People have many reasons
to be anonymous online, from the political to the personal. One of the
most contentious uses of anonymity is in consumer reviews—some reviewers
feel they need the protection of anonymity to post the truth, while
some businesses claim that it fuels irresponsibility. But the First
Amendment protects anonymous speech online, just as it protects the choice to hand out political flyers in person without identifying oneself.
In an amicus brief
just filed in the Virginia Supreme Court, EFF explains how the law
protects everyone when disagreements about anonymity move from the
Internet to the courtroom.
This case concerns reviews of Hadeed Carpet
Cleaning, a business in Alexandria, Virginia, posted on the review site
Yelp. Hadeed filed suit against the unknown authors of seven reviews
that were critical of its business. In order to proceed, Hadeed served
Yelp with a subpoena to discover the identity of the seven John Does.
Hadeed alleged that it had checked its customer database, and the
reviews did not correspond to any actual customers. Hadeed claimed that
because the Does weren’t customers, their negative reviews were false
and therefore defamatory.
Yelp objected, in part, on the grounds that the subpoena did not
satisfy the constitutional requirements to protect the authors’ First
Amendment right to anonymity. However, both the trial
court and the court of appeals held that Hadeed had satisfied Virginia’s
statutory procedure for unmasking anonymous speakers and denied Yelp’s
motion to quash. Now the case is on appeal to the Supreme Court of
Virginia.
At first blush, it might seem odd that the
constitutional protection of free speech would also apply to a speaker’s
choice to be anonymous. But in fact, the Supreme Court has repeatedly
explained that anonymity is so important to our discourse that it should be protected by the First Amendment.
The rule has both historical and political grounding. As the Court put it
in 1960, anonymous pamphlets and books “have played an important role
in the progress of mankind.” Of particular note are the many anonymously
published documents from the founding era of the United States, such as
the Federalist Papers, which were crucial in the framing and
ratification of the Constitution itself. Perhaps more important, the
Court explained that remaining anonymous can protect speakers with
unpopular opinions from the tyranny of the majority, which fulfills a core purpose of the Bill of Rights. In essence, protections for anonymity strengthen democracy.
From parody Twitter accounts to message boards for
LBGTQ youth, the Internet is a natural home for anonymous speech. But
detractors are quick to point out that anonymity makes it harder to hold
authors of objectionable speech accountable. Internet users who post
defamatory reviews shouldn’t be able to hide behind a veil of anonymity,
they say.
It’s a valid concern, one that is embodied in First
Amendment law itself. That’s why the right to anonymity is “qualified,”
not absolute. But with so much of the law, the difficulty is in how to
set the balance. Because the right to anonymity is so crucial in
ensuring robust public discussion—a core First Amendment value—it should
be given real weight. Anonymous speakers must be protected from
harassment by plaintiffs who simply don’t like their message. On the
other hand, valid lawsuits shouldn’t be stopped in their tracks just
because the defendant is anonymous.
EFF has played an active role
in helping courts set this balance, and we’ve stepped in to defend
anonymous speakers who are unfairly targeted. As we argue in the new
brief, the consensus that has emerged strikes a fair equilibrium:
plaintiffs who seek to unmask an anonymous speaker must provide evidence
to the court that their case is a strong one. Courts have slightly
different ways of phrasing this requirement, but it is essential that
they feel satisfied with the plaintiff’s evidence before they order an
anonymous speaker to be unmasked.
Therein lies the problem with Hadeed’s claim
against the anonymous Yelp reviewers. Hadeed alleged that the reviewers
aren’t actually customers, but the lower courts didn’t require it to
provide proof. Nor did Hadeed show how the reviews were defamatory.
Whether or not what Hadeed claimed was enough under Virginia law, the
First Amendment requires significantly more evidence of defamation. We
hope the Supreme Court of Virginia will agree.
A special thanks to Matthew Erausquin and the firm of Consumer Litigation Associates, PC for acting as our local counsel in this case.
