Privacy and technology

Sarkar v. Doe - PubPeer Subpoena Challenge

Last Update: December 12, 2016

What's at Stake

The ACLU filed a motion in Michigan state court challenging the constitutionality of a subpoena issued to the website PubPeer demanding that it turn over the identities of anonymous commenters. In March 2015, the trial judge ruled that PubPeer had to unmask one – but only one – of the commenters. Both PubPeer and the researcher appealed, and the ruling was upheld in December 2016.

PubPeer hosts anonymous discussion of scientific journal articles. A cancer scientist has sued several of those anonymous commenters for defamation and issued a subpoena to PubPeer demanding their identities. The ACLU – along with its Michigan affiliate and Jollymore Law Office, P.C. – challenged the subpoena, arguing that the First Amendment protects the anonymity of PubPeer’s commenters unless the plaintiff can make a preliminary showing of merit to his claims. In the motion to quash the subpoena, filed in December 2014, the ACLU argued that the plaintiff could not make that showing. In March 2015, a Michigan judge ruled that PubPeer is not required to unmask the commenters, save for one. Both parties requested a review by the Michigan Court of Appeals, which upheld the ruling in December 2016.

The appeals court rightly concluded that expressing an opinion on the basis of disclosed facts cannot be defamatory as a matter of law, and that anonymous speakers therefore cannot be unmasked simply for making such statements. Based on the ruling, PubPeer does not have to expose anything about any user to the researcher.

PubPeer’s website is just the most recent example of the value of anonymity. It was launched in 2012 by a group of scientists who felt that the merits of scientific research should be discussed openly, without fear of recrimination from other members of the scientific community. It has accomplished that mission principally by allowing the scientists who post on its site to do so anonymously. This provides them the freedom necessary to contribute candid comment and debate on research methods, developments, results, and new directions without fear that they might alienate colleagues, compromise their own careers, or poison their professional relationships. Shielded by that anonymity, PubPeer’s commenters have in turn produced a steady stream of discussion and debate of the work of their peers, at times resulting in the modification or retraction of high-profile research.

The subpoena to PubPeer jeopardizes the anonymity essential to PubPeer’s mission and, importantly, protected by the First Amendment. The constitutional right to anonymity is not absolute, but it protects anonymous speakers from being unmasked unless those suing them can make out a preliminary showing of merit to their legal claims. That protection is essential to ensuring that the right to anonymity continues to serve – as the Supreme Court has long observed – as "a shield from the tyranny of the majority."

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