In Two Significant Cases, ACLU Seeks to Protect Anonymous Online Speakers from Legal Intimidation

February 26, 2001

FOR IMMEDIATE RELEASE

SEATTLE--In two legal actions involving free speech and privacy rights online, the American Civil Liberties Union today came to the defense of anonymous speakers who face legal intimidation from those they criticize in cyberspace.

The first case, filed today by the ACLU of Washington State and the Electronic Frontier Foundation (EFF), asked a federal court here to quash a subpoena that would force an Internet service to disclose the identity of a person who spoke anonymously on an Internet bulletin board.

In the second case, the ACLU today submitted its appeal in Melvin v. Doe, a challenge to a Pennsylvania appeals court judge's attempt to use the courts to try to ferret out the identify of her critic.

Underscoring the proliferation of such lawsuits, Internet giant America Online submitted its own legal brief in the Melvin case today, saying it had handled approximately 475 such subpoenas last year, more than one per day. Attempts to intimidate online critics by filing such actions constitutes "an illegitimate use of the courts to silence and retaliate against speakers," AOL said in legal papers.

In the Washington case, the ACLU and EFF are representing J. Doe (a pseudonym) in seeking to block a subpoena by 2TheMart.com, Inc., which is currently defending itself against a class-action lawsuit alleging securities fraud by company officials.

The subpoena seeks to uncover the identities of 23 speakers who used pseudonyms in participating on the Silicon Investor Web site owned by InfoSpace. The motion to quash the subpoena was filed in U.S. District Court in Seattle.

This case differs from many other Internet anonymity cases, the ACLU said, because J. Doe, who used the pseudonym "NoGuano," is not a party to the case, and no allegations of liability against Doe have been made.

While Doe does maintain a Silicon Investor account, Doe never made any statements about 2TheMart, nor has Doe ever posted on Silicon Investor's 2TheMart message board.

"The courts should not allow subpoenas to be used for 'fishing expeditions' when individuals' First Amendment rights are at stake. The chilling effect on free speech would be catastrophic," said Lauren Gelman, Director of Public Policy for the Electronic Frontier Foundation, a civil liberties organization working to protect rights in the digital world.

Aaron Caplan, a Staff Attorney with the ACLU of Washington, noted that people commonly use pseudonyms when speaking on the Internet. "This promotes a diversity of viewpoints in cyberspace," he said. "The right to speak anonymously on an Internet bulletin board should be upheld just as is the right to distribute a leaflet using a pseudonym."

John Doe is being represented by ACLU staff attorney Aaron Caplan and Cindy Cohn, legal director and senior staff attorney for EFF. Their legal brief along with further details on the case, can be found at the EFF Web site at http://www.eff.org and the ACLU Web site at http://www.aclu-wa.org.

The Melvin case arose when Allegheny County State Superior Court Judge Joan Orie Melvin found comments critical of her on a website entitled "Grant Street 1999." The website author accused the judge of lobbying on behalf of an attorney seeking a judgeship. Melvin then filed a defamation lawsuit seeking disclosure of the author's name.

Ann Beeson, Staff Attorney with the national ACLU, noted that in many of the defamation cases the ACLU has handled, individuals felt their speech was "chilled" by the threat of a lawsuit -- often brought by deep-pockets corporations or powerful individuals -- and by the threat of disclosure.

A lower court agreed in a November 2000 ruling, saying that identity may not be disclosed until the anonymous speaker has had an opportunity to prove that the defamation lawsuit is without merit. But the ACLU did not prevail in its specific argument that the case should be dismissed. That issue is central to today's appeal.

The ACLU's appeal to the Supreme Court is online here (PDF)

A previous news release on the Melvin case, with a link to the lower court brief, is available here.

The America Online amicus brief is also available on the ACLU website here (PDF)

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