Anonymity in the context of communications is the ability to hide one’s identity while communicating. Doing so helps individuals to express their political ideas without fear of government intimidation or public retaliation in three important areas:
- participate in governmental processes
- membership in political associations
- the practice of religious belief
In three cases between 1960 to 1999, the Supreme Court reaffirmed the notion that sacrificing anonymity “might deter perfectly peaceful discussions of public matters of importance.” Additionally, the Supreme Court has upheld disclosure laws (laws that reduce anonymity in political contexts) only in cases in which the government can demonstrate the existence of a compelling government interest. For example, a compelling governmental interest exists in assuring the integrity of the election process by requiring campaign contribution disclosures.
The feature of anonymity has been embraced by a huge number of Internet users. Some of the venues especially suitable for anonymity are message boards, chatrooms, and various informational sites. Anonymity allows individuals to consume and/or provide unpopular, controversial, or embarrassing information without sacrificing privacy or reputations. But such anonymity is increasingly being assailed as civil litigants have begun using the adversarial discovery process to get around online anonymity measures. Since 1998, there have been many defamation lawsuits filed against “John Doe” defendants by plaintiffs who allege they have been harmed by anonymous Internet postings.
As of 2002, any civil litigant may allege defamation against an Internet poster and bring a civil suit. If, during discovery, the court approves a subpoena calling for the identity of a poster, the Internet service provider must disclose the individual’s name, even before the poster’s statement is proven defamatory. This enables companies or other powerful groups to use the legal discovery process to intimidate anonymous users. This issue has been litigated in New Jersey; that court imposed strict rules to protect the identities of anonymous Internet posters in the discovery process. Nationally, the law is far from settled:
