From the New York Law Review, September 2011
The right to speak versus the right to redress. The Supreme Court has recognized that the First Amendment protects speech on the Internet, see Reno v. ACLU, 521 U.S. 844, 870 (1997); the Court has also recognized a First Amendment right to engage in anonymous speech, see McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (recognizing a First Amendment right to distribute anonymous handbills in connection with a tax referendum). But at the same time, the Court has also recognized that there are limitations on the right to free speech, including, among other things, the application of defamation laws. See id. at 351 n.13.
Accordingly, the courts that have considered defamation cases involving anonymous Internet speech have rejected the position that there is an absolute, or near-absolute right to anonymous speech on the Internet. For example, in Melvin v. Doe, 49 Pa. D. & C.4th 449 (Ct. C.P. Allegheny County Nov. 15, 2000), a Pennsylvania Superior Court Judge brought a libel action against 13 anonymous posters who alleged that she lobbied on behalf of a local attorney for a judicial appointment. The Court of Common Pleas held that "the First Amendment protections afforded the anonymous speaker do not extend to speech that may be false and injurious." The court concluded that the First Amendment interests of anonymous posters could be protected only to the extent that they "do not interfere with the underlying purposes of state tort law." Thus, the court concluded, a plaintiff may use discovery to learn the identity of an anonymous defendant once a prima facie case of libel has been established. The court acknowledged that pursuit of the defamation action would require that the anonymous speaker lose his anonymity, but held that "there is no case law which would suggest that the First Amendment leaves the states without any meaningful tort law to discourage the publication of defamatory statements concerning public officials."