Why it matters: On March 2, 2015, a California district court ruled that online social networking site Twitter, a nonparty to an underlying defamation lawsuit, could not be compelled by subpoena to reveal the identities of the two “John Doe” anonymous Twitter users in that case. The court’s decision relied squarely on First Amendment grounds, holding that “the defendants’ First Amendment rights [to speak anonymously] outweigh plaintiffs’ need for the requested information.” This case illustrates the growing tension regarding anonymous speech on social networking sites, between an online poster’s First Amendment right to anonymous speech and a business’s right to find out the identity of a poster whose derogatory comments are harming its reputation and livelihood.
Detailed discussion: On April 25, 2014, Music Group Macao Commercial Offshore Limited (Music Group), a Philippines-based holding company for pro audio and music product brands, filed a complaint in Washington district court against two “John Doe” Twitter users with anonymous accounts under the names of "@NotUliBehringer" and "@FakeUli", respectively. The complaint primarily alleged that the John Does had defamed Music Group and its CEO Uli Behringer by anonymously posting “malicious” comments on Twitter that they “knew to be untrue” about the Music Group’s products and its CEO. Music Group subpoenaed Twitter in Washington district court for the users’ names, addresses and other personal information. When Twitter failed to respond to the subpoena, Music Group filed a motion to compel in the Northern District of California (where Twitter is headquartered). For its part, Twitter “took no position on the merits” of the underlying case and was willing to comply with the subpoena if the court so ordered after making the necessary legal analysis to ensure that the “appropriate First Amendment standard is met and that the [Doe defendants’] right to anonymous free speech is protected.”
In her decision not to enforce the subpoena against Twitter, Magistrate Judge Laurel Beeler began her analysis with the “well-established” principle that the First Amendment protects the right to anonymous speech. Judge Beeler then acknowledged that, where the anonymous speech is alleged to be unlawful, there might be circumstances where the anonymous speaker’s free speech rights are outweighed by the plaintiff’s need to know the speaker’s identity in order to pursue his claim. To assess this balance, the Court used the standard enunciated in the case of Highfields Capital Management, L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005), which provides for a “two-pronged approach” focusing on the “nature” of the anonymous speech. Under the first prong of the Highfields test, the plaintiff must first persuade the court that there is a “real evidentiary basis” for believing that the speaker has engaged in “wrongful conduct that has caused real harm to the interests of the plaintiff.” If the plaintiff is successful in convincing the court under the first prong, then under the second “balancing” prong the court must “assess and compare the magnitude of the harms that would be caused” to the parties’ respective interests if the speaker’s identity were to be disclosed. If the court’s assessment shows that disclosing the speaker’s identity would cause “relatively little harm to the defendant’s First Amendment and privacy rights” but is “necessary to enable [the] plaintiff to protect against or remedy serious wrongs,” then the court should allow the disclosure.
With the Highfields test in mind, Judge Beeler examined the challenged speech in the Music Group case. The Court first looked to the comments made by the "@NotUliBehringer" account, which it determined fell into two categories of derogatory speech. The first category consisted of “direct and indirect commercial criticism of Music Group’s business practices and products” which, the Court found, was legitimate commercial speech that enjoys First Amendment protection. The second category of comments was directed at the CEO—one indirectly accusing the CEO of tax evasion and the other accusing the CEO of “traveling internationally while concealing things inside his body.” Judge Beeler found the first comment to be “troubling,” the second “merely crass,” and both were onetime comments made by someone who had an “obvious grudge” against Music Group’s CEO. Moreover, as the more serious tax-evasion comment was directed at the CEO, who is not a party to the suit, Music Group most likely could not use it to pursue an indirect defamation claim against the John Does. Even if that were not the case, however, the Court said that the tax-evasion comment would fail under the second “balancing” prong of theHighfields test because a onetime “rant” comment would not outweigh the accountholder’s First Amendment right to anonymous speech: “the court is more concerned that breaching the defendant’s anonymity for this single remark would unduly chill speech and ‘deter other critics from exercising their First Amendment rights.’ ” Thus, the Court found that Twitter could not be compelled to reveal the identity of the "@NotUliBehringer" accountholder.
Judge Beeler then looked to the “more serious” comments made by the "@FakeUli" account, which said that the Music Group “designs its products to break in 3-6 months” and “encourages domestic violence and misogyny,” and that the CEO “engages with prostitutes.” The Court found that “[i]f the first comment falls within the realm of legitimate commercial criticism, the last comments are plainly defamatory and are so per se.” The Court noted again that, as the CEO is not a party to the suit, Music Group could not pursue defamation claims on his behalf with respect to the “engages with prostitutes” comment; however, the Court found the comment that Music Group “encourages domestic violence and misogyny” satisfied the “real evidentiary basis” component of the first prong of the Highfields test and moved on to the second “balancing” prong.
While Judge Beeler initially equated the “encourages domestic violence and misogyny” comment to “fighting words and obscenity” that the First Amendment doesn’t protect, a URL attached to the comment leads to a short comedic video promoting one of Music Group’s products (amusingly described by the Court). Judge Beeler concluded that, once the comment is viewed in context with the video, it is clear that the comment was intended to be “joking and ironic” and does not fall out of First Amendment protection simply for being in “poor taste.” The harm to Music Group from the “joke” comment clearly did not outweigh "@FakeUli’s" First Amendment right to anonymous speech, and thus Twitter could not be compelled to reveal his identity.
In reaching her decision not to enforce the subpoena against Twitter, Judge Beeler relied on established Ninth Circuit case law precedent with respect to the First Amendment right to anonymous speech. This is important because another challenge in California to an online user’s right to anonymous speech could be imminent. On April 16, 2015, the Virginia Supreme Court relied on narrow jurisdictional grounds to vacate a state court of appeals judgment that had held online social networking site Yelp in civil contempt for failing to comply with a nonparty subpoena served on it by Virginia-based Hadeed Carpet Cleaning, Inc. (Hadeed). Hadeed had filed a defamation lawsuit in Virginia circuit court in 2012, alleging that three John Doe defendants had falsely represented themselves to be Hadeed customers and posted negative reviews about Hadeed’s carpet cleaning services on Yelp, which had a harmful effect on Hadeed’s business. As in the Music Group case, Hadeed served a subpoena on Yelp in Virginia (where it is registered to do business), seeking information about the identity of the John Doe defendants. The information they were seeking, however, could only be accessed by Yelp employees from administrative databases located at Yelp’s principal place of business in San Francisco. In its decision vacating the court of appeals’ order, the Court never addressed the First Amendment issues argued by Yelp in the lower courts, finding instead that the circuit court in Virginia was not empowered to enforce a subpoena against “non-resident non-parties” for the production of documents located in another state, in this case California.
It would not be surprising for Hadeed to now go after Yelp in California, and indeed Hadeed’s attorney was quoted as saying that they are weighing this option. If he does, however, and as we saw from the Music Group case, Hadeed would come up against established Ninth Circuit First Amendment case law in this area. One of the Public Citizen attorneys representing Yelp seemed to welcome the idea of Hadeed pursuing Yelp in California, saying that “[i]f Hadeed turns to California courts to learn the identities of its critics, those courts will require it to show evidence to meet the well-accepted First Amendment test for identifying anonymous speakers. And so far, Hadeed has not come close to providing such evidence.”
Click here to read the Corrected Order on Subpoenas in the case of Music Group Macao Commercial Offshore Limited, et al. v. John Does, No. 3:14-mc-80328- LB (N.D. Cal.).
Click here to read the Virginia Supreme Court decision in Yelp, Inc. v. Hadeed Carpet Cleaning, Inc. (Va. 2015).