Millions of people engage in anonymous speech online every day. Many internet speakers are only comfortable sharing their controversial, taboo, embarrassing, or intimate thoughts anonymously. And these thoughts often promote important open discussions in the spheres of public safety, scientific scholarship, labor, consumer welfare, and more. As a result, the ability to speak anonymously enriches valuable public discourse.

But what happens when that anonymity is threatened by a subpoena in a potential defamation case? SLS Juelsgaard IP & Innovation Clinic (JIPIC) students Victoria Gardner (‘25) and Kiran Wattamwar (‘25) recently filed an amicus brief urging a New York State Appellate Division court to adopt a standard for unmasking anonymous speakers that carefully protects valuable First Amendment speech interests and includes consideration of the public interest in protecting anonymity. The court quickly decided the case in line with the Clinic’s arguments in a big win for free anonymous speech online.

The Clinic’s brief was submitted on behalf of a group of major online speech platforms — Glassdoor, Indeed, PubPeer, Reddit, Tripadvisor, and Yelp — in the appeal of GSB Gold Standard Corporation AG v. Google LLC et al. Our clients’ perspectives were especially important because online speech platforms and ISPs are often the subject of subpoenas seeking to unmask their users.

What is this case?

This appeal involved an anonymous blogger, BehindMLM, who shares information about and critiques of multi-level-marketing schemes (MLMs) and other investment opportunities on their blog. BehindMLM has critiqued several companies on their blog, and sometimes spoken about their connections to powerful and dangerous organizations. BehindMLM has already been threatened with violence, and the nature of their work could put them at risk of physical injury if their identity is revealed.

BehindMLM criticized the petitioner in this case, GSB Global, for its business practices and claimed that GSB is a Ponzi scheme. A New York State trial court granted GSB’s request for a subpoena seeking to unmask the identify of the blogger, even though GSB did not make a preliminary showing that it was entitled to the information. Public Citizen’s Paul Levy, a leading expert in protections for anonymous speech, represented BehindMLM on appeal.

When a prospective plaintiff like GSB seeks to file a suit against an anonymous speaker, that plaintiff will first need to identify who the anonymous speaker is. In these situations, prospective plaintiffs may try to use a subpoena to force platforms or other entities who have that speaker’s identity information to disclose it. This case raised the question of how courts should weigh the First Amendment interests of the anonymous speakers and the general public against possible legitimate needs of the plaintiff when making these determinations.

Before this case, New York courts had not yet adopted a definitive legal standard for determining when it is appropriate to unmask anonymous speakers in discovery. Other courts around the country have coalesced around a few standards, chief among them the Dendrite standard—its factors have been widely adopted. The Dendrite factors require a plaintiff to establish a prima facie cause of action and attempt to give notice to an anonymous speaker.

Dendrite also uniquely requires courts to balance the First Amendment interests of the speaker against the strength of a prospective plaintiff’s case and their need for this information. The Clinic’s brief urged the court to join other courts that have adopted a version of the Dendrite factors that also includes consideration of the public interest in protecting an anonymous speaker’s speech.

Why is this issue so important?

Drawing on our clients’ rich experiences hosting anonymous speech, Victoria and Kiran’s brief explained the importance of anonymous speech in our modern democratic society. Anonymity enables speakers to share candid thoughts about topics they otherwise would feel vulnerable sharing, whether it is sensitive information about experiences with employers, allegations of scientific misconduct, or challenges around deeply personal topics like grief, divorce, recovery, and mental health.

The clinic’s brief also pointed out the unique harms of unmasking anonymous speakers. When a speaker loses their anonymity, it is lost forever. Unmasking one instance of speech risks unmasking all of the speech by that speaker under the same account. When a speaker’s entire body of speech under an account is unmasked, they can suffer from harassment, alienation, or even physical threats that are completely unrelated to the speech at issue. Prospective plaintiffs may drop their suits once they unmask their critics, leaving the judicial system and taking things into their own hands. Employers may retaliate against their unmasked employees.

Perhaps most unsettling of all, without the Dendrite standard, the decision to grant an unmasking disclosure precedes a court’s determination of whether a plaintiff has a strong case at all. And once an anonymous speaker is unmasked, the damage is done, even if the court later finds that the plaintiff’s claims were unfounded.

Why the Dendrite factors?

JIPIC’s brief argued that the Dendrite factors are the best solution to the problems posted by unmasking. Dendrite’s notice requirement makes anonymous speakers aware that they risk being unmasked and gives them a chance to legally challenge the subpoena. Dendrite also requires plaintiffs to demonstrate that they have a strong case and need the speaker’s identity information. After plaintiffs meet these requirements, Dendrite requires that courts balance the weighty First Amendment interests of the speaker against litigants’ legitimate need for information, ultimately providing courts with a flexible approach that takes into account the interests of the speaker, the litigants, and the public at large.

Image by Kiran Wattamwar and Victoria Gardner

What was the outcome?

The appellate court’s decision — in line with what the Clinic’s brief urged — unanimously reversed the lower court’s decision and quashed the subpoenas seeking the disclosure of BehindMLM’s identity to GSB Global. Notably, the decision adopted the factors outlined in Dendrite—a big win for free speech. The decision held that “when a party seeks an anonymous online speaker’s identifying information, courts must first require the party to take reasonable efforts to provide the speaker with notice and an opportunity to appear in the action or proceeding.” It also required that “when a speaker asserts a First Amendment right to anonymous online speech . . . a court should consider the First Amendment rights at stake, whether the party seeking disclosure has stated a showing of a prima facie defamation claim, and the balance of the equities.”

Read the full brief and the decision.