We have posted pieces on several recent cases in which courts have addressed whether and how an anonymous blogger should be unmasked. Courts have reached conflicting results when balancing the alleged harms caused by anonymous posts against the speaker’s First Amendment rights. On November 28, 2017, the United States Court of Appeals for the Sixth Circuit became the first appellate court to weigh in on the issue. The Sixth Circuit addressed whether a plaintiff that prevailed in a copyright infringement lawsuit is entitled to injunctive relief that would include the unmasking of the John Doe defendant, who posted the company’s copyrighted materials on his blog. Signature Management Team LLC v. John Doe, No. 16-2188 (6th Cir. Nov. 28, 2017).
Signature Management Team LLC (“Team”) sells materials designed to help individuals profit in multi-level marketing materials. John Doe anonymous runs a blog that criticizes multi-level marketing companies. Doe posted a hyperlink to an edition of a book copyrighted by Team, which led Team to sue for infringement. Team sought judicial relief disclosing Doe’s identity, Doe’s destruction of all copies of the book in his possession and a permanent injunction barring Doe’s infringement use of the book. Doe responded by raising a fair use defense against the infringement claims and asserted a First Amendment right to speak anonymously. During discovery, Team moved to compel Doe’s identity. The trial court concluded that unmasking the anonymous speaker to Team could impact Doe’s defenses in the litigation, but it did order Doe to reveal his identity to the court and to Team’s lawyers, subject to a protective order preventing Team from learning Doe’s identity. When the case was reached on the merits, the trial court found for Team and had to determine the appropriate order. The trial court found that unmasking Doe was unnecessary because Doe represented that he would commit infringement again and had destroyed all copies of the book in his possession. Team appealed the trial court’s refusal to unmask Doe.
On appeal, the Sixth Circuit issued a split 2–1 ruling. Writing for the majority, Justice Helene M. White noted that “no case has considered the issue presented here—whether and under what circumstances a court can properly protect a party’s anonymity after judgment.” The fact that liability was established “is an important distinction. The prejudgment cases often deal with a plaintiff’s need to unmask a defendant to effectuate service of process . . . .” Regarding the issues before the court at this stage, Justice White wrote that the entry of a final judgment negates concerns that the unmasking could impair a defendant’s ability to defend itself in the litigation. Even so, there may not be a practical need for the post-judgment unmasking of an anonymous defendant who voluntarily complied with the relief to prevent further harm.
The majority ruled that the trial court applied too protective a standard in its ruling declining to unmask Doe. The trial court balanced factors developed in connection with pre-judgment proceedings. The majority stressed that the trial court failed to recognize that “very different considerations apply” after the entry of a final judgment on the merits, particularly the presumption in favor of open judicial proceedings. Nonetheless, the majority concluded that there are still factors suggesting that Doe may retain the right to remain anonymous, especially if an unmasking order would unmask him in connection with both protected and unprotected speech and might hinder his ability to engage in anonymous speech in the future. The Sixth Circuit remanded the case back to the trial court for reconsideration of the unmasking issue applying the concerns and factors identified in the majority’s opinion.
In a sharply worded and succinct dissent, Justice Richard F. Suhrheinrich criticized the majority for acting like “an overprotective parent.” The dissent stated that Doe should not be shielded from the consequences of his infringement actions, which are not protected speech under the First Amendment. Doe could have preserved his right to speak freely and anonymously by doing so without committing copyright infringement. The dissent contended that no balancing is necessary and that the proper course is to remand the case back to the trial court with an instruction to order the revealing of Doe’s identity.
We will monitor the proceedings on remand. This is not the last word in this case, and we expect to see similar issues continuing to arise in other cases with the proliferation of Internet speech.