April 16, 2012

Jenner & Block Partner Andrew J. Thomas wrote “Anonymity in Cyberspace: Courts Shield Speech but not Piracy,” which was recently published as the April 2012 “Content Matters” column in the Los Angeles Daily Journal and San Francisco Daily Journal. In the article, Mr. Thomas explores the First Amendment protection afforded to the right to speak anonymously on the Internet. Mr. Thomas explains, “In Reno v. ACLU (1997) the Supreme Court squarely held that online speech enjoys the same degree of First Amendment protection as do books, newspapers and other traditional media.” Issues arise primarily in “cyber-libel” claims in which a plaintiff alleges that an anonymous online speaker defamed the plaintiff by making intemperate chat room or message board comments. According to the article, “Courts considering such claims have recognized that the defendants’ First Amendment rights to speak anonymously should not be easily forfeited as the result of the mere assertion of meritless or makeweight claims.” Mr. Thomas reviews the various tests adopted by federal and state courts in these types of libel cases. He concludes that courts are likely to apply speech-protective, high burden tests in cases that involve defamation claims or similar claims based on noncommercial speech. However, in cases where individuals use the Internet to infringe intellectual property rights, reveal trade secrets, or engage in other conduct outside the core protections of the First Amendment, courts are likely to be far less solicitous in protecting the identities of these individuals.