The Volokh Conspiracy

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"May Be The Most Helpful Brief I've Ever Read,"

said Judge Vince Chhabria (N.D. Cal.) about this amicus brief from Paul Alan Levy (Public Citizen) and Phillip R. Malone of the Juelsgaard I/P and Innovation Clinic (at Stanford).


Now that is rare and high praise (quoted in Tuesday's article in The Recorder). The brief, which is about the standards for unmasking anonymous defendants who are being sued for their speech, is here. Here's the Introduction:

Public Citizen submits this amicus brief in support of neither party to address the proper way to assess the balance between the First Amendment right to speak anonymously and the right to enforce based on the anonymous speech. Public Citizen agrees with Twitter and its amici that platforms such as Twitter have standing to assert the First Amendment rights of their users. We also agree that the Dendrite balancing test, often applied in this District in cases such as Highfields Capital Management v. Doe, 385 F. Supp.2d 969 (N.D. Cal. 2005), rather than the test of Sony Music Entertainment v. Does 1-40, 326 F. Supp.2d 556 (S.D.N.Y. 2004), supplies the proper legal standard. But in important respects, Public Citizen disagrees with Twitter and its amici about how to apply final prong of the Dendrite standard, under which a court balances the rights of the prospective plaintiff and the First Amendment right to speak anonymously.

Twitter and its amici variously argue that, under the Dendrite balancing prong, either a party seeking discovery bears the burden of making a showing at the balancing stage, or the mere fact that disclosure would strip the Doe of her anonymity is enough to strike the balance against identification. Properly applied, however, that stage of the analysis—which is reached only after a party claiming that the anonymous speech was wrongful has submitted both legal argument and evidence sufficient to show that it has a tenable basis for claiming a violation of its rights—provides an opportunity for both the party seeking enforcement of a subpoena and the party seeking to preserve anonymity to point to any special considerations that might warrant enforcing or denying enforcement in that the particular facts differ from the standard subpoena case. In addition, this amicus brief explains how the Court should approach this case in light of the interests presented, but does not take any position about how the Court should strike that balance here.