It is well-settled that the First Amendment shelters the right to speak anonymously.
See Buckley v. Am. Constitutional Law Foundation,
525 U.S. 182 (
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=525&invol=182), 200 (1999) (invalidating, on First Amendment grounds, state statute requiring initiative petitioners to wear identification badges);
Talley v. California, 362 U.S. 60 (
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=362&invol=60), 65 (1960) (holding anonymity protected under the First Amendment because forced identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance). These cases celebrate the important role played by anonymous or pseudonymous writings through history, from the literary efforts of Shakespeare and Mark Twain through the explicitly political advocacy of the Federalist Papers.
As the Supreme Court has held, Anonymity is a shield from the tyranny of the majority, that exemplifies the purpose of the First Amendment: to protect unpopular individuals from retaliation...at the hand of an intolerant society.
McIntyre v. Ohio Elections Commn,
514 U.S. 334 (
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=514&invol=334), 357 (1995) (holding that an authors decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment).
Therefore, courts must be vigilant... [and] guard against undue hindrances to political conversations and the exchange of ideas.
Buckley, 525 U.S. at 192. This vigilant review must be undertaken and analyzed on a case-by-case basis, where the courts guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.
Dendrite Intl, Inc. v. Doe No. 3, 775 A.2d 756, 760-761 (N.J. App. Div. 2001). Moreover, that review must take place whether the speech in question takes the form of political pamphlets or Internet postings.
Reno v. ACLU,
521 U.S. 844 (
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=521&invol=844), 870 (1997) (there is no basis for qualifying the level of First Amendment protection that should be applied to the Internet).
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Right to Speak Anonymously on the Internet
Against the backdrop of First Amendment protection for anonymous speech, courts have held that civil subpoenas seeking information regarding anonymous individuals raise First Amendment concerns."
Sony Music Entertainment v. Does, 326 F.Supp.2d 556, 565 (S.D.N.Y. 2004). Accordingly, "the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.
Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1097 (W.D. Wash. 2001).
Each of the courts to consider the issue has found that the First Amendment requires a heightened evidentiary showing from the subpoenaing party before enforcement of subpoenas to identify anonymous Internet speakers.
See, e.g.,
Dendrite, 775 A.2d at 771 (strict procedural safeguards must be imposed
as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet").
People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak ones mind without the burden of the other party knowing all the facts about ones identity can foster open communication and robust debate.
Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). Otherwise,
f Internet users could be stripped of that anonymity by a civil subpoena enforced under the liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights. 2theMart.com at 1093.