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FC: ACLU, EFF take court action to protect anonymous online speech
From: Declan McCullagh <declan () well com>
Date: Mon, 26 Feb 2001 16:30:36 -0500

In Two Significant Cases, ACLU Seeks to Protect Anonymous Online Speakers
from Legal Intimidation
Monday, February 26, 2001

ACLU National: Emily Whitfield (212) 549-2566 or 2666/ewhitfield () aclu org
ACLU of WA: Doug Honig, (206) 624-2184/ honig () aclu-wa org
EFF: Lauren Gelman, (202) 487-0420

SEATTLE--In two legal actions involving free speech and privacy rights
online, the American Civil Liberties Union today came to the defense of
anonymous speakers who face legal intimidation from those they criticize in

The first case, filed today by the ACLU of Washington State and the
Electronic Frontier Foundation (EFF), asked a federal court here to quash a
subpoena that would force an Internet service to disclose the identity of a
person who spoke anonymously on an Internet bulletin board.

In the second case, the ACLU today submitted its appeal in Melvin v. Doe, a
challenge to a Pennsylvania appeals court judge's attempt to use the courts
to try to ferret out the identify of her critic.

Underscoring the proliferation of such lawsuits, Internet giant America
Online submitted its own legal brief in the Melvin case today, saying it had
handled approximately 475 such subpoenas last year, more than one per day.
Attempts to intimidate online critics by filing such actions
constitutes "an illegitimate use of the courts to silence and retaliate
against speakers," AOL said in legal papers.

In the Washington case, the ACLU and EFF are representing J. Doe (a
pseudonym) in seeking to block a subpoena by 2TheMart.com, Inc., which is
currently defending itself against a class-action lawsuit alleging
securities fraud by company officials.

The subpoena seeks to uncover the identities of 23 speakers who used
pseudonyms in participating on the Silicon Investor Web site owned by
InfoSpace. The motion to quash the subpoena was filed in U.S. District Court
in Seattle.

This case differs from many other Internet anonymity cases, the ACLU said,
because J. Doe, who used the pseudonym "NoGuano," is not a party to the
case, and no allegations of liability against Doe have been made. While Doe
does maintain a Silicon Investor account, Doe never made any statements
about 2TheMart, nor has Doe ever posted on Silicon Investor's 2TheMart
message board.

"The courts should not allow subpoenas to be used for 'fishing expeditions'
when individuals' First Amendment rights are at stake. The chilling effect
on free speech would be catastrophic," said Lauren Gelman, Director of
Public Policy for the Electronic Frontier Foundation, a civil liberties
organization working to protect rights in the digital world.

Aaron Caplan, a Staff Attorney with the ACLU of Washington, noted that
people commonly use pseudonyms when speaking on the Internet. "This promotes
a diversity of viewpoints in cyberspace," he said. "The right to speak
anonymously on an Internet bulletin board should be upheld just as is the
right to distribute a leaflet using a pseudonym."

John Doe is being represented by ACLU staff attorney Aaron Caplan and Cindy
Cohn, legal director and senior staff attorney for EFF. Their legal brief
along with further details on the case, can be found at the EFF Web site at
http://www.eff.org and the ACLU Web site at http://www.aclu-wa.org.

The Melvin case arose when Allegheny County State Superior Court Judge Joan
Orie Melvin found comments critical of her on a website entitled "Grant
Street 1999." The website author accused the judge of lobbying on behalf of
an attorney seeking a judgeship. Melvin then filed a defamation lawsuit
seeking disclosure of the author's name.

Ann Beeson, Staff Attorney with the national ACLU, noted that in many of the
defamation cases the ACLU has handled, individuals felt their speech was
"chilled" by the threat of a lawsuit -- often brought by deep-pockets
corporations or powerful individuals -- and by the threat of disclosure.

A lower court agreed in a November 2000 ruling, saying that identity may not
be disclosed until the anonymous speaker has had an opportunity to prove
that the defamation lawsuit is without merit. But the ACLU did not prevail
in its specific argument that the case should be dismissed. That issue is
central to today's appeal.

The ACLU's legal brief will be posted online shortly at aclu.org
A previous news release on the Melvin case, with a link to the lower court
brief, is available at http://www.aclu.org/news/2000/n111500a.html

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