April 2009, Volume 95, Issue 2|
Unmasking John Doe: Setting a Standard for Discovery in Anonymous Internet Defamation Cases
95 Va. L. Rev. 389 (2009)
The First Amendment to the United States Constitution provides for and protects an open marketplace for the competition of ideas. Oliver Wendell Holmes, Jr. said, “the best test of truth is the power of the thought to get itself accepted in the competition of the market[.]” The Internet, where anonymity is easily achieved and speech is cheap, seems to be a broader and more pure manifestation of such a marketplace than previously seen. In the 1990s, the Internet was a new mode of communication and an untested medium for speech. The intersection of First Amendment law and defamation law in cyberspace has since posed a variety of legal questions that continue to develop nearly two decades later. How should the fundamental right to freedom of speech play out over a medium where anyone’s voice can be heard instantaneously by thousands, even millions, of people? Who should be liable for defamatory speech occurring over the Internet? When is it appropriate to compel disclosure of a “John Doe” defendant’s identity in a defamation case?
Unmasking John Doe contends that to answer those questions requires a precarious balancing act. Using a hypothetical John Doe lawsuit, the note develops and rigorously tests an obscure standard provided by a Louisiana court, arguing that it may provide the key to ensuring that Internet speakers know the limits of protection guaranteed to them and that meritorious claims of defamation will not be prematurely dismissed.
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