Our firm recently served as counsel in a multi-state case over what has become known as “unmasking” litigation. This type of litigation arises when a person receives anonymous and harassing text messages. These messages usually are sent through commercial “masking” services. When the victim seeks to subpoena records from the masking provider to discover the sender’s identity, the sender may seek to quash the subpoena by arguing that the First Amendment protects anonymous speech. But as a general matter, the First Amendment does not protect private, one-to-one, harassing speech—whether made anonymously or not.
To understand the interplay between anonymity and the First Amendment, it is first important to realize that anonymity neither bestows nor precludes constitutional protection of speech, which is determined by the speech itself. Contrary to what some people believe, courts do not “reflexively protect speech simply because it was written anonymously . . . .” Sarah E. Smith, Threading the First Amendment Needle: Anonymous Speech, Online Harassment, and Washington’s Cyberstalking Statute, 93 Wash. L. Rev. 1563, 1577–78 (2018).
Traditionally, First Amendment protection for anonymous speech turns on the difference between “harassing ‘one-to-one’ speech made to a particular person” and “‘one-to-many’ speech about a particular person.” Id. at 1573 (citation omitted and emphasis added). The First Amendment generally does not protect “speech directed at a specific individual rather than speech about a specific individual.” Id. at 1574 (citation omitted and emphasis in original).
This approach reflects the purposes of the First Amendment. One-to-many speech—even when posted online—enjoys protection because it promotes the “robust exchange of ideas” involved in public discourse. See In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (discussing “robust exchange of ideas” in internet communication); see also Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999) (noting that anonymous online speech fosters “robust debate”).
In contrast, harassing speech directed to just one person serves no such purpose. “A one-to-one unwanted statement is highly unlikely to persuade or inform anyone precisely because the listener does not want to hear it. Its only effect is likely to be to offend or annoy. And restricting such statements leaves speakers free to communicate to other, potentially willing listeners.” Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. L. Rev. 731, 743 (2013) (citations omitted).
This distinction explains why the First Amendment does not limit governmental regulation of harassing telephone calls and text messages. For example, federal law prohibits any anonymous use of a telecommunications device with the intent to harass. 47 U.S.C. § 223(a)(1)(C), (E) (2012). This prohibition does not violate the First Amendment. United States v. Lampley, 573 F.2d 783, 787 (3rd Cir. 1978).
The United States Supreme Court upheld the only law it has considered involving unwanted one-to-one speech. In that case, a federal law permitted an individual to ban mailings of unwanted erotic or sexual materials to his or her home. The Court deemed this law permissible under the First Amendment. Rowan, 397 U.S. at 738. As the Court noted, “no one has a right to press even ‘good’ ideas on an unwilling recipient . . . .” Id.
The Court reiterated this point in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), striking down an injunction as violating the First Amendment in part because the person seeking to limit the speech “[was] not attempting to stop the flow of information into his own household, but to the public.” Id. at 420. Thus, had the speaker been trying to restrict only messages into his own home, no First Amendment protection would attach.
These are just two examples of decisions upholding laws regulating one-to-one speech. “[A]ll these laws have one thing in common: In the great bulk of their applications, they restrict what one may call ‘unwanted one-to-one’ speech—speech said to a particular person in a context where the recipient appears not to want to hear it . . . The laws are aimed at restricting speech to a person, not speech about a person. And that is the context in which they have generally been upheld against First Amendment challenge.” Volokh, 107 Nw. L. Rev. at 742 (citations omitted).
Taking all of this into account, and after conducting an exhaustive review of the relevant authorities, one of the nation’s leading First Amendment scholars concluded that the First Amendment does not protect “one-to-one speech that is addressed to an unwilling listener and that can be restricted without blocking communications to willing listeners.” Id. at 750.
Separately, the First Amendment does not protect personal abuse. “Resort to . . . personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution . . . .” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Anonymous or not, abusive messages lack First Amendment protection.
Of course, there are cases where anonymous one-to-one communications have been protected. But those cases all involve communications to public officials or candidates for elective office. See Commonwealth v. Bigelow, 59 N.E.3d 1105, 1112–13 (Mass. 2016) (elected official); State v. Drahota, 788 N.W.2d 796, 805 (Neb. 2010) (candidate); United States v. Popa, 187 F.3d 672, 673, 677–78 (D.C. Cir. 1999) (U.S. Attorney); State v. Fratzke, 446 N.W.2d 781, 784–85 (Iowa 1989) (state trooper). Unwanted speech to public officials and candidates retains constitutional value under a citizen’s right to remonstrate with officials and candidates and petition for redress of grievances “even when the target doesn’t want to hear the petitions or the petitions are offensively worded.” Volokh, 107 Nw. L. Rev. at 744 (citations omitted).
Similarly, private speech sometimes can implicate public concerns. For example, speech implicating immediate public-safety concerns can be protected. See, e.g., Terry v. Davis Community Church, 131 Cal. App. 4th 1534, 1545 (Cal. Ct. App. 2005).
This lack of First Amendment protection has important implications for the target’s ability to discover the sender’s identity. Given recent technological advances, this is a developing area of the law. But courts around the country generally have approached anonymous-speech cases by applying some sort of balancing test that weighs the speaker’s First Amendment rights against the recipient’s need for the information sought (the speaker’s identity).
For example, California courts apply a balancing test that seeks to determine whether “the lawsuit has sufficient merit to require the unmasking of the Doe defendants in the face of First Amendment and privacy rights.” ZL Technologies, Inc. v. Does 1-7, 13 Cal. App. 5th 603, 632 (Cal. Ct. App. 2017).
Similarly, a Texas court has held that a party seeking unmasking must show its ability to survive summary judgment to obtain the requested discovery. In re Does 1–10, 242 S.W.3d 805 (Tex. App.—Texarkana 2007, orig. proceeding). But in that case, the court made clear that the rule would not apply to a case involving direct, non-public, harassing text messages. The court explicitly recognized the difference between one-to-one harassing messages and one-to-many internet speech. Does 1–10 involved efforts to unmask a public blogger. All statements at issue were posted publicly. In enunciating the summary-judgment standard for obtaining discovery, the court distinguished a Pennsylvania case involving purely private text messages and emails—noting that, in the other case, “a type of harassment was involved.” Id. (citing Polito v. Time Warner, Inc., No. CIV. A. 03cv3218, 2004 WL 3768897 (Pa. D. & C. Jan. 28, 2004)).
The critical point is this: these tests apply only where the speech at issue enjoys protection under the First Amendment. So, for example, these tests would apply to speech posted anonymously in a blog. But where the First Amendment does not protect the speech at issue—for example, a private, anonymous, and harassing text message—no balancing is required.
The law of “unmasking” is far from settled, and it continues to develop across the country. But it appears that victims of harassing text messages will be able to unmask the senders of those messages without the need to satisfy balancing tests that weigh First Amendment concerns.