Score one for the Doe v. Cahill standard

The Arizona Court of Appeals is the latest court to embrace the Doe v. Cahill standard for protecting anonymous speech on the Internet. See Mobilisa, Inc. v. Doe, — P.3d —-, 2007 WL 4167007 (Ariz. App. November 27, 2007).

Under that standard, when a plaintiff seeks to unmask an anonymous internet speaker, the plaintiff must show that his case can overcome a motion for summary judgment. Otherwise, the speaker’s anonymity remains intact.

This is an excellent compromise between anonymity and the rights of anyone who feels that they have been legally wronged. Unfortunately, the Doe v. Cahill standard is under constant attack – and from some unlikely quarters. I believe that it must be defended by any and all who believe in the First Amendment.

Anonymous speech is vital to a free society, and is the lifeblood of core political speech. The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”).

Without anonymous speech, there would likely be no United States of America. Neither Alexander Hamilton nor Benjamin Franklin affixed their names to their missives that fed the fires of the Revolution. If they had, they likely would have perished in the hangman’s noose or in King George’s dungeons. The Federalists and Anti-Federalists alike were forthcoming in their political debates because they were shielded by their pseudonymity.

Today, political dissidents, corporate whistle-blowers, and other guardians of liberty often speak only because they feel free to do so under the cover of anonymity. Without the ability to speak anonymously, the marketplace of ideas would feel a chilling wind blow through it, and more than a few members would close up shop.

Yes, sometimes bigots, defamers, and just plan jerks hide behind the shield of anonymity. But that is the price of freedom – tolerating the freedom of others that you hate. Those who are merely espousing pernicious views do not threaten me — because I know that my ideas can stand in opposition to theirs.

Unfortunately, many are a little bit myopic when it comes to anonymous speech. See, e.g., Calling for Harm to the First Amendment.

I’ve heard many other voices calling for an end to internet anonymity. Some come from the right wing — from the perspective that free speech is harmful to the current power structure. (And some from people I really like. See my debate with Ron Coleman on this issue here.

Others come from large media corporate types, like James Goodale (my former hero), who I see as feeling threatened that his beloved New York Times may lose its hegemony if the marketplace of ideas is given to the rabble, and not controlled by the media oligarchs. Goodale recently (and simple-mindedly) called for an end to Section 230’s protection of anonymous speech because the Plaintiffs in the AutoAdmit witch hunt may not be able to find their defendants. I’d think that Mr. Goodale would have done a little more research before tossing out such a clueless proposition. See Yale Law School Students May Be Out of Luck, 238 New York Law Journal (Dec. 7, 2007).

Speaking of clueless, the most terrifying rising threat to free speech is (once again) coming to us from the left. We now hear anti-free speech rhetoric from those who would destroy the First Amendment “just for their cause.”

The common thread among all of these who wish to stamp out anonymous speech is “the modern world is different.”

This is dead wrong, and that thread should be snipped off before it unravels the warm blanket that is the First Amendment.

The question of anonymous speech has been reconsidered in light of modern technology. Doe v. Cahill is widely accepted by courts as the blueprint for how to handle this issue. The Cahill court held that a plaintiff in a defamation action must provide evidence sufficient to overcome a motion for summary judgment before unmasking an anonymous speaker. That seems to adequately protect both anonymity and the reputations of those who are victimized by unfair attacks. This is the standard that the Arizona court employed, and the standard that will smother a lot of witch hunts in their cradles — while allowing non-frivolous cases to move forward.

Yet that is not enough for some. Those who are comfortable in their positions in life, and who do not wish to see the status quo change prefer to require all to identify themselves before speaking. Sometimes, the justifications sound quite reasonable. A lot of slime hides behind anonymous speech on the internet. Should the klansman, the nazi, or the maoist, be permitted to speak anonymously?

The First Amendment crusader in me must defend even these worms. Yes, their freedom must be protected and is important for all of us.

What is the value in the anonymity of such devils? When repugnant ideas are brought forth, it gives the rest of us a chance to tear them down. The marketplace of ideas cannot function if we must have a black market.

Justice Holmes wrote:

When men have realized that time has upset many fighting faiths, they may come to believe that the best test of truth is the power of the thought to get itself accepted in the competition of the market. That at any rate is the theory of our Constitution. Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J. Dissenting).

This is the bedrock principle upon which our freedoms all rest. I may know “the truth,” but my truth must stand in opposition to a competing version of the truth. The marketplace of ideas, if allowed to flourish, will produce a desirable result. Justice Douglas reminded us if this in Dennis v. United States where he described American communists as “miserable merchants of unwanted ideas; their wares remained unsold” Dennis v. United States, 341 U.S. 494 (1951). See also John Kearnes, The Poetics of Religion and Speech in the First Amendment .

The customer decides the legitimacy of the idea not the government. The role of government now becomes to protect the process not the outcome. Bad ideas like shoddy goods will be appraised by the consumer, the government must insure only that the market functions fairly. (source)

Anonymity ensures that the marketplace will have more wares to sell, or to remain on the shelves covered in the dust of time tested truth.

Of course I would wish that everyone could sign their name to their opinions as I do. However, I bask in the glory of my privileged station in life. I am a First Amendment attorney. I can represent myself. I will not be fired from my job for speaking my mind, and if I were, I could start my own practice. In short, I can say what I like, but I am fortunate. I am far more fortunate than most.

Consider the academic who may have a legitimate critique of affirmative action. Will she not be branded a bigot? Will that not be the kiss of death in the orthodox world of higher education? How about someone who may wish to speak out against the Israeli government? Does that not get the speaker painted with the unfair brush of anti-semitism? What of the pro-gay-rights speaker? Can he not find himself tarred with an unwelcome and untrue label that could be professionally disastrous in certain closed-minded circles? One need not peer into the distant past to remember a time when being anti-war meant being anti-American.

Not everyone is fortunate enough that they can speak their mind without fear of losing their job or their status. I wish that I could bestow such courage on all of my fellow citizens, but I can not. The man with a mortgage and mouths to feed will certainly prefer to keep a roof over his children’s heads to exercising his civic duty. Nevertheless, he may have a valuable ware to sell in the marketplace of ideas.

Those with axes to grind are annoying. So are those who abuse the privilege of anonymous speech. However, Doe v. Cahill created a mechanism to unmask those who are truly polluting the marketplace of ideas. Kudos to the Arizona Court of Appeals for preserving the marketplace’s integrity. Shame on Mr. Goodale and those who would stamp out the fire of freedom so that they need not be annoyed by ideas that confront their own.

Hat tip to Evan Brown and Ron Coleman

A big salute to Sam Bayard. He lambastes the formerly-respected Mr. Goodale here.

One Response to Score one for the Doe v. Cahill standard

  1. Sam Bayard says:

    I thought you might be interested in my post about the Goodale article:
    http://www.citmedialaw.org/blog/2007/goodale-cda-230-and-anonymous-speech-online

    Best,
    Sam Bayard
    Assistant Director, Citizen Media Law Project

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