Defamation and John Does: Increased Protections and Relaxed Standing Requirements for Anonymous Internet Speech

I. INTRODUCTION* With the onslaught of Hogging and discussion forums on the Internet, the marketplace of ideas has undergone a dramatic expansion.1 One commentator has suggested that "the Internet may ... be the greatest innovation in speech since the invention of the printing press."2 Another has praised the democratizing effects of the Internet, observing that "[t]he Internet is a democratic institution in the fullest sense. It serves as the modern equivalent of Speakers' Corner in England's Hyde Park, where ordinary people may voice their opinions . . . ."3 One reason that the Internet facilitates speech so effectively may be that it makes it incredibly easy for a speaker to veil his or her identity while simultaneously reaching a vast authence, which was previously difficult, or even impossible with a traditional flier or handbill. At least one court has noted the value of anonymity on the Internet. The free exchange of ideas on the Internet is driven in large part by the ability of Internet users to communicate anonymously. . . . Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas. . . . For this reason, the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.4 However, other commentators have argued that anonymity decreases speaker accountability and therefore increases the potential for "irresponsible, malicious, and harmful communication."5 The flash flood of anonymous speech that has surged into the cyber marketplace of ideas has brought with it complex legal issues that have challenged existing First Amendment doctrines in many areas, particularly in regards to the issue of potentially defamatory anonymous speech. One commentator noted, "[A]s the Internet turns more ordinary John Does into publishers, it is also turning them into defamation defendants."6 These defamation cases have ranged from derogatory sexual comments directed at unsuspecting college students,7 to political criticism of company policies.8 In such cases, aggrieved plaintiffs have sought to unveil the identity of the allegedly defamatory speakers through a court order. However, the difficulty in making such a determination about a speaker's identity is that "the decision is usually made at the outset of litigation, before a full record may be developed," and this is a "critical, and often outcome-determinative, decision. "9 In light of these issues, this Comment seeks to address two important questions that the Supreme Court has yet to answer. First, what must a private plaintiff do in order to discover the identity of a speaker through the use of a civil subpoena in a defamation action;10 and second, which parties have standing to assert the rights of anonymous speakers on the Internet? This Comment answers these questions by proposing a new test to balance the competing interests presented in this area of the law and by arguing that third-party standing requirements should be relaxed to prevent speech from being chilled. In Part II, this Comment analyzes the legal development of defamation law and the most recent case law dealing with anonymous Internet speech. In Part III, this Comment argues that current standards are insufficient to protect the rights of anonymous speakers and, further, that third-party standing requirements should be relaxed so that more powerful organizations, like Internet service providers ("ISPs"), trade organizations, communication forums, or even press organizations are able to assert the protections that are afforded to anonymous Internet speakers. Part III also proposes solutions to meet the competing interests presented in this area of the law. Part TV provides a brief conclusion. II. LEGAL DEVELOPMENT This Part proceeds in four Parts. Part A discusses First Amendment protections of anonymous speech. Part B looks at the evolution of defamation law. …