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Journal of Technology Law & Policy

Document Type

Article

Abstract

While this Article is interested in the law of anonymous speech generally, it is more interested in how and whether courts acknowledge and comprehend the complexity of anonymous speech actions, particularly in online contexts. However, because courts will grapple with online anonymous speech cases now and in the future, they will be compelled to take their cues from larger and still-developing social norms regarding online speech and the developing social norms for speaking anonymously online. Exactly what kind of online anonymous speech should be allowed to retain its mask is, in many ways, only now being worked out, both in the courts and in society overall.

Solers, Inc. v. Doe points more clearly toward these dilemmas. In Solers, an anonymous tipster used an online forum run by the Software & Information Industry Association (SIIA) to tell the software industry that Solers, a defense contractor company, was pirating software. The SIIA is a trade group for software and information businesses. Solers denied that it was using pirated software, and the software association did not pursue the accusation by the anonymous poster. Solers sued the association for the poster’s name so that it could pursue a separate action against the poster for defamation and tortious interference, but the SIIA refused to reveal it. The case was appealed to the United States Court of Appeals for the District of Columbia in August 2009. The court ruled for the SIIA and prevented the outing of the anonymous online defendant. It combined several lower court decisions to create a new test for the unmasking of anonymous online defendants.

The Solers court was careful to note the significant and longstanding traditions and protections for anonymous speech in U.S. law. It cited one of the leading U.S. Supreme Court decisions on anonymous speech, McIntyre v. Ohio Elections Commission, an Ohio case that was heard by the U.S. Supreme Court in 1995. In this case, the Court wrote, “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.”

It is those traditions that inform this Article because those longstanding cultural practices are likely to influence judicial opinion in the future. Thus, this Article seeks to unpack the cultural motivations for anonymous speech in an effort to understand why speakers seek the mask of anonymity and what benefits and drawbacks accrue to such a dialogic. The Article also examines court opinions to consider how and whether the law should reflect cultural practice and developing social norms. Following in tradition of the legal realists and more recent “second wave” critical legal scholars, it makes the assumption, as did Justice Oliver Wendell Holmes did in 1881, “[t]he life of the law has not been logic: it has been experience.” The goal of this Article is to enhance the debate about the scope of protections for anonymous speech in the digital age.

As such, this approach benefits from an interdisciplinary study of the law. The research is largely a product of two investigative methods. First, the approach reflects an interdisciplinary investigation of the literature on anonymous speech, primarily in the fields of literature studies, political science, history, psychology, and communication. This literature offers a reflection of society’s direct engagement with anonymous speech, offering “real world” examples of such discourse in practice. Secondly, the Article reflects a close reading of three U.S. Supreme Court cases on anonymous speech, McIntyre v. Ohio Election Commission, Watchtower Bible and Tract Society of N.Y., Inc. v. Village of Stratton, and Doe v. Reed. The U.S. Supreme Court Justices in these cases identify motivations for anonymous speech and the conditions under which it is likely to receive protection. These cases represent a starting point for discussion about how and whether the Court recognizes the multitude of anonymous speech practices.

Part I operationalizes how communication scholars and others define anonymous speech and its consequences, and serves as a basis for thinking about the role of anonymous speech in law. Part II and III use the interdisciplinary literature to address the origins and longstanding traditions of anonymous speech and identifies the motivations for engaging in such practices. Part IV examines three U.S. Supreme Court decisions to address whether and how the law reflects those cultural practices identified in the literature. Part V concludes with a discussion about the gap between cultural and legal practice regarding anonymity, particularly in online contexts.

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