David Doe v. Goliath, Inc.: Judicial Ferment in 2009 for Business Plaintiffs Seeking the Identities of Anonymous Online Speakers, 43 J. Marshall L. Rev. 1 (2009)

This Article analyzes a quartet of judicial opinions from 2009 and 2008 affecting the First Amendment right to engage in anonymous speech on the Internet. Comprehensively, it initially traces both U.S. Supreme Court precedent on anonymous speech and the evolution of judicial online-unmasking standards that strive to balance the interest of free expression against the need for redress when anonymous postings cause harm. It then concentrates on four very recent opinions-Swartz v. Doe, Independent News, Inc. v. Brodie, Solers, Inc. v. Doe, and Krinsky v. Doe 6-in which the business interests of a person or corporation were jeopardized or threatened by anonymous postings. It compares and contrasts the 2009 and 2008 unmasking standards, ultimately finding that stabilization is finally occurring in the judicial fermentation process. The Article thus concludes by arguing that legal scholarship, rather than focusing on crafting new unmasking tests, should instead concentrate on the relatively neglected antecedent task of creating a paradigm or framework for determining which of the major unmasking tests should be applied in any given case. Just as libel law embraces multiple fault standards (actual malice, negligence, and strict liability), the applicability of which are determined by the specific facts of a case, so too should courts and legal scholars now focus on formulating a rubric for determining which of the various unmasking tests should be applied, given the unique facts of each anonymous online-posting case.