Friday, April 15, 2011
Musetta Caruso Durkee, University of California, Berkeley, Law School, has published The Truth Can Catch the Lie: The Flawed Understanding of Online Speech in In Re Anonymous Online Speakers, in volume 26 of the Berkeley Technology Law Journal (2011). Here is the abstract.
Recently, the Ninth Circuit was the first circuit court to address a discovery request to un-mask anonymous speakers in a case involving online speech. Many hoped, given the competing standards developed by courts over the past decade, that In re Anonymous Online Speakers would provide a singular standard to guide the lower courts in anonymous online speech cases. However, not only did the Ninth Circuit decline to clarify competing standards, it mistakenly characterized the online nature of the defendant’s speech as a separate factor in the aforementioned balancing test, finding that the allegedly harmful speech occurred on the Internet inherently weighed against the anonymous speaker. In making this assumption, the Ninth Circuit failed to accurately understand the effect of various online spaces on the accuracy, verifiability, and correct-ability of anonymous online speech. In light of the Ninth Circuit’s decision, this Note argues that regardless of the standard employed in balancing the rights of the anonymous online speakers with the rights of allegedly harmed plaintiffs, courts cannot afford to misunderstand the nature of the Internet nor, by extension, the nature of speech occurring in online contexts.
This Note shows that highlighting the online context of the speech is not only necessary for combating the misconception of the Internet as a wild, undifferentiated frontier, but is also in line with established precedent in both anonymous speech cases and cases involving online speech. Furthermore, this Note summarizes recent efforts of a number of district and state courts to take the context of online speech into account when balancing the rights of anonymous speakers with the rights of harmed plaintiffs. These cases reveal that, though good efforts at capturing the nature of speech in a variety of online spaces, courts fail to understand the particularly malleable and fast-changing characteristics of specific online sites. As such, this Note will show that online speech cases occur in situations of a peculiarly malleable nature for two main reasons, and that both reasons must be taken into account in anonymous online speech cases. Not only are the different categories of online spaces themselves constantly developing, but the user norms and technological codes governing speech, actions, and communications within and between these spaces are also constantly (and sometimes abruptly) changing. Thus, courts’ investigations of the meaning and effect of online speech require a nuanced understanding of both the heterogeneity of online spaces as well as the malleable nature of particular sites and services within different categories of online spaces.
Download the Note from SSRN at the link.