Setting the Tipping Point for Disclosing the Identity of Anonymous Online Speakers: Lessons from Other Disclosure Contexts

Abstract

At what point should anonymous online speakers alleged to have engaged in defamatory, threatening, or other unprotected and illegal speech be required to “unmask” themselves – i.e., to disclose their identities? Courts confronted with such questions have proposed a variety of tests that seek to determine the point – I’ll call this the tipping point – at which they become sufficiently confident that disclosure’s accountability gains justify the unmasking of an anonymous online speaker. This essay suggests that an intradisciplinary approach may be helpful when choosing among these alternative tests. To this end, it recalls parallel disclosure challenges in campaign, commercial, and other contexts, where courts generally screen for an impermissible government motive in seeking disclosure, and then balance the disclosure’s informational or law enforcement benefits against any expressive costs in deterring protected speech. The essay then explores how these approaches might guide courts’ search for an appropriate unmasking standard in the online setting.

Keywords: disclosure, anonymous, online