Update (April 16, 2015): The Virginia Supreme Court issued an opinion in favor of Yelp on the grounds that a Virginia subpoena for records held outside of the state exceeded the Virginia courts' authority.

People have many reasons to be anonymous online, from the political to the personal. One of the most contentious uses of anonymity is in consumer reviews—some reviewers feel they need the protection of anonymity to post the truth, while some businesses claim that it fuels irresponsibility. But the First Amendment protects anonymous speech online, just as it protects the choice to hand out political flyers in person without identifying oneself.

In an amicus brief just filed in the Virginia Supreme Court, EFF explains how the law protects everyone when disagreements about anonymity move from the Internet to the courtroom.

This case concerns reviews of Hadeed Carpet Cleaning, a business in Alexandria, Virginia, posted on the review site Yelp. Hadeed filed suit against the unknown authors of seven reviews that were critical of its business. In order to proceed, Hadeed served Yelp with a subpoena to discover the identity of the seven John Does. Hadeed alleged that it had checked its customer database, and the reviews did not correspond to any actual customers. Hadeed claimed that because the Does weren’t customers, their negative reviews were false and therefore defamatory. Yelp objected, in part, on the grounds that the subpoena did not satisfy the constitutional requirements to protect the authors’ First Amendment right to anonymity. However, both the trial court and the court of appeals held that Hadeed had satisfied Virginia’s statutory procedure for unmasking anonymous speakers and denied Yelp’s motion to quash. Now the case is on appeal to the Supreme Court of Virginia.

At first blush, it might seem odd that the constitutional protection of free speech would also apply to a speaker’s choice to be anonymous. But in fact, the Supreme Court has repeatedly explained that anonymity is so important to our discourse that it should be protected by the First Amendment.

The rule has both historical and political grounding. As the Court put it in 1960, anonymous pamphlets and books “have played an important role in the progress of mankind.” Of particular note are the many anonymously published documents from the founding era of the United States, such as the Federalist Papers, which were crucial in the framing and ratification of the Constitution itself. Perhaps more important, the Court explained that remaining anonymous can protect speakers with unpopular opinions from the tyranny of the majority, which fulfills a core purpose of the Bill of Rights. In essence, protections for anonymity strengthen democracy.

From parody Twitter accounts to message boards for LBGTQ youth, the Internet is a natural home for anonymous speech. But detractors are quick to point out that anonymity makes it harder to hold authors of objectionable speech accountable. Internet users who post defamatory reviews shouldn’t be able to hide behind a veil of anonymity, they say.

It’s a valid concern, one that is embodied in First Amendment law itself. That’s why the right to anonymity is “qualified,” not absolute. But with so much of the law, the difficulty is in how to set the balance. Because the right to anonymity is so crucial in ensuring robust public discussion—a core First Amendment value—it should be given real weight. Anonymous speakers must be protected from harassment by plaintiffs who simply don’t like their message. On the other hand, valid lawsuits shouldn’t be stopped in their tracks just because the defendant is anonymous.

EFF has played an active role in helping courts set this balance, and we’ve stepped in to defend anonymous speakers who are unfairly targeted. As we argue in the new brief, the consensus that has emerged strikes a fair equilibrium: plaintiffs who seek to unmask an anonymous speaker must provide evidence to the court that their case is a strong one. Courts have slightly different ways of phrasing this requirement, but it is essential that they feel satisfied with the plaintiff’s evidence before they order an anonymous speaker to be unmasked.

Therein lies the problem with Hadeed’s claim against the anonymous Yelp reviewers. Hadeed alleged that the reviewers aren’t actually customers, but the lower courts didn’t require it to provide proof. Nor did Hadeed show how the reviews were defamatory. Whether or not what Hadeed claimed was enough under Virginia law, the First Amendment requires significantly more evidence of defamation. We hope the Supreme Court of Virginia will agree.

A special thanks to Matthew Erausquin and the firm of Consumer Litigation Associates, PC for acting as our local counsel in this case.