Silencing John Doe: Defamation and Discourse in Cyberspace

Abstract

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons — some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits pose to Internet discourse. Although the constitutional privilege for opinion holds promise as a solution to this problem, the Supreme Court’s jurisprudence provides little assurance that the privilege can protect the “robust, uninhibited, and wide-open nature” of Internet discourse without giving Internet speakers free license to harm the reputation of others. Therefore, this Article attempts to articulate a theory that justifies protecting John Doe and suggests the steps courts should take to adapt the existing opinion privilege to the unique context of cyberspace.

Keywords: Internet, defamation, first amendment, opinion, hyperbole, satire, john doe, anonymous speech