Free Speech

First Amendment Protections for Anonymous Speakers Apply to Foreign Speakers

So holds a district court, in a copyright case brought by the Jehovah's Witnesses against a Reddit commenter.

|The Volokh Conspiracy |

In In re DMCA Subpoena to Reddit, Inc., 2019 WL 2222041 (N.D. Cal. May 17), the Watch Tower Bible & Tract Society of Pennsylvania—the Jehovah's Witnesses organization—claimed that a commenter on a Reddit forum for ex-Jehovah's-Witnesses infringed Watch Tower's copyrights in a couple of items. They sought a subpoena to discover the identity of the commenter (who had posted under the pseudonym Darkspilver); Darkspilver sought to block the subpoena, arguing that the First Amendment protected his anonymity, but Watch Tower argued that he lacked First Amendment rights because had had admitted that he lived from outside the U.S., and was presumably posting from outside the U.S. But the court rejected that argument:

For support, Watch Tower cites two cases evaluating different constitutional provisions – the Fourth and the Fifth Amendments. See Johnson v. [Eisentrager], 339 U.S. 763 (1950) (Fifth Amendment); United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Fourth Amendment).

In Johnson, the Supreme Court held that military prisoners captured abroad were not entitled to protection under the Fifth Amendment because they were: (a) enemy aliens; (b) had never been or resided in the United States; (c) were captured outside of the United States and held in military custody as war prisoners; and (d) were tried and convicted by a Military Commission sitting outside the United States for war crimes committed abroad…. In United States v. Verdugo-Urquidez, … the Court rejected the exterritorial application of the Fourth Amendment to a search conducted in Mexico of a Mexican resident and citizen's homes.

In contrast, here, the constitutional right at stake is a different constitutional amendment – the First Amendment – and the asserted violation does not concern merely extraterritorial conduct. The subpoena here was issued by a Court in the United States, on behalf of a United States company (Watch Tower) and was directed against another United States company (Reddit).

Moreover, the First Amendment protects the audience as well as the speaker…. Although the exact percentage of subscribers to Reddit forum who live in United States is unknown, the only data before the Court suggests that a substantial number are United States residents. Based on the involvement of the United States Court's procedures by and against United States companies and the audience of United States residents, as well as the broad nature of the First Amendment's protections, the Court finds that the First Amendment is applicable here.

The court went on to conclude that the proper First Amendment solution here was to allow disclosure of Darkspilver's identity only to plaintiff's lawyers, who would be obligated not to disclose to their client. Though Darkspilver might have a strong fair use defense,

Nevertheless, Watch Tower has not yet had a chance to conduct discovery on its copyright claim or to engage an expert to conduct a market analysis. Perhaps Watch Tower, if provided the opportunity, could demonstrate that fewer people visited its website after Darkspilver's posting. The Court is hesitant to deprive Watch Tower of the opportunity to develop its claim and supporting evidence before it has even filed suit.

In balancing the harms, while considering the fair use defense, the Court finds that they tip sharply in Darkspilver's favor. However, the Court notes that Darkspilver's concerns stem largely out of his fear that those in his congregation will discover his identity and shun him. If Reddit reveals Darkspilver's identity to Watch Tower's counsel, under an "attorney's eyes only" restriction, then any harm to Darkspilver would be alleviated. This restriction would enable Watch Tower to pursue its copyright claim without causing harm to Darkspilver.

Therefore, the Court hereby grants in part and denies in part Darkspilver's motion to quash. Reddit shall respond to the subpoena and provide the requested information to Watch Tower's counsel. However, only attorneys of record in this matter may obtain information about Darkspilver's identity. Watch Tower's attorneys of record shall not to disclose Darkspilver's identity to anyone else without approval in a Court Order from this Court. For example, Watch Tower's attorneys of record may not disclose Darkspilver's identity even to its client, staff, or expert witnesses without approval in a Court Order from this Court.

[Footnote: Watch Tower claimed at the hearing that it plans to disclose Darkspilver's identity to its forensic experts so that Watch Tower can determine how Darkspilver obtained confidential information in the chart and prevent further disclosure of that confidential information. This purpose is not related at all to a copyright issue, and for that reason, the Court rejects that form of disclosure.]

If Watch Tower elects to file a lawsuit against Darkspilver, the Court directs Watch Tower to seek to file the suit under his pseudonym and to keep his actual identity under seal, for attorney's eyes only. Moreover, Watch Tower is admonished that any violation of this Order will be sanctioned and that this Court retains jurisdiction over any potential violation of this Order.

EFF (Alex Moss) has more on this, arguing that the order should have entirely rejected the subpoena:

While the court agreed that "Watch Tower has not demonstrated any actual harm or likelihood of future harm"—the fourth fair use factor—it gave undue credence [to] Watch Tower's claim that "the harm it suffered from people infringing on its copyrights was directing others away from its website." … Based on the court's approach, the [First Amendment] standard offers weak protections for fair users. Even a far-fetched theory regarding a particular fair use factor, like the one posited here, might be enough to justify disclosure even if the rest of the fair use analysis clearly suggests the use was lawful.

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  1. I think the key point about the 1st amendment is that it prohibits Congress from doing certain things, PERIOD, and doesn’t have squat to say about who they can’t be done to.

    Because they can’t be done, PERIOD. So who they might be done to is utterly irrelevant.

    The Executive can’t do them, either, because in most areas the executive gets it’s authority to do things on the theory that it’s executing a law passed by Congress.

    1. But only those who possess rights can sue over them in court. A fetus can’t make a claim that abortion squelches its future First Amendment rights, for example, or a claim that (say) government involvement in approving an abortion drug or something violates its rights. And the fact that (say) a fetus’s father is affected doesn’t give him standing to sue on the fetus’ behalf.

    2. Careful, Brett – next you’ll be applying that to equal protection for noncitizens!

      1. Of course equal protection extends to non-citizens.

        1. So a Muslim ban would be unconstitutional, eh?

          1. No, but a law or policy that crimes against Muslims wouldn’t be prosecuted would be unconstitutional.

            They’re entitled to equal protection, but getting to immigrate here isn’t protection. It’s a privilege.

            And privileges and immunities are reserved for citizens.

            1. But the Establishment Clause is a limit on what government can do, Brett.

              Anyway, be careful, pretty soon you’ll admit that “persons” actually means “persons,” and not “white heterosexual males.”

                1. I am a bit puzzled over why the commenting software decided to convert that last paragraph into a link.

          2. Another obvious reply to what Sarcastro is really implying is that the policy he is objecting to was not a “Muslim ban”. It was a moratorium on immigration from countries that:
            1. Produced a disproportionate number of terrorists; and,
            2. Had a broken system for weeding dangerous people out of the Visa granting process.
            Something like 85% of the world’s Muslims were not in any way affected.

            1. Yeah, I’m speaking to the particular thesis that a Muslim ban would be legal, not the separate argument that it wasn’t a Muslim ban.

    3. Rape cover-ups by Jehovah’s Witnesses as exposed on NBC Dateline: https://www.youtube.com/watch?v=tbKXj8R4_X8&t=4s

  2. “Here’s some relevant facts. But for the attorneys’ eyes only!”

    Something doesn’t seem right about this. The attorney derives power from the people hiring them who are actually in the court case.

  3. This appears to me to lead to a line of argument that leads inexorably to a de facto overturning of Roe v. Wade.

    The Due Process Clause lacks “prenatal application.” But if it nonetheless applies full-force in the abortion context to everyone born who might merely be affected by an abortion, they could sue and have their cases tied up in the courts indefinitely, or at least until the pregnancy comes to term and the case is moot.

    It seems to me that a service provider who merely publishes comments without editorial control has diminished First Amendment rights, as the person to be sued, the one who is responsible, is supposed to be the poster, not the service provider. So if the poster has no First Amendment rights, I think the plaintiff may have a good claim.

    You could reach a similar result alternatively by making it a matter of statutory interpretation, saying that the substance of the Copyright statute is narrowed by the First Amendment, but that same statute applies equally narrowly everywhere.

    But this sort of you-can-get-around-the-limit-on-applicability-by-saying-It-applies-if-anyone-applicable-is-affected merely provides a recipe for overturning Roe v. Wade by getting around the limit on the Due Process Clause’s applicability to a fetus. If Roe is good law, this can’t be the right decision. And vice versa.

  4. I’m curious about the background to this case.

    Did Watch Tower send a DMCA takedown request to the ISP to remove the offending material before seeking this subpoena? Did the offender respond to the DMCA, or did the ISP refuse to take down the material?

    That is typically the first step when dealing with copyright infringement and the steps taken (or omitted) would say a lot about the parties’ motivations.

  5. I think it’s Johnson v. Eisentrager, not Johnson v. Eistrager.

    1. It is — the court decision miscited it, but on reflection I agree that it’s better to correct it, so I’ve revised the quote and added brackets to note the change.

  6. While the court agreed that “Watch Tower has not demonstrated any actual harm or likelihood of future harm”—the fourth fair use factor—it gave undue credence [to] Watch Tower’s claim that “the harm it suffered from people infringing on its copyrights was directing others away from its website.”

    The opinion is actually worse than that. This judge does not understand the fourth factor of the fair use doctrine. (She properly found the first three factors weigh in favor of fair use.) The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” IOW, if the use takes away from the market for the copyrighted work, that weighs against fair use.

    But, and this is critical, case law (IIRC the Supreme Court already has said this), this only means effects based on substitution of the copied work for the copyright owner’s work . It does not mean detracting from the market value based on criticism.

    Two examples illustrate this. If I post a movie on Youtube and then the studio loses revenue because people watch it there free, that weighs against fair use. That is a substitution loss.

    But if I write a negative review about a movie, and take snippets of it as part of my review, and then the revenues go down because people say, hey, that critic says the movie stinks, so I am going to watch something else, that is NOT a negative effect that counts for fair use.

    This is a classic case of fair use, and a classic case of abuse of copyright to silence criticism. Shame on the judge for blowing this.

    I read the opinion. Nothing there indicates that the JW’s are going to lose anything because of substitution. The copyrighted work is an advertisement (they don’t sell it for money like a movie). And the harm of traffic to their website is from criticism, not substitution.

    1. The Supreme Court case I was thinking about was Campbell v. Acuff Rose, where the Supreme Court considered parody:

      We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because “parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically,” B. Kaplan, An Unhurried View of Copyright 69 (1967), the role of the courts is to distinguish between “[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.”

  7. Professor Volokh,

    As you know I have been commenting on your blog for many years. Years ago, I raised the issue of a structural similarity between Johnson v. Eisentrager and Roe v. Wade, to suggest that one day the Supreme Court would find itself confronting the issue head on and, if the court had a conservative majority, would end up substantially equating the two. Both abortion and the treatment of foreigners involve a conflict between moral ideals and the realities of people and nations putting themselves first and doing what they think is necessary to get ahead in the world.

    So here we are, a court decision, in the 9th circuit no less, that begins by assuming that the word “person” in the Bill of rights doesn’t apply to foreigners and they themselves have no First Amendment rights.

    And so the judiciary puts itself in a bind. The easier it is to get out of foreigners’ lack of rights by legal stratagems, without actually overturning Johnson, such as finding a citizen who claims to be a beneficiary who then has standing to assert the rights the foreigner has, the easier it becomes to get out of Roe v. Wade by without actually overturning it employing similar stratagem in that context.

    And the more the courts defend Roe, the more applicable those defenses become to the Administration’s treatment of foreigners.

    Once you equate the two as a structural legal matter, structural legal equality inexorably leads to moral equality.

    You can’t say foreigners are only technically non-persons, not really, without elevating the arguments of those who say the same about fetuses. And you can’t say non-applicability of the word “person” means equivalence to a mere piece of meat in the abortion context, without some of that reasoning inevitably blowing back to cases involving foreigners.

    If US-territory persons have an interest in hearing what a foreigner has to say sufficient to give the foreigner standing, it’s hard to see why born persons wouldn’t have some similar sort of interest in a fetus’s life.

    1. ReaderY, I suggest different reasoning. Two things can be different, and considered according to their differences, despite detectable patterns which seem to link them. Sometimes, it is okay to ignore patterns which seem to suggest similarity, and a lot of the time it is better to do so.

      More generally, perhaps we should consider whether the practice of law, especially, takes argument by analogy too far. I think it would be hard to find any other field where analogies are so highly prized, or so heedlessly trusted.

      Almost invariably analogies are imperfect, and more often than not, incapable of passing the test that ought to be applied every time: whether after a similarity is noted by analogy, the analogy can be subtracted from the argument, and leave standing a coherent argument that can be made without any reference to the analogy. If facts and reasoning led to agreement on proposition A—which was arrived at without analogy—why can’t those same facts and reasoning, standing alone, prove proposition B, if it is in fact analogous? The short answer, in far too many cases, is because the supposed analogy is bogus.

      Everyone who begins a case (at law, or as a matter of reason) with an analogy, ought, at the end of the case, be required to remake the case without reference to the analogy. Arguments which cannot pass that test ought to be treated as failures.

  8. Would 1A-protected anonymity for foreigners enshrine foreign election interference online as a constitutionally protected right for everyone in the world?

    1. I think we really need to distinguish between election ‘interference’ and campaign ‘interference’; The “election” consists of the mechanics of voting, while the “campaign” is speech concerning the candidates and issues.

      These two have been extensively confused with the aim of creating the impression that the 2016 election was rigged, and thus the outcome was invalid.

      I see no particular problem with permitting foreigners to talk about our candidates and issues, even to talk about them with potential US voters. What’s to be afraid of? A persuasive argument?

  9. Perhaps, just to be sure, we can adopt a constitutiona provision like they have in Chapter 33 of the Mexican Constitution: “Foreigners may not in any way participate in the political affairs of the country. ”

    https://www.oas.org/juridico/mla/en/mex/en_mex-int-text-const.pdf

  10. I just accidentally AGAIN hit the “flag” on a comment trying to close a popup ad.

  11. In contrast, here, the constitutional right at stake is a different constitutional amendment – the First Amendment

    So what?

    >The subpoena here was issued by a Court in the United States, on behalf of a United States company (Watch Tower) and was directed against another United States company (Reddit).

    Conspicuously absent was the law in the country where the speaker resides. I would hope that’s normally the controlling factor e.g., I don’t have to follow French law if I’m residing in the U.S.

  12. The right to anonymous speech was established by cases including barnette and watchtower v stratton, both JW cases.
    California continues to infringe the right by requiring disclaimers on political speech.

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