Anonymously posted comments are a fixture of the Internet. In some cases, however, such postings are alleged to be defamatory. The question that then arises is what must a plaintiff prove to learn the identity of the anonymous poster? Given the historical First Amendment protection for anonymous free speech, two critical issues have surfaced:

1. Should disclosure of the poster’s identity merely require the plaintiff to show that its complaint would withstand a motion to dismiss for failure to state a claim, or should the plaintiff have to show that its claim would withstand a summary judgment motion?

2. Should there be a balancing that the court performs above and beyond a motion to dismiss/summary judgment test that could still protect anonymity for speech deemed important enough to warrant protection?

One popular, but not universal, standard arose to address these issues based on two well-known cases: Dendrite International, Inc. v. Doe, No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) and Doe v. Cahill, 884 A.2d 451 (Del. 2005).

In Dendrite, the Superior Court of New Jersey held that before a court will order disclosure of the identity of an anonymous poster:

1. The plaintiff must try to notify the poster that he is the subject of efforts to learn his identity

2. The plaintiff must identify the exact statements that plaintiff contends are actionable

3. The plaintiff must establish that its claim would withstand a motion to dismiss for failure to state a claim, and must produce sufficient evidence supporting each element of its claim to make out a prima facie case

4. “[T]he court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.” Dendrite, 775 A.2d at 760-61

In Cahill, the Supreme Court of Delaware adopted a modified Dendrite standard, holding that only requirements (1) and (3) of the Dendrite test were necessary because requirement (2) of the test would be subsumed in the summary judgment inquiry, and the balancing of the fourth Dendrite-test requirement “adds no protection above and beyond that of the summary judgment test and needlessly complicates the analysis.” Cahill, 884 A.2d at 461. Rather, the summary judgment test of requirement (3) is the balance. Many courts have referenced and relied on this so-called Dendrite-Cahill standard.

Last year, however, an Illinois court refused to adopt the Dendrite-Cahill standard in Maxon v. Ottawa Publishing Co., 929 N.E.2d 666, 676 (Ill. App. Ct. 2010). The court in Maxon rejected the idea that the plaintiff’s claim should be tested by a summary judgment standard rather than a motion to dismiss standard, reasoning that Illinois is a fact pleading jurisdiction that requires a legally and factually sufficient complaint. The court further held that once the plaintiff has set forth a prima facie case,

he has made out a valid claim for damages and has a right to expect a remedy. Likewise, once the petitioner has made out a prima facie case for defamation, the potential defendant has no first-amendment right to balance against the petitioner’s right to seek redress for damage to his reputation, as it is well settled that there is no first-amendment right to defame.

Id. A dissent in Maxon preferred the Dendrite-Cahill approach because it adds “a crucial extra layer of protection to anonymous speech,” and further observed that requiring fact pleading does not necessarily eliminate the problem as “[p]laintiffs routinely plead ‘facts’ which later cannot be proven.” Id. at 679. As evidenced by Maxon, the Dendrite-Cahill standard has not yet won the day.

Adding to the complexity, at least one court has instructed that the appropriate test will vary depending on the type of speech. Earlier this year, the 9th Circuit denied a petition for a writ of mandamus seeking to direct the district court to vacate its order to unmask anonymous Internet posters in In re Anonymous Online Speakers, 2011 WL 61635 (9th Cir. Jan. 7, 2011). The district court had considered several possible tests before applying Cahill.

The 9th Circuit held that there was no clear error in ordering the disclosure of the posters’ identities, as this result was reached under the strictest possible test and the result would have been the same under an easier test. The 9th Circuit did not provide guidance on a particular test that should generally apply. Rather, it observed that the nature of the speech should be considered in determining the appropriate test and that commercial speech is not as strongly protected under the First Amendment as some other types of speech, e.g., political, religious or literary.

Anonymous speech has been an integral element of discourse in the U.S. since colonial times, with The Federalist Papers being but one important example. Only in modern times has identifying the author of much anonymous speech become significantly easier—at least technologically. It will be up to the courts to decide how easy it will be to identify such authors—from a legal standpoint—as courts struggle to find a proper balance between protection from defamation and the First Amendment right to anonymous free speech.