First Amendment

The Edward Snowden leaks have forced Americans to question whether the government monitors their online activities.  But intelligence-gathering is not the only government threat to Internet privacy: plaintiffs in defamation cases are using court subpoenas to attempt to unmask Internet users’ identities.

In some seedy corners of the Internet, commenters use the veil of anonymity

Reporters nationwide have faced a flurry of subpoenas in recent months, calling into question whether journalists can guarantee confidentiality to sources.  The repeated attempts to force journalists to reveal their confidential sources and other information about their newsgathering demonstrate the need for strong reporter “shield laws” on both the federal and state level.

Among some

A Michigan appellate court ruled last week that state discovery rules provide adequate safeguards for anonymous online speech.  The opinion is a significant deviation from the rulings of other state courts, which have applied a First Amendment balancing test to determine whether to grant discovery requests for the identities of anonymous online speakers.

Thomas M. Cooley Law School sued several defendants for allegedly defaming the school online and issued subpoenas for their identities.  Defendant John Doe 1, who operated a website about the law school, sought a protective order and moved to quash the subpoena to his Internet service provider.   The trial court applied a First Amendment balancing test, first articulated by state appellate courts in New Jersey and Delaware, that considers factors including (1) whether the defendant is a person or entity who could be sued, (2) whether the plaintiff made a good-faith effort to serve the defendant with process, (3), whether the lawsuit could withstand a motion to dismiss, and (4) whether there is a reasonable likelihood that discovery would uncover information that would allow service of process.   Under this analysis, the state trial court denied the motion to quash and denied the protective order.Continue Reading Michigan Court Rejects First Amendment Balancing Test for Online Anonymous Speech

A federal appeals court will rehear a case in which a split three-judge panel ruled it was unconstitutional to prohibit non-commercial broadcast stations from selling political advertisements.

A federal statute, 47 U.S.C. § 399b, generally prohibits public broadcasters from airing “advertisements,” which the statute defines to include paid messages that (1) promote a for-profit entity’s