## Facts

- A shareholder securities class/derivative action against 2TheMart.com, Inc. (TMRT) and its officers/directors was pending in federal court in California, alleging market fraud.
- TMRT asserted an affirmative defense that plaintiffs’ losses were not caused by TMRT’s acts or omissions.
- TMRT served a Rule 45 subpoena on InfoSpace, Inc., operator of the “Silicon Investor” message boards, seeking identifying and contact information for 23 pseudonymous posters on a TMRT message board and for “John Doe,” an anonymous user.
- The subpoena targets were non-parties to the California litigation; the postings were critical commentary about TMRT and were publicly viewable in archived form.
- Doe, claiming a First Amendment right to speak anonymously online, moved in the Western District of Washington to proceed under a pseudonym and to quash the subpoena to prevent disclosure of identities.

## Issues

1. Whether an anonymous Internet user may proceed under a pseudonym to challenge a subpoena that would otherwise reveal the user’s identity.
2. What standard governs enforcement of a civil subpoena that seeks to compel disclosure of the identities of anonymous, non-party Internet speakers, and whether TMRT satisfied that standard.

## Decision

- The court granted Doe’s request to proceed under a pseudonym.
- The court granted Doe’s motion to quash the subpoena.
- The court held that anonymous Internet speech is protected by the First Amendment and that enforcing a subpoena to identify anonymous non-party speakers implicates constitutional concerns.
- The court required a clear, record-based showing that the subpoena met a four-part test and concluded TMRT failed to carry this high burden, particularly as to direct/material relevance and lack of alternative sources.

## Legal Principles

- Anonymous speech, including online speech, is protected by the First Amendment; compelled identification through subpoena constitutes state action affecting that right.
- A party seeking to unmask anonymous, non-party Internet speakers through a civil subpoena must make a clear showing on the record that:
  - the subpoena was issued in good faith and not for an improper purpose;
  - the identifying information relates to a core claim or defense;
  - the identifying information is directly and materially relevant to that core claim or defense; and
  - information sufficient to prove or disprove the claim or defense is unavailable from any other source.
- When the content of anonymous postings is publicly available and the proponent cannot show why identity is necessary (as opposed to the substance and timing of speech), compelled disclosure is disfavored due to chilling effects on protected speech.
- Pseudonymous participation may be permitted where revealing the movant’s identity would defeat the purpose of asserting the right to anonymous speech.

## Conclusion

The court protected anonymous online speakers from being unmasked as non-party witnesses absent a clear, stringent showing of need, allowed the movant to proceed pseudonymously, and quashed a subpoena that sought identities without demonstrating direct, material relevance to a core defense and unavailability of equivalent information from other sources.


Doe v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001)