John Doe subpoenas: toward a consistent legal standard. The Yale Law Journal November 01, 2008 Gleicher, Nathaniel COPYRIGHT 2008 Yale University, School of Law. This material is published under license from the publisher through the Gale Group, Farmington Hills, Michigan. All inquiries regarding rights should be directed to the Gale Group.' NOTE CONTENTS INTRODUCTION I. WHAT IS A JOHN DOE SUBPOENA? A. The Qualified Privilege of Anonymous Speech B. From John Doe Pleading to John Doe Subpoenas C. The Unique Features of John Doe Subpoenas II. DISTINGUISHING ONLINE HARASSMENT FROM TRADITIONAL ANONYMOUS ONLINE SPEECH A. Public Figure Doctrine B. Adapting the Public Figure Standard to Anonymous Online Speech C. Distinguishing Between Chilling and Nonchilling Speech III. EVALUATING THE CURRENT STANDARDS AND DEVELOPING A SINGLE BALANCED STANDARD A. Existing John Doe Subpoena Standards B. Notice and Opportunity To Respond 1. Who Should Be Required To Notify? 2. How Should the Defendant Be Notified? 3. How Long Should the Defendant Have To Respond? 4. An Appropriate Standard for Defendant Notice C. Strength of Plaintiff's Argument 1. Good Faith 2. Survive a Motion To Dismiss 3. Withstand a Motion for Summary Judgment 4. Establish a Prima Facie Case 5. The Problem of Elements that Are Beyond the Plaintiff's Control 6. Heightened Standard for Public Figure Plaintiffs 7. An Appropriate Standard for the Strength of the Plaintiff's Argument D. Relevance of Information Sought E. Specificity of Crime and Evidence F. Balancing the Rights of the Plaintiff and the Defendant G. Exhaustion of Alternatives IV. A SINGLE STANDARD FOR JOHN DOE SUBPOENAS A. Identifying an Anonymous Defendant B. Applying the Standard: AutoAdmit CONCLUSION INTRODUCTION Anonymous speech conjures the image of a pamphleteer who speaks out against corruption, defying the voices of power and publishing anonymously for fear of reprisal. Two centuries ago, pamphleteers worked on printing machines, distributing their words by pony express and stagecoach. Our Founding Fathers debated the makeup of the fledgling United States under pseudonyms. (1) Today, anonymous speakers use blogs, message boards, and online wikis to reach millions of readers. In these new media, which are virtually free of production and delivery costs, anyone can become a modern-day muckraker, exposing scandal and speaking out against fraud from the safety of his or her computer. From anonymous message boards criticizing massive corporations, (2) to citizens who scrutinize elected officials, (3) to websites that enable the anonymous release of government and corporate documents, (4) the Internet has expanded the cape of anonymity to shield an army of pamphleteers. The Internet can keep speakers anonymous, but it can also thrust unsuspecting subjects into the harsh eye of the public. A high school boy who videotaped himself imitating a Jedi, with a golf club in place of a lightsaber, became an international sensation when other students posted his video on YouTube. It quickly became one of the most watched videos on the Internet, spawning a legion of imitations and mashups. The teasing--at school, around town, and online--was merciless. (5) The megaphone of the Internet does not merely magnify socially conscious speech. It also lends casual bullying a global reach. (6) New technology has made harassment more possible and powerful online even as it has empowered modern-day pamphleteers to speak anonymously to ever-growing audiences. Combining these two phenomena reveals the dark side of anonymous online speech. Anonymity increasingly serves as a cover for gossip, defamation, harassment, and even assault on the Internet. Faceless crowds of online tormentors wield virtual pitchforks, carry virtual torches, and hound innocent targets into hiding and out of the online world entirely. (7) The consequences of these attacks can be felt in the real world, impacting targets' personal lives and putting them in fear for their safety. (8) The most common targets are women who are singled out and attacked online with violent threats of physical and sexual assault. (9) Racist, homophobic, and anti-religious attacks are also prevalent. (10) According to Danielle Citron, a key element in the rise of these attacks is that the speakers remain anonymous: "Individuals say and do things online that they would never consider saying or doing offline because they feel anonymous...." (11) Whereas anonymity has been traditionally viewed as a shield for the individual against tyranny, in this context it enables a majority to terrorize the few. The rise of online harassment challenges the traditional justifications for anonymous speech. The most common argument for anonymity is that it increases the ability of people to speak, and protects speech that might not otherwise be heard. Harassment under cover of anonymity, however, can stifle the speech of its targets. Indeed, those overwhelmingly targeted by online harassment--members of social minorities--are those most in need of protection. Silencing the contributions of the targets of online harassment "impoverish[es] the dialogue society depends upon for purposes great and small." (12) Thus, anonymous harassing speech may reduce, rather than enhance, the amount and quality of online speech. Legal enforcement in this vast and changing environment is precariously balanced on a single procedural tool: the John Doe subpoena. Because of the unique structure of the Internet, the identities of most supposedly "anonymous" posters, while impenetrable to the casual observer, are tracked and stored by the websites on which they post and by the Internet service providers (ISPs) that provide them with Internet access. (13) John Doe subpoenas allow plaintiffs to discover the identity of anonymous online speakers from their ISP or from websites they visited. Without a successful John Doe subpoena, a target of anonymous online speech has no way to uncover his or her attackers and no legal remedy. Although John Doe subpoenas are procedural tools, the standards governing them define the extent of First Amendment rights online. A standard that is too permissive severely weakens the ability of citizens to speak anonymously, limiting freedom of speech online. Too restrictive a standard leaves the increasing litany of targets of online harassment with no defense. Only a consistent nationwide standard for John Doe subpoenas will ensure balanced protection for both anonymous online speakers and the targets of anonymous online speech.