December 5, 2013
Revisiting the “Anonymous Speaker Privilege”
Over the past few years federal and many state courts have generally adopted a new discovery privilege. This privilege protects against the disclosure of the identity of a “John Doe” defendant whose anonymous online speech has given rise to a claim of defamation, copyright infringement, or other civil wrongdoing. The privilege can be overcome, but only if the plaintiff meets a higher evidentiary standard than is required by the ordinary rules of pleading. That higher standard requires the plaintiff to prove the existence of a prima facie case, at least, if not more. In some instances, the plaintiff must submit to the court sufficient evidence to survive a motion for summary judgment before he can discover the identity of the alleged wrongdoer. This Article argues that this discovery privilege, derived from the principle that the First Amendment prohibits governments from requiring identification as a precondition to speech, does not, in fact, follow from that principle. But a discovery privilege against the disclosure of the identity of a John Doe defendant does fit squarely within the First Amendment’s long-standing “associational privilege.” This Article discusses how the associational privilege can and should be adapted to fit the online world.