua lly suggestive photographs of m odel Liskula Cohen. 2 Port captioned 3 4 Regarding two photos showing Cohen in a suggestive pose with a man, Port dubb ed 5 defamation. 6 Ordinarily, this endeavor would be simple: Cohen would file a complaint for 1 Memorandum of Law in Opposition to Application for Pre Action Disclosure at 3, In re Cohen, No. blog was originally at http://skanksnyc.blogspot.com. Id. However, Port took down her blog in March 2009. Wendy Davis, O NLINE M EDIA D AILY Mar. 20, 2009, http://www.mediapost.com/publications/?art_aid=1024 65&fa=Articles.showArticle. 2 Order Granting Petition for Pre Action Disclosure, In re Cohen, No. 100012/09 (N.Y. Sup. Ct. Aug. 17, 2009), available at http://www.citmedialaw.org/sites/citmedialaw.org/files/2009 08 17 Order%20Granting%20Cohen's%20Petition. pdf. 3 In her Order Granting Petition for Pre Action Disclosure, Manhattan Supreme Court Justice Joan Madden cited the American Heritage Dictionary of the English Language 4th Edition 2009 to define Id. at 6 Se elig v. Infinity Broad. Corp., 97 Cal. App. 4th 798, 811 (Cal. Ct. App. 2002) (rejecting a reality Seelig court, however, was motivated in part by the fa ct that the petitioner did not provide the court any Id. 4 See Order Granting Peti tion for Pre Action Disclosure In re Cohen, No. 100012/09 at 6 (N.Y. Sup. Ct. Aug. 17, 2009), available at http://www.citmedial aw.org/sites/citmedialaw.org/files/2009 08 17 Order%20Gr anting%20Cohen's%20Petition.pdf 5 Id. 6 estimation of the community or deter third persons from asso R ESTATEMENT (S ECOND ) OF T ORTS § 559 (1977). Typically, it is defamatory to falsely state that a woman is sexually promiscuous. See, e.g.,
12 defamation, naming herself as plaintiff and Port as the defendant. But it was not that easy for the aggrieved model because Port posted her comments anonymously. Cohen thus was forced to apply for pre 7 Manhatta sexual promiscuity, and as such are reasonably susceptible of a defamatory connotation and are action 8 In deciding to order disclosure, Justice Madden adopted the rationale of In re Subpoena Duces Tecum to America Online, Inc. 9 In America Online a Virginia trial court reasoned that: the protection of the right to communicate anonymously must be bal anced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortious or other actionable communications on the In ternet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights. 10 Ct. App. 1975 implied a television personality had become a call girl); see also Matherson v. Marchello, 473 N.Y.S.2d 998, 1004 05 (N.Y. App. Div. 1984) (finding actionable band But see 438, 440 41, 443 (Wyo. Ct. App. 1982) (rejecting defamation claim brought by a Miss America contestant who was the subject of a Penthouse magazine article stating she performed acts of fellatio that could cause men to levitate, finding that the acts described were obviously hyperbolic). 7 Order to Show Cause in Lieu of Petition, In re Cohen, No. 100012/09 (N.Y. Sup. Ct. Dec. 19. 2008). 8 Id. at 7. 9 2000 WL 1210372 (Va. Cir. Ct. Jan. 31, 2000), Am. Online, Inc. v. Anonymous Publicly Trading Co., 542 S.E.2d 377 (Va. 2001). 10 Id. at *6, cited by Order Granting Peti tion for Pre Acti on Disclosure In re Cohen, No. 100012/09 (N.Y. Sup. Ct. Aug. 17, 2009), available at http://www.citmedialaw.org/sites/citmedialaw.org/files/2009 08 17 Order%20Gr anting%20Cohen's%20Petition.pdf at 8.
13 cause of action 11 because defamation and the information sought [was] material and necessary to identify the potential def 12 While Cohen involved an aggrieved individual seeking relief for inflammatory sexual comments made by another individual, other very different scenarios and controversies also arise on the Internet today involving anonymous postings. For Ottinger v. Tiekert 13 for example, Stuart Tiekert used three pseudonyms to create four blog posts in 2007 on LoHUD, a blog hosted by the New York Journal News 14 posts suggested that Richard Ottinger ( a former New York congressman ) wife bribed officials to secure renovation permits. 15 complaint, 11 See Order Granting Peti tion for Pre Action Disclosure In re Cohen, No. 100012/09 (N.Y. Sup. Ct. Aug. 17, 2009), available at http://www.citmedialaw.org/sites/citmedialaw.org/files/2009 08 17 Order%20Gr anting%20Cohen's%20Petition.pdf at 3, citing Siegel, Supplementary Practice Commentaries, N.Y. CPLR 3102:5 at 92 (McKinney 2006). 12 Order Granting Petition for Pre Action Disclosure, In re Cohen, No. 100012/09 at 5 (N.Y. Sup. Ct. Aug. 17, 2009), available at http://www.citmedialaw.org/sites/citmedialaw.org/files/2009 08 17 Order%20Granting%20Cohen's%20Petiti on.pdf. citing In re Uddin, 810 N.Y.S.2d 198, 198 (N.Y. App. Div. s improper). 13 2009 WL 3260601 (N.Y. Sup. Aug. 27, 2009). 14 Complaint, Ottinger v. Doe, No. 3892/08, at 2 (N.Y. Sup. Ct. Feb. 25, 20 08) 15 Ottinger, 2009 WL 3260601 at *1
14 16 The parties ultimately stipulated to convert the action into a special proceeding to seek pre 17 The court ordered disclosure in Ottinger based in part on persuasive authority in Dendrite International, Inc. v. Doe 18 a New Jersey appellate court opinion. 19 The court found the Ottingers satisfied Dendr ite by establishing a prima facie case supported by sufficient evidence, which consisted of 20 The court also used a balancing approach set forth in Dendrite w nterest in 21 This analysis, said the court, tilted in favor of identity revelation. 22 Although Tiekert was ordered by the court to reveal his identity, ultimately, he was awarded summary judgment i n the case. 23 Why? Because the court found that the 16 Complaint, Ottinger v. Doe, No. 3892/08 at 2 (N.Y. Sup. Ct. Feb. 25, 2008) (capit alization in original). 17 See Order in the Matter of the Application Pursuant to CPLR 3102 of Richard Ottinger and June Ottinger, No. 08 03892, at 2 3 (N.Y. Sup. Ct. July 1, 2008). 18 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). The court also addressed Doe v. Cahill 884 A.2d 451 (Del. 2005), saying that under Cahill the Ottingers were not required to prove malice at the special proceeding stage. Order in the Matter of the Application Pursuant to CPLR 3102 of Richard Ottinger and June Ottinger, No. 08 03892, at 5 (N.Y. Sup. Ct. July 1, 2008) 19 884 A.2d 451 (Del. 2005). 20 Order in the Matter of the Application Pursuant to CPLR 3102 of Richard Ottinger and June Ottinger, No. 08 03892, at 5 (N.Y. Sup. Ct. July 1, 2008) 21 Id. at 4 (employing the Dendrite balancing test). 22 Id. 23 Ottinger v. Tiekert, 2009 WL 3260601 at *4 (N.Y. Sup. Aug. 27, 2009).
15 case was a Strategic Lawsuit Against Public Participation (SLAPP), 24 under Civil Rights Law § 76 a(1)(a), in that did not have any basis in law. 25 As t he suit was a SLAPP, the court had the authority to awar d Tiekert legal fees, but it declined to do so. 26 In sum, Although many cases pertain to anonymous speech defamation claims, some do not. In Enterline v. Pocono Medical Center 27 a w oman sought an order to reveal the identities of several individuals who posted anonymously on web site claiming they had personal knowledge about facts or people associated with a sexual harassment case she had filed against a medical center. 28 Enterline subpoenaed The Pocono Record 29 but the newspaper objected, claiming that Enterline sought First Amendment protected 30 24 In 1988, two University of Denver professors, George Pring (a law professo r) and Penelope Canan (a See Penelope Canan & George W. Pring, Studying Strategic Lawsuits Against Public Participation: Mixing Qualitative and Quantitative Approaches 22 L. & S OC Y R EV 385 (1988). A SLAPP suit is a civil suit filed against an individual on a substantive issue of G EORGE W. P RING & P ENELOPE C ANAN SLAPPS: G ETTING S UED FOR S PEAKING O UT 2, 8 9 (Temple Univ. Press 2007). A SLAPP suit may be pursued wi th the intent of exploiting the judicial system to keep citizens quiet, not right a perceived harm through litigation; however, Id. at 8 (rejecting the notion that the onale for bringing the suit bears on the validity of the suit). The important aspect of a SLAPP suit is that it has the ultimate effect of intimidating citizens to keep quiet on public issues. George W. Pring & Penelope Canan, Strategic Lawsuits Against Bench, Bar and Bystanders 12 B RIDGEPORT L. R EV 937, 938 (1992). 25 Ottinger v. Tiekert 2009 WL 3260601 at *3 (determining that the suit satisfied the requirements to be termed a SLAPP). 26 Id. at *4. 27 No. 08 cv 1934 ARC, 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008). 28 Enterline v. Pocono Medical Center, 2008 WL 5192386, at *3 (M.D. Pa. Dec. 11, 2008). 29 Id. at *1. 30 Id.
16 A Pennsyl vania federal court first held that the newspaper had standing to assert the First Amendment rights of the anonymous posters. 31 In large part, this was due to practical reasons. It stressed that if the posters were required to defend themselves in the suit they would have to reveal their identities, which would render moot the protections given by requiring a formal motion to compel. 32 The Enterline l sexual harassment suit. 33 Applying a test set forth in Doe v. 2TheMart.com, Inc. 34 the Enterline court found that the material she sought was materially related to a core element of her sexual harassment suit; however, she failed to demonstrate that the m aterial was unavailable from any other source. 35 36 All t hree cases mentioned above involved anonymous online speech but featured different scenarios: There is, of course, a myriad of other scenarios, involving multiple variations of: 1) who 31 Id. at *2. The court also noted that the newspaper would vigorously defend the poste the paper was injured in fact, satisfying the in Article III of the U.S. Constitution Id. at *2 3. 32 Id. at *3 4. 33 Enterline v. Pocono Medical Center, 2008 WL 5192386, at *4 (M.D. Pa. Dec. 11, 2008) 34 140 F. Supp. 2d 1088 (W.D. Wash. 2001). 35 Enterline 2008 WL 5192386, at *5 6 (M.D. Pa. Dec. 11, 2008) (applying a four part balancing test set forth in 2TheMart.com ). 36 Id. at *6.
17 is seeking the identity of the poster; 2) why who the anonymous speaker is; 4) what the subject matter of the underlying speech is; and 5) where that information was poste d. Courts today typically use one of three basic standards Cahill 37 Dendrite 38 and America Online 39 for determining when the providing different levels of First Amendment p rotection. What courts have not done, however, is design a rubric for determining which of the current standards is most appropriate to apply in any given case. In other words, if we assume that courts today are likely to choose from variations of Dendrit e Cahill and, albeit rarely, America Online then legal research should take a step backwards, as it were, and focus on the antecedent task of creating a framework to help judges choose the most appropriate test to apply in the specific situation before th em. That is the goal of this dissertation. Objective This dissertation proposes a rubric that courts can apply when deciding which unmasking test is most appropriate to employ when determining whether to order It subsequently applies the rubric to a hypothetical scenario and defends its broader applicability. 37 Doe v. Cahill, 884 A.2d 451 (Del. 2005). 38 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). 39 In re Subpoena Duces Tecum to Am. Online, Inc., 2000 WL 1210372 (Va. Cir. Ct. 2000), grounds sub nom., Am. Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (2001).
18 Statement of the Problem When people post information online, they often have a false sen se that even their deeply personal disclosures are secure, a senti ment bolstered by posting anonymously. 40 According to Jared Piazza and Jesse Bering of the Institute of Cognition and disclosure have been observed in anonymous CMC [computer mediated comm unication] relative to FtF [face to 41 The theory behind this is that people say more about themselves when they have a raised level of private self awareness but a lowered level of public self awareness. 42 The latter means that people disclose mor e when they have 43 The problem with this level of self disclosure is that while the Internet paradoxically seems transient, in fact the comments people make online are available to millions 44 and can last forever. 45 46 These online disclosures furthermore have the ability to destroy not 40 See, e.g., Jared Piazza & Jesse M. Bering, Evolutionary Cyber Psychology: Applying an Evolutionary Framework to Internet Behavior 25 C OMPUTERS IN H UMAN B EHAV 1258, 1266 (Nov. 2009). 41 Id. 42 Id. (citations omitted) 43 Id. (citations omitted). 44 See, e.g., Jennifer L. Peterson, The Shifting Legal Landscape of Blogging 79 M AR W IS L 8, 10 (2006) re traditional forms of speech the ease and speed of blogging mean that a 45 See, e.g., Piazza, supra note 40 at 1266 (internal citations omitted) (noting that personal information y search engines, and referring to that self disclosed 46 See id. citing D ANIEL S OLOVE T HE F UTURE OF R EPUTATION : G OSSIP R UMOR AND P RIVACY ON THE I NTERNET (2007).
19 On the one hand, the ability of individual users to log on the Internet anonymously, undeterred by traditional social and legal restraints, tends to promote the kind of unrestrained, robust communication that many people ociety. On the other, line identity to his or her physical self is essential to preventing the I ideas from causing harm in the real world. 47 Furthermore, the problem is co mpounded by the fact that many pseudonymous identities, and, even when a speaker chooses to reveal her real name, 48 With such possible negative consequences stemming from online d isclosure, it is hardly surprising that aggrieved individuals and business entities take seriously the task of monitoring and seeking relief for harm caused by the statements. Despite the possible negative consequences, the right to speak anonymously is pr otected by the First Amendment with special deference given to anonymous political speech. 49 The U.S. Supreme Court, in fact, has encouraged individuals to speak anonymously, theorizing that the veil of anonymity allows people to speak more freely and, the be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring di 50 This First Amendment truth seeking function supports protection of anonymous speech online. 47 upp. 2d 1069, 1071 72 (D.S.D. 2001) (citations omitted). 48 See Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005), citing Lyrissa Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace 49 D UKE L.J. 855, 895 (2000). 49 See, e.g., McIntyre v. Ohio Electi 50 Id. (discussing the rationale for First Amendment protection of anonymous speech).
20 of the [I]nternet lies in its potential for r ealizing the concept of public discourse at the 51 edged swor 52 Discussing the California Court of Krinsky v. Doe 6 53 open the door to more trivial, abusive, libelous, and 54 Although the Supreme Court validated the need for anonymous speech, 55 the right to anonymity is not absolute. 56 Courts have tackled many different factual scenarios case by case to determ ine under what circumstances they should order the All of the courts addressing this issue have, for the mo st part, adopted one of three tests to determine whethe r to require a 51 Lids ky, supra note 4 8 at 893 (discussing the value of internet discourse). 52 See Lyrissa Lidsky, Anonymity in Cyberspace: What Can We Learn From John Doe? 50 B.C. L. R EV 1373, 1383 (2009) (explaining the value of anonymous speech). 53 159 Cal. App. 4th 1154 (Cal. Ct. App. 2008). The Krinsky court held non actionable statements online and drafted what Professor Lidsk president claimi ng the plaintiff was unattractive and had a fake medical degree. Id. at 235. The court held that all of these statements were hyperbolic opinions. Id. at 246 50. 54 Lidsky, supra note 52, at 1383 55 See (1995) (discussed infra at note 45). 56 See, e.g., see also Order Granting in Part and Denying in Part Motion to Quash Deposition Subpoena, Chang v. Regents of the Univ of Cal 2009 00033484 CU a separate pending action, but limiting that discovery to a list of individuals the plaintiff was required to create in advance).
21 These tests differ specifically in how deferential the detailed in Chapter 3 of this dissertation: The Dendrite t est Under this approach four prongs must be satisfi ed : (a) the plaintiff must attempt to notify the poster he is seeking to discover the must state which statements constitute the basis of his lawsuit; (c) he has to show his suit would survive a motion to dismiss; and (d) the cour 57 The To satisfy this test, the plaintiff must ssue of material 58 Under this test, an aggrieved plaintiff may or her claim was brought in good faith and if the individual needs to discover the identity to pursue his or her suit. 59 Yet courts have not come to a consensus when to apply a particular test to a given fact pattern. The inconsistent adoption of these tests has created confusion and uncertainty in the law, and thus there is a need for a rubric to help courts to determine which standard best fits a particular situation. 57 See 763 (N.J. Super. Ct. App. Div. 2001) (discussing the various applicable tests f posted allegedly defamatory comments in response to a bulletin boa 58 involving allegedly defamatory statements made about a council member on a De laware State News blog, and refusing to order disclosure based on finding the statements were i nactionable opinion). 59 In re Subpoena Duces Tecum to Am. Online, Inc., 2000 WL 1210372, at *1, *8 (Va. Cir. Ct. 2000), on other grounds sub nom., Am Onli ne, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (2001) allegedly defamed the company and posted confidential insider information in internet chat r ooms).
22 A review of case law on this subject shows courts initially appl ied the tests in an ad hoc fashion and, in fact, sti ll do to some extent. More modern judicial opinions he development of appropriate standards to govern the John Doe cases has been and continues to be a piecemeal process 60 Professor Lyrissa Lidsky argues for t he application of a uniform standard once courts understand the relevant technology and how it is used 61 To yield much needed uniformity and stability in the la w, while simultaneously tackling Professor Lidsk concerns this dissertation develops and pro poses a reliable flexible rubric in lieu of a one size fits all unmasking standard. Research Question RQ1: What criteria and elements should a rubric include that courts can apply when selecting the most appropriate legal test to unmask the identity of an anonymous poster on the Internet? Methodology In order to create this rubric, this dissertation reviews federal and state case law on anonymous speech generally and, more specifically, anonymous online speech. The dissertation include s both Wes tlaw and Le xisNexis searches for relevant cases, analyzed according to the following guidelines: 1) Who is seeking the identity of the poster? 2) 3) Who is the anonymous speaker? 4) What is the subject matter of the underlying speech of the poster? 60 Lidsky, supra note 52, at 1385 (arguing that a uniform standard should eventually be accepted). 61 Id.
23 5) Where was the underlying speech posted? W hich unmasking test a court should apply depends on its answers to the preceding five questions. Categorizing the case law along these lines thus allows for ascertainment of the particular categories a nd types of anonymous speech cases that courts have deemed qualify as high, m edium or low significance The information is compiled in a valuable rubric to eterminations, as well as clari fy the law The dissertation also include s news articl es obtained through LexisNexis Academic news searches and psychology journ als obtained through the PsycNET academic database. These materials assist in two ways. First, they aid in the interpretation of background information in the cases and second they assist in the understanding of the value of anonymity to the speaker. Roadmap of Chapters Chapter 2 of the dissertation, titled The Foundations of Anonymous Speech Protection in First Amendment Jurisprudence, examines judicial precedent regarding the Firs t Amendment right to engage in anonymous speech, covering its evolution from pamphleteering through online postings. Chapter 3, entitled The Tests of Disclosure, articulates the three major tests courts apply in online unmasking cases, describing the nuanc es and differences among them, as well as explain ing their attempt to balance the First Amendment interest in anonymous speech against the need for judicial redress when that speech causes harm. Chapter 4, Rubrics as Viable Models for Analyzing Complex Leg al Issues, draws from education literature and social science theory to analyze and describe the potential relevance of rubrics as organizational mechanisms for courts to employ systematically when confronted with complex decisions. Chapter 5,
24 Establishing a Rubric for Revelation Analysis, attempts to resolve the research question by developing and defending a useful and reliable rubric for courts to employ when titled App lication of the Rubric, the dissertation applies the rubric to a complex hypothetical factual pattern, illustrating its viability for legal analysis Finally, Chapter 7, co ncludes that using the proposed rubric will yield clarity and uniformity to this area of law. It also calls on other legal scholars to critique the rubric to refine it and improve its usefulness.
25 CHAPTER 2 THE FOUNDATIONS OF A NONYMOUS SPEECH PROT ECTIONS I N FIRST AMENDMENT JURISPRUDE NCE The right to speak anonymously 1 has long been treated deferentially, from anonymous political papers, to much more recent judicial opinions extolli ng the values and virtues of anonymous online publications. Given this lengthy history, it is crucial to understand the rationales employed for protecting anonymous speech This understanding will aid in the determination of which test to apply when decid ing whether This chapter initially considers traditional reasons and rationales for protecting anonymous expression in both political and non political contexts, and it also addresses the reasons some critics asser t for curbing the broad constitutional protections afforded anonymous speakers. In considering this historical background, the chapter examines major cases conceptualizing and refining the right of anonymous speech, as well as influential law review articl es and other publications further explaining the contours of this unenumerated right. The chapter then concludes by delving into the special considerations applicable to online discourse including a discussion of why it warrants special consideration and how the specific protections apply to anonymous online speech. 1 Some scholars also discuss the virtue of pseudonymous speech, but the courts have not distinguished between anonymous and pseudonymous speech for the purpose of the hair splitting distinction is irrelevant for the purposes of this dissertation.
26 Why Protect Anonymous Speech? The First Amendment protects, with narrow exceptions, 2 the right to speak freely. As explained by University of Florida Professor Lyrissa Lidsky, courts have de terminedly upheld a subs et of the right to speak freely namely, the right to speak anonymously 3 The notion that individuals possess a right to speak anonymously is firmly rooted within First Amendment jurisprudence, 4 but anonymous expression conveyed via the Internet is now testing the boundaries of constitutional protection. The Supreme Court was compelled to conceptualize a rule specifically protecting anonymous s peech for a variety of reasons, and lower courts have followed suit. 5 Although lower courts have addressed online anonymity, the Supreme Court has yet to rule on it. Reasons to Protect Anonymous Speech Courts have opted to protect anonymous speech for a va riety of reasons These includ e : a) supporting the truth seeking function of free speech; b) protecting speakers 2 See Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 the freedom of speech has its limits; it does not embrace certain categories of speech, including defamation incitement, 3 Lyrissa Barnett Lidsky, Authorship, Audiences, and Anonymous Speech 82 N OTRE D AME L. R EV 1537, 1 537 right to speak anonymously). 4 See, e.g., is well establ ished that rights afforded by the First Amendment remain protected even when engaged in 5 Adam J. Rappaport & Amanda M. Leith, Brave New World? Legal Issues Raised by Citizen Journalism 25 SUM C OMM L AW 1, 34 (2007) (stating that lower cour Doe v. Cahill 884 A.2d 451 (Del. 2005), a case involving an anonymous blogger posting about an allegedly corrupt councilman, in support of their position that most judicial opinions protect anonymous speech).
27 from retaliation based on the content of their speech; c) providing speakers with the ability to make personal artistic statements; and d) prot ecting the integrity of the Perhaps the most common reason for extending First Amendment protection to anonymous speech is to support the truth seeking function of free speech, en 6 To encourage a robust search for truth in the metaphorical marketplace of ideas, 7 courts have rationalized that speakers must be encouraged to speak without fear of repris al. Anonymity may further this goal. The ability to cloak their identities can motivate speakers to speak frankly and candidly, whereas they might not if they thought their words would be associated with them. 8 Anonymity thus militates against self censors hip while it enables a speaker to 9 and avoid becoming a target of 6 Lidsky, supra note 3, at 1538 the grand test of First Amendment speech protections. According to Justice Oliver W endell Holmes in Abrams v. United States Id. at 630 (Holmes, J., dissenting). 7 The marketplace of ideas theory of free expr M ATTHEW D. B UNKER C RITIQUING F REE S PEECH : F IRST A MENDMENT T HEORY AND THE C HALLENGE OF I NTERDISCIPLINARITY 2 ( 2001). It has been described as L UCAS A. P OWE J R ., T HE F OURTH E STATE AND THE C ONSTITUTION : F REEDOM OF THE P RESS IN A MERICA 237 ( California Princeton Fulfillment 1992 ). 8 See, e.g., Tanya D. Marsh, In Defense of Anonymity on the Internet 50 APR R ES G ESTAE 24, 25 (2007), citing A. Michael Froomkin, Regulation and Computing and Information Technology: Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases 15 J.L. & C OM 395, e is so courageous as to wish to be known for everything that say, and some 9 Marsh, supra note 8, at 25. See also Lidsky, supra avoid the shame, humiliation, See also L AWRENCE L ESSIG C ODE AND O THER L AWS OF C YBERSPACE at 80 (Basic 1999).
28 those who hold positions of political power. As one commentator noted, anonymity is valued because it lets the speaker criticize the ac tivities of public officials or corporations without fear of or otherwise improper activity, to voice unpopular opinions on topical issues, to avoid harassment or even stalking b y online users, or to obtain advice or counseling on difficult problems or medical conditions. 10 Also supporting the truth seeking function is the concept that speakers can share r] message 11 Speakers can have this confidence characteristics or political propensities. For instance, a Republican might automati cally discount the validity and strength of the arguments made in an op ed commentary if she knew the writer were Hillary Clinton while she would not reflexively do so if the commenta ry were published anonymously. In her award winning article In Defense of Anonymity on the Internet 12 in house counsel for Kite Realty Group Trust Tanya D. Marsh argues that anonymity particularly benefits minorities because people cannot 13 The end result is 10 Brief Amicus Curiae of Am. Online, Inc., Melvin v. Doe, No. GD99 10264 at 14 (Pa. Super. Nov. 15, 2000), available at http://www.citmedialaw.org/sites/citmedialaw.org/files/2001 02 24 Brief%20Amicus%20Curiae%20of%20America%20Online%20to%20the%20Pennsylvania%20Superior% 20Court.pdf (retrieved on November 29, 2009), cited by Victoria Smith Ekstrand, U nmasking John and Jane Doe: Online Anonymity and the First Amendment 8 C OMM L. & P OL Y 405, 407 (2003). 11 have a chance to be heard if they publish anonymou sly). 12 Marsh, supra articles of significant subject matter, pr acticality and timeliness, with high quality research and legal See id. (ed. note). 13 Id. orientation, height, weight, eye color, nose ring, or any othe r physical characteristic that normally inspires
29 tha 14 individual autonomy and self expression by enabling individuals to explore new id eas, 15 On the Internet, for instance, the 16 new identities and express viewpoints that they otherwise might not. 17 T his self expressive rationale fits squarely with First Amendment theory, but is rather less persuasive than the marketplace of ideas concept discussed earlier. Finally, one practical argument for maintaining anonymity is that it helps to combat the increas ing intrusions of corporate data mining and government surveillance. 18 W hen a poster places her personal information online, companies can associate and aggregate this data with information in online databases and thus discover her identity. Anonymity at le ast lessens the likelihood that companies and the government can use this personal information for nefarious purposes. 19 14 Id. (citations omitted). 15 See Lidsky, supra note 3, at 1568 1569 (internal citations omitted). See also Lee Tien, Anonymous Speech? McIntyre and the Internet 75 O R L. R EV 117, 122 (1996). 16 Jonathon W. Penney, Privacy and the New Virtualism 10 Y ALE J. L. & T ECH 194, 222 (2007/2008). 17 Cf. Ian Gillies, Real World Toys and Currency Turn the Legal World Upside Down: A Cross Sectional Update on Virtual World Legalities 12 I NT L J. C OMM L. & P OL Y 120, 133 the anonymity and creative flexibility provided by an assumed avatar persona allows an insecure individual to 18 See Marsh, supra note 8, at 26 27 (arg 19 This fear is more than just speculative. In December 2009, for instance, the Electronic Frontier dozen government agencies for refusing to disclose their policies for using social networking sites for investigations, data collection,
30 Reasons Weighing Against Protecting Anonymous Speech Despite the idealistic underpinnings guiding judicial decisions on anonymity, which will be addressed in greater detail later, there is the potential for abuse of the protection. Although the ability to speak anonymously provides a person with the from liability for a variety of torts, including defamation, invasion of privacy, fraud, 20 Perhaps the most tragic example of the consequences of unfettered anonymous or pseudonymous online speech ultimately led to the 2006 suicide of 13 year old Megan Meier. Meier who had a page on the social network, MySpace, was friended by someone claiming to be a 16 year old boy named Josh Evans. 21 In fact, Evans was fictitious, a persona created by Lori Drew ( 22 As Evans, Drew 23 Distraught, Meier committed suicide by hanging her self in her closet, and Drew deleted the Evans account. 24 various investigations, and Congress is currently considering several pieces of legislation that may increase protection s for consumers who use social Release, Electronic Frontier Foundation, Lawsuit Demands Answers About Social Networking Surveillance (Dec. 1, 2009), available at http://www.eff.org/press/archives/2009/11/3 0. 20 Lidsky, supra note 3, at 1539 (addressing some of the negative possible consequences of protecting a See Richard Posner, The Right of Privacy 12 G A L. R EV 393, 394 (1978) (suggesting that privacy laws enable people to conceal 21 See U.S. v. Drew, 259 F.R.D. 449, 452 (C.D. Cal. 2009). 22 Id. 23 Id. 24 Id.
32 even more nefarious criminal activity. 30 pornography, 31 C ritics feel that 32 Counterposed to the commentato rs who assert that anonymity supports the truth seeking function of the First Amendment are critics who contend that anonymity should be discouraged because disclosure actually aids the search for truth. In theory, requiring a speaker to disclose his ident ity gives listeners the ability to judge the veracity of the information by being able to ferret out personal biases. In communication research, this taps into the notion of source credibility under which the perceived expertise and trustworthiness (or la ck thereof) of the source of message will influence how it is viewed. 33 In a 2007 article published in Communication Research Professor Stephen Rains observe d : Despite the benefits for message senders, however, the impact of anonymity on message receivers may undermine effective discussion and decision making processes. Although message senders may feel more comfortable, receivers may perceive an anonymous source as less competent or credible than they would if he or she were identified. 30 See, e.g., Ekstrand, supra 31 Marsh, supra note 8, at 25 (listing the negative po tential consequences of anonymous speech). 32 Id. (discussing the viewpoint of critics who oppose broad protections for anonymous online speech), citing concern 33 See Ekaterina Karniouchina et al., Impact of Mad Money Stock Recommendations: Merging Financial and Marketing Perspectives 73 J. M ARKETING ensions of
33 Receivers may fee l that, because senders are anonymous, they are not willing to be held accountable for their contributions. 34 This position was supported by Professor Lidsky, who stresses that anonymous speech is not as valuable to consumers as non anonymous speech becaus 35 Without proper attribution, Lidsky asserts that necessarily rely upon other indicia, which can be less rel 36 Thus, some critics argue that broad anonymity protections should be tempered to reflect these potential negative consequences. 37 However, this argument conflicts squarely with five decades of First Amendment anonymous speech j urisprudence. Thus, the impact of the criticism is, at best, uncertain. The His tory of Anonymity Jurisprudence Political Speech Anonymous speech has deep political and revolutionary roots, making it understandable why courts are compelled to respect the re negade spirit of the founding fathers by protecting modern political speech. In 1995, the U.S. Supreme Court 38 And one Washington federal district court said that 34 Stephen A. Rains, The Impact of Anonymity on Perceptions of Source Credibility and Influence in Computer Mediated Group Communication: A Test of Two Competing Hypotheses 34 C OMM R ES 100, 101 (2007). 35 Lidsky, supra note 3, at 1559 ; b ut see Tien, supra note 15 36 Id. 37 See Marsh, supra are in conflict with a tradition of anonymity in American culture and law, and a First Amendment jurisprudence that emphasizes that 38
34 39 Anonymous speech in America has a rich history, with its foundations traceable to the late 1700s. In 1787 and 1788, American revolut ionaries John Jay, James Madison and Alexander Hamilton wrote 85 articles collectively known as The Federalist (more commonly known now as The Federalist Papers ). 40 Writing under the pseudonym nded the Constitution ; their essays a re still referred to by constitutional law. Perhaps patriotism still of anonymous speech. The right to speak anonymously was basically taken for granted, and the Supreme Court was not required to rule on anonymity as a constitutional issue until 1960, when it first expressed the concept that an individual has a right to speak anonym ously. 41 In Talley v. California 42 the Cou rt invalidated an ordinance requir ing handbills to state the name of their creator. 43 pamphlets, leaflets, brochures and even books have played an important role in the 39 Doe v. 2TheMart.Com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001) (describing the 40 J AMES M ADISON A LEXANDER H AMILTON & J OHN J AY T HE F EDERALIST P APERS 11 (Isaac Kramnick ed., Penguin Books 1987) (1788) ( ed. note) (explaining the history of The Federalist Papers and its pseudonymity). 41 In 1958, the U.S. Supreme Court had the opportunity to rule on anonymity in the context of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution a sit uation different from that presented in this dissertation. See NAACP v. Alabama, 357 U.S. 449, 462 63 (1958). In that case, the Court refused to compel the disclosure of documents revealing the Alabama members of the NAACP, in part because this disclosure might have motivated members to withdraw from the organization, hindering Id. 42 362 U.S. 60 (1960). 43 Id. at 64.
35 44 The Court recognized that this right stems from the First Amendment prohibition against prior restraints, meaning in general terms that nobody can face a government sponsored barrier that would deter or prevent them from entering the marketplace of ideas. Requiring 45 Post Talley protections offered for anonymous speech. Thirty five years after Talley the Court decided the first of the three cases, McIntyre v. Ohio Elections Commission 46 which 47 In McIntyre the justices found unconstitutional an Ohio statute that prohibited individuals from distributing campaign literature anonymously. 48 Margaret McIntyre had published flyers opposing a school tax proposal, signing some of them 49 The Ohio Elections Commission fined McIntyre for violating the ordinance. 50 She appealed, and the Ohio 44 Id. at 64. 45 Id. at 64 65. 46 514 U.S. 334 (1995). 47 Lidsky, supra note 3, at 1541. 48 See generally Michael S. Vogel, Hand Wringing Over Legal Standards 83 O R L. R EV 795, 827 828 (2004) (discussing the McIntyre decision). 49 50 Id. at 338.
36 Supreme Court held that the law was constitutional because it advanced an important state interest that warranted curbing so me speech. 51 Writing for the majority in the 7 2 decision, decisions concerning omissions or additions to the content of a publication, is an aspect 52 Stevens applied a strict scrutiny test, 53 aving anonymous works enter the marketplace of ideas unquestionably outweighs any public 54 The statute, the Court held was not sufficiently narrowly tailored and was therefore unconstitutional. 55 Di ssenting, Justice Antonin Scalia took issue with what he perceived as the Court translating a long standing deference to anonymous speech into a constitutional right. 56 According to Scalia, the Constitution does t he value of anonymous speech. The opinion simply stretched too far. 51 Id. at 340. 52 Id. at 342. 53 See, e.g., Sable Comm ns of Calif., Inc. v. F.C.C., 492 U.S. 115 (1989). In Sable the Court applied a strict scrutiny test to invalidate a statute banning dial a porn. Strict scrutiny applies to statutes attempting t o regulate such communications because they are fully protected by the First Amendment. Id. at 126. In order to restrict these communications, the statute must serve a compelling gove rnment interest and be narrowly tailored to serve its purpose. Id. Th e Court, however, found that the dial a porn statute failed on both grounds and was, thus, fatally deficient. Id. 54 McIntyre 42 (1994). 55 Id. at 347. 56 Id. nonymous electioneering was used
37 The Court next addressed anonymous speech in 1999, in Buckley v. American Constitutional Law Foundation, Inc. 57 In that case, the Court upheld limited restrictions on anonymity if they adva nced a legitimate state interest. 58 Buckley involved two laws: a statute that required election petitioners to wear identifying badges 59 and a statute requiring them to file a public affidavit with their personal information. 60 The Court found that the first statute was unconstitutional while the second was not. As to the second 61 Three years later, the Court decided Wat chtower Bible & Tract Society v. Village of Stratton 62 entering 63 The ordinance was content neutral, 64 and permits were denied on ly for technical reasons such as incomplete applications. 65 impermissibly curbed their First Amendment right to disseminate information, while the 57 525 U.S. 182 (1999). 58 Id. public with information a 59 Id. at 197. 60 Id. at 199. 61 Id. at 221. 62 536 U.S. 150 (2002). 63 Id. at 154 (citing to the ordinance). 64 Content neutral and content based statutes differ with respect to which level of scrutiny a court will apply when confro nted with the statute. See Leslie Gielow Jacobs, Clarifying the Content Based/Content Neutral and Content/Viewpoint Determinations 34 M C G EORGE L. R EV 595, 598 (2003). Content based ki Id. Content neutral statutes, however, are subject to intermediate scrutiny. Id. 65 Watchtower 536 U.S. 150, at 155 156.
38 town said the law advanced the state interest of protecting its residents from criminal activity and invasion of privacy. 66 Nonetheless, the ordinance required speakers to provide their personal information and declare their purpose for going on the property. 67 The Court thus held that the statute was unconstitutiona l, overbroad and an impermissible prior restraint. 68 In the majority opinion, Justice John Paul Stevens discussed the history of anonymous pamphleteering 69 and the need to narrowly tailor a prior restraint statute. 70 Although these four cases affirmatively pr otect anonymous speech, they also have slightly questionable import when it comes to anonymous speech generally 71 Courts are typically inclined to find prior restraints unconstitutional, instead tendin g to allow the speech and punish it afterwards when necessary. These decisions also were not until 2000 that any court addressed the issue of anonymous speech on the Internet. Anonymous Speech Online Although laws generally protecting anonymous speech predate the American Revolutionary War, no court specifically extended the protection to anonymous speech 66 Id. at 158. 67 v. Village of Stratton, 536 U.S. 150, 155 156 (2002) 68 Id. at 165. 69 Id. at 167. 70 Id. at 165. 71 Vogel, supra note 48 at 837 (2004) (discussing the Talley line of prior restraint cases).
39 on the Internet until a Virgin ia trial court in 2000. 72 In In re Subpoena Duces Tecum to America Online, Inc. the court adopted a new test to determi ne under what circumstances an I nternet service provider (ISP) should disclose a chat room or 73 In that c ase, and in subsequent ones, courts have tended to recognize that the Internet is a medium with distinctiv e characteristics that warrant special consideration. This section discusses the nature of Internet discourse and the type of protection courts have extended to anonymous online communications. Why Does Online Speech Warrant Special Analysis? According to University of Illinois Professor Bruce P. Smith, online discourse has communic 74 : a) the sheer breadth of audience a poster can reach; 75 the 76 c) the ability to convene in groups 72 See In re Subpoena Duces Tecum to Am. Online, Inc., 52 Va. Cir. 2 6, 2000 WL 1210372 (Va. Cir. Ct. Jan. 31, 2000) (extending anonymous speech protection to the medium of the Internet), grounds sub nom. Am. Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001). 73 Ultimately, an appellate court determined the plaintiffs satisfied the test and ordered the disclosure of 74 Bruce P. Smith, Cybersmearing and the Problem of Anonymous Online Speech 18 FALL C OMM L. 3, 3 4 (2000). 75 Smith cited a study claiming there wou ld be over 240 million internet users by the late 2000s. Id. at 3, citing Susan Mirmira, Business Law: Lunney v. Prodigy Servs. Co. 15 B ERKELEY T ECH L.J. 437, 437 istics on this people, are online. See Miniwatts Marketing Group, World Internet Usage Statistics News and World Population Stats at http://www.internetworldstats.com/stats.htm retrieved November 14, 2009. Smith from a personal computer, downloaded to a diskette, or simply left on a website for years to come for persons to read supra note 74 at 3. Furthermore, the audience size means that the publication of a negative statement can have devastating consequences. Id. (explaining that a message can be e potential nasty consequences of posting online). 76 According to Smith, this means that posters do not have to spend much time or money posting online or even maintaining their own websites. Smith, supra note 7 4 at 3. Also, whereas in the real world, co mpanies employ fact checkers to ensure the accuracy of the information they print, such quality control
40 based on particularized interests; 77 anonymous 78 Individuals who speak anonymously in public, 79 Speaking anonymously in the real life public arena is hardly a commonplace activity. In contrast, anonymous expression online is r emarkably common. 80 81 A engage in legitimate and often socially beneficial activities that they wo uldn't otherwise 82 Thus, Marsh qualifies this characteristic as a positive. What Protection Does Anonymous Online Speech Receive? Courts typically accept that online speech is subject to the same First Amendment protections as speech in other media. As noted earlier, n o court addressed this specific issue until 2000, when a Virginia trial court determined that anonymous does not necessarily exist on an internet forum. Id. 77 Smith argued that posters could target an audience sharing similar interests and values, whereas if Id. at 4. Smith was particularly c oncerned about this characteristic in the context of speech about internet forums for prospective clients. Id. attorneys will use online postings to support bringing class action suits). 78 Id. at 4. 79 Id. informant whose on 80 Id. ( 81 Marsh, supra note 8, at 24. 82 Id. (citations omitted).
41 ing the Internet. 83 According to should be extended to communications on the Internet would require this Court to ignore either U.S. Supreme Court precedent or the realiti es of speech in the twenty first 84 Professor Lee Tien argued that the Internet is such a n unusual medium that online speech cannot adequately be compared to other media. 85 Tien proposed the position that anonymity is a vital characteristic of onlin e discourse. 86 Further, because anonymity is one of s it must be carefully protected in a manner that it need not be in real life. 87 Still, nothing suggests that courts will substantially deviate from the current trend of prot ecting anonymous online speech similar to the way they currently protect such speech in other media. The Relative Value of Anonymity Anonymous speech is deeply imbued in American politics, but courts have extended this protection to other contexts. Anonymi ty holds a n important place in First Amendment jurisprudence because it helps a community to arrive at the truth, encourages speech without fear of reprisal, ensures speakers can engage in necessary self ion from divulgement. Despite 83 In re Subpoena Duces Tecum to Am. Online, Inc., 52 Va. Cir. 26 (Va. Cir. Ct. 2000), grounds su b nom. Am. Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377, 385 (Va. 2001). 84 Id. at 33 34. 85 Tien, supra note 15, a 86 Id. at 152. 87 Id. at 184 185 (stating t hat the rationale of McIntyre rationale to anonymous online speech).
42 a handful of characteristics suggesting anonymity can cause negative consequences, courts tend to extol the values of anonymity. As discussed in Chapter 5 of this under certain circumstances, but even then, they will do so as an exception to the general rule of protecting anonymity. Although online discourse features several components that differentiate the Internet from other media, courts nevertheless are inclin ed to apply the rationale of McIntyre and shield the identity of anonymous speakers.
43 CHAPTER 3 THE TESTS FOR UNMASK ING ANONYMOUS SPEAKE RS As discussed in Chapter 1 of this dissertation, anonymous speech warrants full First Amendment protection. 1 Courts h ave extended this same protection to anonymous speech online. 2 I n lawsuits where anonymity is an issue, courts often consider whether 3 W hich test a court appl ies could af fect whether a suit is dismissed during th is stage or whether the aggrieved plaintiff will be afforded further opportunity to prove damages. 4 A permissive standard will deter anonymous speech, while a strict standard will leave a victim without recourse. T his determination is critical because courts are reluctant to 5 they seek to protect 1 See, e.g., Talley v. California, 362 U.S. 60, 64 65 (1 McIntyre v. Ohio Elec 42 (1995) ( aspect of fre and at 557 ( see also Stratton, 536 U.S. 150, 166 (2002) (characterizing anonymity 2 See Reno v. Am Civil Liberties Union, 521 U.S. 844, 853, 870 (1997) (extending full First Amendment protection to online speech); see also Doe v. 2TheMart.com 140 F. Supp. 2d 1088, 1097 (W.D. Wash. 2 001) ( as other forms of speech. See, e.g., Indep Newspapers, In c. v. Brodie, 966 A.2d 432, 441 (2009) ( explaining see also Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) ( constitutiona 3 Ordinarily, plaintiffs suing anonymous posters have faced a tremendous burden obtaining their identities. See Carol Rice, Meet John Doe: It Is Time for Federal Civil Procedure to Recognize John Doe Parties 57 U. P ITT L. R EV 883 889 (1996). Typically, plaintiffs subpoena websites and ISPs for the identities See Richard Morgan, A Crash Course in Online Gossip N.Y. T IMES Mar. 16, 2008, at ST7. 4 For instance, a plaintiff with a negligible claim could satisfy a n America Online good faith test but fail to meet a Cahill summary judgment standard. 5 P re service discovery and the process to obtain a criminal investigation warrant have been equated Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 579 (N.D. Cal. 1999). Th e latter requires the government show probable cause, which ensures innocent individuals maintain their privacy. Id. Similar requirements in unmasking analyses help prevent abuses of the discovery process. Id.
44 defendants from bad faith suits brought solely for harassment and intimidation. 6 Regardless of which test a court adopts, however, it will apply careful scrutiny. 7 When selecting a test, courts have thus far struggled to reconcile the competing right to desire for redress. Clarity and consis tency in this area of the law are critical because questions of anonymity are c entral to a myriad of lawsuits. While it is easy to conceive of anonymity as a relevant issue in a defamation lawsuit, 8 the question of whether to compromise a could arise in a variety of hypothetical lawsuits brought by different case, Dendrite International, Inc. v. Doe 9 an anonymous poster could reveal information that: ca n form the basis of litigation instituted by an individual, corporation or business entity under an array of causes of action, including breach of employment or confidentiality agreements; breach of a fiduciary duty; misappropriation of trade secrets; inte rference with a prospective business advantage; defamation; and other causes of action. 10 Thus, the potential implications of revelation analysis are broad. 6 B ad faith law suits, known as Strategic Lawsuits Aga discussed in the introduction to this dissertation. See, e.g., Doe v. Cahill, 884 A.2d 451, 457 (Del. 2005) ( recognizing the impetus for many lawsuits is simply to unmask anonymous posters ). 7 Anonymous speec h enjoys such strong First Amendment protection that laws threatening to speech restrictions See McIntyre v. 345 46 (1995). These restrictions are subject to strict scrutiny. Id. at 347. 8 The three main cases examined in this dissertation chapter involve defamation claims. 9 7 75 A.2d 756 (N.J. Super. 2001). 10 Id. at 759 60.
45 Courts have settled on three tests that have increasingly protected the rights of anonymous speaker s These are : In re Subpoena Duces Tecum to America Online 11 Dendrite International, Inc. v. Doe 12 and Doe v. Cahill 13 Because courts gravitate towards the application of these three tests, the law in this area should, theoretically, realize increased pred ictability. 14 When analyzing whether to unmask an anonymous poster, courts typically ask themselves variations of the following four questions: 1) What must a plaintiff plead? 2) What proof must he provide to support his claims? 3) Do the merits of his case matter a nd, if so, to what extent? 4) the determination? 15 The Dendrite Doe v. Cahill and America Online courts each contemplated some or all of these questions, ultimately adopting differen t tests that share one notable similarity. A ll three tests require the plaintiff to demonstrate a viable claim justifying unmasking the anonymous poster. America Online adopted a 16 Dendrite included 11 2000 WL 1210372 (Va. Cir. Ct. Jan. 31, 2000), Am Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001). 12 775 A.2d 756 (N.J. Super. 2001). 13 884 A.2d 451 (Del. 2005). 14 But see Lyrissa Lidsky, Anonymity in Cyberspace: What Can We Learn From John Doe? 50 B.C.L. R EV 1373, 1374, 1380 ( 2009) ( state by state development of standards ) 15 See Charles Doskow, Peek A Boo I See You: The Constitution, Defamation Plaintiffs, and Pseudonymous Internet Defendants 5 F LA A&M U.L. R EV 197, 20 2 (2010) (compiling a list of the questions courts have tended to ask when addressing the question of whether to reveal an anonymous 16 In re Subpoena Duces Tecum to Am Online, 2000 WL 1210372, at *8 ( Va. Cir. Ct. Jan. 31, 2000 )
46 ; 17 and Doe v. Cahill employed a summary judgment component. 18 These different tests establish criteria that the plaintiff must meet to show 19 Of these three, balancing approach appears to ha ve gained the most traction in the courts. 20 Although the utilization of Dendrite Doe v. Cahill or America Online has become de rigueur a review of the relevant case law and secondary materials reveals that nobody has publish ed a detailed analysis of the factual patterns that ultimately influence a court to adopt one particular test over another. The creation of a rubric, advanced in this dissertation, will assist court s in quickly ascertaining the relevant underlying facts and weighing their value when d eciding whether to order disclosure. Th e rubric is located in Chapter 5 of this dissertation; the current chapter analyzes the Dendrite Doe v. Cahill and America Online decisions and discusses the applicability of each test. Analysis of the Unmasking Sta ndards As discussed above, courts have tended to adopt one of three tests reflecting differing approaches when considering whether to reveal 17 Dend 18 Doe v. Cahill, 884 A.2d 451, 460 (Del. 2005). 19 See infra. for a discussion of each standard. 20 For an analysis of the importance of Dendrite see Lidsky, supra note 14, at 1378 (noting that balancing approaches like Dendrite
47 identity. Doe v. Cahill propos es the strictest standard 21 and America Online the most permissi ve. 22 Each of these three approaches is analyzed more thoroughly belo w. The section first analyzes America Online even though it is the standard employed least frequently 23 and ends with Doe v. Cahill for two reasons. First, this organization maintains the chronological order of the opinions, a logical arrangement because the later opinions build on (and critique) the earlier ones. And second, this organization serendipitously creates a situation in which the permissive America Online test builds up to the r igid Doe v. Cahill test, with the more moderate Dendrite balancing test in between. The America Online Good Faith Approach In re Subpoena Duces Tecum to America Online, Inc. 24 a 2000 Virginia Circuit 25 Under the America Online test, a plaintiff only must (1) satisfy the courts throu gh the pleadings and evidence he provides; (2) 21 The Doe v. Cahill above Dendrite or America Online because it requires th e plaintiff to demonstrate facts sufficient to defeat a motion for summary judgment before unmasking is justified For further analysis, see Doskow, supra note 15, at 208 (2010) (discussing the relative stringency of the test posed in Doe v. Cahill ). 22 The America Online approach has been repeatedly criticized for establishing a standard so lax as to offer anonymous speakers no effective protection. See, e.g., Doe v. Cahill, 884 A.2d at 458. 23 At one time, America Online was exceptionally important In 20 00, when it merged with Time Warner, AOL had 22 million subscribers. See Verne Kopytoff, A OL Will Bounce Back, Chief Says Really, This I NT L H ERALD T RIB ., May 9, 2011. Th us, even if the America Online decision enjoyed no traction outside of Virginia, it theoretically impacted the anonymity of over 20 million people As of May 2011, however, its subscriber base was only 3.6 million people, and it was losing approximately 1 9,000 customers weekly. Id. As a result, the AOL decision has much smaller impact and other courts tend to reject its permissive standards See, e.g., Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005). 24 52 Va. Cir. 26 (2000), Am Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001). 25 For an analysis of America Online see, e.g., Doskow, supra note 15 at 206 ( remarki ng that America pleaded comp
48 26 Numerous courts have questioned the wisdom of plaintiff friendly approach. 27 Some suggest that plaintiffs might exploit this perm issive standard to unmask their anonymous critics and pressure them into silence 28 a result wholly incompatible with the deference courts historically have afforded to anonymous speech. This section briefly outlines the facts of America Online before discus sing the adoption Facts In In re Subpoena Duces Tecum to America Online plaintiff Anonymous Publicly 29 sued who publishe 30 APTC alleged that these comments 26 In re Subpoena Duces Tecum to Am. Online, Inc., 2000 WL 1210372, at *9. The court developed this three ction of documents by a non party. Id. (discussing Va. Sup. Ct. R. 4:9(c)). 27 See, e.g., Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005). 28 See, e.g., 29 The America Online case w as remarkable in that the plaintiff corporation sought to maintain anonymity See In re Subpoena Duces Tecum to Am Online, Inc., 2000 WL 1210372, at *1 (Va. Cir. Ct. Jan. 31, 2000) sub nom., Am Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001). 30 The p laintiff claimed that the comments (which are not part of the public record) defamed APTC and contained confidential information in brea ch of fiduciary duty and contract. Id. at *1 (citations omitted). The plaintiff sued in Indiana and obtained an order allowing it to conduct discovery in Virginia for the Indiana suit Id.
49 potentially a 31 Because APTC suspected that these anonymous posters were current or former APTC employees, it sued for breach of contract, in addition to defamation and other claims. 32 APTC sought to identify fou r of the anonymous posters. From the Indiana court, it obtained an order enabling it to request assistance from a Virginia state court to enforce subpoenas for these identities against AOL, a non party. 33 In response to the order, the Clerk of the Circuit C ourt of Virginia directed 34 APTC was then granted a motion in Indiana to proceed with its suit until it was able to discover the identities of t he anonymous posters. 35 36 37 After 31 Id. at *7 (citations omitted). 32 Id. at *1. In Dendrite the Pub lic Citizen brief warned that companies may aggressively pursue action to against their critics, even when their claims are tenuous. Brief of Amici Curiae Public Citizen and the American Civil Liberties Union of New Jersey, A 2 774 00 (March 29, 2001). These companies hope the threat of being unmasked will silence critics who cannot afford embroilment in a lawsuit. Id. 33 Specifically, the order enabled APTC to seek assistance from Virginia courts to support discovery of the post Online, 2000 WL 1210372, at *1. 34 In re Subpoena Duces Tecum to Am Online, Inc., 2000 WL 1210372, at *1 (Va. Cir. Ct. Jan. 31, 2000), Am Online, Inc. v. Anonymous Publicl y Traded Co., 542 S.E.2d 377 (Va. 2001). 35 Id. The America Online id. at *3, but under prin ciples Id. at *4. 36 Id. at *1. 37 Id. at *2. AOL sought to quash the subpoena under Virginia Supreme Court Rule 4:9(c), which governs requests for the production o f documents by a non party. Id. APTC argued that AOL had no standing to assert the First Amendment rights of its subscribers, but the court held that because AOL was the one required to produce documents, it had standing to challenge the subpoena. Id. In the interim, APTC was granted a motion in Indiana to proceed with its suit until it could discover the identities of the anonymous posters. Id. which could su id. at *3, but under principles Id. at *4.
50 room postings in camer a 38 Inexplicably, the court characterized its initial task as determining whether online communications should enjoy protection under the First Amendment 39 a task that should have been obviated since the Supreme Court resolved the issue three years prior wh en it extended full First Amendment protection to Internet speech. 40 41 quash. 42 However, the a ppellate court found the identities of the anonymous subscribers should be protected. 43 38 Id. at *1. The court ordered APTC to produce the all Id. at *8. 39 In re Subpoena Duces Tecum to Am Online, Inc., 2000 WL 1210372, at 4 (Va. Cir. Ct. Jan. 31, 2000), grounds sub nom., Am Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001) extended to communications by persons utilizing chat rooms and message boar ds on the information 40 Reno v. ACLU, 521 U.S. 844 (1997). The America Online court noted that: To fail to recognize that the First Amendment right to speak anonymously should be extended to communications on the Internet would require thi s Court to ignore either United States Supreme Court precedent or the realities of speech in the twenty first century. This Court declines to do either and holds that the right to communicate anonymously on the Internet falls within the scope of the First In re Subpoena Duces Tecum to Am Online, Inc., 2000 WL 1210372, at *6. 41 After reviewing the Indiana pleadings and Internet postings, the trial court concluded that APTC met its to discover the identities of the four anonymous posters. Id. at *8. 42 Id. 43 Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377, 385 (Va. adversarial, ex parte without ever holding a hearing, receiving evidence or presenting reasons for its decision. Id. at Id. at 364. Thus, the trial court
51 Parameters of t he good faith test America Online plaintiffs to obtain discovery of tities. The court realized its test should accommodate the anonymous speech protective language in Talley 44 and McIntyre v. Ohio Elections Commission 45 two Supreme Court decisions balancing the right of the posters to speak anonymously against the right of the plaintiff to seek recourse. 46 47 The test it adopted involved three simple components: 48 (1) The court must be satisfie face; (2) claim; and (3) 49 Id. at 383. The Supreme Court reversed the Id. at 385. 44 Talley v. California, 362 U.S. 60, 64 (1960). 45 514 U.S. 334, 341 42 (1995). 46 One critic of the America Online he law and mis cit[ed] Beauharnais v. Illinois 343 U.S. 250 (1952), because the America Online court read Beauharnais a been rendered obsolete by the New York Times v. Sullivan line of See Doskow, supra note 15 at 205, note 59. 47 In re Subpoena Duces Tecum to Am Online, Inc., 2000 WL 12 10372, at *5 (Va. Cir. Ct. Jan. 31, 2000), Am Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001) 48 party, Internet See id. a t *8. The America Online court id. at *6, but analysis of the opinion reveals the court analyzed three factors to determine that the plaintiff failed to justify revelation. Id. at *8. 49 Id. (outlining the three factors).
52 In other words, the court will rev satisfied that the plaintiff brought his claim in good faith and needs to discover the did not articulate how a plaintiff can meet each elemen t. America Online appealed. On appeal, however, the court ultimately determined that the 50 Crit ique of the America Online decision The America Online decision facilitated the process for aggrieved plaintiffs to discover the identities of anonymous posters who harmed them. Because the putative defendants in these suits post their invective anonymousl y, as a practical matter, plaintiffs cannot obtain certain important details from (or about) them to support their claims. 51 evidentiary burden and pursue legitimate claims beyond the p leading stage. America Online court focused heavily on two need for relief 52 and the damage an anonymous online speaker could cause with his words. According to the court: [T]he release of confi dential insider information, relating to a publicly traded company, through a medium such as the Internet, is no less pernicious than the 50 Id. at *7. 51 For example, a public figure plaintiff would find it exceedingly difficult to prove that a speaker was motivated by malice (a necessary element of a claim of defamation against a public figure, according to New York Times v. Sullivan 52 those who abuse the opportunities presented by this medium can be made t o answer for such Online, Inc., 2000 WL 12 10372, at *6 (Va. Cir. Ct. Jan. 31, 2000), Am Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001)
53 libelous statements that fall outside the scope of First Amendment protections. In this age of communication in cybers pace, the potential dangers that could flow from the dissemination of such information increase exponentially as the proliferation of shareholder chat rooms continues unabated, and more and more traders utilize the Internet as a means of buying and selling stocks. 53 54 The most prevalent critique of America Online is that plaintiffs can pierce the ve il of anonymity so easily that the standard effectively leaves anonymous speakers unprotected. 55 protective opinions in Talley and McIntyre 56 America Online offers little deference to anonymity. Becau se it is so plaintiff friendly, the standard could motivate bad faith lawsuits brought by plaintiffs who have no expectation of (or even desire for) recovery these companies merely seek to identify anonymous dissenters and bully them into silence. 57 Indeed, the potential for abuse of such a permissive standard was illustrated by Doe v. 2TheMart.com Inc., 58 in which the plaintiff subpoenaed the identities of 23 anonymous posters, including non parties. 2TheM it failed 53 Id. at *7. 54 Id. at *8. 55 See, e.g., Krinsky v. Doe 6, 159 Cal.App.4th 1154, 1167 (Cal. App. 2008) (claiming the America Online 56 The America Online historical context of political speech protection. In re Sub poena Duces Tecum to Am Online, Inc., 2000 WL 1210374, at *6. 57 See n if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final 58 140 F. Supp. 2d 1088 (W.D. Wash. 2001).
54 to even me 59 This strongly suggests that an unworthy plaintiff with no real basis for a claim Recognizing this problem, nearly all courts facing an unmasking situation since America Online approach still applies in Virginia I n fact it was cod ified by the Virginia General Assembly in 2002. 60 The Dendrite International v. Doe Motion to Dismiss Approach In Dendrite an action based on several theories of recovery including defamation and misappropriation of trade secrets, 61 a New Jersey appellate c ourt adopted a four pronged unmasking analysis. 62 to discover identity to proceed with his lawsuit. 63 Of the three tests analyzed in this dissertation 59 trate that the identity Id. at 1096. 60 The Virginia c e or may be tortious or illegal have been made by the anonymous communicator, or that the party requesting a subpoena has a legitimate, good faith basis to contend that such party is the victim of conduct actionable in the jurisdiction where the suit was f Ann. § 8.01 401.1(a) (2002). 61 Dendrite sued the fictitiously named defendants for breach of contract, breach of fiduciary duty, defamation, and misappropriation of trade secrets, among other things. See Decision of Superior Court of N ew Jersey, Chancery Division, MRS C 129 00, at 1 (Nov. 23, 2000), available at http://www.citizen.org/ documents/dendriteappeal.pdf. 62 Dendrite 775 A.2d 756, 760 (N.J. Super. Ct. App. Div. 2001) (indicating that subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corpor 63 Id. at 760 61.
55 chapter, Dendrite appears to be enjoying the most currency in recent state and federal opinions regarding revelation. 64 Facts In 2001, Dendrite International, a New Jersey based corporation servicing the pharmaceutical industry, 65 sued four teen anonymous posters on a Yahoo! message board discussing 66 Dendrite claimed the anonymous posts wrongly accused it of artificially inflating its earnings and unsuccessfully company mischaracterizations of factu al assertions p reviously published in quarterly financial report and articles discussing that report. 67 It also claimed the posters 64 See, e.g., Indep Newspapers, Inc. v. Brodie, 966 A.2d 432, 457 (Md. 2009) (adopting balancing approach). In adopting Dendrite balancing approach, the Independent Newspapers court found America Onlin good faith test overly permissive and summary judgment test unduly burdensome Id. at 456 57. 65 integrated products and services for pharmaceutical cu Decision Regarding Motion for Order to Show Cause, Dendrite Int l v. John Does, et als. Docket No. MRS C 129 00 (November 23, 2000), at 2. 66 See Leave to Conduct Limited Expedited Discovery for the Purpose of Obtaining Information to Identify John Doe No. 3, MRS C 129 00, at 1 (July 11, 2000) (noting that plaintiff filed suit against John Does Nos. 1 14, but sought leav e from the court to discover the identities of John Does Nos. 1 4). Dendrite requested expedited discovery to ascertain the names of four pseudonym ou s dinaire, on Appeal of Amici Curiae Public Ci tizen and the ACLU, Inc. v. Doe No. A 2774 00, at 9 1 0 (Mar. 29, 2001). 67 According to Dendrite, the posters v. Doe, 775 A.2d 756, 762 (N.J. Super. Ct. App. Div. 2001). T his quote however, came from a publication by the Center for Financial Research and Analysis (CFRA) critical of Dendrite See id. (di polic ies also wer e criticized by Internet publication, TheStreet.com See id. However, Dendrite never sued claims. Furthermore, documents filed in Dendrite suggest that other Yahoo! posters not just the four defendants See, e.g., Information to Identi fy John Doe No. 3, MRS C 129 00, at 10 (July 11, 2000)
57 74 However, the trial court found tha t Dendrite failed to establish a prima facie case of defamation against Doe No. 3 because it di d not prove his statements cause d harm. 75 The court also said Dendrite failed to provide evidence adequate to strip Does Nos. 3 and 4 of their First Amendment pro tections. 76 Thus, it denied leave for Dendrite to conduct discovery to obtain the identities of Does Nos. 3 and 4. 77 Dendrite appealed the denial only with respect to Doe No. 3. 78 In the interim, Public Citizen, a Washington, D.C. interest group, and the Am erican Civil Liberties Union of New Jersey obtained permission from the court to file an amici curiae brief 79 74 Dendrite argued that Does 1 and 2 who identified themselves on the board as current or former employees v iolated their contractual non disparageme nt clause based on a handful of posts. Brief of Amici Curiae Public Citizen Litigation Group, Docket No. A 2774 00, at 12 (2001). First, Doe No. 1 claimed Dendrite failed to protect itself from the consequences of a mass exodu s of dissatisfied employees and customers. Id. at 8. Second, Id. The court enabled Dendrite to unmask Does Nos. 1 and 2, mostly because they never appeared to despite sufficient notice. Decision of Superior Court of New Jersey, Chancery Division, MRS C 129 00, at 1 6 (Nov. 23, 2000), available at http://www.citizen.org/ documents/dendriteappeal.pdf. Doe No. 1 because his statements, on their face, violated his employment agreement. Id. at 16 n. 3. 75 Decision of Superior Court of New Jersey, Chancery Division, oe MRS C 129 00, at 1 2 (Nov. 23, 2000) (citations omitted) available at http://www.citizen.org/ documents/dendriteappeal.pdf 76 Id. at 19. The court explained that anonymous speech is protected under both the United States Constitution and the New Jerse y Constitution (which affords even stronger protection). Id. According to a manner which is unlawful or that would warrant this Court to revoke the Id. 77 Id. at 21. 78 Ct. App. Div 2001). 79 Public Citizen and the ACLU sought permission in order to discuss the standard that courts ought to apply in deciding whether to compel the identification of anonymous [I]nternet posters who are sued for allegedly violating the rights of the companies that they criticize. See Brief of Amici Curiae Public Citizen Litigation Group, Docket No. A 2774 00, at 17 (2001). The amici curiae submitted an identical brief in Immunomedics v. John Doe 775 A.2d 773 (N.J. Super. 2001). In Immunomedics posted on a Yahoo! board that Immunomedics depleted its European pharmaceutical supply and the chairman intended to fire the European manager. Id. at 774. The company which
58 On appeal, Dendrite alleged that Doe No. 3 posted nine actionable comments over a nearly three month period that justified revealing his identity. 80 These statements, according to Dendrite, were false and damaging. 81 First, Dendrite alleged that Doe No. 3 revealed trade secrets by disclosing concrete terms of 82 With respect to the contracts, Doe No. 3 allegedly posted: Bailye [De 83 year dea ls with built in escalation in their revenue year over 84 Doe No. 3 argued that these contractual terms were generic terms (such as disclosing escalating revenue) not trade secret s that Dendrite itself disclosed in its annual reports. 85 Finally, he asserted that was not bound by a duty of confidentiality because he was not a Dendrite employee. 86 (erroneously) believed this poster was its employee claimed the post violated her confidentiality agree ment. Id. at 775. Applying Dendrite t he appeals court held Immunomedics demonstrated that moonshine_fr was an employee whose postings violated the confidentiality agreement. Id. at 777 78. 80 1). 81 Id. Id. (discussing 82 Verified Complaint of Dendrite Int l, Inc., at 49 (May 24, 2000). 83 84 Id. 85 See uct Limited Expedited Discovery for the Purpose of Obtaining Information to Identify John Doe No. 3, MRS C 129 00, at 14 (July 11, 2000 ) 86 Id. at 15 16.
59 Dendrite also claimed that Doe No. 3 caused significant damage by crit icizing recent revenue recognition president] got his contracts salted away to buy another year of earnings and note how 87 T hese comments which had already been discussed by two non party publications and other non party Yahoo! message board posters arguably intimated that revenue recognition policy would artificially increase its reported earnings. 88 Finally, Dendri with no success. 89 90 These statements, ac cording to Dendrite, were defamatory. 91 decline. 92 The appellate court, however, was unconvinced by the conclusory nature of 93 Thus, Dendrite failed to show it suffered any harm attributable to Doe No. 3. 87 88 Id 89 Id. 90 Id. 91 Id. allegedly defamatory nature of his statements). 92 775 A.2d 756, 7 72 Id. day after five of the eight days Doe No 3 posted, and the stock price realized an overall increase over those days. Id. Its total loss over the period was only 29/32 of a point. Id. 93 Id.
60 adopted a four part unmasking test and determined that Dendrite failed to justify obtaining the identity of Doe No. 3. 94 Parameters of t h e Dendrite motion to dismiss test In articulating its test for revelation, the Superior Court of New Jersey relied heavily on Columbia Insurance Company v. Seescandy.com 95 and In re Subpoena Duces Tecum to America Online 96 although it ultimately rejected th Dendrite trial court adopted (with some modification) a four part balancing test originally set forth in Seescandy.com 97 This test was subsequently embraced by the appellate panel. The Dendrite test requires a plaintiff to surmount four hurdles to obtain an anonymous speakers that he is seeking their identities in order to file suit against them. 98 These st 99 94 Id. 95 185 F.R.D. 573 (N.D. Cal. 1999). 96 2000 WL 1210372 (Va. Cir. Ct. 1999). 97 See Columbia Ins. Co. v Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). 98 subpoena or application for an order of disclosure, and withhold action to afford the fictitiously nam ed See Inc. v. Doe, 775 A.2d 756, 7 60 (N.J. Super. 2001) 99 Id. Dendrite t they are the Id.
61 respond to the plainti 100 Dendrite posted notice on the Yahoo! board, which satisfied the requirement. 101 Second, a plaintiff must identify with particularity each of the allegedly actionable statements made by the defendant. 102 This element acts as a safeguard. It g ives an 103 The Dendrite court expressly rejected the America Online 104 Seescandy.com 105 It stated that: A strict application of our rules surrounding motions to dismiss is not the appropriate litmus test to apply in evaluating the disclosure issue. We conclude that the District Court [in Seescandy.com] envisioned the four part test to act as a flexible, non technical, fact sensitive mechanism for courts to use as a means of ensuring that plaintiffs do not use dis covery procedures to ascertain the 100 Id. The court did 101 See Decision of Superior Court of New Jersey, Chancery Division, MRS C 129 00, at 8 (Nov. 23, 2000), ava ilable at http://www.citizen.org/ documents/dendriteappeal.pdf (recognizing that because the anonymous speakers had posted their original messages on the board, they were likely to obtain notice posted on that board). But see Memorandum of Public Citizen as Amicus Curiae in Opposition to the Requested Discovery, MRSC 129 00, at 12 n.1 (July 11, 2000) (noting that Doe No. 2 only posted two messages to the board and so was unlikely to 102 67 (N.J. Super. Ct. App. Div. 2001) (stating that the plaintiff 103 Id. 104 According to the court, iled to protect anonymous speakers adequately. Id. at 771. 105 In Columbia Insurance Company v. Seescandy.com a federal district court in California held that a ain the identity of the anonymous defendant. 185 F.R.D. 573, 579 (N.D. Cal. 1999). The motion to dismiss standard established in Seescandy.com was not a traditional standard that could be satisfied by well pled Id. The plaintiff was required to supplement his complaint with evidence adequate to justify revealing the occurred and that the discovery is aimed at revealing specific identifying features of the person or entity who committed Id. at 580.
62 identities of unknown defendants in order to harass, intimidate, or silence critics in the public forum opportunities present on the [I]nternet. 106 Under this approach, the court will analyze the particular facts a plainti ff pleads to determine whether it established an actionable case. 107 The trial court held that Dendrite failed to satisfy the motion to dismiss standard because it did not proffer sufficient support for its claims. 108 final element is a balancing te st, which applies only if the plaintiff satisfies the first three prongs. 109 This balancing test urges courts to carefully consider Constitutional interest in maintaining anonymity, and on the other hand it must consider 110 106 Inc., 775 A.2d at 771 (bold type added) 107 v. Doe, 775 A.2d 756, 77 0 7 1 (N.J. Super. Ct. App. Div. 2001). 108 Id. at 771. Dendrite argued unsuccessfully that the modified motion to dismiss standard improperly required it to plead elements of its claim that would ordinarily be unnecessary in a traditional motion to dismiss a nalysis. Id. at 766. For example, the trial court had required Dendrite to show the defamatory statements actually caused it to suffer harm. Id. at 771. The appellate court agreed that to dismiss analy sis, id. at 770, but found that a Id. at 770 satisfy this m odified standard. Id. 109 Other courts who have a dopted the Dendrite approach have recognized that this element is critical to determining whether a case should proceed. See, e.g., Independent Newspapers, Inc. v. Brodie, 966 A.2d 432, 457 (Md. 2009) (establishing the importance of balancing both the pla and see also Doe v. would justify unmasking a non party). 110 Dendrite, 775 A.2d at 760.
63 Analysis of the Dendrite approach approach was different from the other two tests mostly because of its notice and balancing requirem ents (the first and fourth prongs of the test). First, 111 Dendrite required notification as a condition of bringing suit. 112 the court to protect a sp 113 Second, the Dendrite approach forces courts to conduct a balancing test. A court applying Dendrite ring revelation. 114 The Maryland Court of Appeals, embracing Dendrite 115 111 See, e.g., Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 589 (N.D. Cal. 1999). 112 Memorandum of Publi c Citizen as Amicus Curiae in Opposition to the Requested Discovery, Dendrite MRSC 129 00, at 11 (July 11, 2000) 113 See Michael S. Vogel, efendants: The Case Against Excessive Hand Wringing Over Legal Standards 83 O R L. R EV 795, 810 11 (2004), citing Mary P. Gallagher, Court Erects Roadblocks to Flagging Cyberspammers on the Internet: Four Step Process Must Be Followed Before Forcing ISP to Disclose 165 N.J.L.J. 203 (2001). 114 68 (N.J. Super. Ct. App. Div. 2001). See, e.g., Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999) (adopting a four part balancing test, on which Dendrite relied heavily). In Seescandy.com use of domain names he had registered. Id. at 576. The injunction was granted, and the court outlined a Id. at 578 (reco gnizing a proper balancing approach would consider 115 The court adopted approach mostly unmodified. See Indep Newspapers, Inc. v. Brodie, 966 A.2d 432, 456 (Md. 2009). However, the court additionally required as a separate element that Id. at 445. In Dendrite though, th See Dendrite, 775 A.2d at 760.
64 We are cognizant that setting too low a threshold would limit free speech on the Internet, while setting too high a threshold could unjustifiably inhibit a plaintiff with a meritorious defamation claim from pursuit of that cause of action. 116 ideally be fair. The flexibility and balance inherent in Dendrite has proven appealing to courts. Its approach appears to be gaining the most traction. 117 O ne scholar even suggests that unmask a poster since Dendrite was decided although that claim has not been substantiated 118 Plaintiffs with meritorious causes of action should be able to meet America Online ) should deter baseless suits. Yet even though Dendrite represents a moderate approach, it has attracted criticism, which can be divided into three broad categories. First, some claim that Dendrite fails to provide sufficient guidance to courts, such that the adoption of its test can yield inconsistency. 119 Second, the test requires plaintiffs to meet onerous hurdles that may practically deter him from filing even a valid claim. And third, Dendrite arguably protects speech that should be given no special legal deference. The Dendrite test fai ls to adopt clear guidelines. Some critics of Dendrite argue that its balancing approach fails to identify the specific factors a court must consider, giving the court too much discretion when deciding whether to order 116 Id. at 456. 117 See, e.g. Lidsky, supra note 14 at 1378 (stating that balancing approaches like Dendrite appear[ ] to be gaining ground as th 118 See Vogel, supra note 113, at 799. 119 This dissertation specifically aims to remedy this deficiency through the creation of a rubric to guide
65 revelation. 120 To illustrate, the Ninth Circuit discussed the adoption of a revelation standard that incorporated a balancing approach, like the one in Dendrite 121 However, in formulating the standard, the court focused on the fact that the speech at issue was online commercial speech. 122 It found the online nature of the speech itself was an element to be considered in the balance 123 which was never contemplated by Dendrite 124 Furthermore, the Ninth Circuit also failed to offer any guidance to courts adopting its approach. A similar critique regardin g the lack of consistency has been leveled against the application of motion to dismiss standard inherently lead to inconsistencies in the law. 125 The problem with applying st an dard is that different states even different courts in the 120 See, e.g., Vogel, supra note 113 at 808 (stating that balancing approach which enables a court to dismiss a claim even after a plaintiff proves he has a supportable claim broad level of authority to grant to a single, trial level judge, and is inconsistent with the spirit of such rights as due process and the right to trial by jury contrasting Dendrite sufficient damage, with Immunomedics whic h did not even require the plaintiff to show damages. Id. at 809. 121 In re Anonymous Online Speakers, 661 F.3d 1168, 1174 ( 9 th Cir. 2011). In adopting the approach, Doe v. Cahill Id. at 117 7. 122 Id. 123 Id. at 1173. 124 Another critic suggests that standard is inapplicable to any defamation case because the anonymity rights of a speaker are irrelevant. See Doskow, supra note 15 at 214. According to law professor Charles Doskow, defamation is not protected by the First Amendment, yet defamation is suddenly afforded protection by virtue of occurring online. Id. reason fo Id. He also rights, they should not be fortified to hinder cases becau se modern modes of communication have Id. 125 See, e.g., Krinsky v. Doe, 159 Cal.App.4th 1154, 1170 (Cal. App. 2008) and potentially confusing to attach a procedural label, whether summary judgment or motion to dismiss,
66 same state could apply the standard with different results. 126 One jurisdiction could theoretically apply second prong (requiring the plaintiff to set forth his claims with particularity) differently from another jurisdiction, depending on its pleading requirements. 127 standards effectively deter suits. Some scholars suggest that evidence a p laintiff must present to prove his claim. According to Michael S. Vogel, 128 One example of this is that public figure cl 129 a standard that he could 130 Another illustration of this l 131 Both of these are examples of situations in which the plaintiff is required to perform an effect ively impossible task. His suit even if it 126 See In re Subpoena Duces Tecum to Am Online, Inc., 2000 WL 1210372 (Va. Cir. Ct. Jan. 31, 2000). ficient to plead a prima facie case varies from state to state and, Id. an argument that judges of one state could be required to determine the sufficiency of pleadings from another state 127 See Mobilisa, Inc. v. Doe 1, 170 P.3d 712, 720 (Ariz. Ct. App. 2007) (stating that in a notice pleading reli pleading, the requirement could be more substantial. See Lassa v. Rongsta d 128 Vogel, supra note 113 at 807. 129 New York Times v. Sullivan, 376 U.S. 254, 279 a defamation case involving a public figure). 130 Vogel, supra note 113 at 807. But see, e.g., Ottinger v. Journal News, 2008 W L 4375330 (N.Y. 2008) (adopting Dendrite but noting that a plaintiff should be responsible for only those elements in his control). 131 Vogel, supra note 113 at 807 08.
67 would have a solid factual basis would be doomed because he cannot yet obtain pr oof Several courts have addressed this limitation of Dendrite For example, Doe v. Cahill 132 only required a plaintiff to present evidence regarding those elements of an action within his contro l. 133 Thus, the hypothetical defamed public figure would no longer 134 It is highly identity. 135 Furth ermore, even if a plaintiff could eventually gather adequate support and make out a case sufficient to survive pursue a claim in the first place. Proving damages in cases like these can be an 132 884 A.2d 451 (Del. 2005). 133 Id. at 463. 134 This narrower interpretation of the plaintif Doe v. Cahill which required a plaintiff m within [his] Cahill, 884 A.2d at 463. The interpretation accounts for the real ity of a situation by recognizing that a plaintiff should not be required to prove elements of a claim to which he has no reasonable access. For example, in a defamation case involving a public figure, a plaintiff should not be (a required element) without having even obtained the identity of the speaker. See Ottinger v. Journal News, 2008 WL 4375330 (N.Y. June 27, 2008) (adopting the Dendrite balancing it was an element out of his control). 135 Doe v. Cahill which required a plaintiff m within [his ] Cahill, 884 A.2d at 463. The interpretation accounts for the reality of a situation by recognizing that a plaintiff should not be required to prove elements of a claim to which he has no reasonable access. For example, in a defamation case involving a public figure, a plaintiff should not be See Ottinger v. Journal News, 2008 WL 4375330 (N.Y. June 27, 2008) (adopting the Dendrite ba lancing control).
68 exceptionally expensive and time consuming endeavor. 136 A plaintiff may want to know tity to determine whether he could actually recover damages before he opts to expend money and effort on discovery. 137 standards protect speech that does not warrant protection. Finally, some suggest that speech protective nature poses another hurdle to 138 Critics claim the Dendrite standard negates a 139 Historically, courts have express ed the need to protect anonymous speech furthering public debate on important issues. 140 However, robust, and wide open than ever before, [ ] it also opens the door to more tri vial, 141 136 of postings on stock prices[. See Vogel, supra note 113, at 808. 137 Id. at 808. However, this raises the question of whether practical interests such as these should be considered in a case involving such strongly protected First Amendment rights as anonymity. 138 See Ind ep Newspaper s, Inc. v. Brodie, 966 A.2d 431, 457 (Md. 2009) (Adkins, J., concurring). In a Doskow, supra note 15 at 212 (citing Victoria Smith Ekstrand, Unmasking Jane and John Doe: Online Anonymity and the First Amendment 139 See Ind ep Newspapers, Inc. 966 A.2d at 458 (Adkin s, J., concurring). See also McIntyre v. Ohio 514 U.S. 334, 385 (1995) 140 See McIntyre 514 U.S. 334 at 341 ; New York Times v. Sullivan 376 U.S. 254, 270 (1964) (discussing the value of debate on public issues). 141 Lidsky, supra note 14 at 1384 (citations omitted).
69 discourse at the heart of cases like McIntyre and Talley 142 An egregious example of this speech which was protected is in Krinsky v. Doe 6. 143 In that case, the anonymous 144 As explained by Lyrissa Lidsky in her article, Anonymity in Cyberspace: What Can We Learn From John Doe? 145 the poster also : in which he contemplated perfor ming oral sex on the plaintiff even though she 146 The California Court of Appeal adopted a modified Brodie approach (minus the balancing test) 147 and held that the plaintiff failed to meet its burden to unmask the poster. 148 The speech was not defamatory, 149 protected political speech. Yet, the court explained that this 142 Doskow, supra note 15 at 215 (critiquing the adoption of a balancing a pproach), and at 216 (stating that the language of Talley and McIntyre balancing appr oach recognize that some posters abuse anonymity. For example, Public Citizen says that can Civil Liberties Union of New Jersey, Dendrite International, Inc. v. Doe Docket No. A 2774 00, at 3 (2001). 143 159 Cal. App. 4th 1154 (Cal. Ct. App. 2008). 144 Id. at 1159. 145 50 B.C.L. R EV 1373 (2009). 146 See id. at 1382, citing Krinsky 159 Cal. App. 4 t h at 1159 (quotations in original). 147 As explained above, Brodie effectively adopted approach. 148 Krinsky v. Doe 6 159 Cal. App. 4th 1154, 1179 (Cal. Ct. App. 2008) 149 ory statement of fact. Id. at 1177 78.
70 accept these statements as fact on a Yahoo! financial board. 150 Although protecting this type of invective s eems a less wo rthy application of the First Amendment, others note that any negative effects of such online speech are easily cured. By posting a curative message online, an ag immediately, and be given the same prominen 151 Furthermore, message board s like the one dedicated to Dendrite tend to recognize repeat visits, 152 those who saw the original criticism; hence the response reac hes many, if not all, of the 153 Yet despite the effects of Dendrite in protecting less worthy speech, the balancing approach offers a level of protection to an anonymous defendant. As noted in the amicus curiae brief submitted by Public C itizen 154 and the ACLU, a defendant could 150 See also Lidsky, supra note 14 at 1382 83. The Krinsky show he did not intend his statements to be taken seriously. Krinsky, 159 Cal. App. 4 th at 1175 76. 151 Brief of Amici C uriae Public Citizen and the American Civil Liberties Union of New Jersey, Dendrite Docket No. A 2774 00, at 4 (March 29, 2001). The brief goes on to say that, with eply immediately to criticisms on a message board, providing facts or opinions to vindicate their positions, and thus, potentially, persuading Id. at 5. See 13 152 Although Dendrite i nvolved a bulletin board system which is effectively obsolete today it is easy to extrapolate this statement t o social networking sites like F acebook or Google Plus, or indeed any site that enables individuals to post on it. 153 Id. at 5. 154 According to its amicus curiae brief, Public Citizen is a Washington, D.C. based public interest g roup with over 100,000 members, founded by Ralph Nader in 1971. Brief of Amici Curiae Public Citizen and the American Civil Liberties Union of New Jersey, Docket No. A 2774 00, at 1 (March 29, 2001).
71 permitting the plaintiff to learn the identity of its critics, [the Court] is affording the plaintiff very significant relief which, in some cases, may be the only substantive order that the 155 The danger of unfettered revelation would arguably cause an unacceptable even w hen their posts are prima facie protected by the First Amendment. 156 As explained the court in Columbia Insurance Company v. Seescandy.com 157 an opinion relied on heavily by the trial court in Dendrite : People who have committed no wrong should be able to par ticipate online without fear that someone who wishes to harass or embarrass them can discover their identity. 158 For all its flaws, the Dendrite test attempts to protect discourse b y discouraging baseless suits, even if its application includes speech well short of weighty political discourse. Its speech protective nature, coupled with a balancing approach that ostensibly allows genuinely aggrieved plaintiffs to pursue their claims, has motivated more courts to adopt its approach than the other two tests explained herein. 155 Id. at 3. 156 See, e.g., Li dsky, supra note 14 at 1374 (noting that lawsuits against anonymous posters posed a proliferation of actions against defendants of modest means merel y for speaking their minds threatened 157 185 F.R.D. 573 (N.D. Cal. 1999). 158 Id. at 577.
72 Summary Judgment Approach In Doe v. Cahill 159 the Delaware Supreme Court 160 established a test requir ing a plaintiff to demonstrate his claim and its su pporting 161 This defendant friendly test made it significantly tougher 162 Theoretically, the more stringent app roach safeguards anonymity except in the strongest of cases. Facts Doe v. Cahill differs substantively from Dendrite and America Online in that th e plaintiffs were individuals an aggrieved Smyrna, Delaware, tow n council member and his wife not a multimilli on dollar company. 163 The council member, Patrick Cahill, and his wife, Julia, sued four John Doe defendants for defamation and invasion of privacy based on allegedly defamatory statements posted to an internet website about Smyrna issues, sponsored by the D elaware State News. 164 Specifically, Patrick Cahill claimed 159 884 A.2d 451 (Del. 2005). 160 In Doe v. Cahill the Delaware Supr eme Court became the first state Supreme Court to analyze whether to order the revelation of an anonymous online poster. See Cahill, 884 A.2d at 457. The trial N umber One, 879 A.2d 943, 945 (Del. Sup. Ct. 2005). 161 Doe v. Cahill, 884 A.2d at 460. 162 The Doe v. Cahill Dendrite and America Online See Doskow, supra note 15, at 207 163 See Verified Amended Co mplaint, Doe v. Cahill C.A. No. 04C 11 022JRS, 1 2 (Nov. 16, 2005). 164 Doe v. Cahill, 884 A.2d 451, 454 (Del. 2005) The website http://newsblog.info/0405 was active as of the time of the publication of the Cahil l opinion, see Cahill, 884 A.2d at 454 n. 1 (stating that the blog was te[d] on line discussion of issues See Cahill v. John Doe Number One, 879 A.2d 943, 946 (Del. Super. Ct. 2005).
73 165 post contrasted Cahill with Mark Schaeffer, the mayor of Smyrna. 166 It claimed Cahill 167 168 The Cahill would be keenly aware of [his] character flaws, not to mention [his] obvious 169 paranoid as everyone in town thinks he is. The mayor needs support from his citizens and protection from unfounded 170 without opposition. 171 They then obtained an ex parte order from the trial court requiring Comcast to disclose the identities of all four anonymous posters. 172 Comcast noti fied the posters of the discovery request. In response, Doe No. 1 filed an Emergency Motion for a Protective Order to prevent discovery. 173 165 See Opening Brief of Appellant John Doe No. 1, No. 266, Doe v. Cahill (July 28, 2 005), at 3 (stating year old stepdaughter, Cristina Rawley. See Blogger at Center of Lawsuit is Identified N EW Y ORK T IMES ( Feb. 4, 2006). 166 See Opening Brief of Appellant John Doe No. 1, No. 266, Doe v. Cahill (July 28, 2005), at 3. 167 Id. 168 Id. 169 Id. 170 Id. 171 Doe v. Cahill, 884 A.2d 451, 454 (Del. 2005). 172 Cahill v. John Doe N umber One, 879 A.2d 943, 945 (Del. Super. Ct. 2005). 173 Doe v. Cahill, 884 A.2d at 455. Doe No. 1 was the only one of the posters to file a motion for a protective order. Id. ms accused Julia Cahill of prostitution and promiscuity and Patrick Cahill of alcoholism. Verified Amended
74 Despite Doe No. 1 urging the trial court to apply Dendrite 174 it opted to embrace 175 176 it determined that the Cahills set forth a legitimate defamation claim. 177 First, ll ha[d] engaged in an extra marital same sex 178 179 180 Doe No. 1 appealed. On appeal, the Supreme Court of Delaware reversed and rejected both the America Online Dendrite failed 181 Discussing the A merica Online test, the Cahill court explained that if the bar to discovery were set too low, Complaint, Doe v. Cahill C.A. No. 04C 11 022JRS, 8, 13, 15 (Nov. 16, 2005). One of the posters also revealed Patrick Cahill had Hepatitis C (a f act he had kept private), which formed the basis of a claim for invasion of privacy. Id. at 25 26. 174 Cahill v. John Doe Number One, 879 A.2d at 946. 175 See id. America Online is the more balanced and appropri 176 See id. at 954. 177 Cahill v. John D oe N umber One, 879 A.2d 943, 954 55 (Del. Super. Ct. 2005). 178 Id. 179 Id. at 955. 180 Id. at 946. 181 Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005) (stating that the America Online Dendrite Dendrite elements of Dendrite : notice and a strength of claim test. According to the court, second Id. at 461.
75 censoring their comments or 182 Thus, Doe v. Cahill 183 Applying the standard, 184 and thus reversed 185 Parameters of the su mmary judgment approach The summary judgment approach adopted in Doe v. Cahill requires a plaintiff to meet three criteria to justify unmasking an anonymous poster. First, the plaintiff must attempt to notify the anonymous po ster of the discovery request a requirement borrowed from the first prong of Dendrite 186 Unlike Dendrite however, the Cahill court 187 In cases involving Inter net 182 Th e Cahill even with a deficient claim or a claim he does not intend to pursue past discovery. Id. at 457. 183 Id. propriate test by which to strike 184 See id. at 467. To support its holding, the court noted that another poster cla Id. 185 Id. at 468. Ultimately, the Cahills discovered the identities of the anonymous posters through other means and filed a Verified Amended Complaint a month after the Delaware Supreme See Blogger at Center of Lawsuit is Identified N EW Y ORK T IMES (Feb. 4, 2006). The Verified Amended Complaint named as defendants Mark Schaeffer, his wife Ruby Schaeffer, and his stepdaughter Cristina Rawley. Verified Amended Complaint, Cahill v. Schaeffer C.A. No. 04C 11 022JRS, at 4 6 (Nov. 16, 2005). A. Douglas Chervenak, a doctor, also became a plaintiff in the suit based upon allegedly defamatory comments made by the same posters to the same site. Id. at 3 8. 186 See Doe v. Cah 187 Id. same language was adopted in Mobilisa, Inc. v. Doe 1 170 P.3d 712, 719 (Ariz. Ct. App. 2007).
76 188 Second, the plaintiff must withhold action and give the anonymous poster a reasonable time to respond after notifi cation. 189 This time frame must be sufficient to 190 The time frame, however, is not specifically defined by the court. Finally, a plaintiff must sh ow his claim could defeat a motion for summary judgment. To satisfy this prong and thus show they were entitled to discover Doe No. fact for all the elements of a d 191 This heightened Cahill court enabling a plaintiff to obtain a 192 188 Doe v. Cahill, 884 A.2d at 461. 189 Id. 190 Id. 191 Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005) Because Patrick Cahill was a city councilm an and thus a public fi gure he technically would have been required to meet the defamation test set forth in New York Times v. Sullivan 376 U.S. 254, 280 (1964). As a public figure, Cahill would have to prove that the Id. at However, because Cahill could not logically be expected to kno w whether the defendant whose identi ty he had not yet ascertained had acted out of malice, he was not required to show malice at this stage. Doe v. Cahill, 884 A.2d at 464. 192 Doe v. Cah ill 884 A.2d at 464.
77 Ultimately, the Cahills were unable to meet their burden under this summary judgment standard. The statements simply d id not qualify as defamation. They were non ac tionable opinion 193 Analysis of Doe v. Cahill The Doe v. Cahill standard ostensibly deters plaintiffs from filing frivolous 194 The standard was deliberately stre ngthened out of fear that a plaintiff could us extra judicial self posters. 195 Because plaintiffs now face such a high barrier to success, they will be disc ouraged from bringing unfounded SLAPPs. Only genuine claims should, in theory, survive. As noted in Chapter 5 of this dissertation, America Online is falling out of favor; thus, it seems likely that whatever standard a court employs, it is likely to requi re a plaintiff to present a heightened level of evidentiary support for his claims. Although the majority of courts appear to be adopting the more lenient Dendrite approach, the speech protective Doe v. Cahill test may be simpler to apply and yield more pr edictable results. A summary judgment approach would be straightforward, requiring a plaintiff to provide evidence for each element of his claim. 196 Whereas critics claimed its 193 Id. at 458. 194 Id. at 459. 195 See id. at 457. 196 See Doe v. Cahill, 884 A.2d 451, 461 (Del. 2005) As the court explained, under the summary Id. all elements Id. at 463.
78 197 Doe v. Ca stricter approach eliminates the subjective balancing test. 198 Doe v. Cahill has invited to achieve appropr iate rulings in the vast array of factually distinct cases likely to involve 199 On its own, a summary judgment standard fails to account for 200 Without balancing, a court would not be able to consider factors such as the type of speech involved, the to the speaker and others similarly situated, the need for the identity of the party to advance the requesting pa discovery methods. 201 To support its assertion, the Mobilisa court provided the example of an anonymous non party poster who has information that other witnesses also possess. 202 A plaintiff could demonstrat e no need to unmask the anonymous poster, yet the summary judgment standard may give him that ammunition. Thus, Mobilisa adopted notice and summary judgment factors but incorporated a Dendrite interests. 203 197 See infra. for a critique of balancing test. 198 S ee Doe v. Cahill, 884 A.2d at 461 (rejecting a balancing component). 199 Mobilisa, Inc. v. Doe, 170 P.3d 712, 720 (Ariz. Ct. App. 2007) In a defamation suit, the Mobilisa court adopted safeguards of both the Dendrite and Cahill tests. Id. Its test combine d notification and summary judgment standards with balancing test. Id. The result is very speech protective. 200 Id. 201 Id. 202 Id. 203 Id. at 715 16 (remanding and directing the trial court to conduct a balancing analysis). Krinsky v. Doe 6 also advocated a Doe v. Cahill standard that incorporated Dendrite elements. Krinsky v. Doe 6, 159 Cal.App.4th 1154, 1172 (Cal. Ct. App. 2008). In Krinsky the court explained that because summary
79 For the sa me reason, the rigid Doe v. Cahill standard has been criticized for failing to account for the qualitative nature of the statements triggering the suit. But case law suggests that different types of speech should be afforded greater First Amendment protect ion, a distinction lost in this procedural quagmire. 204 Thus, an ideal test would recognize the differences among these types of speech and weigh them accordingly in a revelation analysis. Doe v. Cahill also arguably suffers from the same shortcomings as Den drite in that its summary judgment approach acts as a procedural burden on plaintiffs. 205 The support every element of his claim and, thus, defeat a summary judgment det ermination. 206 However, differing jurisdictions employ different pleading standards. 207 Thus, the adoption of a summary judgment standard could result in inconsistency among jurisdictions. Interrelationship Among the Tests It appears that courts are increas ingly gravitating toward the balanced Dendrite approach. judgment standards differ among jurisdictions, it would a pply prong. Id. at 245. 204 See, e.g., on the other hand, is afforded less protection. See York, 447 U.S. 557, 562 (1980). 205 Some critics still suggest that inconsistency may result by virtue of incorporation of a procedura l burden. There is the potential for different jurisdictions to apply summary judgment standard differently. See, e.g., Krinsky 159 Cal. App. 4th at potentially confusing to attach a procedural label, whether summary judgment or motion to dismiss, to the 206 Doe v. Cahill, 884 A.2d 451, 462 63 (Del. 2005) 207 See Krinsky 159 Cal.App.4th at 1170.
80 courts for quite some time, while deemed so restrictive as to effectively render recovery impossible, even for a meritorious claim. Regardless of whether a court adopts Dendrite or Cahill however, the aggrieved plaintiff will be required to set forth factual support for his claim.
81 CHAPTER 4 RUBRICS AS VIABLE MO DELS FOR ANALY ZING COMPLEX LEGAL I SSUES This dissertation involves a situation in which courts are faced with inconsistencies and a lack of uniformity in the law, triggered by the adoption of new technologies and uncertainty about how to treat the issues arising from th eir use. Conceptualizing and applying a structured model that accounts for the main facto rs making might enable courts to systemize their legal analysis yielding uniformity The dissertation ultimately argues that courts shoul d use review of case law and law review articles on Westlaw and L exis Nexis however, reveals an absence of cases in which courts applied a well designed rubric to solve an emergent legal problem. To advance the use of rubrics to simplify legal analysis, this dissertation first addresses the use of models generally. After discussing the value of models as conceptual and organizational tools, the dissertation then asserts that a model should be constructed to simplify the analysis of whether, and in what circumstances, to disclose the identities of anonymous online posters. Models, which are essentially simplified descriptions of complex processes, often in visual form, ena ble the viewer or user to understand and employ that process with ease. The applicable model advanced by this dissertation is the rubric, which the dissertation argues is a viable and appropriate organizational and analytical tool to employ in legal analys is. Rubrics are tools mostly employed in social science research. Most of the literature on rubrics stems from scholarship on educational issues. The dissertation then
82 advances the position that courts would benefit from the adoption of formal models as to ols to aid legal analysis. Although courts have yet to embrace the widespread application of rubrics to simplify legal analysis, there is support for rubrics in some legal contexts, such as criminal sentencing. 1 In addition, legal analysis, to some extent, inherently authorizes the use of models. This chapter argues that while much legal analysis is conducted without formalized models, analysts essentially use non formalized models when making decisions. Formalized models that consolidate multiple judicial opinions and their underlying rationales in an easy to use visual format would aid courts and practitioners in decision making and theory building. The dissertation then argues that courts should adopt a rubric to assist them in determining whether to orde r the Using Models to Engage in Analytical Behavior As Thomas Kuhn explained in The Structure of Scientific Revolutions normal 2 Although Kuhn focuse d primarily on research in the physic al sciences, his statement can be applied to the social sciences as well. Social scientists similarly seek to solve puzzles. Often, to aid them in this task, scientists will initially adopt theoretical models. 3 This conceptual system enables researchers to organize, and thus utilize, their data appropriately. 4 According to Jaccard 1 See, e.g., 1 8 U.S.C. § 3551 et seq. (outlining the federal sentencing guidelines). 2 T HOMAS K UHN T HE S TRUCTURE OF S CIENTIFIC R EVOLUTIONS 35 (Univ. of Chicago 1996) (orig. publication 1962) (distinguishing normal science from transformative science) 3 P AMELA S HOEMAKE R et al. H OW TO B UILD S OCIAL S CIENCE T HEORIES 138 (Sage 2004) (discussing the value of models). 4 See J AMES J ACCARD & J ACOB J ACOBY T HEORY C ONSTRUCTION AND M ODEL B UILDING S KILLS 27 (Guilford 2010), citing A BRAHAM K APLAN T HE C ONDUCT OF I NQUIRY : M ETHODOLO GY FOR B EHAVIORAL S CIENCE 159 61
83 5 They assert that t he need systems 6 They contend: [E]ven the most applied researcher interested only in answering the question of the moment cannot escape the fact that, regardless of how latent, some form of conceptualization precede s and guides the data he or she collects and the 7 Jaccard and Jacoby also a process that, according to their definition, i s identical to model building tual 8 In How to Build Social Science Theories authors Pamela Shoemaker, James William Tankard and Dominic Lasorsa explain the value to social scientists of constructing models to help them conceptua and/or explaining the interrelationships among the important aspects of the object or 5 Jaccard and Jacoby, supra note 4, at 29. Jaccard and Jacoby noted that other researchers have See C LYDE C OOMBS et al. M ATHEMATICAL P SYCHOLOGY : A N E LEMENTARY I NTRODUCTION 4 (Prentice Hall 1970) and Kaplan, supra of theories); May Brodbeck, Models, Me anings and Theories in R EADINGS IN THE P HILOSOPHY OF S OCIAL S CIENCES (Brodbeck, ed.) (Macmillan 1968) (defining models as structures showing how two or more theories relate); and Allen Newell & Herbert Simon, The Logic Theory Machine A Complex Information Processing System 2(3) T RANSACTIONS ON I NFORMATION T HEORY 61 (1956) (contending that the terms 6 Jaccard & Jacoby, supra note 4, at 27 (noting the importance of both conceptual and empirical realms of science). 7 Id. 8 Id. at 28. Jaccard and Jacoby conflate the predictive aspect of traditional theory and the explanatory building, relevant to this dissertation. Shoe maker, on the other hand, distinguishes between the two and discusses the explanatory nature of models. Shoemaker, supra note 3, at 110.
84 process. 9 The model typically breaks down complex processes in an accessible format, usually graphical This construction mak es the process easier to understand and implement. A model can be either structural or functional. A structural model demonstrates phenomenon 10 Functional models, on the other hand, focus on the interrelationship among factors, and the influe nce one factor may have on another. 11 The selection of a model type depends on the underlying factors and relationships the researcher hopes to express. Jacoby contend that the most important criterion is whether the model is useful. 12 They 13 Karl Popper s would be weeded out naturally, over time, as adherents died or left science. 14 model must satisfy three criteria: (1) Internal logical consistency, (2) Agreement with known facts, and 9 Shoemaker, supra note 3 at 110. 10 D ENIS M C Q UAIL & S VEN W INDAHL C OMMUNICATION M ODELS 2 (Addison Wesley 1993). 11 Id. at 3. 12 Jaccard & Jacoby, supra note 4, at 31. 13 Id. 14 K ARL P OPPER T HE L OGIC OF S CIENTIFIC D ISCOVERY (3d ed.) (Harper & Row 1968).
85 (3) Empi rical testability. 15 The model was also subject to analysis under six additional desirable, but not critical, criteria: (1) Easily understood and communicable terms used in its descriptions, (2) Parsimony, (3) C onsistency with other generally accepted theories, (4) Coverag e of a wide range of data, (5) Creativity and novelty, and (6) Ability to drive research with the theory. 16 oses of a components, and show the relevant aspects of the process that warrant further research; 17 2) to help scientists communicate relevant aspects of complex processes; and 3) to lead to new theories. 18 An assortment of models is available for researchers to use to achieve their organizational and analytical goals. However, a variety of factors influence the decision of which model to adopt. Model selection can be a rathe r daunting task, given a 15 M ARVIN S HAW & P HILIP C OSTANZO T HEORIES OF S OCIAL P SYCHOLOGY (McGraw Hill 1982). Although Shaw and Costanzo discussed th criteria outlined by Shaw and Costanzo clearly covers model construction. 16 Id. 17 Shoemaker, supra note 3, at 110. 18 Id. at 136.
86 19 The selection and usefulness of a model, however, hinge on the reasons the researcher needs to adopt it a nd the factors for which the researcher must account. 20 These determinations depend heavily on the question(s) the researcher faces. The more factors the researcher needs to depict, the more difficult it will be to create or adopt a parsimonious model. 21 How ever, the model the researcher ultimately selects must be delicately balanced elegant and simple, but not overly so, and easily accessible. 22 Courts can adopt and apply similar models addressing salient elements a nd providing clear guidelines to help th em understand the circumstances warranting unmasking an anonymous poster. However, research has focused very little on adopting models for legal analysis. Instead, material from the social sciences forms much of the basis for arguing that models are excell ent assistive devices. The Use of Models in Mass Communication Research Social scientists have adopted a variety of models to organize and analyze everything from probabilistic network models used in handling survey data 23 to policed effectively 24 to creating a typology to study entertainment television and 19 Id. at 122 23. 20 Id. at 128. 21 Id. at 132. 22 Shoemaker supra 23 P ETER C ARRINGTON et al. M ODELS AND M ETHODS IN S OCIAL N ETWORK A NALYSIS 40 (Cambridge University Press 2005). 24 Martin Short et al. Dissipation and Displacement of Hotspots in Reaction Diffusion Models of Crime 107(9) P ROCEEDINGS OF THE N AT L A CADEMY OF S CIENCES IN THE U NITED S TATES OF A MERICA 1943, 1961 (March 2, 2010).
87 politics. 25 It would be impossible to categorize every model used by social scientists in furtherance of their research goa ls. Instead, this section focuses on utilizing models in mass communication research, a narrower (though still broad) subset of the social sciences with a focus related to this dissertation. To narrow down the scope of this analysis, the chapter focuses on model, the agenda setting model, and the Elaboration Likelihood Model (ELM). The goal in this section is to analyze how the researchers constructed their models, what factors were relevant in the constructi on, and why these models became widely accepted. Harold Dwight Lasswell, an American political scientist by training who was deeply interested in the communication of propaganda, 26 model to describe the process of communication. 27 The model the earliest communication model is exceptionally simple, elegant, and has a broad applicability. Lasswell asserted that we could describe the process of communication if we could figure out who says what in which channel to whom with what effects, 28 illustrated below. 25 R. Lance Holbert, A Typology for the Study of Entertainment Te levision and Politics 49(3) A M B EHAVIORAL S CIENTIST 436 (2005). 26 E VERETT R OGERS A H ISTORY OF C OMMUNICATION S TUDY 203 (Simon & Schuster 1 994). 27 See Harold Lasswell, The Structure and Function of Communication in Society in W. S CHRAMM (ed.), M ASS C OMMUNICATIONS 117 30 (U. of Illinois 1948). 28 Id.
88 Figure 3 1. The model proved remarkably effective in describing the communicative process. The reason why researchers gravitated toward ado pting this model, however, was due to more than just its utility (although that was clea rly a motivating factor). This model met nearly every one of necessary and desirable for necessary criteria: it was logically consistent, it agreed with known facts about communication, and it was testable. 29 understand and communicate the theory, it was par simonious, it was consistent with other theories of the time, it could be applied to a wide range of data, it was novel, and the theory could (and did) drive research. 30 en built upon and altered over the The Agenda Setting Model Agenda setting research stemmed from the work of Lasswell and Walter that the mass media are the principal connections between an event in the real world and the images in our minds of this 31 This concept was ultimately adopted and developed into a form of agenda 29 See Shaw & Costanzo, supra note 15. 30 Id. 31 Rogers, supra note 27, at 237. who says what in which channel to whom with what effects?
89 setting theory by Bernard Cohen He asserted that the much of the time in telling people what to think but it is stunningly successful in telling its readers what to think about 32 Nearly ten years later, Maxwell McCombs and Donald Shaw formalized the agenda setting theory after analyzing the contents of presidential campaign coverage in the media. 33 Agenda setting theory embraces the concept that there is a correlation between mass media emphasis on particular topics and the importance audience members place on those topics. 34 Agen da setting theory gained widespread acceptance because it, again, aligned closely with the criteria outlined by Donald Shaw and relationship between the media agenda embraced it. 35 Even more fortuitous for the theory, however, is that it arose during a period of 36 At the time, researchers were disenchanted with direct media effect models and sought a new approach for analysis. 37 Thus, researchers were more inclined to gravitate toward this novel theory. 32 B ERNARD C OHEN T HE P RESS AND F OREIGN P OLICY 13 (Princeton 1963) (italics added) 33 Max McCombs & Donald Shaw, The Agenda Setting Function of Mass Media 36(2) P UB O PINION Q. 176 87 (1972) 34 Id. 35 Rogers, supra note 27, at 242. 36 See id. at 240 for a description of the c risis. Thomas Kuhn also suggested that major shifts in theory come after periods of crises. Kuhn, supra note 2, at 66. 37 Rogers, supra note 27, at 42.
90 The Elaboration Likelihood Model In the 1980s, Richard Petty and John Cacioppo developed the Elaboration Likelihood Model (ELM) to explain how people process persuasive messages and how 38 The model posits two persuasive channels These are 39 opts to use this route, his message must be well reasoned and logical. The receiver will be weighing the message carefully, so it must stand up to intense scrutiny A message be persuaded by irrelevant or superficial factors associated with the message, like colors or music. The most important aspect of the ELM is this concept of a continuum indicating the degree to which the receiver is inclined to think about the message being conveyed. 40 41 However, as described in the previous secti on, mod els can be purely descriptive. Their purposes are to organize and explain underlying elements of processes or objects. 38 R ICHARD P ETTY & J OHN C ACIOPPO A TTITUDES AND P ERSUASION : C LASSIC AND C ONTEMPORARY A PPROACHES (William C. Brown 1981). 39 Id. 40 See Andrew Cook et al. The Taking of a Position: A Reinterpretation of the Elaboration Likelihood Model 34(4) J. FOR THE T HEORY OF S OC B EHAVIOR 315, 316 (2004). 41 Id. at 318 (citations omitted).
91 Interestingly, researchers from the University of Zurich subjected the ELM to computer simulation to replicate findings in availab le studies. 42 Their goal was to select and translate it into computer language, test the model, and conduct simulation experiments. 43 To achieve these goals, the researchers recognized the need to create a parsimonious statement of the central elements of ELM in order to conduct a simulation. 44 The interesting aspect of the University of Zurich simulation experiment is that Both seek simplicity and uniformity in legal analysis. And th is goal can be achieved through the use of a rubric. Rubrics as Organizational Tools Most academic literature on rubrics focuses on the educational context, explori ng feedback. 45 Predictably, then, material discussing the construction of a rubric tends to center on how to create a rubric that standardizes and simplifies the grading o f classroom assignments. However, these principles of rubric construction can be extrapolated to legal analysis, as rubrics have inherent value as an organizational 42 Hans Joachim Moachler et al. Co mputer Simulation as a Method of Further Developing a Theory: Simulating the Elaboration Likelihood Model 5(3) P ERSONALITY AND S OC P SYCH R 201, 202 (2001). 43 Id. 44 Id. The researchers settled on seven core elements: the likelihood of thoughtful scruti ny, elaboration continuum, central processing, peripheral processing, integration of new knowledge, multiple effects, and consequences of elaboration type. Id. at 203. 45 D ANNELLE S TEVENS & A NTONIA L EVI I NTRODUCTION TO R UBRICS : A N A SSESSMENT T OOL TO S AVE G RADING T IME C ONVEY E FFECTIVE F EEDBACK AND P ROMOTE S TUDENT L EARNING 3 (Stylus 2005).
92 importa 46 In 2005, Portland State University professors Dannelle Stevens and Antonia Levi explicated a four step process to create a rubric. 47 While their material focused on rubrics for educators, their principles of rubric construction are applica ble to the creation of a rubric in any discipline, including legal analysis. Indeed, Stevens and Levi explain that while rubrics are necessarily flexible tools, their structures are essentially the same. 48 ormed. 49 The purpose for including the task at the outset simply is to ensure that the rubric is read carefully. 50 context. The inclusion of a task description would c ertainly benefit anyone in any discipline seeking to understand how to use a rubric for evaluative purposes. In this dissertation, for instance, the task is to create a rubric that allows courts to carefully and consistently pick the most appropriate lega l test to apply when deciding whether the identity of an anonymous online poster should be revealed. 46 Lana Penny & Elizabeth Murphy, Rubrics for Designing and Evaluating Online Asynchronous Discussions 40 B RITISH J. OF E DUC T ECH 804, 805 (2009) (citations omitted). 47 Stevens & Levi, supra note 45, at 5 15 (explaining the four essential parts of a workable rubric). 48 Id. at 5. 49 Id. complete. Id. 50 Id. at 7.
93 of the document. 51 Typically, a rubric should narrow the scale to between th ree and five performance levels; otherwise, the rubric becomes too unwieldy to use effectively. 52 performance of the particular task. The values typically exist on a continuum This structural element similarly applies to legal analysis. The dissertat ion creates a scale that reflects the relative weight of variables culled from recurring factual scenarios that have influenced whether a court will order disclosure of an anonymou s whether the anonymous poster is a putative defendant or a non party. If he is a putative defendant, this warrants imposing a lesser burden on the plaintiff to show unmasking is appropriate. If, on the other hand, the speaker is a non party, the court must engage in another level of inquiry, addressing whether rationale for unmasking. If the requester has no intention of filing suit against the anonymous poster, then his burden to show unmasking is appro priate is significantly higher. This element is reflected on the weighted rubric and factored into the final analysis, along with other salient factors Third, the rubric should explain exactly which items are being scaled, a concept called dimension. 53 The rubric creator would list every item of importance. In the legal 51 Stevens & Lev i, supra note 45, at 8. Stevens and Levi, focused on the educational context, explained that the scale would give students feedback on whether their work met certain pre defined benchmarks. Id. For example, instructors could create a scale to judge stude Id. at 8 9. 52 Id. 53 Id. at 9 10. In the educational context, these items would be the tasks a student must complete to demonstrate mastery. Id. at 10. An analysis of rubric construction found greater consistency and agreement when the rubric contained broad dimensions as opposed to detailed statements. See Mark Stellmack, et al. An Assessment of the Reliability and Validity of a Rubric for Grading APA Style Introductions 36 T EACHING OF P SYCH 102, 103 04 (2009). University of Minnesota professor Mark
94 context, these items would be elements that would either be present or absent in a factual scenario. Fourth, a rubric should clarify the weight accorded to each component. 54 This concept of dimension description ties to scale. Describing the dimensions enables the rubric user to understand the relative importance of each scaled item. Thus, for example, the rubric addresses not only whether the anonymous speaker is an individual, but how impo rtant this item is when weighed against other items, such as whether the person seeking the information is doing so in order to further an already existing lawsuit. As demonstrated by the process of rubric creation above, rubrics have two important compone nts: performance criteria and definitions. 55 These criteria involve 56 Rubrics also are fast and yield consistent results. 57 According to Dannelle Stevens and Antonia Levi, rubrics Stellmack and his colleagues created a rubric for advanced undergraduate students and research methods instructors to use to assess APA style research paper introductions drafted by undergraduat e students. Id. at 103. Each researcher ultimately graded 24 papers out of the total 40, meeting as a group weekly to analyze their findings and compare scores. Id. ir own earlier analysis only yielded a 78% consistency rate. Id. 54 Stevens & Levi, supra note 4 5, at 10. 55 Penny & Murphy, supra Id. at 806. Although this nomenclature suggests that student performance, i.e. grades, are at issue, further analysis shows this dimension can be that fit into a grid of preordained parameters. The situation is analogous to a ju dge analyzing a fact pattern to discover particular facts that he can plug into a preexisting rubric for analysis. 56 Id. citing J UDITH A RTER & J AY M C T IGHE S CORING R UBRICS IN THE C LASSROOM : U SING P ERFORMANCE C RITERIA FOR A SSESSING AND I MPROVING S TUDENT P E RFORMANCE (C orwin Press 2001). Lana Penny and discussions on the Internet that do not take place in real time) facilitated learning. Penny & Murphy, supra n ote 46, at 804. 57 Stevens & Levi, supra note 45, at 74.
95 enable users to and [ ] do it in the same way in the same order 58 Ironically, critics of rubric use tend to classify as negative the very aspects of rubrics that are most appealing for deployment in legal analysis. For example, rubrics 59 stare decisis According to Veronica Boix Mansilla, the critic isms leveled at rubric use reflect a 60 use knowledge flexibly and effectively, rather than having or accumulating 61 When viewed this way, it is clear that a rubric is precisely the mechanism courts should employ to bring clarity and understanding to the muddled s. These works indicate that rubrics are viable tools for legal analysis At least tentatively, they also suggest rubrics are reliable The challenge thus becomes to create a rubric to help guide courts through the process of evaluating which legal test is the most appropriate to apply in any given anonymous poster unmasking scenario. 58 Id. 59 See, e.g., Veronica Boix Mansilla et al. Targeted Assessment Rubric: An Empirically Grounded Rubric for Interdisciplinary Writing 80 J. H IGHER E DUC 334, 337 (May/June 2009) (discussing the criticism of rubrics). 60 Id. 61 Id. writing. Id., passim
96 Adopting Models for Legal Analysis As applied to legal analysis, this dissertation conceptualizes formalized models as graphical representations of complex legal processes reg arding a particular issue, decision making processes. This model, ideally, would cover all persuasive aspects of all decisions made on a particular issue H ere, the issue is w hether, and in what Formal models, however, are largely absent from legal analysis. One area, however, in which courts have gravitated toward using formal modeling is criminal sentencing. After a person is found guilty of committing a crime, the judge (in almost all 62 The judge can consider a variety of factors and determine whether these factors serve to aggravate or mitigate the punishment. 63 Generally, the judge will consider four overarching objectives in setting a sentence: deterrence, punishment, rehabilitation, and incapacitation. 64 Within these guidelines, judges will consider the factors, which differ from jurisd iction to 65 Common aggravating 62 An obvious exception to this general rule is that juries, in certain states and when presented with a certain set of circumstances, have the ability to recommend that a defendant receive the death penalty. 63 opposite effect. See Carissa Byrne H essick, Why Are Only Bad Acts Good Sentencing Factors? 88 B.U.L. R EV offense Lockett v. Ohio 438 U.S. 586, 604 05 (1978). 64 John L. Carroll, Positive and Eliminate the Negative at 123 (1989), available at 150 PLI/C RIM 119. 65 See Marc Miller, Purposes at Sentencing 66 S C AL L. R EV 413, 414 (1992) (describing the sentencing process).
97 and mitigating factors are prior bad acts, such as prior convictions, and prior good acts, such as honorable military service and good reputation in the communit y. 66 Before sentencing reform, judges could exercise nearly unfettered discretion in fashioning sentences ad hoc to fit each case. 67 The lack of a defined rule to guide sentencing determinations led to inconsistencies in the sentences courts doled out. 68 Refo rms then led to guidelines to which judges were required to adhere when sentencing criminals. 69 After a series of state reforms, the federal government enacted the Sentencing Reform Act of 1984. 70 Section 3553 of the Act lists the factors judges must conside r when determining punishment. 71 At the time, judges could not deviate from these guidelines. However, this requirement changed. In 2005, the Supreme Court struck down the provision of the Sentencing Reform Act of 1984 that forc ed judges to impose the Feder al Sentencing Guidelines. 72 In a rather convoluted and fractured arrangement, Justice John Paul Stevens wrote the majority opinion that the Sixth Amendment to the United States Constitution applies to the guidelines, while Justice Stephen Breyer 66 Hessick, supra note 63, at 1114 17. 67 See Douglas A. Berman, Foreword: Beyond Blakely and Bo oker: Pondering Modern Sentencing Process 95 J. C RIM L. & C RIMINOLOGY 653, 654 55 (2005). 68 Id. at 655. 69 Id. at 658 discretionary indeterminate sentencing systems that had been dominant for nearly a century have been repla ced by an array of sentencing structures that govern and control sentencing decision 70 18 U.S.C. § 3551 et seq. 71 18 U.S.C. § 3553. 72 U.S. v. Booker, 543 U.S. 220, 226 (2005).
98 delivered t he majority opinion that the mandatory nature of guidelines violated the Sixth Amendment. 73 In U.S. v. Booker the Court was faced with two consolidated drug cases. 74 In mandatory guidelin es based on additional facts that were never presented to, nor deliberated on by, the jury. 75 serving nearly ten extra years in prison. 76 The Court determined that these 77 senten 78 After recognizing that the Sixth Amendment applied to the sentencing guidelines, the Court invalidated that the provision making the guidelines mandatory. 79 The 73 Id. (outlining the structure of the opinion). 74 Defendant Booker was id. Id. at 228. 75 Bo oker was convicted based on evidence that he had 92.5 grams of crack cocaine in his duffel bag. Id. trial sentencing proceeding that he had an additional 566 g rams of crack cocaine and had also obstructed justice. Id. at 227, 235. 76 Id. guidelines based on the jury verdict), and id. 77 U.S. v. Booker, 543 U.S. 220, 232 (2005) (citations omitted). 78 Id. (discussing the Sixth Amendment rights in sentencing). 79 Id. at 246.
99 s entencing court must consider the guidelines when sentencing a defendant However, 80 The advisory nature of the sentencing guidelines does not impact the creation or use of a rubric when analyz identity. In fact, the rubric would serve the same basic purpose as the advisory guidelines C ourts could employ the rubric to consistently select the appropriate test for a given situation, but they ultimately would be free to alter their determination based on any number of concerns. Although these sentencing guidelines are now only advisory, judges can still employ them in any applicable case. The application of the guidelines still informs the ana lysis of rubric use because the underlying composition of the schemas will be the same. The sentencing guidelines are so structured and automated, some websites even provide federal sentencing calculators. 81 One such calculator guides the user through four ing the criminal history; and (4) a checklist indicating whether or not career offender and/or criminal livelihood provisions might apply to the defendant. 82 After the user inputs the information, the website provides a range of time the defendant can expect to be 80 Id. at 245. 81 S ee Josh Goldfoot Sentencing.us: A Free U.S. Federal Sentencing Guidelines Calculator available at http://www.sentencing.us/ (last visited Feb. 18, 2012 ). 82 Id.
100 incarcerated and a range of fines the defendant can face. 83 The entire process is automated. 84 Sentencing guidelines function as a formalized model. Judges adhere to a list of rules when deciding upon appropriate sentences. The rubric this dissertation argues should be employed in legal analysis would serve the same function: courts could adhere to a series of guidelines when determining whether underlying factors sho uld In some ways, this process is reflected in all legal analysis, though perhaps not as rigidly as in the formalized sentencing guidelines or rubric. One author discussing precedent in l egal arguments (though addressing a different proposition) provided an excellent example of how legal analysis naturally authorizes the use of models. 85 He noted: [T]he applicability of legal rules for liability or guilt in a particular case depends on whet particular cases. 86 es, in its 87 California, however, has adopted a balancing test of no fewer than eight factors a court must c onsider when 83 Id. 84 Id. 85 L. Karl Branting, A Reduction Graph Model of Precedent in Legal Ana lysis 150 J. A RTIFICIAL I NTELLIGENCE 59, 61 (2003). 86 Id. at 61. 87 B LACK S L AW D ICTIONARY (9th ed. 2009).
101 determining if a person owes a duty of reasonable care. 88 Some of the standards a California court will consider are: The foreseeability of harm The degree of certainty the plaintiff was injured The connection between the act and the harm The s and The burden to the defendant and cost to society of imposing the duty of care 89 When presented with a new negligence case involving a question of duty, courts will parse out the facts and determine how each of the the court is analyzing the facts to determine whether the factors are present and the interr elationship among the factors. Aside from sentencing guidelines, however, the instances in which a legal analyst has specifically adopted and defended a model to use for legal analysis are scant. Perhaps the best example of modeling in legal analysis is the article A Reduction Graph Mod el of Precedent in Legal Analysis in which L. Karl Branting proposed the use of reduction graph models to automate the process of legal 88 See Parsons v. Crown Disposal Co., 15 Cal. 4 th 456, 478 (Cal. 1997) (outlining the factors courts must look at when determining if the duty of care has been breached). 89 Id. at 472 73 (citations omitted). See Rowland v Christian, 69 Cal.2d 108, 112 13 (Cal. 1968) (listing foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach,
102 reasoning. 90 He sought to create a graph for each case, reducing the case to a graphical representation of its facts and the rationale the court employed in its decision making 91 the details a court found relevant in making its final determination. 92 These graphs represent relevant precedent a practitioner can use when faced with a case with analogous facts. 93 express precedents as reduction cting new reduction 94 After arguing that reduction graph models operator cursive Exemplar Based Explanations (GREBE), a program in which the reduction graph model could be implemented. 95 First, a user must express the legal precedents as reduction 96 Next, the user can enter a series of facts from a new case. GREBE will conduct legal analysis based on comparing this new set of posed facts to the reduction graphs in its database. 97 GREBE generates 90 Bran ting, supra note 85, at 59. 91 Id. at 67. 92 Id. at 66. 93 Id. at 67. 94 Id. at 76. 95 Branting, supra note 85, at 76. 96 Id. at 81. The user also has to formul Id. 97 Id.
103 the results a series of legal arguments, arranged from strongest to weakest (as dete rmined by precedent) 98 and delivers them in a natural language format memorandum. 99 work compensation law data base relating to whether workers could receive compensation for injuri es sustained while traveling. 100 He conducted an experiment in which five University of Texas law students 101 compensation cases, constructing legal arguments for and against liability. 102 The same cases were run through GREBE. 103 The students an d GREBE memorialized their findings in a memorandum. 104 The results then were given to a domain expert, who analyzed whether the memoranda identified the right legal issues, discovered the correct applicable precedent(s) and developed persuasive theories. 105 T were converted to a four point scale. 106 98 Id. at 82. It determines the relative strength of an argument by comparing the facts in the instant case with t he determinative underlying facts in the precedential cases. Id. 99 Id. at 81. 100 Branting, supra 57 legal and common sense rules 20 precedents, including 16 published opinions and 4 prototypical cases Id. 101 The students were two second year J D students, two students with foreign law degrees, and one Id. at 91. 102 Id. 103 Id. 104 Id. 105 Branting, supra note 85, at 91. 106 Id.
104 The domain expert found, in nearly all cases, that GREBE outperformed the students. 107 students averaged only a C (1.77, with an average of 2.77 hours invested in each problem). 108 automated processes, dependent on formalized models, to yield consistent results. The legal landscape would benefit from the increased unifo rmity. Adoption of a Rubric This chapter argued that a formal rubric to determine whether to disclose the identity of an anonymous online poster would yield increased uniformity and consistency in the law. In order to arrive at this statement, the chapter first discussed the value of models in general, before discussing their use in mass communication research. Turning to the use of a rubric as a formal model in social science research, the dissertation advanced the idea that rubrics are viable for more tha n simply educational research. Finally, the chapter considered the use of rubrics in legal inquiry. 107 Id. 108 Id. GREBE, however, sc distinction between independent contractors and employees because the database contained no information about this issue. Id.
105 CHAPTER 5 ESTABLISHING A RUBRI C FOR REVELATION ANA LYSIS This dissertation thus far has examined the viability of a rubric as an organizational tool for co urts to employ when analyzing whether to order the revelation mity and judicial consistency. To accomplish these goals, multiple judicial opinions citing America Online 1 Dendrite 2 and/or Doe v. Cahill 3 the three main unmasking tests courts employ 4 are analyzed and consolidated, yielding a unified rubric that accommodates the salient elements of ea ch test. To construct the rubric, relevant opinions initially were obtained by searching the LexisNexis and Westlaw databases. 5 The opinions were scrutinized, and the factors ghted in the rubric. Courts considering the application of an unmasking test should be able to use the rubric consistently, regardless of the factual scenarios encountered. 6 1 In re Subpoena Duces Tecum to Am. Online, Inc. 2000 WL 1210372 (Va. Cir. Ct. 2000), grounds sub nom. America Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (2001). 2 3 Doe v. Cahill, 884 A.2d 4 51 (Del. 2005). 4 As discussed below, courts that have faced a revelation inquiry in the context of copyright infringement have typically eschewed the simple adoption of any of these three tests. Instead, they tend to gravitate towards S nc. v. Does 1 40 326 F. Supp. 2d 556 (S.D.N.Y. 2004). While Sony Music contains many elements similar to those in Dendrite Id. at 563. 5 A more detailed explanation of the methodology appears later in this chapter. 6 would fail to accommodate the various interests at stake in a case. Sol ers, Inc. v. Doe, 977 A.2d 941, 952 (D.C. 2009).
106 This chapter first addresses the methodology employed to analyze and consolidate t he relevant case law in order to create the rubric. Next, it describes the factors courts have determined should be persuasive when adopting an unmasking standard, and it suggests a weighting for each factor based on its relative importance. Finally, the c hapter establishes a unified rubric for courts to employ in unmasking analyses. Methodology To create an unmasking rubric, this dissertation analyzes more than five dozen opinions citing Dendrite Cahill and/or America Online To gather these citing opinio ns, Service search on LexisNexis. The t hree decisions an d their direct case histories were excluded from the final tabulation. 7 Also excluded were citations to cases for propositions other than adoption of a revelation analysis. 8 This process yielded 64 unique, relevant opinions citing Dendrite Cahill and/or America Online These 64 opinions provided the data set for analysis. They were scrutinized to ascert ain the elements courts deemed relevant when considering which unmasking standard to apply. The following table reveals: (1) how many times courts cited each particular combination of cases, and what percentage of the overall total that 7 For example, Doe v. Cahill 884 A.2d 451, 458 (Del. 2005), declined to follow America Online For the purpose of establishing the rubric, Cahill is omitted from the final list of citing decisions under th e theory that its relevant factors are already incorporated into its citing opinions. Additionally, Cahill v. John Doe Number One 879 A.2d 943, 949 (Del. Super. Ct. 2005), which cited to America Online is omitted from the final list as well. This opini on is also ignored for the purpose of consolidating relevant legal opinions to create the rubric. 8 Twenty nine citations were rejected on these grounds. The majority of these rejected citations were to Doe v. Cahill for the proposition that inferences ar e drawn in favor of the plaintiff during summary judgment proceedings. See, e.g., (Del. Super. Ct. Apr. 15, 2011) (citing to Doe v. Cahill to discuss the standards for summary judgment ana lysis).
107 represents; and (2) which test(s) the courts ultimately adopted (if any) after analyzing a particular combination of cases, and what percentage of the time that test was adopted within that subgroup. 9 Cases Citing Each Opinion or a Combination of Opinions Test Court Ultim ately Adopted Dendrite Cahill AOL Other or neither Dendrite Cahill and AOL 9 (14.1 %) 4 (44.4 %) 2 (22.2%) 0 (0%) 3 (33.3%) Dendrite and Cahill 16 (25.0%) 5 (31.3 %) 3 (18. 8 %) 8 (50.0%) Dendrite and AOL 7 (10.9%) 3 (42.9 %) 0 (0%) 4 (57.1%) Cahill and AOL 2 (3.1 %) 1 (50.0%) 0 (0%) 1 (50.0%) Only Dendrite 17 (26.6%) 9 (52.9%) 8 (47.1%) Only Cahill 8 (12.5%) 4 (50.0%) 4 (50.0%) Only AOL 5 (7.8 %) 1 (20.0%) 4 (80.0%) TOTAL 64 21 (32.8%) 10 (15.6%) 1 (1.6%) 32 (50.0%) Figure 5 1. Chart reflectin g frequency of adoption of Dendrite America Online and/or Cahill standards for unmasking online anonymous speakers. 9 A number of the cases adopted none of the tests. See, e.g., La Societe Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857, at *6 (Conn. Super. Ct. Dec. 2, 2003) (indicating that a court is free to adopt whatever standards it choose s, and rejecting the application of America Online in favor of using Connecticut Supreme Court standards for revelation). 10 One of the citing opinions, Doe v. 2TheMart.com, Inc. 140 F. Supp. 2d 1088 (W.D. Wash. 2001), was decided almost three months prior to Dendrite
108 Of the 63 relevant cases decided after Dendrite 10 49 (77.8 %) addressed the applicability of Dendrite In contrast, 35 of the 51 opinions (68.6 %) decided since Doe v. Cahill actually cited to Cahill Furthermore, 23 op inions of the possible 64 (35.9 %) cited to America Online and only one of those adopted a standard akin to America Online 11 Thus, an analysis of the citing opinions indicates t hat courts tend to recognize and discuss the importance of Dendrite 12 even if they ultimately applied a different unmasking standard. 13 After gathering these opinions, their underlying facts were analyzed to determine the principles that guided judicial ado ption of one test over another. These motivating factors were then consolidated and weighted, based on the importance of each factor. These factors are addressed below, then incorporated into the finalized rubric. Some cases analyzed posed problems when cr eating the rubric. In particular, in one group of cases, the court refused to adopt any of the three main approaches; 14 in 10 One of the citing opinions, Doe v. 2TheMart.com, Inc. 140 F. Supp. 2d 1088 (W.D. Wash. 2001), was decided almost three months prior to Dendrite 11 See In re Verizon Internet Servs., Inc ., 257 F. Supp. 2d 244, 263 64 (D.D.C. 2003) (applying Digital Millennium Copyright Act standards to govern unmasking and noting that the requirements were similar to America Online ). 12 One court charac Dendrite approach. Koch Indus., Inc. v. Does, 2011 WL 1775765, at *10 (D. Utah May 9, 2011). 13 See, e.g., Klehr Harrison Harvey Branzburg & Ellers, LLP v. JPA Dev., Inc., 2006 WL 37020, at *9 (P a. Com. Pl. Jan. 4, 2006) (recognizing the importance of Dendrite (and Cahill ), but rejecting its application because Pennsylvania discovery rules sufficiently governed a revelation analysis); see also Cohen v. Google, Inc., 887 N.Y.S.2d 424, 426 n.5 (N.Y. Sup. 2009) (discussing Dendrite but adopting a prima facie standard set forth by New York law regarding pre action discovery). The general applicability of Cohen and, by extension, Klehr was questioned in a Tennessee state court opinion that suggested Co hen lacked persuasiveness because it ultimately applied New York law. Swartz v. Doe, 2009 WL 7023070, at *n.17 (Tenn. Cir. Ct. Oct. 8, 2009). In Swartz the court rejected America Online as an unacceptably weak standard and summary judgment appro ach as inherently confusing given different state standards regarding summary judgment. Id. The court adopted Dendrite as the best method for resolving a revelation inquiry. Id. 14 See, e.g., Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp. 2d 1205, 1211 12 (D. Nev. 2008) (declining to articulate a test, despite discussing all three tests until the defendant could notify anonymous
109 another cluster, the courts adopted an ad hoc test incorporating aspects of all the approaches; 15 and in one more, it was diffic ult to tell exactly what test if any the court ultimately adopted, whether due to circumstances within the case 16 or (less frequently) to a fundamental misinterpretation of the applicable law. 17 All of these problematic cases, however, are important in justifying t he need for a rubric. Why? Because they suggest that courts recognize the gray area they face when selecting an unmasking standard and, many times, opt to avoid a definitive determination altogether. The posters of the pending claim); see also Enterline v. Pocono Med. Ctr., 751 F. Supp. 2d 782,787 (M.D. Pa. 2008) (citing Ca hill for the proposition that the First Amendment protects anonymous speech, but electing to adopt the unmasking test in Doe v. 2TheMart.com 140 F. Supp. 2d 1088 (W.D. Wash. 2001); see also In re Rule 45 Subpoena Issued to Cablevision Sys. Corp. Regarding IP Address 22.214.171.124, 2010 WL 2219343, at *8 (E.D.N.Y. Feb. 5, 2010) (citing to Cahill but formally adopting S Does 1 40 326 F. Supp. 2d 556 (S.D.N.Y. 2004), in case involving anonymous posts made on a Yahoo! message board rega see also Directory Assistants, Inc. v. Does 1 10, 2011 WL 5335562, at *2 (D. Ariz. Nov. 4, 2011) (rejecting the application of Dendrite Cahill and good faith standards because federal pleading standards are suffic ient to address issues of disclosure). 15 all of the suitable standards supportin effectively upheld by the Maryland Supreme Court almost two years later, in Indep. Newspapers, Inc. v. Brodie 966 A.2d 432 (Md. 2009). However, the Maryland Supr eme Court rejected Dendrite and Cahill approach, retaining balancing and notification provisions and summary judgment component. Id. at 445. See Krinsky v. Doe, 159 Cal. App. 4 th 1154, passim (Cal. App. 2008) (adopting and rejecting elements from each of the three tests, advocating an ad hoc procedure in which it would order disclosure in circumstances where it believed defamation occurred); see also Doe I v. Indi viduals, 561 F. Supp. 2d 249, 254 (D. Conn. 2008) (extending Krinsky and adopting a similar ad hoc approach). 16 See, e.g., Rocker Mgmt., LLC v. John Does, 2003 WL 22149380 (N.D. Cal. May 29, 2003). Rocker Management cited to Dendrite for the proposition t hat individuals online have the capability of posting and responding to online messages. Id. at *1. Ultimately, however, the Rocker Management court elected to utilize the four part revelation test articulated in Columbia v. Seescandy.com 185 F.R.D. 573 (N.D. Cal. 1999), a decision predating Dendrite Cahill and America Online Rocker Management, LLC, 2003 WL 22149380, at *1 (adopting the test in Columbia v. Seescandy.com ). The Seescandy.com test contains a motion to dismiss element and, in many ways, m imics Dendrite See id. for a discussion of this Seescandy.com factor. The similarity between the two approaches raises the question of whether Rocker Management implicitly accepted or rejected Dendrite it adopted a test akin to Dendrite but it declined an opportunity to adopt Dendrite specifically. 17 See, e.g., Alvi s Coatings, Inc. v. John Does 1 10, 2004 WL 2904405 (W.D.N.C. Dec. 2, 2004). In Alvis Coatings the court w ithout significant discussion purported to apply a prima facie standard to order dis Id. at *3. It cited to America Online as a case representative of a prima facie standard, when in fact, America Online represents a more lenient good faith standard. Id. The test ultimately applied in Alvis Coat ings more closely aligns with motion to dismiss standard, but the court never even considered whether Dendrite would apply. Id.
110 resulting judicial uncertainty is precisely what t his dissertation attempts to alleviate through establishment of a rubric. Uncertainties such as these pose some problems in analyzing the relevant case s for adopting a particular test, no t necessarily the nomenclature they employed. Thus, the rubric incorporates the much more relevant underlying theory guiding judicial decision making. ation of a rubric is governed ultimately by five guidelines These are : who is seeking the identity of the poster; why who the anonymous speaker is; what the subject matter of the underlying speech is; and where that information was posted. Each of these underlying questions is analyzed below. Who is Seeking the Identity of the P oster? The i dentity of the requester ordinarily the plaintiff in the dispute 18 may affect ive questions examined in this law commentary suggests this factor should be relevant in an unmasking analysis. Specifically, courts may be persuaded to select a particular unmasking test depending on whether the 18 cause of a ction. However, it is conceivable that, under certain circumstances. an unmasked defendant could attempt to obtain the identity of a separate non party anonymous poster to bolster his defense. Obviously, this niche situation would never arise when the in itial defendant hopes to remain anonymous; his unmasking argument could provide ammunition for the argument that he should be unmasked. However, extending the analysis of certain unmasking cases suggests that a defendant could seek a or example, in McVicker v. King 266 F.R.D. 92 (W.D. Pa. 2010), a plaintiff sought to unmask seven non party anonymous posters who he believed possessed information to bolster his wrongful termination suit. Id. uest, finding he had a particularly high hurdle to warrant the revelation of a non party poster. Id. at 95. A defendant seeking to unmask a non party would undoubtedly face the same heightened burden.
111 requester is: (1) a business entity or an individual or (2) a private or public figure. 19 These issues are addressed below, and ultimately are weaved into a single inquiry in the rubric. Is the r equester an i ndividual or a busi ness entity ? requester is an individual or a business entity. Some case law suggests that, depending on the circumstances, a business entity and an individual may be treated as fundam entally different. 20 Of the 64 opinions initially obtained, 53 were relevant for the purpose of rubric construction. 21 Of these, 27 involved business entity plaintiffs, 23 involved individual plaintiffs, and three involved joint business entity and individu al plaintiffs. With respec t to the opinions with business entity plaintiffs, 12 courts applied Dendrite and seven applied Cahill ; for individual plaintiffs, 12 applied Dendrite and five applied Cahill However, none of these decisions turned specifically 19 Another potential area of distinction is whether the individual requester is an adult or minor. Theoretically a minor plaintiff lacks the same capacity to self remedy damages done to him as an adult. gua rdians. See, e.g., anti SLAPP motion in defamation lawsuit brought on behalf on a minor plaintiff). Similarly, courts have dismissed suits brought on behalf of minor plaintif fs for the same reasons they dismiss suits brought by adults. See, e.g., Stone v. Paddock Publications, Inc., 2011 WL 5838672, at *11 (Ill. App. Nov. 21, 2011) legations sufficiently specific to overcome a motion to dismiss standard). Under the rubric proposed in this chapters, minor and adult plaintiffs receive the same heightened level of protection Both situations demand the requester surmount significant h urdles to prove he is entitled to revelation. 20 See, e.g., Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F. Supp. 947, 955 (D.D.C. 1976) (finding a corporate defamation plaintiff has historically been distinguished from individual plaintiffs). But see Tri Marketing, Inc. v. Mainstream Mktg. Servs., Inc., 2010 WL 1924456, at *2 (D. Minn. May 12, 21 This total omits cases involving corporate plaintiffs suing individuals for copyright infringement. As discussed later, these cases require a separate analysis under So 40 326 F. Supp. 2d 556 (S.D.N.Y. 2004); the distinction in these cases will corporate status.
112 s tatus is of dubious relevance. Yet, although those particular opinions did not base their aling the relevance of that distinction cannot be ignored. Business entitie s and individuals are cast as technical equals in recent First Amendment analysis. In Citizens United v. Federal Election Commission 22 the U.S. Supreme Court in 2010 held that corpo rations and unions enjoy the same core political speech rights, invalidating a federal law restricting corporate and union political expenditures. 23 Although Citizens United equates corporations and individuals, an unmasking analysis is a wholly different c onsideration triggering a separate analysis. In not implicated sp eech that lies in the balance and the cri tical free speech implications of Citizens United are not raised. Business entitie s and individuals thus may enjoy similar (or even the same) First Amendment protections, yet be treated differently for other purposes, in contexts, as here, that involve ano In the context of defamation a claim raised in the vast majority of the cases business entity and individual plaintiffs may be treated differently. 24 E ven if a business 22 130 S. Ct. 876 (2010). 23 Id. at 907 (finding unconstitutional a federal law restricting corporations and unions from making defeat of a political candidate, during certain times in a campaign). In Citizens United a nonprofit wished to offer a documentary negatively portraying Hillary Clinton on video on demand; however this act violated the Id. at 886, citing 2 U.S.C. § 441(b) (2000). The Court determined the BCRA unconstitutionally silenced corporations, who enjoyed First Amendment protections is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of 24 See, e.g., Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F. Supp. 947, 955 (D.D.C. 1 976)
113 entity is treated the same as a person under the Constitution, it clearly cannot individual. 25 A business entity can, on the other hand, be defamed by negative 26 Ther e is precedent y of protection than the reputation of a business entity 27 Given this difference, a damaged individual arguably should face fewer hurdles than a business entity w hen seeking to unmask an anonymous poster. The main reason to distinguish between business entity and individual plaintiffs, however, is that businesse s are better positioned to rehabilitate their images. They have the financial wherewithal and access to r esources that many individuals may lack, even considering the democratizing atmosphere of the Internet. 28 This fundamental rationale for disparate treatment is addressed more thoroughly below in the consideration of public and private figures. But see Tri Marketing, Inc. v. Mainstream Marketing Servs., In c., 2010 WL 1924456, at *2 (D. Minn. May 12, 2010) (citations omitted) 25 See is difficult to see how the damage to the corporate bottom line is more sacrosanct than the harm defamation can cause to an i court described corporate personhood in the context of v. Bellotti 435 U.S. 765 (1978), a precursor to Citizens United 26 See 27 See Bose v. Consumers Union of U.S., Inc., 508 F. Supp. 1249, 1270 (D. Mass. 1981), 692 F.2d 1 89 (1 st Cir. 1982), 466 U.S. 485 (1984) (finding corporation qualified as limited purpose public figure in product disparagement suit against Consumer Reports magazine). 28 Lyrissa Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace 4 9 Duke L.J. 855, at of corporate issues).
114 Is the reques ter a public or private figure? Courts may be motivated to adopt a more stringent unmasking standard when the plaintiff is a public figure. Historically, public figures and private figures have been treated differently under the law. 29 The reason for such d isparate treatment is that public widely rebut falsities. 30 In addition, public officials voluntarily place themselves in the public spotlight and thus implicitly assum e a greater risk of harm in the hurly burly of political discourse. Private individuals, on the other hand, are more vulnerable to injuries; thus the court employs a more protective, paternalistic attitude towards them. 31 Furthermore, a public figure plaint iff faces far greater temptation to misuse the legal system to unmask certain anonymous posters. Unmasking a defendant is, in itself, a powerful legal remedy and may be the only remedy an aggrieved plaintiff truly seeks. 32 Theoretically, a public figure pla intiff stands to gain the most benefit from unmasking his opponents and silencing them into submission. 33 Most p ublic figure plaintiffs have a distinct motivation to monitor and cleanse their public personae. As public figures, they are subjected to greater public scrutiny; their lives are carefully 29 See New York Times Co. v. Sullivan, 376 U.S. 254, 279 80 (1964) (barring media liability for defamation of a public official absent a showing of actual malice); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974) (recognizing the distinction between public and private defamation plaintiffs, but determining the attorney plaintiff did not qualify as a public figure). 30 Gertz, 418 U.S. 323 at 344. 31 Id. 32 See supra note 31, at 881 (filing a lawsu it may be 33 See Pilchesky v. Gatelli, 12 A.3d 430, 445 (Pa. Super. Ct. 2011) (in dicta) (explaining the dangers of applying a lenient standard to unmas k an anonymous speaker, particularly when the plaintiff is a public figure).
115 detailed and widely disseminated through numerous media outlets, including the Internet. Thus, they have an interest in maximizing positive depictions of themselves, and minimizing negative ones. Consider the ex ample of a politician running for election. He certainly has an interest in minimizing negative depictions of him in the media because they directly affect his electability. In 2011, erstwhile presidential candidate Herman Cain suspended his campaign afte r five women accused him of sexual harassment. 34 These allegations were never proven, but the mere implication that Cain may have engaged in salacious behavior irreparably tainted his campaign. Cain certainly is not the first politician whose career has bee n threatened by sexual scandal. In 1987, Republican Presidential candidate Gary Hart was forced to abandon his campaign after being photographed on a boat with his mistress. 35 And perhaps the most famous example is President Bill Clinton, who famously lied about his sexual adventu res with a White House intern an act that ultimately led to impeachment proceedings. 36 Clearly these individuals have a significant stake in safeguarding their personal reputations. A casual rumor about them is not easily dismissed I ts dissemination can threaten their jobs and cause a national scandal that floods the media outlets. 34 Susan Saulny, A Defiant Herman Cain Suspends His Bid for Presidency N.Y. T IMES Dec. 3, 2011, at http://www.nytimes.com/2011/12/04/us/politics/herman cain suspends his presiden tial campaign.html?pagewanted=all. 35 Madison Gray and James S. Snyder, Top 10 Political Sex Scandals T IME Jun. 8, 2011, at http://www.time.com/time/specials/2007/article/0,28804,1721111_1721210_1721112,00.html. 36 See Alison Mitchell, ittal: The Overview; Clinton Acquitted Decisively: No Majority for Either Charge N.Y. T IMES Feb. 13, 1999, at http://www.nytimes.com/1999/02/13/us/president s acquittal overview clinton acquitted decisively no majority for.html.
116 Similar considerations arguably apply to corporations that often justify regarding them as public figures. 37 Corporations are similarly invested in protec ting their public directly impact its profitability. Thus, even when faced with little chance of success, a corporation may consider filing a lawsuit to be a savvy business decision. 38 By filing suit, the corporation may appease nervous shareholders by suggesting the negative information is baseless. 39 negative press t he company has been receiving 40 Further more, the law hardly deters corporations from filing lawsuits, even when the damage they face is minimal. First, studies indicate th at plaintiffs bear only about 3 to 8.5% of the expenses in a defamation case; in contrast, defendants must cover over 90% of all expenses. 41 If the defendant has limited means, he is much less likely to be able to vigorously defend himself in the lawsuit. Therefore, the corporate plaintiff can li 42 Even if a defendant could successfully assert a defense under the 37 Whether a corporation q ualifies as a public figure is hardly settled, but numerous persuasive arguments treat as publicly held corporation on the New York Stock Exchange as a public figure, particularly if it is supra note 31, at 909. 38 Id. at 880 81. 39 Id. at 881. 40 Id. 41 David Boies, The Chilling Effect of Libel Defamation Costs: The Problem and P ossible Solution 39 S T L OUIS U.L.J. 1201, 1207 (1995). 42 Anthony Ciolli, Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas 63 U. M IAMI L. R EV 137, 138 (2008).
117 Communications Decency Act, 43 which immunizes users who publish statements others costs. 44 The danger inherent in this result is that people may fear embroilment in a lengthy, expensive trial and ultimately losing their anonymity even if the suit is ultimately baseless, such as a SLAPP (strategic lawsuit against public participation) suit. 45 Inst ead, they may censor themselves, refusing to partake in their First Amendment right to anonymous speech. 46 Imposing a lenient unmasking standard (such as the America Online good faith tity can be compromised, the less likely he will be inclined to speak and risk a lawsuit. Lawsuits involving public figure plaintiffs should adopt a more stringent standard (such as Dendrite or Cahill depending on the circumstances) to ensure the appropr iate balance between encouraging speech and enabling recovery in well founded cases. An excellent example of this is Lassa v. Rongstad 47 adopting stringent summary judgment standard when a public official candidate argued she was defamed by a mail er claiming she had engaged in sexual acts with a senator to further her career. 48 Even though the underlying speech in Lassa was egregious and harmful, and likely 43 47 U.S.C. § 230 44 Id. 45 This result is certainly a possibility. See Ottinger v. Tiekert, No. 16429/08, 2009 WL 3260601, at *3 (N.Y. Sup. Aug. 27, 2009) (finding lawsuit was a SLAPP after ordering the revelation of an anonymous 46 Do e v. Cahill, 884 A.2d at 457 (discussing the dangers of unrestrained unmasking). 47 718 N.W.2d 673 (Wis. 2006). 48 Id. at 679.
118 figure status required her to satisfy ad ditional requirements before revelation would be deemed appropriate. 49 Why adopting a standard. 50 The crux of this section is why the plaintiff is pursuing a particular cause of action, and whether the underlying claim affects (or should affect) an unmasking analysis. fi gure status. They are weav ed together in the final rubric. As outl ined in the rubric, a private figure suffering this type of personal harm bears a significantly reduced burden to show entitlement to unmasking an anonymous defendant. A review of the cases indicates that the most frequently asserted causes of action can be divided into three broad categories: (1) personal harm, such as defamation, invasion of privacy, and harassment; (2) interference with business practices, such as breach of duty, unfair competition and/or tortious interference; and (3) copyright infrin gement. In some cases, there is overlap among these categories (particularly between category 1 and 2), especially where the plaintiff is a corporation. 51 The importance of these categories of claims is addressed below. 49 Id. However, the court ultimately found in favor of the plaintiff due to irrelevant procedural errors committed by the defendant Id. at 716. 50 In some respects, this consideration is addressed elsewhere in this chapter. For example, this chapter his interests even when h e recognizes little chance of success. It also will address the argument that cases should be assessed differently depending on whether they involve the unmasking of a non party or a party. 51 See, e.g., Immunomedics, Inc. v. Doe, 775 A.2d 773 774 (N.J. Super. 2001) (asserting causes of action for breach of contract, breach of duty of loyalty, negligence (regarding the revelation of confidential and proprietary information), tortious interference with economic gain, and defamation).
119 Personal harm Plaintiffs asserting th ese causes of action typically seek judicial remedy for harm an anonymous poster causes them to suffer with respect to their reputation or overall well being. 52 Courts considering these claims appear to structure their unmasking analyses to reflect the stre ngth of the underlying claim and the egregiousness of the factual pattern. This reflects an unwillingness to leave truly damage d individuals without redress particularly when the information sought is unavailable through alternative means. 53 For example, on e court confronted a truly appalling series of anonymous posts made about two female law students on AutoAdmit.com, a largely unmoderated network for graduate and law students. 54 The posters suggested one of the students fantasized about her father raping h er, had sex while family members watched, carried a sexually transmitted disease, abused heroin, and encouraged an individual to punch her in the stomach when she was seven months pregnant. 55 One poster concluded that he 56 52 See, e.g, id. (invo lving a corporation seeking recovery for defamation); Polito v. AOL Time Warner, Inc., 2004 WL 3768897 (Pa. Com. Pl. Jan. 28, 2004) (individual seeking recovery for harassment); McMann v. Doe, 460 F. Supp. 2d 259 (D. Mass. 2006) (individual seeking to reco ver for invasion of privacy and defamation); Juzwiak v. Doe, 2 A.3d 428 (N.J. Sup. 2010) (intentional infliction of emotional distress and harassment). 53 See, e.g., Polito v. AOL Time Warner, Inc., 2004 WL 3768897 at *7, *11 (Pa. Com. Pl. Jan. 28, 2004) ( adopting Dendrite because the information was unavailable from any other source). But see In re Baxter, 2001 WL 34806203 at *7 unavailable elsewhere). 54 Doe I v. Individuals, 561 F. Supp. 2d 249, 251 (D. Conn. 2008). 55 Id. 56 Id.
120 portions of both Cahill and Dendrite as unduly burdensome, adopting a much more easily satisfied prima facie approach. 57 Similarly, th e case of model Liskula Cohen discussed in th introducti on prima facie unmasking standard under New York law. 58 address th 59 In contrast, in less overtly troubling or shocking scenarios, courts express the plaintiff establishes a need to obtain the i dentity to proceed with his lawsuit. For speech, one court hesitated to reveal the identities of posters who criticized Best Western hotels. 60 Although Best Western appear ed to have asserted its claim in good faith, it failed to meet its significant burden (by providing sufficient supporting information) to warrant unmasking the posters. 61 The results suggest courts are subtly swayed to select standards that benefit the par ty who appears most in need of relief under an egregious fact pattern. In the AutoAdmit.com case and Cohen the plaintiffs suffered significant damage as evidenced by the complaint on its face; thus, the court was compelled to afford them protection by 57 Id. at 255 56. 58 Cohen v. Google, Inc., 887 N.Y.S.2d 424, 427 (N.Y. Sup. 2009). 59 Id. at 427 n.5. 60 Best 25, 2006). 61 Id. at *6.
121 emp loying a less stringent unmasking standard. In the Best Western case, however, interests and potentially chill speech. Interference with business practices The second categor y of cases involves business entity plaintiffs seeking to business. 62 Theoretically, as discussed above, business entitie s are better equipped than humans to protect their interests They also more likely have the resources to rebut falsities. Unlike the cases involving personal harm, the fact patterns for interference with business practices tend to be far less juicy. Courts tend to analyze the patterns with an apparent de gree of detachment absent from the more salacious, personal harm cases. For example, one court applied Dendrite in a case where a corporate plaintiff claimed 63 In assessi recited the facts and applied the test. There was no indication that the particular causes of action swayed it to adopt one test over another. And even in one case involving ser ious actionable accusations of bribery, the plaintiffs were two small business owners 62 See, e.g, Immunomedics, Inc. v. Doe, 775 A.2d 773 (N.J. Super. 2001) (breach of contract, breach of duty of loyalty, negligent revelation of confidential and propri etary information, tortious interference and defamation); Reunion Indus., Inc. v. Doe 1, 2007 WL 1453491 (Pa. Com. Pl. Mar. 5, 2007) (commercial disparagement); Koch Indus., Inc. v. Does, 2011 WL 1775765 (D. Utah May 9, 2011) (federal and common law tradem ark infringement, federal and common law unfair competition, anticybersquatting provision of Consumer Protection Act, Computer Fraud and Abuse Act violations, breach of web site terms). 63 Mortgage Specialists, Inc. v. Implode Explode Heavy Indus., Inc., 999 A.2d 184 (N.H. 2010).
122 who, thus, conceptually had suffered personalized harm warranting redress. 64 Thus, the unsur prising. Copyright infringement As discussed later and outlined in the rubric itself copyright infringement claims trigger a separate, unique analysis that typically applies Sony Mus ic Entertainment Inc. v. Does 1 40 65 As the Sony court explained, infringe rs do not 66 because their speech is tainted by their commercial interest in obtaining materials unlawfully for free. 67 Thus, a plaintiff (in this context, the plaintiff always has b een a corporation) must 68 Although the plaintiff still must demonstrate a prima facie case against the defendant, his burden to satisfy this requirement is minimized. 69 In fact, in eve ry copyright infringement case reviewed in this analysis, the corporate plaintiff satisfied its unmasking burden. Who Is the Anonymous Poster? In selecting an unmasking standard, courts have indicated they are strongly swayed by the identity of the anonymo us defendant speaker. In many cases, although the poster is anonymous, enough information is revealed in the post(s) to support 64 65 326 F. Supp. 2d 556 (S.D.N.Y. 2004). 66 Id. at 564. 67 Id. 68 Id. 69 Id. at 564 65.
123 creating a higher or lower identity. Specifically, courts are guide d by the consideration of: (1) whether the poster is a party to the dispute; and (2) whether the poster is bound by a preexisting agreement in which he/she has ceded expectations of privacy and/or agreed to adhere to specific standards of conduct. Is the poster a party or non party? A number of opinions turned largely on whether the anonymous poster is a party or non party to the pending dispute. 70 When the anonymous poster is a party, courts seem more inclined to adopt a standard that facilitates unmaskin g. 71 On the other hand, if he is not a party, courts appear less likely to order identity disclosure. 72 Courts thus tend to demand the plaintiff satisfy a higher burden when the anonymous poster is a non party. A more lenient unmasking standard, such as Amer low threshold, 70 See, e.g., Cahill and noting that the requirement that the information sought be directly related to the litigation is serving him in the process 71 See, e.g., Mortg. Specialists, Inc. v. Implode Explode Heavy Indus., Inc., 999 A.2d 184, 192 (N.H. 2010) (noting that Dendrite plaintiff requests the disclosure of the identit y of an anonymous defendant who has allegedly posted 72 See, e.g., Cornelius v. Deluca, 2011 WL 977054, at *5 (D. Idaho Mar. 15, 2011) (finding the plaintiff an anonymous non party where the plaintiff did not need to obtain the identity in order to serve process); see also Sedersten v. Taylor, 2009 WL related t o an anonymous online poster to establish a negligent hiring/retention claim against the City of Springfield and a police chief because the information requested was available from another source and of a non party manages to show it needs the identity in order to proceed with a suit, this may not be insufficient on its own to persuade the court to order revelation. See 091695, at *6 (D. Ariz. Jul. 25, 2006); see also McMann v. Doe, 460 F. Supp. 2d 259, 270 (D. Mass. 2006) ments plaintiff proffered to support his defamation claim were
124 good faith approach, seems unsatisfactory in non party disputes because it fails to This critical distinction between party and non party was first articulated in Doe v. 2TheMart.com Inc. 73 a decision predating both Dendrite and Cahill that adopted America Online 74 In 2TheMart.com a federal court in Washington state explained that party witness must be higher than th at articulated in Seescandy.com and AOL 75 Thus, it implied that while America Online may safeguard the interests of a party, it fails to protect non parties sufficiently. Instead, 2TheMart.com adopted a four ealed only under the proper circumstances. 76 Consistent with 2TheMart.com courts demonstrate an inclination to reject America Online and apply the more stringent Dendrite test when deciding whether to 77 E burden in this context is particularly interesting when the plaintiff demonstrates a need plaintiff would be precluded from securing r 73 140 F. Supp. 2d 1088 (W.D. Wash. 2001). 74 Id. at 1095 (adopting the America Online good faith standard but articulating a strengthened burden when the anonymou s poster is a non party). 75 Id. ; accord party). 76 The court indicated that the information must be (1) sought in good faith; (2) relative to a core claim or defense; (3) directly and materially relevant; and (4) unable to be obtained from an alternative source. 140 F. Supp. 2d at 1095 97. 77 See, e.g., Polito v. AOL Time Warner, Inc., 2004 WL 3768897, at *7 (Pa. Com. Pl. Jan. 28, 2004) (eschewing the adoption of an America Online good faith test in favor of a modified Dendrite approach
125 Nevertheless, one New York state court implicitly recognized that a lenient standard would be inadequate. 78 A more stringent standard than good faith test must apply in order to ensure that a party does not misuse the preaction discovery process to ascertain whether he can maintain a cause of action. 79 ns of privacy governed by a pre existing agreement? If the poster is bound by a relevant pre existing agreement, then t he court is likely to defer to the effect of that agreement before settling on an unmasking standard. Typically, courts consider the effect of pre existing agreements in two separate contexts: (1) employee confidentiality agreements, and (2) Internet subsc riber When the information seeker is a company, 80 courts assess whether an employment agreement governs the unmasking analysis. For example, in Immunomedics, Inc. v. Doe 81 a New Jersey court applied Dendrite to unmask an anonymous poster whose posts suggested she was a former employee who breached a duty of loyalty to the company. 82 If she were, in fact, an ex employee, her conduct would 78 In Public Relations Society of America the court opted not to apply the America Online good faith test in favor of Sony Music a modified De ndrite test that courts have typically applied in copyright infringement cases. Id. at 853 54. The court, in fact, never discussed the applicability of Dendrite 79 Id. scover whether or 80 81 775 A.2d 773 (N.J. Super. A.D. 2001). 82 Id. at 777. The plaintiff company also sued the anonymous poster for breach of contract, negligent revelation of confidential and proprietary information about the company, tortious interference with economic gain and defamation. Id. at 774.
126 have been governed by a standard confidentiality agreement all employees signed requiring her to keep certain company information confidential. 83 She publicly revealed deta employee retention plan s confidential information that likely would be known only by 84 Assuming she was an employee, her pos tings clearly violated the confidentiality agreement. 85 The facts of the case, considered in totem established a prima facie cause of action under Dendrite which supported unmasking the poster. 86 Accordingly, it appears that her purported right to engage i n anonymous commentary regarding Immunomedics was negated when she agreed to be bound by a confidentiality agreement. 87 The rationale of Immunomedics was extended in at least one other case. 88 In H.B. Fuller Co. v. Doe 89 a California court determined that un masking an anonymous poster was appropriate where the poster disclosed confidential information about H.B. Fuller Co. on a Yahoo! message board. 90 The information was revealed at a closed company meeting, so it must have been disclosed by an employee, wheth er that employee was the Doe defendant or another individual who shared the information with 83 Id. at 777. 84 Id. 85 Immunomedics, Inc. v. Doe, 775 A.2d 773, 777 (N.J. Super. Ct 2001). 86 Id. 87 Id. 88 H.B. Fuller Co. v. Doe, 2006 WL 6080949 (Cal. Super. Ct. Mar. 15, 2006). 89 Id. 90 Id.
127 the Doe defendant. 91 Although the poster executed a declaration insisting he was neither a current nor former employee of H.B. Fuller, the court held that the plain tiff established a prima facie claim against the anonymous poster. 92 Thus, because the poster was likely an employee (or, at least, learned the information from an employee) bound by the agreement, his identity could not remain shielded. 93 Similarly, courts when he enters into an Internet provider agreement. Most cases supporting this point, however, are in t he realm of commercial speech namely, cases involving illegal downloads and shared digital me dia. 94 As explained later, this type of commercial speech typically triggers the adoption of a modified Dendrite approach articulated in Sony Mus ic Entertainment Inc. v. Does 1 40 95 Nonetheless, the body of case law suggests that courts confronted with simi lar pre existing agreem ents typically defer to Extending the theory behind these cases, courts may consider the effect of any agreements in which the anonymous poster appears to have voluntari ly compromised his privacy interests in exchange for some benefit. If he has entered into such an agreement, courts are likely to find the traditional rationales for protecting anonymous 91 Id. 92 H.B. Fuller Co. v. Doe, 2006 WL 6080949 (Cal. Super. Mar. 15, 2006). 93 Id. 94 See, e.g., 40, 326 F. Supp. 2 d 556, 559, 565 66 (S.D.N.Y. 2004) (adopting an unmasking standard for use in a commercial speech context, including an analysis of see also Third Degree Fil ms, Inc. v. Does 1 2010, 2011 WL 4759283, at *4 (N.D. Ind. Oct. 6, 2011) personal information to Purdue University for the purpose of accessing the Inte rnet). 95 So 40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004).
128 speech less persuasive. Thus, the plaintiff should need to meet a low er burden to What Is the Subject Matter of the Underlying Speech of the Poster? The subject matter of the underlying speech is exceptionally important when guiding courts in selecting an unmask ing test. I n fact, it may be dispositive. For example, one decision stated that courts must contend with the nature of speech first when deciding which unmasking test to adopt. 96 This, of course, suggests that the rubric. In addressing the relevance of the subject matter of the underlying speech, case law generally focuses on two issues. First, selecting an unmasking standard may turn on whether the speech is characterized as commercial or non commercial. Second, i f the speech is parti cularly egregious on its face or so over the top as to be hyperbole and inactionable courts occasionally dispense with formal adoption of a test and simply base their determination on the facts. Is the underlying speech commercial in n ature? If the underlying speech is commercial as opposed to non commercial political speech receiving the utmost First Amendment protection 97 then courts are reluctant to 96 SI03, Inc. v. Bodybuilding.com, LLC, 441 Fed. Appx. 431, 432 33 (9 th Cir. 2011) (refusing to apply the stringent Cahill standard until a determination could be made regar ding whether the nature of the underlying speech was commercial); Art of Living Found. v. Does 1 10, 2011 WL 5444622, at *2 n.4 (N.D. Cal. Nov. 9, 2011) (adopting Highfields Capital Mgmt. L.P. v. Doe 385 F. Supp. 2d 969 (N.D. Cal. 2005) a slightly modifie d Dendrite test in lieu of Sony Music because the crux of the inquiry involves the underlying nature of the speech, which, here, was anonymous critical commentary worthy of strong First Amendment protection, and also noting that for the purposes of the di spute, Dendrite and Highfields would yield the same result). 97 Commercial speech receives less First Amendment protection than non commercial speech (with the exception of such categories as obscene speech or hate speech). In fact, historically, commercia l speech was excluded from the ambit of the First Amendment altogether. See, e.g., Valentine v. Christensen, 316 esently stands, truthful commercial speech is entitled to limited
129 impose a significant burden on the plaintiff to prove he is entitled to discover an an are inclined to adopt a modified Dendrite standard, such as that in Sony Music Entertainment, Inc. 98 Sony Music requires a plaintiff to: (1) (2) (3) Indicate he seeks the information in good faith; (4) Demonstrate he cannot obt ain the information by alternative means; and (5) Notify the anonymous defendants he seeks their identities 99 Sony Music obviously shares several elements with Dendrite but it differs in one fundamental respect: it lacks balancing component. Courts adopting Sony Music typically confront copyright or trademark infringement claims, usually involving college students illegally downloading or seeding First Amendment protection, whereas false commercial speech is unprotected. Central Hudson Gas & ged the historical conception of commercial speech when it held that commercial speech was entitled to some level of First Amendment protection. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 779 (1976) (invalidating a statute prohibiting the advertisement of prescription drug prices, in part because the underlying speech had social value). 98 326 F. Supp. 2d 556 (S.D.N.Y. 2004); see, e.g., Elekt 9, 2004 WL 2095581, at *2 (S.D.N.Y. 2004) (ad opting Sony Music see also SI03, Inc v. Bodybuilding.com, LLC, 441 Fed. Appx. 431, 432 (9 th Cir. 2011) (stating that C ahill is an inappropriate But see In re Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 263 64 (D.D.C. 2003) (adopting standards of the Digital Millennium Copyright Act in a cop of America Online ), and In re Anonymous Online Speakers, 661 F.3d 1168, 1177 (9 th Cir. 2011) (stating Cahill standard did not con case appeared to involve commercial speech). 99 So 40, 326 F. Supp. 2d 556, 564 66 (S.D.N.Y. 2004).
130 digital content such as music or movies. 100 Infringement fails to warrant strong First Amendment protectio n because, while there is a communicative element to piracy (an individual engages in self expression by downloading or offering certain materials and excluding others), the core purpose of engaging in that expression is commercial: to obtain goods gratis. 101 Given this nefarious motivation, courts are reluctant to afford infringers the same constitutional protections as they would to individuals engaging in Furthermore, as explained a bove, infringers often cannot claim strong anonymity interests because they typically are bound by agreements enabling their ISPs to disclose their identities if so ordered by the court. 102 In contrast to commercial speech, purely expressive speech tends to warrant full First Amendment protection, triggering the application of the stricter standards of Dendrite or Cahill 103 To illustrate the distinction between the two types of speech, an Arizona federal court con trasted the facts of its case anonymous posters allegedly defaming Best West ern hotels on a message board with copyright infringement 100 See, e.g., London Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 164, 164 n.12 (D. Mass. 2008) (applying Sony Music in an infringement case, and noting that Dendrite would apply to a different set of But see Public gh Spee d Online, 799 N.Y.S.2d 847, 853 54 (N.Y. Super. Ct. 2005) (applying Sony Music to deny discovery of the identity of an anonymous e mail sender). 101 See, e.g, Call o f the Wild Movie, LLC v. Does 1 1,062, 770 F. Supp. 2d 332, 349 50 (D.D.C. 2011) (find aim in downloading is not self expression but obtaining materials for free). 102 See, e.g, Thi rd Degree Films, Inc. v. Does 1 2010, 2011 WL 4759283, at *4 (N.D. Ind. Oct. 6, 2011) (finding the anonymous defendant, a student at Purdue University, relinquished his privacy interests when he disclosed his personal information to Purdue). 103 But see Brodie v. Indep. Newspapers, Inc., 2007 WL 6887877 (Md. Cir. Ct. Mar. 1 2, 2007) (adopting and the claim that plaintiff fa
131 cases. 104 The Arizona court adopted stringent motion to dismiss standard Cahill satisfactorily protected the interests of the anonymous speakers. 105 Does the speech contain particular characteristics that warrant (or fail to warrant) disclosure? If the underlying speech is so egregious that it su pports a defamation claim, or so obviously hyperbolic as to be inactionable, then courts may decide not to adopt a particular test. 106 The theory behind this action is that the application of any standard would yield the same result T hus, the formal adoptio n of a test is an unnecessary formality. For example, Sinclair v. TubeSockTedD 107 involved a YouTube video in which Lawrence Sinclair claimed President Barack Obama sold him drugs, which they then shared before engaging in a sexual act. 108 Anonymous individua ls responded to 109 One poster called Sinclair a 104 105 Id. The court ultimately determined that even though Best Western asserted its cause of action in good faith, it failed to satisfy its substantial burden under Cahill to deprive the anonymous posters of their First Amendment right to engage in discourse anonymously. 106 But see A.Z. v. Doe, 2010 WL 816647, at *7 (N.J. Super. Mar. 8, 2010) (adopting Dendrite e ven where Courts may also fail to adopt a test on purely theoretical grounds. 107 596 F. Supp. 2d 128 (D.D.C. 2009). 108 Id. at 130. 109 Id. at 130 31.
132 these acts with the President. 110 n case, the court refused to adopt either Dendrite or Cahill standard. 111 Even the strongest factual assertions by the commenters intima ting that Sinclair was insane did not qualify as an attack on his character; according to the court, they were attacks on the video. 112 At the other extreme, an Illinois appellate court declined to adopt Dendrite or unprotected defamation. 113 Anonymo us posters on an Ottawa Times website accused 114 These words were, in themselves, actionable defamation that failed to trigger Dendrite or protections. 115 Where Was the Underlyin g Speech Posted? This fifth and final inquiry appears less persuasive to courts than either the party However the forum or venue on which speech is posted may affect the test a court adopts. For instance, is the information posted on a newspaper website, a moderated chat room or a website devoted to gossip? 110 Id at 130 31. 111 Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128, 132 (D.D.C. 2009). 112 Id. at 133. 113 114 Id. at 670. 115 Id. intiffs had satisfied an Illinois Supreme Court Rule 224 requirement to establish all elements of their causes of action. Id. at 675 76 Thus, a balancing test was extraneous. Id. at 676.
133 This inquiry is relevant because forum specific factors impact whether a reader may believe or disbelieve the veracity of posted statements. If no reasonab le person would believe the statements are true given the forum in which they are, then the plaintiff should bear a heightened burden to show damage. In other words, a plaintiff who claims he has been malig ned on an untrustworthy website should face more d ifficulty unmasking a poster. The inquiry can be divided into two broad groups: (1) the communicative style. What control is exercised over forum content? The greater the d egree of control a provider retains over the substantive content on a forum or venue, the more likely a reader may ascribe veracity to that content. The would flood th em with unrelated commercial content and basic civility would dissipate, rendering the fora useless. to moderate posts altogether; (2) moderate posts before they appear onlin e; or (3) remove offensive posts through moderation after they appear online. However, the more substantive control he retains, the more likely the content will be interpreted as truthful. ISPs and content providers enjoy immunity from liability under sect ion 230 of the Communications Decency Act 116 if they merely publish information that other third 116 47 U.S.C. § 230 (2011).
134 parties provide. 117 Hypothetically, if a content provider includes a user comment section on his web site, he would likely be immune from liability for any defamato ry comments posters subsequently make. The provider also is immune if he conducts limited 118 Beyond this, if a provider exercises a significant degree of control over the content of his site, he could lose section 230 immunity. Thus, when a content provi der elects to control content at the risk of lawsuit exposure readers may believe he is only interested in pro viding true, vetted content. A provider may also restrict who posts on his forum. For example, some fora are invitation only, while others require an involved sign up process. Depending on the extent to which he exercises control over forum participants, t his may also lead casual observers to assume the information has, likewise, been vetted. What is the context of the forum? When analyzing Internet discourse during an unmasking a nalysis, a court should consider statements contextually. Absent contextualization, statements taken at face value could yield liability in cases where no reasonable person who actually reads them in context would deem them true. This section presents a no n exhaustive list of factors courts may wish to consider when addressing context. 117 Id. 118 47 U.S.C. § 230(c)(2) (2011).
135 Communicative style. One aspect of context is purely stylistic. Readers are naturally im 119 Illustrating this point, a federal court in California declined to find actionable defamation based on stocks. 120 The appeared: a Yahoo! message board. 121 Boards such as Yahoo! contain significant casual readers know should not be taken at face value. 122 No rational person they were true, which would be necessary to support a defamation claim. 123 Similarly, another California federal court refused to find that Yahoo! message board posts supported a defamation claim. 124 Specifically, a poster using the experience significant financial gains resulting in its execu 119 Sa Sandals which did not discuss the application of Dendrite Cahill or America Online the court found that an anonymous e mail constituted inactionable opinion. Id. at 412 (stating that Sandals failed to show that any of the e opinion). The e mail, which was sent to numerous undisclosed recipients, claimed that Sandals Re sorts mistreated Jamaican natives by accepting subsidies from the Jamaican government but refusing to hire Jamaicans for upper level positions. Id. at 409. The tone and purpose of the e mail suggested that the author was simply expressing his opinion in a defamation claim. Id. at 414. 120 Rocker Mgmt. LLC v. John Does, 2003 WL 22149380, at *3 (N.D. Cal. May 29, 2003). 121 Id. 122 Id. 123 Id. 124 Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2 005).
136 corporate jet 125 stock price dropped. 126 communications was contextually, the court relied on Dendrite to conclude that the anonymous posts were tongue in cheek and would not support unfair competition or confusion of source claims. 127 The court was persuaded here because t he Yahoo! 128 to apply a lenient unmasking standard when the context of the messages is particularly relevant. If the standard were too lenient, posters could be unmasked even when the context of their statements suggests they should not be accepted at face value. Thus, the parti cular forum and its communicative style should be a relevant factor in an unmasking determination. Forum topic. The topic of a forum can affect whether readers reasonably believe its content is trustworthy. For example, certain topical forums inherently a re deemed more trustworthy than others. This section addresses four very different forums that trigger different analyses according to the rubric. 125 Id. at 973. 126 Id. 127 Id. at 975. 128 Highfields Capital Mgmt., L.P. v Doe, 385 F. Supp. 2d 969, 978 79 (N.D. Cal. 2005) (refusing to find prima facie likelihood of confusion cause of action because the gen
137 On one end of the spectrum is R/AskScience, a subforum of Reddit.com, which is a social news web site based on user submitted content. 129 Anyone can browse any content on Reddit, but must first sign up for an account before obtaining posting privileges. 130 different content. 131 The subfora are varied, i ncluding the frivolous (r/Awwww, which enables users to share adorable pictures of animals), the social (r/music, where users can share opinions regarding any musical issue), and the political (r/politics, on which users can discuss current political issue s and engage in debate). One particular subreddit, r/AskScience, provides a unique forum for members to seek answers to their science questions. R/AskScience, boasting nearly 420,000 subscribers, 132 verifies Reddit members as experts. These experts voluntee r to become indicating their field of expertise. If the color is bright purple, for example, the panelist is a physics expert, while light green indicates a neuroscience e xpert. Twelve fields are represented on r/AskScience. Forum guidelines inform users that discussion must be scientific, and avoid speculation and anecdotes. 133 The unique features of R/AskScience suggest the subforum is credible. Experts are vetted to pos should adhere to rational discourse on scientific issues. Furthermore, the academic 129 Reddit, Reddit.com http:// www.reddit.com ( last visited Feb. 18, 2012). 130 Reddit Moderators, Reddit FAQ h ttp://www.reddit.com/help/faq (last visited Feb. 18, 2012). 131 Metareddit, Metareddit http:// www.metareddit.com (last visited Feb. 18, 2012). 132 Id. 133 R/AskScience R/AskScience http://www.reddit.com/r/askscience (last visited Feb. 18, 2012).
138 topic of the site itself science naturally attracts visitors drawn to intellectual debate. The rigi d nature of R/AskScience means that a plaintiff claiming he was malign ed on the site would need to satisfy the lowest burden to unmask a defendant. The rationale for this is that site visitors are more inclined to find statements on such a rigid site to be credible and true; thus, the plaintiff faces a greater likelihood of suffering actual damage and, in turn, should face an easier time in unmasking. A second example, which triggers a slightly increased burden on the plaintiff, is BlindGossip.com, a modera entries about celebrities, withholding their names. The site is clearly more frivolous than R/AskScience. One example of a BlindGossip post is : Guess which troubled teen just got pulled out of reh*b for the second time in two weeks? Multiple PR fiascoes have failed to quash stories about her relapse, so her handlers will be trotting her out in public and forcing her to perform this weekend in order to convince nave fans that all is well. 134 Readers a re asked to leave comments guessing to which celebrity the blind item refers. However, only registered forum members can actually post comments. If an unregistered reader attempts to post, he is redirected to a screen to sign up for free membership. Partic ularly juicy blind items may yield hundreds of member comments. These comments are strictly monitored on the site; the comments remain hidden until they have been personally vetted. Moderators also monitor the site to remove any uncivilized discourse. Even considering the layers of proof and moderation present on BlindGossip.com, no rational person would believe every blind item or even every guess, no matter how measured is true. Guesses are usually contradictory, and the 134 BlindGossip http://blindgossip.com/?p=38847 (last visited Feb. 18, 2012).
139 135 Nevertheless, site creators ensure that even though posters may make random (possibly defamatory) guesses regarding cel one another will remain civil. Uncivilized discourse is moderated and removed immediately. Thus, an individual who claims he is damaged on the site would have to satisfy an extra layer of burden to show entitlement to revelation. 136 Certain newspaper comment sites may trigger an additional layer of burden. For web site invites users to comment on its news stories. Although CNN is generally considered to be a reputable news provider, a perusal of user com ments quickly reveals that commenters are not governed by the same journalistic (or ethical ) posted directly above the user com ment box and below each story ot pre For example, one CNN story, Authorities: Suicide Attack on U.S. Capitol Foiled detailed the arrest of Amine El Kh alifi, a 29 year old Moroccan man who allegedly attempted to bomb the U.S. Capitol building. 137 Two comments to the story made by a 135 BlindGossip, BlindGossip http://blindgossip.com/?page_id=3022 (last visited Feb. 18, 2012). 136 This analysis would be different if a celebrity brought suit based on site comments. The celebrity could sue for defamation, but the blind item would need to clearly refer to her. The celebrity could also sue for invasion of privacy a very hard standar d for a public figure to meet which would require her to admit the truth of the statements. Neither outcome is likely to happen as a practical matter. 137 Carol Cratty, Authorities: Suicide Attack on U.S. Capitol Foiled CNN. COM Feb. 17, 2012, at http://www.cnn.com/2012/02/17/justice/us dc security threat arrest/index.html?hpt=hp_ t1.
140 We should 86 his family's house in Morrocco [sic] Clearly, the analysis of the comment section must be different from the a nalysis Although the article main tains journalistic standards, the comment section invites intolerance, hatred, and conjecture. A rational person could not view the comment section and believe the statements contained within were trustworthy. Finally, 4chan.com represents a wholly unmoder ated site that triggers the highest based bulletin board 138 Users need not register to post comments on 4chan in fact, 4chan has no user re gistration process. 139 All posters appe Casual users have immediate access to a variety of work safe boards; for example, there is an all purpose board, an image board However, by clicking on one of the boards, users are directed to accept a legal disclaimer, which opens up a variety of adult materials. Although 4chan is a moderated 138 4chan 4chan.com http://www.4chan.com (last visited Feb. 18, 2012). 139 4chan Moderators, 4chan.com FAQ http://www.4chan.org/faq (last visited Feb. 18, 2012).
141 site, the moderation is minimal at best content is (theoretically) rem oved if it violates copyright laws. As a result, 4chan is uniquely unrestrained, usually offensive, and typically contentious. No rational person would take as true anything posted on 4chan without independent verification. Thus, a plaintiff who claims har m caused by a 4chan post should satisfy the highest possible hurdle if he seeks to unmask the poster. In summary, a plaintiff maligned in an untrustworthy forum should be required to satisfy a heightened standard to unmask an anonymous poster. A plaintiff who claims injury based on posts in a trustworthy forum, on the other hand, should face a lesser burden. Individuals are more likely to give credence to statements on the trustworthy forum, and, in turn, the plaintiff is more likely to suffer actual damage Establishing a Rubric The above elements were consolidated an d incorporated into a rubric The finalized version appears below. Courts should be able to apply the rubric to any factual pattern and eliminate much of the uncertainty and inconsistency inhe rent in the current system. ability to weight case specific elements defying easy categorization. The miscellaneous provision is deliberately assigned a low weight (10%) i n the rubric. The inclusion of the provision, tempered by its relatively low weight, ensures the requisite balance between thoroughness and utility is maintained. To illustrate the rationale for including a miscellaneous provision in the rubric, consider t his hypothetical scenario. A court is confronted with a litig ious indeed, a vexatious plaintiff with a significant history of unmasking anonymous posters. This
142 hypothetical plaintiff repeatedly pursues causes of action until unmasking, then withdraws his l awsuit, seemingly for the purpose of harassment and annoyance. A critics in SLAPP like fashion not to obtain any further remedy for his alleged damage. Absent a mis cellaneous provision, a court would simply conduct a rote exploration of the facts business or human identity, the context of the forum where the anonymous speech occurred, etc. However, the miscellaneous provision enables a court to cons ider aberrations specific to the lawsuit at bar. How the Rubric Functions The rubric (Fig. 5 2 ) is broken into relevant questions, discussed in this chapter. The first question directs the court to consider the critical issue of whether the underlying spe ech is commercial in nature. If the speech can be characterized as commercial speech warranting additional particularized limitations (such as downloading or seeding digital content), then the inquiry ends immediately: the court should apply the establishe d standard in Sony Music 140 If the speech at issue does not fall under this category, however, then the court should complete the remainder of the rubric. With this exception (shown on the rubric as a red box), every other inquiry will eventually trigger th e application of one of the main tests: Dendrite Cahill or America Online The rubric contains seven questions (eight total criteria, including the miscellaneous section) a number reflecting a balance between thoroughness (incorporating every salient el ement) and simplicity. The answers to each question are 140 1 40, 326 F. Supp. 2d 556, 565 66 (S.D.N.Y. 2004).
143 plaintiff would bear little to no burden to prove the anonymous poster should be unmasked. For example, if a clea r preexisting agreement, such as an employee confidentiality agreement, governs the pending dispute, then the plaintiff should not be required to satisfy a heightened burden. An anonymous poster in that circumstance has little expectation of privacy or ano nymity before making the posting; he previously ceded it by executing the agreement. The scale represents an ordinal numbering system. In the case of close calls, courts must decide which number to assign. For example, if the court is uncertain about the l relevant category on the rubric. In this case, a court should not attempt to sidestep the come to different interpretations determination. It is to create a uniform process for courts to employ. Thus, ens uring consistency in application is the critical focus. Every question is weighed according to importance. The importance of a particular question is reflected by its weight twice as much as the other categories (e weight).
144 To briefly illustrate the application, the question of party status will be tackled. 141 As discussed above, courts are strongly swayed by whether the anonymous poster was a party to the dispute. This inquiry, therefore, is worth double, or 2 0% of the total If a court a finding that the poster is a non party and unlikely to become a party then the court would enter that value beside that question It would then double the value, as directed by the rubric. Thus, the inquiry would ultimately be After answering each question, a court will arrive at a final total and engaged in doubling wh en nece ssary under the rubric it would arrive at a score of 40 The higher the score identity. In brief, the higher the score the more stringent the standard the court will a pply A low score (0 13) supports the application of lenient good faith standard, while a high score (27 40 ) supports stringent summary judgment approach. The dissertation posits that this rubric will result in the application of Dendrite the approach most largely embraced by the courts, more frequently than the other standards. As a result, the application of the tests will reflect reality in a more systematized manner. 141 A fa r more exhaustive application of the rubric appears in the next chapter.
146 The relative importance of each inquiry addressed in the rubric is refle cted in a pie chart (Fig. 5 3). This chart indicates in a clearer visual format exactly how each factor is weighed in a determination under the rubric. As evidenced by the chart, the identity of the poster and the existence (or non existence) of a governin g agreement strongly influence the adoption of a test. Figure 5 3. Chart showing weighting of factors for unmasking rubric. Advocating a Rubric for Analytical Purposes This chapter initially explained the methodology used to lay the foundation for a ru bric to guide the courts in unmasking analyses. After establishing salient factors that Weighting of Rubric Factors What is the nature of the speech? Who posted the information? Is there a preexisting applicable agreement? Where is the information posted? How can be speech be characterized? Who is the requester? Is the information available elsewhere? Miscellaneous
147 have persuaded prior courts to apply a particular standard, the dissertation then advanced a unified rubric for courts to utilize. If adopted, it ideally should simplif y the One practical implication of adopting the rubric is clarification of the specific circumstances in which a lenient unmasking standard should be applied. This alleviates much of the c hilling effect some courts have recognized as a negative consequence of applying standards such as the America Online good faith test. Utilizing the rubric should minimize the circumstances in which a lenient test is erroneously applied. Anonymous speakers in turn, need not silence themselves for fear their identity will be unmasked in a baseless suit.
148 CHAPTER 6 APPLYING THE RUBRIC is applied here to a complex but realistic hypothetical situation. The hypothe tical involves joint corporate and individual plaintiffs asserting various causes of action and attempting to unmask six anonymous posters. The facts, which are culled from numerous opinions citing Dendrite Cahill and America Online are we aved into a un ified narrative. Finally, the rubric advanced in the previous chapter is applied to the hypothetical systematically, revealing which test(s) a court should adopt. The Hypothetical: Computer Disrepair Despair ComputaTime is a New York City technology firm l isted o n the New York Stock Exchange. A small branch of the firm handles business and personal computer repairs. The store averages approximately 400 service requests daily, fairly equally divided among its 100 technicians. Additionally, the branch employs 30 support staff. As a condition of employment, all employees enter into confidentiality agreements, promising persists beyond termination of employment. William Smith, the bran ch manager, receives notice from his superiors that profits for the repair unit are subtly declining. Reviewing the data, he realizes that repair profits are down 4% for personal computers and nearly 12% for business computers. During a brainstorming sessi on, a team member suggests the branch should increase its Web presence to attract new customers and, in turn, boost profits. Before implementing this suggestion, Smith searches Google to ascertain its viability.
149 During the search, Smith is shocked to disco ver a web features a full bright red font. The home page also contains several link leads to a repository of overwhelmingly negative stories site visitors shared regarding biography of the site creator and his own Comput (1) Overcharges customers for parts; (2) Provides inferior parts during repairs; (3) (4) Routinely bil A final l is in final negotiations to sell off the rep air branch, a fact Smith disclosed at a closed management meeting one week prior. and time stamped, indicating it was made less than three hours after the meeting.
150 Stunned, Smith peruses the remainder of the site. He clicks again and sees posts from five different pseudonymous individuals claiming to have had horrible experiences with ComputaTime: If business practices are illegal. We sho uld strengthen the laws to punish 2 then includes the names and contact information for New York Congressional representatives. personally, overcharged almost every he says! So web site for Computer Shack, Smith is outraged. His initial reaction, after yelling sev eral expletives unsuitable for print in any dissertation, is to respond to these comments on the web site, but when
151 explaining that he must create an account in order to pos t. The form requires posters to select a pseudonym, then to enter their legal name, e mail address and date of birth. in order to post on the site. The agreement promises to maintain the confidentiality of web at the site is hosted by Google. At this juncture, Smith declines to create an account and opts to exercise his he end, ComputaTime sues Does 1 4 tortious interference with prospective business relations; and Does 1 ComputaTime and Smith are in a bind at this point. They must unmask the anonymous speakers in o prevents it from revealing the names absent a valid court order. Lacking the ability to
152 e to subpoena Google for their identities. At a hearing, the court considers which test to apply and whether to order revelation. Application of the Rubric to the Hypothetical The court faces six separate unmasking inquiries in this hypothetical. Because t he plaintiffs asserted no copyright infringement claims or other claims that might trigger the unique application of Sony Music 1 the court must systematically use the remainder of the rubric. An explication of that process is presented below. What is the Nature of the Speech? (10%) Courts initially must decide if the underlying speech constitutes one of four things : 2 commercial speech, expressive speech or core speech. In the hypothetical, all but one poster engaged in either expressive or core First Amendment protected speech. The stronger First Amendment protection speech enjoys, the higher the hurdle a plaintiff must face for revelation. Core speech (4 points) ed commentary maximum First Amendment protection. The speech expresses no opinion about actual business dealings; it merely comments on the facts as present ed on the web site. Regarding the web If 1 The rubric initially requires a court to consider whether the nature of the speech at issue is akin to al media. If it is, then the court must apply S 40 326 F. Supp. 2d 556 (S.D.N.Y. 2004). The remainder of the rubric may be ignored. 2 This type of speech would trigger the application of Sony Music under the rubric, and as noted above, is not addressed here.
153 3 The inclusion of the initial dependent clause indicates that Doe 2 engaged in a purely hypothetical exer cise regarding acceptable business practices. Furthermore, Doe 2 uses this opportunity as a political platform, calling for a revision of the laws and facilitating that process through ost protection under the First Amendment. ComputaTime should be required to satisfy a particularly strong burden to unmask Doe 2. Expressive speech (3 points) substantive content and vastly disparate communicative styles, but it shares a core characteristic: it qualifies as expressive speech warranting significant First Amendment protection, which translates into a h eightened burden imposed on the plaintiff during an unmasking analysis. This burden is heightened, although the protection of this speech 4 es because it o ffers measured if damning encouraged the purchase of unnecessary parts, are protected consumer commentary w arranting strong First Amendment protection. Valid consumer commentary transcends 3 Emphasis in original. 4 See In re Anonymous Online Speakers, 661 F.3d 1168 (9th Cir. 2011) (finding comments that company videnced comments qualified as commercial speech).
154 commercial issues. 5 essive opinion entitled to First Amendment protection. The substance clearly is deficient with respect to this particular unmasking analysis, but those concerns are addressed elsewhere in the rubric. For this facet, his speech is protected expression. Addi protected expression, although because it is a deficient establishment is protected expressive opinion, even when the entreaty are addressed elsewhere in the rubric. Commercial speech (2 points) is comm ercial, warranting less First protection than the illegal speech covered by Sony Music Although the act of posting lify as expressive commentary 6 ), the totality of the posting suggests i t is fundamentally commercial. By disparaging 5 See, e.g., Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1016 (9th Cir. 2004) (finding th at see also July 25, 2006) (explaining that commentary regardin g Best Western qualified as purely expressive speech warranting substantial First Amendment protection). 6 See Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1063 ( 9th existed, obliterating free speech interests, where a w providers).
155 web si amounts to an endorsement of Computer Shack. This type of commercial speech implicates fe wer First Amendment interests which is the main rationale for affording such strong protection to anonymity. Thus, ComputaTime should bear a les ser burden to unmask Doe 6. Who Posted the Information? (20%) The second element of the rubric courts must address is the identity of the anonymous poster (often a defendant or putative defendant). A plaintiff must satisfy an increasingly heightened burden correlating to how far removed the anonymous poster is from the pending lawsuit. This inquiry is critical because courts are far less likely to unmask a non party than a party to a pending dispute. Non party; unlikely to become a party (4 points doubled to 8 points ) is not a putative defendant. The plaintiffs only seek to unmask him in order to discredit the statements of Doe 4 relat ionship to the present lawsuit is tenuous and thus ComputaTime must face a high burden to unmask Doe 5. Non party; requester seeking information to ascertain claims (2 points doubled to 4 points ) None of the posters falls into this category, which is rese rved for discovery of a non 7 7 See Sup. May 27, 2005) (explaining that plaintiffs cannot use pre action discovery as a mechanism to determine whether a valid claim exists).
157 moderated, in that posts are periodically policed, and offensive posts removed. web site i s informal, as evidenced by the impassioned post made by ), replete with misspellings and web site likely qualifies as an informal forum, generally clo sed to the public, with a relaxed communication style, yielding 3 points under the rubric. course, is subject to an analysis of the entire context of the site which is beyond the s style suggesting comments should not be taken seriously. Conversely, the structure of depen d on the frequency with whic h Doe 1 reviews site comments it could be multiple times per day (highly moderated) or once a year (barely moderated). This inquiry is, again, very fact specific. How Can the Speech Be Characterized? (10%) This inquiry directs courts to consider the egregiousness (characterized by a burden and order discl osure. If, on the other hand, it is clearly inactionable, then the of the rubric is outlined below. Obviously inactionable speech (4 points) Plaintiffs must satisf y a significant burden to warrant revelation where the
158 baseless, then the impetus to order revelation is minimized. The speech of Doe 2 ionable opinion that fails to support revelation. ComputaTime sue d him for defamation a claim, at its heart, requiring the plaintiff to incur damage from a false ion is couched in uncertainty hardly the unequivocal stateme nt of fact to support a defamation action. If practices. Similarly, the assertions of D sentences are imperatives, utterly incapable of a true/false re ading. Claims that the first and third sentences may be assertions, but they are clearly hyperbolic, non defamatory opinions. 8 Finally, the statements made by nable because they refer neither to ComputaTime nor to Smith. Further, the plaintiffs have no intention of suing based on these statements. Appears inactionable, but requires additional discovery (3 points) Speech in this category appears inactionable, bu t a final determination requires additional discovery. The speech by likely is not defamatory. However, because it may 8 See Brodie v. Indep. Newspapers, Inc., 2007 WL 6887877 (Md. Cir. Ct. Mar. 12, 2007) (finding assertions that small
159 ence claim, ComputaTime must satisfy a heightened burden, minimized slightly because it has a potential cause of action. Appears actionable, but requires additional discovery (2 points) This category covers causes of action that, on their face, appear wel l founded, but additional discovery is required to ascertain the strength of those claims. The comments of assertion, tease ou t the extent of his assertions. on that he is a former ComputaTime employee. E vidence indicates all employees including Doe 4 are bound by the agreement is a question of fact for the court. Obviously ac tionable on its face (1 point) The claim of falsifiable statement of fact. 9 However, his assertio 9 See Gross v. New York Times Co., 623 N.E.2d 1163, 1169 (N.Y. App. 1993) (in dicta) (citations omitted) b ut see Mathis v. Cannon,
160 inactionable hyperbole interpretation. 10 provides inferior parts, encourages unnecessary sal es, and bills customers for services they did not receive if false all support a defamation action. 11 Although Doe 1 does not explicitly identify himself on the web site as a current or former ComputaTime employee, he revealed information only ComputaTime m anagement knew within a shockingly short time frame after it was disclosed in a closed meeting. This coincidence suggests Doe 1 is, more likely than not, a current or former employee. Such a coincidence has been sufficient to support a claim for breach of confidentiality and, by extension, the unmasking of an anonymous poster. 12 Who Is the Requester? (10%) The identity of the requester (usually the plaintiff) is relevant to a determinati on of whether an anonymous poster should be unmasked. The hypothetical presents both an 573 S.E.2d 376, 382 83 (Ga. 2002) (finding comments on a Yahoo! board calling a business owner a m in the context of the board with numerous miss pellings and poor punctuation would find them to be hyperbolic, not 10 See, e.g, Lovings v. Thomas, 805 N.E.2d 442, 447 48 (Ind. Ct. App. 2004) (sta per se and proffering an exhaustive list of examples including the word but see the ) (internal quotations omitted). 11 and inactionable. Nevertheless, the other claims are almost certainly actionable, so the analysis under 12 Immunomedics, Inc. v. Doe, 77 5 A.2d 773, 777 (N.J. Super. A.D. 2001) (ordering the revelation of an anonymous poster who disclosed confidential information and proprietary information, mere access to which suggested she was a former employee).
161 To the extent these categories overlap, the rubric demands the plaintiff shoulder the higher burden. Thus, if a small business owner asserts personal and corporate causes of action, he must bear the heightened burden associated with corporate claims. The opposite result would be untena ble. In cases involving joint individual and corporate plaintiffs, the individual could satisfy his unmasking burden while t he corporate plaintiff cannot. It would be inherently unfair to deprive a poster of anonymity in the corporate plaintiff context whe n that plaintiff could not prove entitlement. This category may also be inapplicable in certain situations. For example, Comp utaTime seeks to unmask Doe 5 a person against whom no cause of action has been asserted. Clearly, Doe 5 does not fit into any of t he subcate gories outlined on the rubric. To the extent this unique situation occurs, the burden imposed on the plaintiff should default to the maximum possible; here, that would yield a score of 4 points Public corporate figure claiming harm to business p ractices (4 points) Plaintiff ComputaTime qualifies as a public figure. It employs 100 technicians in its repair branch alone, and it is listed o n the New York Stock Exchange both elements suggesting that the company is a public figure. ComputaTime asserte d a tortious causes of action involve business harms. Thus, with respect to Does 1, 4, a nd 6, the plaintiff must bear a heavier burden to warrant disclosure. This result issues with respect to Doe 1 despite
162 This category involves situations where public corporate figures assert should be distinguished from the pure economic business injuries outlined above because they are reput ational or invasive in nature. In this hypothetical, ComputaTime warrants placement in this category. Public individual plaintiff (2 points) This category involves cases where public individual figures (for example, political figures or celebrities) assert causes of action. In this hypothetical, Smith (the only individual plaintiff) does not qualify as a public figure. Thus, the inquiry does not apply. Private figure suffering personal harm (1 point) Or causes of action against Doe 1 subsume this inquiry This is because ComputaTime should n ot be able to take advant age Is the Information Available Elsewhere? (10%) The identities of the putative defendants are not available from another source. 1 point u nder the rubric. On the other hand, ComputaTime seeks to unmask Doe 5 doubtless is available from an alternative source, without needing to compromise Doe
163 4 points under the rubric. Are There Any Other Relevant Fact Specific Considerations? (10%) This discretionary category ensures the court accounts for all relevant, case specific facts wh en selecting an unmasking standard. Because the stakes are so hig h potentially depriving an individual of his Fir st Amendment anonymity rights the rubric must thoroughly consider each relevant factor. However, it is impossible to conceive of every possibl e motivating factor a court may encounter. Indeed, unforeseeable technological and legal changes could impact an unmasking analysis. Thus, the rubric must be flexible enough to accommodate these circumstances. This a layer of flexibility for courts to employ. burden to show entitlement to the identity of created and moderated the forum on which the speech appeared. His actions, furthermore, facilitated the communication of other possibly defamatory speech. The the necessarily flexible rubric. However, a cou rt could find this fact very persuasive in an unmasking analysis. Thus, the rubric enables this discretionary judicial exercise. As on the rubric. Theoretically, a c ourt may decide that the facts are sufficiently straightforward and warrant no additional exercise of judicial discretion In that event it may decline to u tilize this field. Thus, the court could adjust the overall possible point value of the rubric from 40 points to 36.
164 Final Analysis The next chart (Figure 6 1) demonstrates the functionality of the rubric by course, applies equally to every poster whose anonymity is simi larly threatened. Demonstrating its application to Doe 1 sufficiently illustrates how the rubric works. He is a defendant in each of the causes of action discussed in the complaint, so the application of the rubric regarding the various causes of action is demonstrated thoroughly. Furthermore, he, as the web site creator, has the strongest connection to the facts in this dispute. As such, showing the application of the rubric to Doe 1 encompasses the same inquiries that apply to the other Does. The bottom ri ght of the rubric indicates the final score. The score translates directly into which test the court should apply, as indicated below the rubric. A low score triggers the application of lax standard, a moderate score yields Dendrite and a high score warrants more stringent standard.
166 Applicability of the Finalized Rubric The application of the rubric reflects the reality described in the case law. Applying this rubric, courts shoul d find that Dendrite covers the majority of the factual argument is more tenuous, the rubric leads to the application of Cahill On the other s argument is very strong, it leads to the (rare) application of America Online
167 CHAPTER 7 CONCLUSION This dissertation proposed and defended a rubric for judicial use when deciding the proper standard that should govern the revelation of an anonymous po Before constructing the rubric, it explained the foundational importance of anonymity in American jurisprudence in order to convey a thorough understanding of the critical constitutional rights at stake every time an unmasking analysis is undertaken. It also argued fo r the application of a rubric an elegant mechanism under utilized in legal analysis consistency to judicial decision making. To construct the rubric, the di ssertation analyzed case law citing the three mai n tests employed in this area Dendrite 1 Cahill 2 and America Online 3 in order to ascertain which factors courts deemed relevant in an unmasking analysis. Salient factors were incorporated in a finalized rub ric, weighted according to their relevance in unmasking analyses in the case law, and applied in Chapter 5 to a tangled yet realistic twofold: simplifying a task tha t previously consternated the courts, and creating uniformity in an area of the law historically marred by chaos. First, t his chapter answ e r s the Research Question presented in Chapter One This is : What criteria and elements should a rubric include that courts apply when selecting the most appropriate legal test to unmask the identity of an anonymous poster 1 56 (N.J. Super. Ct. App. Div. 2001). 2 Doe v. Cahill, 884 A.2d 451 (Del. 2005). 3 In re Subpoena Duces Tecum to Am. Online, Inc., 2000 WL 1210374 (Va. Cir. Ct. Jan. 31, 2000).
168 on the Internet? Finally, the chapter proposes areas for future research and summarizes Research Question The dissertati on sought to answer one research question: Elements Should a Rubric Include That Courts Apply When Selecting the Most Appropriate Legal Test to Unmask the Identity of an Anonymous Poster on the This research question involves two broad components. First, the dissertation adv anced an analytical mechanism the rubric that is largely absent from legal interpretation. Chapter 4 of this dissertation explained the use of the rubric to systematize unmasking analyses. After arguing tha t rubrics are precisely suited to conduct this type of inquiry, Chapter 5 then addressed the elements that should be in the particular unmasking rubric based on a thorough analysis of the relevant legal opinions, and presented the unified rubric. In Chapte r 6 the rubric was applied to a hypothetical situation to demonstrate its utility. These considerations are addressed below. Rubrics are Viable Models for Legal Analysis Because rubrics are associated so strongly with social science research (particularly education), the dissertation first overcame the hurdle of applying this analytical mechanism to legal analysis. Models, in general, help researchers organize, and thus utilize, their data properly. 4 object 5 The adoption of a model 4 J AMES J ACCARD & J ACOB J ACOBY T HEORY C ONSTRUCTION AND M ODEL B UILDING S KILLS 27 (Guilford 2010), citing A BRAHAM K APLAN T HE C ONDUCT OF I NQUIRY : M ETHODOLOGY FOR B EHAVIORAL S CIENCE 159 61 (Harper & Row 1964) (explaining scientific research needs an organizational system to make sense). 5 P AMELA S HOEMAKER et al. H OW TO B UILD S OCIAL S C IENCE T HEORIES 110 (Sage 2004).
169 in general, posed no issues with respect to mass communications research. 6 It did, however, raise unique concerns w hen applied to legal analysis a field in which formal model s are largely absent. 7 Focusing on the rationale for the rubric, however, validated its choice when applied to legal analysis. Indeed, the entire purpose of selecting a rubric for analysis was to promote c onformity and standardization aspects of rubrics th at often are criticized. 8 To simplify and s ystematize unmasking analyses an area of law marr ed by chaos and inconsistency a rubric was the ideal mechanism. Structure of the Rubric After adopting a rubric as a tool for legal analysis, the dissertation analy zed the proper structure for the rubric. Rubrics typically contain four core components, the application of which is discussed below: A list of questions the court will ask in its unmasking analysis; A series of answers t o each question, with a weight assigned to each answer; and An indication of how much each individual variable is worth in the overall analysis. 9 6 See Harold Lasswell, The Structure and Function of Communication in Society in W. S CHRAMM (ed.), M ASS C OMMUNICATIONS 1 17 30 (U. of Illinois 1948) (adopting a communication model); see also R ICHARD P ETTY & J OHN C ACIOPPO A TTITUDES AND P ERSUASION : C LASSIC AND C ONTEMPORARY A PPROACHES (William C. Brown 1981) (adopting the Elaboration Likelihood Model). 7 An exception to this rule is federal sentencing guidelines, which employ mechanistic approaches to determine appropriate sen tencing ranges. See Josh Goldfoot Sentencing.us: A Free U.S. Federal Sentencing Guidelines Calculator available at http://www.sentencing.us/, (last visited February 18, 2012). 8 See Veronica Boix Mansilla et al. Targeted Assessment Rubric: An Empirically Grounded Rubric for Interdisciplinary Writing 80 J. H IGHER E DUC 334, 337 (May/June 2009) (discussing the criticism of rubrics). 9 These elements are referred to in the literature as: task description, scale, dimension and dimension descrip tion. See D ANNELLE S TEVENS & A NTONIA L EVI I NTRODUCTION TO R UBRICS : A N A SSESSMENT T OOL TO S AVE G RADING T IME C ONVEY E FFECTIVE F EEDBACK AND P ROMOTE S TUDENT L EARNING 5 (Stylus 2005) (describing the elements of a rubric).
170 These considerations were analyzed carefully; they guided the construction of the rubric. Substance of the Ru bric In addition to structure, a rubric must have substance. Here, an analysis of case law decided in the wake of Dendrite Cahill and America Online revealed five broad who seeks th e why who posts the anonymous information; 4) what the subject matter of the underlying speech is; and 5) where the information was posted. In addition to these elements (discussed below), the cases involving facts that defy easy categorization. The result is a rubric balancing thoroughness with simplicity. Who In conducting an unmasking analysis, courts may find the identity of the requester persuasive. Typically, courts will address one of two things: whether the requester is (1) a corporation or individual or (2) a private or public figure. Is the requester a corporation or an individual? Recent case law recognized that corporations are treated like humans in First Amendment analysis. In Citizens United v. Federal Election Commission 10 the Supreme Court treated invalidated a law imposing additional hurdles on corporations and unions to engage in political speech (in the form of political expenditures). 11 Corporations and unions enjoy the same First 10 130 S. Ct. 876 (2010). 11 Id. at 907
171 Amendment speech protections as humans. 12 An unmasking analysis, however, does not implicate the same First Amendment concerns th rights are at stake, not the rights of the plaintiff corporation. Thus, courts may and do Corporate plaintiffs are typically better equipped than i ndividual plaintif fs to protect their interests they generally have deeper pockets and access to self rehabilitative mechanisms. Therefore, corporate plaintiffs ordinarily bear a greater burden to show entitlement to revelation. Is the requester a p ublic or private f igure? Plaintiffs must meet a minimal burden to warranting unmasking if they are private figures suffering personal harms, such as damage to their reputation (defamation) or harassment. At the other extreme, public figure corporations suffering purely business related harms (tortious interference, breach of contract) must meet a strict burden. The differentiation is because the latter group is perceived as significantly more able to protect its interests than the former. tity being sought? Plaintiffs typically seek to unmask an anonymous poster to vindicate harms occurring in three broad categories: (1) personal harm, such as defamation, invasion of privacy, and harassment; (2) interference with business practices, such a s breach of duty, unfair competition and/or tortious interference; and (3) copyright infringement. The figure status, and are weaved together in the rubric. 12 Id.
172 Personal harm plaintiffs. This category of plaintiffs seeks redress for harm to their reputation or overall well being. 13 If the factual scenario is particularly egregious, 14 courts are more likely to order revelation. In theory, a court would prefer not to deny recovery to a truly damaged plaint iff. Interference with business practices. These corporate plaintiffs seek remedy for harm caused to their business practices by the anonymous speaker. 15 The factual patterns presented in these cases tend to be far less shocking; thus, unmasking analyses a re applied dispassionately. These plaintiffs must bear a significant burden to unmask defendants because they are perceived to have access to finances and other resources to self rehabilitate. Copyright infringement. The assertion of a cause of action for copyright uniformly leads to the adoption of a modified Dendrite standard, Sony Music Entertainment Inc. v. Does 1 40 16 Plaintiffs in this must satisfy a minimal burden to es mainly o n the type of speech at issue illegal downloading of digital material commercial speech warranting little to no First Amendment protection. 13 See, e.g, Polito v. AOL Time Warner, Inc., 2004 WL 3768897 (Pa. Com. Pl. Jan. 28, 2004) (individual seeking recovery for harassment); Juzwiak v. Doe, 2 A.3d 428 (N.J. Sup. 2010) (intentional infliction of emotional distress and harassment). 14 Doe I v. Individuals, 561 F. Supp. 2d 249, 251 (D. Conn. 2008) (enabling unmasking where anonymous poster graphically described graphic sexual practices plaintiff enjoyed). 15 See, e.g., Koch Indus., Inc. v. Does, 2011 WL 1775765 (D. Utah May 9, 2011) (federal and common law trademark infringement, federal and common law unfair competition, anticybersquatting provision of Consumer Protection Act, Computer Fraud and Abuse Act violations, breach of web site terms). 16 326 F. Supp. 2d 556 (S.D.N.Y. 2004).
173 Who posts the anonymous information? Courts were strongly swayed to adopt a particular test based on the anonymous bur den in a revelation analysis in fact, this element was most persuasive to the courts. Specifically, courts indicated that two subcategories particularl y informed the adoption of an unmasking standard: whether the poster was a party, and whether the poster was bound by a preexisting agreement that altered his expectations of privacy. Is the poster a party or non party? If the poster is a party to the unde rlying dispute, the court is much more likely to order revelation. 17 Ordinarily, in these circumstances, the requester can demonstrate a need to unmask the defendant to ide ntity, the plaintiff cannot secure relief in the courts. On the other hand, when the poster is a non party the requester typically must satisfy a much more significant burden for revelation. 18 Courts are reluctant to violate the First Amendment anonymity r ights of a poster with only a tenuous relation to the underlying dispute. Is there a preexisting agreement? Courts will defer to the effect of re levant preexisting agreements. Thus, if a poster has ceded his anonymity rights under a Terms 17 See, e.g ., Immunomedics, Inc. v. Doe, 775 A.2d 773, 777 78 (N.J. Super. A.D. 2001) (denying motion to quash where anonymous poster was a defendant). 18 See to unmask a non party).
174 of Service agreem ent, 19 or violated a confidentiality agreement by disclosing sensitive business information, 20 a court will be more inclined to order revelation. What is the subject matter of the underlying speech? This inquiry is exceptionally important and may, in fact, be dispositive. 21 In conducting this analysis, courts address whether the underlying speech is (1) laims are so egregious or so i nactionable they warrant adoption of a particular test. This inquiry turns on the protection afforded the particular category of spe ech under the First Amendment. These speech types occur on a continuum from least protected to most protected. Wh ile commercial speech enjoys limited First Amendment protection, strongest protections under the First Amendment. o discourse or even purely expressive speech 22 whereas unmasking a purveyor of commercial speech presents little constitutional concern. 23 19 See, e.g., Third Degree Films, Inc. v. Does 1 10, 2011 WL 4759283, at *4 (N.D. Ind. Oct. 6, 2011) (finding no expectation of privacy where a student provided personal information to university to access the Internet). 20 Immunomedics, Inc., 77 5 A.2d at 777 (applying Dendrite to unmask a poster who breached a contractual duty of loyalty). 21 materials, then courts must apply S Inc. v. Does 1 40 326 F. Supp. 2d 556 (S.D.N.Y. 2004), disregarding the remainder of the rubric. 22 poster critical of Best Western). 23 See Sony Music E t, Inc., 326 F. Supp. 2d at 564 65 (unmasking an alleged illegal downloader after finding his speech warranted little protection).
175 Are the underlying claims particularly egregious or wholly inactionable? If a claim is so egregious on its face that refusing to unmask the poster would constitute an injustice 24 or so facially deficient that unmasking the poster would itself be unjust 25 then courts may dispense with a formal unmasking inquiry because under any test, the same result would occur. The dissertation hopes to alleviate ad hoc decision making in favor of uniformity; a method for accomplishing this goal is ensuring the rubric is simple enough so as not to deter its use. Where is the information posted? The characteristics of the particular forum where the speech occurs may yield the application of a particular unmasking test. In selecting an approach, courts will consider: (1) the extent to which the speech is moderated, and (2) the context of the forum (including its communicati ve style and topic). Is the forum moderated? The more moderated a forum, the more trustworthy the content on it appears, particularly when the moderator retains a significant amount of control over forum content. Moderators can restrict access to a forum, or restrict the type or characteristics of speech on the forum. Moderators face several options regarding forum control. They may: (1) wholly decline to moderate content 26 ; (2) moderate the speech before it appears on the forum; or (3) moderate the speech after it appears on the forum. The more a moderator controls the substance of the forum, the 24 In re Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011) (declining to upset the lower of Cahill through sexually charged, vulgar posts warranted unmasking). 25 See, e.g., fail ed under any applicable standard because they were facially deficient). 26 Few web incivility.
176 more he risks waiving his immunity under section 230 of the Communications Decency Act and incurring liability. 27 self interest, the content he risked liability to protect is perceived as true. What is the context of the forum? Courts may also find persuasive the context of the forum. If the forum is structured such that no reasonable reader would believe its conten t is true then the plaintiff would suffer a heightened burden to prove entitlement ng on a reliable forum are more likely to be misread as truths; thus, the plaintiff is more likely to realize harm from the post. The style of the forum is relevant in an unmasking analysis. Internet discourse is al ready somewhat discredited because anything 28 However, certain sites rehabilitate this perception by providing proven r eliable content, while others such a s Yahoo! message boards 29 are structured to feed into that negative reputation. 27 47 U.S.C. § 230 (2011). 28 925 N.Y.S.2d 407, 414 (N.Y. App. Div. 2011). In Sandals which did not discuss the application of Dendrite Cahill or America Online the court found that an anonymous e mail constituted inactionable opinion. Id. at 412 (stating that Sandals failed to sh ow that any of the e opinion). The e mail, which was sent to numerous undisclosed recipients, claimed that Sandals Resorts mistreated Jamaican natives by accep ting subsidies from the Jamaican government but refusing to hire Jamaicans for upper level positions. Id. at 409. The tone and purpose of the e mail suggested that the support a defamation claim. Id. at 414. 29 Rocker Mgmt. LLC v. John Does, 2003 WL 22149380, at *3 (N.D. Cal. May 29, 2003) (refusing to find actionable defamation because the speech occurred on a Yahoo! message board and, thus, no reasonable person would be lieve it was true).
177 What is the topic of the forum? Fora dedicated to particular topics specifically esoteric topics may bear hallmarks of reliability that more casual forums do not. This inquiry is website specific, but some factors may suggest a forum is reliable: whether it is geared toward discussion of academic topics; whether experts are used to generate or further discussion; and whether forum rules guide discussion toward reasoned, supporte d discourse. Potential Limitations of the Research The rubric proposed the adoption of a rubric to systematize and simplify unmasking analyses, a goal that breaks relatively untrodden ground in legal research. To accomplish this goal, it consolidated exis landscape in a structured rubric. is novel, tion of this rubric could not of necessity hinge on analyzing rubric applications that had worked (or failed) below. Because the rubric was created from scratch, future application may eventually reveal unforeseeable weaknesses. Additionally, some el ements included in the rubric in order to maximize flex ibili ty and, by extension, utility are subjective. For but there are a multitude of individualized definitions of what constitutes egregious speech. Finally, the illu of a single (albeit multifaceted) rubric. Systematic application of the rubric across a multitude of factual scenarios should occur to demonstrate it achieves its goals. Future Research T his dissertation simplified the approach courts should take when determining which unmasking standard should apply when analyzing anonymous speech online.
17 8 Given the relative novelty of research involving online comm unication, numerous questions albeit one s ta ngential to this dissertation remain: Does the democratizing nat ure of the Internet which enables even disenfranchi sed people to have a platform minimize the relevance of the public/private figure distinction, as private figures can more easily rectify falsities? provision to deter baseless lawsuits? What compromise, if any, would enable individuals to maintain anonymity e, given that so many proposed bills require users to disclose personal information? Does the broad protection of online anonymity devalue the protection of g their falsities to light a viable method for forum participants to regulate speech on a particular forum? Could a systematic rubric be employed in a different area with convoluted, seemingly subjective, such as copyright infringement? These questions i nvol ve a variety of methodologies quantitative, qualitative an d legal research that can extend and build upon the research presented in this dissertation. Overview Chapter One presented a scenario in which a court was confronted with whether to unmask an anonymous online poster. A discussion of that task revealed that case law largely is settled on three main tests, but the application of those tests appears inconsistent and sometimes ad hoc Recognizing a need for uniformity and clarity in this area of la w, this dissertation proposed and defended a rubric to handle that task and then demonstrated how its application would wor k in a hypothetical situation. The result Dendrite would
179 be the most applied standard, while America Online and Cahill would be applied less frequently, depending on the unique facts in a case. This rubric should simplify the unmasking task and bolster consistency. Ideally, rubrics can enjoy wider application in l egal analysis, bringing increased predictability to judicial decisions. To transform the rubric from theoretical construct to working guideline for judges to employ, the natural next step is to repackage elements of this dissertation to facilitate dissemi nation. One possibility is distributing the work as a monograph. Another more realistic possibility is extracting relevant portions of the dissertation and drafting a law review article. Yet another idea is writing a column regarding the rubric in ABA Comm unications Lawyer Either of these options would enable the work in this rubric to reach the hands of judges for application and, in turn, streamline legal analysis with respect to this issue.
180 LIST OF REFERENCES Primary Sources Cases A. Z. v. Doe, 2010 WL 816647 (N.J. Super. Mar. 8, 2010) Abrams v. United States 250 U.S. 616 (1919) Alvi s Coatings, Inc. v. John Does 1 10, 2004 WL 2904405 (W.D.N.C. Dec. 2, 2004). America Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001) Ashcroft v. Fr ee Speech Coal., 535 U.S. 234 (2002 ) Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) v. Doe, 2006 WL 2091695 (D. Ariz. Jul. 25, 2006) Bose v. Consumers Union o f U.S., Inc., 508 F. Supp. 1249 (D. Mass. 1981) Brodie v. Indep. Newsp apers, Inc., 2007 WL 6887877 (Md. Cir. Ct. Mar. 12, 2007) Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) Cahill v. John Doe Number One, 879 A.2d 943 (Del. Super. 2005) Call of the Wild Movie, LLC v. Does 1 1,062, 770 F. Supp. 2d 332 (D .D.C. 2011) of New York, 447 U.S. 557, (1980) Cohen v. G oogle, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. 2009) Columbia Ins. Co. v. Seescandy. com, 185 F.R.D. 573 (N.D. Cal. 1999) Cornelius v Deluca, 2011 WL 977054 (D. Idaho Mar. 15, 2011) D.C. v. R. R., 182 Cal. App. 4th 1190 (Cal. App. 2010) ) Directory Assistants, Inc. v. Does 1 10, 2011 WL 5335562 (D. Ariz. Nov. 4, 2011) Doe v. 2TheMart.Com, Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001 ) Doe v. Cahill 884 A.2d 451 (Del. 2005) Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008 )
181 9, 2004 WL 2095581 (S.D.N.Y. 2004) Enterline v. Pocono Medical Center, 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008) 435 U.S. 765 (1978) Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) nc., 386 F. Supp. 107 (D.D.C. 1974) Gross v. New York Times Co., 623 N.E.2d 1163 (N.Y. Ct. App. 1993) H. B. Fuller Co. v. Doe, 2006 WL 6080949 (Cal. Super. Ct. Mar. 15, 2006) Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005) Immuno medics v. Doe 775 A.2d 773 (N.J. Super. 2001) In re Anonymous Online Speakers, 2011 WL 61635 (Jan. 7, 2011) In re Baxter, 2001 WL 34806203 (W.D. La. Dec. 20, 2001) In re Subpoena Duces Tecum to Am. Online, Inc., 2000 WL 1210372 (Va. Cir. Ct. 2000) In re U ddin, 810 N.Y.S.2d 198 (N.Y. App. Div. 2006) In re Verizon Internet Servs., Inc., 257 F. Supp. 2d 244 (D.D.C. 2003) Indep Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009) 15, 2011) Juzwiak v. Doe, 2 A.3d 428 (N.J. Sup. 2010) Klehr Harrison Harvey Branzburg & Ellers, LLP v. JPA Dev., Inc., 2006 WL 37020 (Pa. Com. Pl. Jan. 4, 2006) Koch Indus., Inc. v. Does, 2011 WL 177576 5 (D. Utah May 9, 2011) Krinsky v. Doe 6, 159 Cal.Ap p.4th 1154 (Cal. App. 2008) La Societe Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857 (Conn. Super. Ct. Dec. 2, 2003) Lassa v. Rongstad, 718 N.W.2d 673 (Wis. 2006) Lockett v. Ohio 438 U.S. 586 (1978) London Sire Records, Inc. v. Doe 1, 5 42 F. Supp. 2d 153 (D. Mass. 2008) Lovings v. Thomas, 805 N.E.2d 442 (Ind. Ct. App. 2004)
182 Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F. Supp. 947 (D.D.C. 1976) Matherson v. Marchello, 473 N.Y.S.2d 998 (N.Y. App. Div. 1984) Mathis v. Cannon, 5 73 S.E.2d 376 (Ga. 2002) 929 N.E.2d 666 (Ill. App. 2010) McMann v. Doe, 460 F. Supp. 2d 259 (D. Mass. 2006) McVicker v. King, 266 F.R.D. 92 (W.D. Pa. 2010) Mobilisa, Inc. v. Doe 170 P.3d 712 (Ariz. Ct. App. 2007) Mortg. Specialists, Inc. v. Implode Explode Heavy Indus., Inc., 999 A.2d 184 (N.H. 2010) NAACP v. Alabama, 357 U.S. 449 (1958) Inc., 793 F. Supp. 627 (D. Md. 1992 ) New York Times v. Sullivan 376 U.S. 254 (1964 ) Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002 (9th Cir. 2004) Ottinger v. Journal News, 2008 WL 4375330 (N.Y. June 27, 2008) Ott ing er v. Tiekert, 2009 WL 3260601 (N.Y. Sup. Aug. 27, 2009) Parsons v. Crown Disposal Co., 15 Cal. 4 th 456 (Cal. 1997) ) Pilchesky v. Gatelli, 12 A.3d 430, 445 (Pa. Super. Ct. 2011) Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058 (9 th Cir. 2002) Polito v. AOL Time Warner, Inc., 2004 WL 3768897 (Pa. Com. Pl. Jan. 28, 2004) Ct. App. 1982) Public Re Online, 799 N.Y.S.2d 847 (N.Y. Super. Ct. 2005) Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) Reunion Indus., Inc. v. Doe 1, 2007 WL 14534 91 (Pa. Com. Pl. Mar. 5, 2007)
183 Rocker Mgmt., LLC v. John Does, 2003 WL 22149380 (N.D. Cal. May 29, 2003) Rowland v. Christian, 69 Cal.2d 108 (Cal. 1968) SI03, Inc. v. Bodybuilding.com, LLC, 441 Fed. Appx. 431 (9 th Cir. 2011) Sable Communications of Calif., Inc. v. F.C.C., 492 U.S. 115 (1989) l Ltd. v. Google, Inc., 925 N.Y.S.2d 407 (N.Y. App. Div. 2011) Sedersten v Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009) Seelig v. Infinity Broad. C orp., 97 Cal. App. 4th 798 (Cal. Ct. App. 2002) Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128, 132 (D.D.C 2009) Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) Sony 40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004) Stone v. Paddock Publications, Inc., 2011 WL 5838672 (Ill. App. Nov. 21, 2011) Swartz v. Doe, 2009 WL 7023070 (Tenn. Cir. Ct. Oct 8, 2009) Talley v. California, 362 U.S. 60 (1960) Third Degree Films, Inc. v. Does 1 10, 2011 WL 4759283 (N.D. Ind. Oct. 6, 2011) Tri Marketing, Inc. v. Mainstream Mktg. Serv s., Inc., 2010 WL 1924456 (D. Minn. May 12, 2010) U .S. v. Booker, 543 U.S. 220 ( 2005) U.S. v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009) Valentine v. Christensen, 316 U.S. 52 (1942) Virginia State Bd. of Pharmacy v. Virginia Citizens Con sumer Council, 425 U.S. 748 (1976) of Stratt on, 536 U.S. 150, (2002) Court Orders/Decisions Decision Regarding Motion for Order to Show Cause, Dendrite International v. John Does, et als. Docket No. MRS C 129 00 (November 23, 2000) Decision of Superior Court of New Jersey, Chancery Division, Dendrit MRS C 129 00, at 1 (Nov. 23, 2000), available at http://www.citizen.org/ documents/dendriteappeal.pdf.
184 Order Granting in Part and Denying in Part Motion to Quash Deposition Subpoena, Chang v. Regents of the University of California, 2 009 00033484 CU OE (Cal. Order Granting Petition for Pre Action Disclosure, In re Cohen, No. 100012/09 (N.Y. Sup. Ct. Aug. 17, 2009), available at http://www.citmedialaw.org/sites/ citmedialaw.org/files/2009 08 17 O rder %20Granting%20Cohen's%20Petition.pdf Order in the Matter of the Application Pursuant to CPLR 3102 of Richard Ottinger and June Ottinger, No. 08 03892 (N.Y. Sup. Ct. July 1, 2008) Order to Show Cause in Lieu of Petition, In re Cohen, No. 100012/09 (N.Y. Sup Ct. Dec. 19. 2008) Court Rules Illinois Supreme Court Rule 224 Virginia Supreme Court Rule 4:9(c) Federal Statutes Authorized Sentences, 18 U.S.C. § 3551 Bipartisan Campaign Reform Act, 2 U.S.C. § 441(b) Communications Decency Act, 47 U .S.C. § 230 Comput er Fraud and Abuse Act, 18 U.S.C. § 1030 Imposition of a Sentence, 18 U.S.C. § 3553 State Statutes Virginia Code § 8.01 401.1(a) (2002) Secondary Sources Books and Book Chapters J UDITH A RTER & J AY M C T IGHE S CORING R UBRICS IN THE C LASSROOM : U SING P ERFORMANC E C RITERIA FOR A SSESSING AND I MPROVING S TUDENT P ERFORMANCE ( 2001) B LACK S L AW D ICTIONARY (9th ed. 2009) May Brodbeck, Models, Meanings and Theories in R EADINGS IN THE P HILOSOPHY OF S OCIAL S CIENCES (Brodbeck, ed.) ( 1968) M ATTHEW D. B UNKER C RITIQUING F REE S PEECH : F IRST A MENDMENT T HEORY AND THE C HALLENGE OF I NTERDISCIPLINARITY ( 2001)
185 P ETER C ARRINGTON et al. M ODELS AND M ETHODS IN S OCIAL N ETWORK A NALYSIS ( 2005) B ERNARD C OHEN T HE P RESS AND F OREIGN P OLICY (1963) C LYDE C OOMBS et al. M ATHEMATICAL P SYCHOLOGY : A N E LEMENTARY I NTRODUCTION ( 1970) J AMES J ACCARD & J ACOB J ACOBY T HEORY C ONSTRUCTION AND M ODEL B UILDING S KILLS (2010) A BRAHAM K APLAN T HE C ONDUCT OF I NQUIRY : M ETHODOLOGY FOR B EHAVIORAL S CIENCE ( 1964) T HOMAS K UHN T HE S TRUCTURE OF S CIENTIFIC R EVOLUTIONS 35 (U niv. of Chicago 1996) (orig. publication 1962) Harold Lasswell, The Structure and Function of Communication in Society in W. S CHRAMM (ed.), M ASS C OMMUNICATIONS (1948) L AWRENCE L ESSIG C ODE AND O THER L AWS OF C YBERSPACE ( 1999) J AMES M ADISON A LEXANDER H AMIL TON & J OHN J AY T HE F EDERALIST P APERS (I Kramnick ed., 1987) (1788) D ENIS M C Q UAIL & S VEN W INDAHL C OMMUNICATION M ODELS (1993) R ICHARD P ETTY & J OHN C ACIOPPO A TTITUDES AND P ERSUASION : C LASSIC AND C ONTEMPORARY A PPROACHES (1981). K ARL P OPPER T HE L OGIC OF S C IENTIFIC D ISCOVERY (3d ed.) (1968) L UCAS A. P OWE J R ., T HE F OURTH E STATE AND THE C ONSTITUTION : F REEDOM OF THE P RESS IN A MERICA 237 (1991) G EORGE W. P RING & P ENELOPE C ANAN SLAPPS: G ETTING S UED FOR S PEAKING O UT ( 2007) E VERETT R OGERS A H ISTORY OF C OMMUNICAT ION S TUDY 203 (1994) M ARVIN S HAW & P HILIP C OSTANZO T HEORIES OF S OCIAL P SYCHOLOGY (1982) P AMELA S HOEMAKER et al. H OW TO B UILD S OCIAL S CIENCE T HEORIES ( 2 004) D ANIEL S OLOVE T HE F UTURE OF R EPUTATION : G OSSIP R UMOR AND P RIVACY ON THE I NTERNET (2007) D ANNELL E S TEVENS & A NTONIA L EVI I NTRODUCTION TO R UBRICS : A N A SSESSMENT T OOL TO S AVE G RADING T IME C ONVEY E FFECTIVE F EEDBACK AND P ROMOTE S TUDENT L EARNING (2005)
186 Court filings (Briefs, motions, etc.) Brief of Amici Curiae Public Citizen and the American Civil Libe rties Union of New Jersey, Docket No. A 2774 00 (March 29, 2001 ) Brief Amicus Curiae of Am. Online, Inc. Melvin v. Doe No. GD99 10264 (Pa. Super. Nov. 15, 2000), at http://www.citmedialaw.org/sites/citmedialaw.org/ files/2001 02 24 Brief%20Amicus%20Curiae%20of%20America%20Online %20to%20the%20Pennsylvania%20Superior%20Court.pdf Complaint, Ottinger v. Doe, No. 3892/08 (N.Y. Sup. Ct. Feb. 25, 2008) Limited Expedited Discovery for the Purpose of Obtaining Information to Identify John Doe No. 3, MRS C 129 00 (July 11, 2000) Memorandum of Law in Opposition to Application for Pre Action Disclosure, In re Cohen No. 100012/09 (N.Y. Sup. Ct. Feb. 18, 2009) Memorandum of Public Citizen as Amicus Curiae in Opposition to the Requested Discovery, MRSC 129 00 (July 11, 2000) Opening Brief of Appellant John Doe No. 1, No. 266, Doe v. Cahill (July 28, 2005 ) Verified Complaint of Dendrite International, Inc., (May 24, 2000) Journal Articles Douglas A. Berman, Foreword: Beyond Blakely and Booker: Pondering Modern Sentencing Process 95 J. C RIM L. & C RIMINOLOGY 653 (2005) David Bo ies, The Chilling Effect of Libel Defamation Costs: The Problem and Possible Solution 39 S T L OUIS U.L.J. 1201 (1995) L. Karl Branting, A Reduction Graph Model of Precedent in Legal Analysis 150 J. A RTIFICIAL I NTELLIGENCE 59 (2003 ) Penelope Canan & Georg e W. Pring, Studying Strategic Lawsuits Against Public Participation: Mixing Qualitative and Quantitative Approaches 22 L. & S OC Y R EV 385 (1988) Anthony Ciolli, Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas 63 U. M IAMI L. R EV 137 (2008) Andrew Cook et al. The Taking of a Position: A Reinterpretation of the Elaboration Likelihood Model 34(4) J. FOR THE T HEORY OF S OC B EHAVIOR 315 (2004) Charles Doskow, Peek A Boo I See You: The Constitution, Defamation Plaintiffs and Pseudonymous Internet Defendants 5 F LA A&M U.L. R EV 197 (2010)
187 Victoria Smith Ekstrand, Unmasking John and Jane Doe: Online Anonymity and the First Amendment 8 C OMM L. & P OL Y 405 (2003) Michael Froomkin, Regulation and Computing and Information Technology: Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases 15 J.L. & C OM 395 (1996) Mary P. Gallagher, Court Erects Roadblocks to Flagging Cyberspammers on the Internet: Four Step Process Must Be F ollowed Before Forcing ISP to Disclose 165 N.J.L.J. 203 (2001). Leslie Gielow Jacobs, Clarifying the Content Based/Content Neutral and Content/Viewpoint Determinations 34 M C G EORGE L. R EV 595 (2003) Ian Gillies, Real World Toys and Currency Turn the Lega l World Upside Down: A Cross Sectional Update on Virtual World Legalities 12 I NT L J. C OMM L. & P OL Y 120 (2008) Carissa Byrne Hessick, Why Are Only Bad Acts Good Sentencing Factors? 88 B.U.L. R EV 1109 (2008) R. Lance Holbert, A Typology for the Study of Entertainment Television and Politics 49(3) A M B EHAVIORAL S CIENTIST 436 (2005) Ekaterina V. Karniouchina et al., Impact of Mad Money Stock Recommendations: Merging Financial and Marketing Perspectives 73 J. M ARKETING 244 (2009) Lyrissa Lidsky, Anonym ity in Cyberspace: What Can We Learn From John Doe? 50 B.C.L. R EV 1373 (2009) Lyrissa Lidsky, Authorship, Audiences, and Anonymous Speech 82 N OTRE D AME L. R EV 1537 (2007 ) Lyrissa Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace 49 D UKE L.J. 855 (2000) Veronica Boix Mansilla et al. Targeted Assessment Rubric: An Empirically Grounded Rubric for Interdisciplinary Writing 80 J. H IGHER E DUC 334 (May/June 2009) Tanya D. Marsh, In Defense of Anonymity on the Internet 50 APR R ES G ESTAE 24 ( 2007) Max McCombs & Donald Shaw, The Agenda Setting Function of Mass Media 36(2) P UB O PINION Q. 176 (1972) Marc Miller, Purposes at Sentencing 66 S C AL L. R EV 413 (1992) Susan Mirmira, Business Law: Lunney v. Prodigy Servs. Co. 15 B ERKELEY T ECH L.J 437 (2000)
188 Hans Joachim Moachler et al. Computer Simulation as a Method of Further Developing a Theory: Simulating the Elaboration Likelihood Model 5(3) P ERSONALITY AND S OC P SYCH R 201 (2001) Allen Newell & Herbert Simon, The Logic Theory Machine A Complex Information Processing System 2(3) T RANSACTIONS ON I NFORMATION T HEORY 61 (1956) Jonathon W. Penney, Privacy and the New Virtualism 10 Y ALE J. L. & T ECH 194 (2007/2008) Lana Penny & Elizabeth Murphy, Rubrics for Designing and Evaluating Online As ynchronous Discussions 40 B RITISH J. OF E DUC T ECH 804 (2009) Jennifer L. Peterson, The Shifting Legal Landscape of Blogging 79 M AR W IS L 8 (2006) Jared Piazza & Jesse M. Bering, Evolutionary Cyber Psychology: Applying an Evolutionary Framework to Int ernet Behavior 25 C OMPUTERS IN H UMAN B EHAV 1258 (Nov. 2009) Richard Posner, The Right of Privacy 12 G A L. R EV 393 (1978) George W. Pring & Penelope Canan, Strategic Lawsuits Against Public Participation ystanders 12 B RIDGEPORT L. R EV 937 (1992) Stephen A. Rains, The Impact of Anonymity on Perceptions of Source Credibility and Influence in Computer Mediated Group Communication: A Test of Two Competing Hypotheses 34 C OMM R ES 100 (2007) Adam J. Rappapor t & Amanda M. Leith, Brave New World? Legal Issues Raised by Citizen Journalism 25 SUM C OMM L AW 1 (2007) Carol Rice, Meet John Doe: It Is Time for Federal Civil Procedure to Recognize John Doe Parties 57 U. P ITT L. R EV 883 (1996) Martin Short et al. Dissipation and Displacement of Hotspots in Reaction Diffusion Models of Crime 107(9) P ROCEEDINGS OF THE N AT L A CADEMY OF S CIENCES IN THE U NITED S TATES OF A MERICA 1943 (March 2, 2010) Bruce P. Smith, Cybersmearing and the Problem of Anonymous Online Speec h 18 FALL C OMM L. 3 (2000) Mark Stellmack, et al. An Assessment of the Reliability and Validity of a Rubric for Grading APA Style Introductions 36 T EACHING OF P SYCH 102 (2009) Lee Tien, 75 O R L. R EV 117 (1996) Michael S. Vogel, Hand Wringing Over Legal Standards 83 O R L. R EV 795 (2004)
189 News Articles Associated Press, Blogger at Center of Lawsuit is Identified N EW Y ORK T IMES Fe b. 4, 2006 BlindGossip, http://blindgossip.com/?p=38847 Carol Cratty, Authorities: Suicide Attack on U.S. Capitol Foiled CNN. COM Feb. 17, 2012, at http://www.cnn.com/2012/02/17/justice/us dc security threat arrest/index.html?hpt=hp_t 1 Wendy Davis, O NLINE M EDIA D AILY Mar. 20, 2009, http://www.mediapost.com/publications/? art_aid= 102465&fa =Articles.showArticle Madison Gray and James S. Snyder, Top 10 Political Sex Scandals T IME Jun. 8, 2011, at http://www.time.com/time/specials/2007/article/0,28804,1721111_1721210_ 1721112,00.h tml Verne Kopytoff, AOL Will Bounce Back, Chief Says Future is Staked on Premium Content Led by the Huffington Post I NTERNATIONAL H ERALD T RIBUNE May 9, 2011 Alison Mitchell, No Majority for Either Charge N.Y. T IMES Feb. 13, 1999, at http://www.nytimes.com/1999/02/13/us/president s acquittal overvi ew clinton acquitted decisively no majority for.html Richard Morgan, A Crash Course in Online Gossip N.Y. T IMES Mar. 16, 2008, at ST7 Susan Saulny, A Defiant Herman Cain Suspends His Bid for Presidency N.Y. T IMES Dec. 3, 2011, at http://www.nytimes.com /2011/12/04/us/politics/herman cain suspends his presidential campaign.html?pagewanted=all Practice Materials John L. Carroll, Accentuate the Positive and Eliminate the Negative (1989), ava ilable at 150 PLI/C RIM 119 David Siegel, Supplementary Practice Commentaries, N.Y. CPLR 3102:5, at 92 (McKinney 2006) Press Releases Press Release, Electronic Frontier Foundation, Lawsuit Demands Answers About Social Networking Surveillance (Dec. 1, 2009), available at http://www.eff.org/press/archives/2009/11/30
190 Restatements of the Law R ESTATEMENT (S ECOND ) OF T ORTS § 559 (1977) Web site references 4chan 4chan http://www.4chan.com (last visited Feb. 18, 2012) 4chan Moderators, 4chan.com FAQ http://www.4c han.org/faq (last visited Feb. 18, 2012 ) BlindGossip, http://blindgossip.com/?p=38847 (last visited Feb. 18, 2012) BlindGossip BlindGossip http://blindgossip.com/?page_id=3022 (last visited Feb. 18, 2012) Metareddit Metareddit http ://www.metareddit.com (last visited Feb. 18, 2012) R/AskScience, R/AskScience http://www.reddit.com/r/askscience (last visited Feb. 18, 2012) Reddit Reddit http:// www.reddit.com (last visited Feb. 18, 2012) Reddit Moderators, Reddit FAQ http://www.red dit.com/help/faq (last visited Feb. 18, 2012) Josh Goldfoot, Sentencing.us: A Free U.S. Federal Sentencing Guidelines Calculator available at http://www.sentencing.us/ (last visited Feb. 18, 2012) Miniwatts Marketing Group, World Internet Usage Statistics News and World Population Stats available at http://www.internetworldstats.com/stats.htm (last visited Feb. 18, 2012)
191 BIOGRAPHICAL SKETCH Kearston Lee Wesner is a licensed attorney and a member of the Texas Bar Association. While obtaining her Ph.D. Kearston taught telecommunications law and business writing at the University of Florida. Kearston holds a Bachelor of Arts in linguistics from the University of Florida and a Master of Arts in linguistics from the University of Texas at Austin. She rece ived her law degree from Cornell Law School.