EFF and the Media Freedom and Information Access Practicum (MFIA) at Yale Law School a friend-of-the-court brief in the case of Stone v. Paddock Publications urging the Illinois Court of Appeals to block the unmasking of an anonymous online critic of a local political candidate.
The critic commenting on a story on the website of a suburban Chicago newspaper called the Daily Herald engaged in a heated debate with other commenters. One turned out to be the son of the village trustee candidate in Buffalo Grove Illinois who was discussed in the article. The candidate Lisa Stone who eventually won her race asked a state court to order the newspaper to release the critic's name and address without appropriately showing that the statements directed towards her son were defamatory or otherwise illegal. Stone indicated that she may choose to subsequently file a lawsuit once she determines the critic's identity through the pre-complaint procedure.
In November a lower court granted Stone's pre-lawsuit request for her critic's identity incorrectly holding that a narrow disclosure to Stone would adequately protect the speaker's First Amendment rights. The court stayed the disclosure requirement in light of the speaker's appeal.
Outcome: On November 17, 2011, the Illinois Court of Appeals reversed the lower court's opinion, holding that the First Amendment right to anonymous speech barred efforts to unmask an online speaker in support of a defamation claim where that underlying statement was not actionable as a matter of law. From the Court's conclusion:
Our nation has long prized a citizen's right to speak anonymously. With the proliferation of the seemingly limitless vehicles for such speech on the Internet and the various forms of social media, our citizens now have outlets for anonymous free speech that were quite simply unimaginable only a decade ago. While the law is clear that there is no right to defame another citizen, we cannot condone the inevitable fishing expeditions that would ensue were the trial court's order to be upheld. Encouraging those easily offended by online commentary to sue to find the name of their "tormenters" would surely lead to unnecessary litigation and would also have a chilling effect on the many citizens who choose to post anonymously on the countless comment boards for newspapers, magazines, websites and other information portals. Putting publishers and website hosts in the position of being a "cyber-nanny" is a noxious concept that offends our country's long history of protecting anonymous speech.