United States District Court,

W.D. Washington.

John DOE, Plaintiff,

v.

2THEMART.COM INC., Defendant.

No. C01-453Z.

April 26, 2001.

Motion granted.

ORDER

ZILLY, District Judge.

This matter comes before the Court on the motion of J. Doe (Doe) to proceed under a pseudonym and to quash a subpoena issued by 2TheMart.com (TMRT) to a local internet service provider, Silicon Investor/InfoSpace, Inc. (InfoSpace). The motion raises important First Amendment issues regarding Doe's right to speak anonymously on the Internet and to proceed in this Court using a pseudonym in order to protect that right. The Court heard oral argument on the motion and issued an oral ruling on April 19, 2001. Due to the importance of the constitutional issues raised by this motion, the Court now issues this written order.

FACTUAL BACKGROUND

There is a federal court lawsuit pending in the Central District of California in which the shareholders of TMRT have brought a shareholder derivative class action against the company and its officers and directors alleging fraud on the market. *1090 In that litigation, the defendants have asserted as an affirmative defense that no act or omission by the defendants caused the plaintiffs' injury. By subpoena, TMRT seeks to obtain the identity of twenty- three speakers who have participated anonymously on Internet message boards operated by InfoSpace. That subpoena is the subject of the present motion to quash.

Some of the messages posted on the TMRT site have been less than flattering to the company. In fact, some have been downright nasty. For example, a user calling himself "Truthseeker" posted a message stating "TMRT is a Ponzi scam that Charles Ponzi would be proud of.... The company's CEO, Magliarditi, has defrauded employees in the past. The company's other large shareholder, Rebeil, defrauded customers in the past." Another poster named "Cuemaster" indicated that "they were dumped by their accountants ... these guys are friggin liars ... why haven't they told the public this yet? ? ? Liars and criminals!!!!!" Another user, not identified in the exhibits, wrote "Lying, cheating, thieving, stealing, lowlife criminals!!!!" Other postings advised TMRT investors to sell their stock. "Look out below!!!! This stock has had it ... get short or sell your position now while you still can." "They [TMRT] are not building anything, except extensions on their homes ... bail out now."

TMRT, the defendant in the California lawsuit, issued the present subpoena to InfoSpace pursuant to Fed.R.Civ.P. 45(a)(2). The subpoena seeks, among other things, "[a]ll identifying information and documents, including, but not limited to, computerized or computer stored records and logs, electronic mail (E-mail), and postings on your online message boards," concerning a list of twenty-three InfoSpace users, including Truthseeker, Cuemaster, and the current J. Doe, who used the pseudonym NoGuano. These users have posted messages on the TMRT bulletin board or have communicated via the Internet with users who have posted such messages. The subpoena would require InfoSpace to disclose the subscriber information for these twenty-three users, thereby stripping them of their Internet anonymity. [FN1]

FN1. At oral argument, this Court expressed its concern that this subpoena was overly broad. Counsel for TMRT clarified that the only information the defendant was seeking was the identity of the twenty-three listed Internet users. Accordingly, the Court treats this subpoena as if it had only requested the identity of the listed individuals.

FN2. NoGuano has moved anonymously to quash the subpoena. At oral argument, counsel for all parties agreed that NoGuano was entitled to appear before this Court anonymously on the motion to quash. When an individual wishes to protect their First Amendment right to speak anonymously, he or she must be entitled to vindicate that right without disclosing their identity. Accordingly, this Court grants NoGuano's request to proceed under a pseudonym for the purposes of this motion. However, this Court does not hold that a person would be allowed to proceed anonymously in all cases or under any circumstances. The Court need not reach this issue in light of the parties' agreement to allow Doe to proceed anonymously before this Court.

FN3. Counsel for plaintiffs in the underlying securities litigation appeared at oral argument but did not wish to be heard on the motion.

The Internet represents a revolutionary advance incommunication technology. It has been suggested that the Internet may be the "greatest innovation in speech since the invention of the printing press[.]" See Raymond Shih Ray Ku, Open Internet Access and Freedom of Speech: A First Amendment Catch-22, 75 Tul.L.Rev. 87, 88 (2000). It allows people from all over the world to exchange ideas and information freely and in "real-time." Through the use of the Internet, "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox." Reno v. ACLU, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).

The rapid growth of Internet communication and Internet commerce has raised novel and complex legal issues and has challenged existing legal doctrine in many areas. This motion raises important and challenging questions of: (1) what is the scope of an individual's First Amendment right to speak anonymously on the Internet, and (2) what showing must be made by a private party seeking to discover the identity of anonymous Internet users through the enforcement of a civil subpoena? [FN4]

FN4. Neither the parties nor this Court has found any federal court authority evaluating the First Amendment rights of anonymous Internet users in the context of a third-party civil subpoena seeking the identity of those users. The parties have directed the Court to the few state court decisions on this issue.

The right to the freedom of speech is enshrined in the First Amendment to the United States Constitution, which provides that "Congress shall make no law ... abridging the freedom of speech, or of the press[.]" U.S. Const. amend. I. This limitation on governmental interference with free speech applies directly to the federal government, and has been imposed on the states via the Fourteenth Amendment. See, e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, 779-80, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).

A court order, even when issued at the request of a private party in a civil lawsuit, constitutes state action and as *1092 such is subject to constitutional limitations. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). For this reason, numerous cases have discussed the limitations on the subpoena power when that power is invoked in such a manner that it impacts First Amendment rights. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (discussing the First Amendment implications of a civil subpoena to disclose the membership list for the NAACP); Los Angeles Memorial Coliseum Comm'n v. Nat'l Football League, 89 F.R.D. 489 (C.D.Cal.1981) (discussing the First Amendment implications of a civil subpoena to disclose the names of confidential journalistic sources); Snedigar v. Hoddersen, 114 Wash.2d 153, 786 P.2d 781 (1990) (discussing the First Amendment implications of a civil subpoena to disclose the meeting minutes of a political association).

First Amendment protections extend to speech via the Internet. "Through the use of web pages, mail exploders and newsgroups, [any person] can become a pamphleteer." Reno, 521 U.S. 870, 117 S.Ct. 2329. A component of the First Amendment is the right to speak with anonymity. This component of free speech is well established. See, e.g., Buckley v. American Constitutional Law Found., 525 U.S. 182, 200, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (invalidating, on First Amendment grounds, a Colorado statute that required initiative petition circulators to wear identification badges); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (overturning an Ohio law that prohibited the distribution of campaign literature that did not contain the name and address of the person issuing the literature, holding that "[u]nder our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent. Anonymity is a shield from the tyranny of the majority."); Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960) (invalidating a California statute prohibiting the distribution of "any handbill in any place under any circumstances" that did not contain the name and address of the person who prepared it, holding that identification and fear of reprisal might deter "perfectly peaceful discussions of public matters of importance.")

The right to speak anonymously was of fundamental importance to the establishment of our Constitution. Throughout the revolutionary and early federal period in American history, anonymous speech and the use of pseudonyms were powerful tools of political debate. The Federalist Papers (authored by Madison, Hamilton, and Jay) were written anonymously under the name "Publius." The anti-federalists responded with anonymous articles of their own, authored by "Cato" and "Brutus," among others. See generally McIntyre, 514 U.S. 341-42, 115 S.Ct. 1511. Anonymous speech is a great tradition that is woven into the fabric of this nation's history.

The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas. The "ability to speak one's mind" on the Internet "without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate." Columbia Ins. Co. v. Seescandy.Com, 185 F.R.D. 573, 578 (N.D.Cal.1999). People who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court. Id.

When speech touches on matters of public political life, such as debate over *1093 the qualifications of candidates, discussion of governmental or political affairs, discussion of political campaigns, and advocacy of controversial points of view, such speech has been described as the "core" or "essence" of the First Amendment. See McIntyre, 514 U.S. 346-47, 115 S.Ct. 1511. Governmental restrictionson such speech are entitled to "exacting scrutiny," and are upheld only where they are "narrowly tailored to serve an overriding state interest." Id. at 347, 115 S.Ct. 1511. However, even non-core speech is entitled to First Amendment protection. "First Amendment protections are not confined to 'the exposition of ideas [.]' " Id. at 346, 115 S.Ct. 1511, citing Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840 (1948). Unlike the speech at issue in Buckley, McIntyre and Talley, the speech here is not entitled to "exacting scrutiny," but to normal strict scrutiny analysis.

In support of its subpoena request, TMRT argues that the right to speak anonymously does not create any corresponding right to remain anonymous after speech. In support of this contention, TMRT cites only to Buckley. TMRT argues that in Buckley, while the Court struck down a requirement that petition circulators wear identification badges when soliciting signatures, the Court upheld a provision of the same statute that required circulators to execute an identifying affidavit when they submitted the collected signatures to the state for counting. However, the Court's reasoning in Buckley does not support the contention that there is no First Amendment right to remain anonymous. It merely establishes that in the context of the submission of initiative petitions to the State, the State's enforcement interest outweighs the circulator's First Amendment protections. Buckley, 525 U.S. 200, 119 S.Ct. 636, quoting McIntyre, 514 U.S. 342, 115 S.Ct. 1511 (Ginsberg, J., concurring) ("We recognize that a State's enforcement interest might justify a more limited identification requirement.") The right to speak anonymously is therefore not absolute. However, this right would be of little practical value if, as TMRT urges, there was no concomitant right to remain anonymous after the speech is concluded.

In the context of a civil subpoena issued pursuant to Fed.R.Civ.P. 45, this Court must determine when and under what circumstances *1094 a civil litigant will be permitted to obtain the identity of persons who have exercised their First Amendment right to speak anonymously. There is little in the way of persuasive authority to assist this Court. However, courts that have addressed related issues have used balancing tests to decide when to protect an individual's First Amendment rights.

Accordingly, the court ruled that four limiting principles would apply to such discovery. The court required that the plaintiff identify the individual with some specificity so the court could determine if they were truly an entity amenable to suit, and that the plaintiff identify all previous steps taken to locate the defendant, justifying the failure to properly serve. Id. at 578- 579. The Seescandy.Com court imposed two other requirements that have direct relevance here. First, the plaintiff was required to show that the case would withstand a motion to dismiss, "to prevent abuse of this extraordinary application of the discovery process and to insure that plaintiff has standing [.]" Id. at 579-80. Second, the plaintiff was required to file a discovery request justifying the need for the information requested. Id. at 580. Therefore, the court required the plaintiff to demonstrate that the suit, and the resulting discovery sought, was not frivolous, and to demonstrate the need for the identifying information.

Similarly, in In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372, (Va. Cir. Ct.2000), the court reviewed a subpoena seeking the identity of certain J. Doe defendants who had allegedly made defamatory statements and disclosed confidential information online. See America Online, Inc., 2000 WL 1210372, *1. The Virginia court recognized the First Amendment right to Internet anonymity, and held that an Internet service provider could assert that right on behalf of its users. See id., *5-6. The court applied a two part test determining whether the subpoena would be enforced. First, the court must be convinced by the pleadings and evidence submitted that "the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where the suit was filed[.]" Id., *8. Second, "the subpoenaed identity information [must be] centrally needed to advance that claim." Id. (emphasis added). In that particular case, because the court concluded that the plaintiff had met these requirements, the discovery was allowed. The Virginia court concluded that the compelling state interest in protecting companies outweighed the limited intrusion on the First Amendment rights of any innocent Internet users. Id.

The standard for disclosing the identity of a non-party witness must be higher than that articulated in Seescandy.Com and America Online, Inc. When the anonymous Internet user is not a party to the case, the litigation can go forward without the disclosure of their identity. Therefore, non-party disclosure is only appropriate in the exceptional case where the compelling need for the discovery sought outweighs the First Amendment rights of the anonymous speaker.

Accordingly, this Court adopts the following standard for evaluating a civil subpoena that seeks the identity of an anonymous Internet user who is not a party to the underlying litigation. The Court will consider four factors in determining whether the subpoena should issue. These are whether: (1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source. [FN5]

FN5. This Court is aware that many civil subpoenas seeking the identifying information of Internet users may be complied with, and the identifying information disclosed, without notice to the Internet users themselves. This is because some Internet service providers do not notify their users when such a civil subpoena is received. The standard set forth in this Order may guide Internet service providers in determining whether to challenge a specific subpoena on behalf of their users. However, this will provide little solace to Internet users whose Internet service company does not provide them notice when a subpoena is received.

C. Analysis of the present motion.

In the present case, TMRT seeks information it says will validate its defense that "changes in [TMRT] stock prices were not caused by the Defendants but by the illegal actions of individuals who manipulated the [TMRT] stock price using the Silicon Investor message boards." This Court must evaluate TMRT's stated need for the information in light of the four factors outlined above.

1. Was the subpoena brought in good faith?

This Court does not conclude that this subpoena was brought in bad faith or for an improper purpose. TMRT and its officers and directors are defending against a shareholder derivative class action lawsuit. They have asserted numerous affirmative defenses, one of which alleges that the defendants did not cause the drop in TMRT's stock value. TMRT could reasonably believe that the posted messages are relevant to this defense.

The information sought by TMRT does not relate to a core defense. Here, the information relates to only one of twenty-seven affirmative defenses raised by the defendant, the defense that "no act or omission of any of the Defendants was the cause in fact or the proximate cause of any injury or damage to the plaintiffs." This is a generalized assertion of the lack of causation. Defendants have asserted numerous other affirmative defenses that go more "to the heart of the matter," such as the lack of material misstatements by the defendants, actual disclosure of material facts by the defendants, and the business judgment defense. [FN6] Therefore, this factor also weighs in favor of quashing the subpoena.

FN6. Many of TMRT's affirmative defenses might be viewed by this Court as "non-core," including comparative fault, estoppel, laches, and unclean hands.

Even when the claim or defense for which the information is sought is deemed core to the case, the identity of the Internet users must also be materially relevant to that claim or defense. Under the Federal Rules of Civil Procedure discovery is normally very broad, requiring disclosure of any relevant information that "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). But when First Amendment rights are at stake, a higher threshold of relevancy must be imposed. Only when the information sought is directly and materially relevant to a core claim or defense can the need for the information outweigh the First Amendment right to speak anonymously. See Los Angeles Memorial Coliseum Comm'n, 89 F.R.D. at 494 (holding that a party seeking to enforce a subpoena to disclose non- party journalistic sources must demonstrate that the information is of "certain relevance.")

As to the Internet users such as Truthseeker and Cuemaster who posted messages on the TMRT bulletin board, TMRT has failed to demonstrate that their identities are directly and materially relevant to a core defense. TMRT argues that the Internet postings caused a drop in TMRT's stock price. However, what was said in these postings is a matter of public record, and the identity of the anonymous posters had no effect on investors. If these messages did influence the stock price, they did so without anyone knowing the identity of the speakers.

TMRT has failed to demonstrate that the information it needs to establish its defense is unavailable from any other source. The chat room messages are archived and are available to anyone to read and print. TMRT obtained copies of some of these messages and submitted them to this Court. TMRT can therefore demonstrate what was said, when it was said, and can compare the timing of those statements with information on fluctuations in the TMRT stock price. The messages are available for use at trial, and TMRT can factually support its defense without encroaching on the First Amendment rights of the Internet users.

The Court has weighed these factors in light of the present facts. TMRT has failed to demonstrate that the identify of these Internet users is directly and materially relevant to a core defense in the underlying securities litigation. Accordingly, *1098 Doe's motion to quash the subpoena is GRANTED.