Update: In August 2018, the district court hearing the case ruled that Doe could maintain his anonymity, finding that the likely harm that would result from identifying Doe outweighed the public's interest in learning his identity. You can read the decision here.

Anonymous online speakers may be able to keep their identities secret even after they lose lawsuits brought against them, a federal appellate court ruled last week.

The decision by the U.S. Court of Appeals for the Sixth Circuit in Signature Management Team, LLC v. John Doe is a victory for online speakers because it recognized that the First Amendment’s protections for anonymous speech do not end once a party suing the anonymous speaker prevails. Instead, the court ruled that revealing anonymous speakers’ identities has far-reaching consequences that must be weighed against opposing parties’ and the general public’s rights to learn speakers’ names once they’ve been found to have violated the law. This is good news, because many vulnerable speakers will self-censor unless they have the ability to speak anonymously and thereby avoid retaliation for their whistleblowing or unpopular views.

The ruling, however, is not all good news for anonymous speech. The test announced by the court sets unmasking as the default rule post-judgment, placing the burden on the anonymous party to argue against unmasking. Additionally, the court expanded the competing First Amendment right of access to judicial proceedings and records—which EFF strongly supports—to a novel right to learn the identity of an anonymous litigant—which we do not support.

Blogger Sued by Company for Copyright Infringement Fights to Keep His Anonymity

The case centers on an anonymous blogger (Doe) who runs the blog “Amthrax,” which is critical of multi-level marketing companies such as Amway. In 2013, the blogger posted a training manual copyrighted by Signature Management Team, another multi-level marketing company. When the company issued a takedown notice, Doe removed the work from the blog. Then Signature Management filed suit. It asked for a court order to unmask Doe and to require Doe to destroy all copies of the book and not to infringe the company’s copyright in the future.

During an early discovery phase of the case, the trial court denied Signature Management’s request to unmask Doe, ruling that the First Amendment protected his identity. Later, on the merits, the court ruled that Doe had infringed Signature Management’s copyright, but indicated that it would likely only require that Doe destroy all copies of the work. After Doe confirmed that he had done so, Signature Management once more asked the court to unmask Doe.

The trial court again denied Signature Management’s request, finding that because Doe had already deleted the infringing work, unmasking the blogger was unnecessary. Signature Management appealed to the Sixth Circuit, arguing that since Doe was found liable, he should no longer maintain his anonymity.

The Good News: Court Recognizes Right to Anonymity Extends to Speakers Who Lose Lawsuits

To EFF’s knowledge, the Sixth Circuit’s decision is the first time a federal appellate court has recognized that the First Amendment can protect speakers’ ability to remain anonymous even when they have been found liable in a civil lawsuit.

An order unmasking Doe would therefore unmask him in connection with both protected and unprotected speech and might hinder his ability to engage in anonymous speech in the future.

This is a great development for anonymous speech online. EFF has long fought for anonymous speech rights, including defending online speakers from lawsuits that are designed to intimidate, harass, or silence them rather than vindicate the plaintiffs’ legitimate legal grievances. Although the right to speak anonymously is not absolute, courts have recognized its historical importance in our democracy and its ability to foster open debate on controversial topics, particularly online.

In most anonymous speech cases, parties seek to unmask speakers at an early stage in a lawsuit. Courts have developed various tests that seek to protect anonymous speech rights and to deter frivolous lawsuits, while still allowing plaintiffs to obtain the evidence they need to pursue their claims.

It was an open question whether the right to anonymity continued after a Doe defendant was found liable for a civil claim. We filed a brief [.pdf] in this case arguing that it did, and the Sixth Circuit agreed.

The appellate court rejected Signature Management’s argument that Doe’s liability for copyright infringement extinguished his First Amendment right to anonymity. This is because his unprotected publication of Signature Management’s book was just one episode in a larger campaign of Doe’s overall anonymous speech. The court explained that although “Doe’s infringing speech is not entitled to First Amendment protection, that speech occurred in the context of anonymous blogging activities that are entitled to such protection.”

The court further reasoned: “An order unmasking Doe would therefore unmask him in connection with both protected and unprotected speech and might hinder his ability to engage in anonymous speech in the future.”

The court’s ruling gives anonymous speakers a chance to show that they should still keep their anonymity even if they’ve been found to have violated the law, laying out factors (discussed below) that courts can weigh when determining if speakers can keep their anonymity.

The Bad News: Court’s Test Places the Burden on Speakers to Maintain Their Anonymity

Unfortunately, maintaining anonymity after being found liable in a civil lawsuit is not guaranteed under the Sixth Circuit’s test. The decision sets a default (in legal jargon, a presumption) that, after being found liable, the speaker should be unmasked. It is then up to the speaker to overcome that default by showing that unmasking is not warranted.

The court’s standard is backwards. The rule—even post-judgment—should be that the First Amendment protects anonymous speakers’ rights by default, and then the party seeking to unmask them should have the burden to show why unmasking is required.

The decision provides several factors for courts to weigh, including the public’s interest in the litigation, the plaintiff’s needs to know the defendant’s identity to enforce the judgment against them, and the anonymous speakers’ ability to show that they engage in substantial protected speech that unmasking will chill. After creating the test, the Sixth Circuit sent the case back to the district court to apply it in this specific case.

The court grounded its default—that Does should be unmasked once they’ve been found liable—in another important First Amendment right: the right of the public to access judicial proceedings and records.

EFF is a strong advocate of this right, and we regularly assert it in court. But as we argued in the brief we filed in this case, that presumptive right of access can yield in narrow circumstances to other important interests, such as an individual’s right to anonymity.

The Sixth Circuit’s ruling, however, expands the First Amendment right of access beyond sealed court records or closed judicial proceedings, to include a new principle: that the public has the right to know the names of anonymous defendants once they’ve been found liable. The court ruled that “like the general presumption of open judicial records, there is also a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff.”

This is incorrect. The point of the right of public access to government proceedings and records is for the public to be able to monitor what its government is up to. To know whether judicial rulings are fair and reasonable, the public needs to be able to attend court hearings and read court filings. Irrespective of whether the identity of an anonymous litigant appears in court records, unmasking the litigant will not advance the public’s ability to monitor the actions of the court.

One risk of the Sixth Circuit’s ruling is that it might eventually be extended to create a presumption of post-judgment unmasking for anonymous plaintiffs, who can include parties alleging privacy invasions, who were victims of crime, or those seeking access to abortion or other medical care.

For now, we’re excited that the Sixth Circuit strengthened protections for anonymous speakers and we remain hopeful that our concerns about the decision won’t be realized.