But the Virginia Court wasn't looking at the same code as those other state codes. It was looking at Virginia state law, whether that state law was constitutional or not. "We are 'reluctant to declare legislative acts unconstitutional, and will do so only when the infirmity is clear, palpable, and practically free from doubt'," the court wrote, quoting from an earlier decision. The court continued, saying this is because "any reasonable doubt
as to the constitutionality of a statute must be resolved in favor of
its constitutionality," again quoting from an earlier decision. With those principles in mind, the court "decline[d] to declare [the unmasking statute] unconstitutional."
Instead, that job will next fall to the Virginia Supreme Court, as Yelp has already decided to appeal the decision, Levy told me.
The case illuminates the growing role of courts in mediating anonymous speech. In an earlier time, when anonymous speech happened via paper and ink, there may have been no one for a victim of defamation to subpoena. If you print your diatribes yourself, and plaster them about town, without at least very good detective work, there's no one who could possibly reveal your identity.
That's no longer the case. Online, with the exception of highly sophisticated Internet users who take deliberate steps to cloak their identities using encryption, there are many third parties who know the identities behind anonymous communicators. There are sites such as Yelp, who might have your real email address; there's your Internet service provider. If you wrote your diatribe on your own, nameless website, there's still be a domain name provider and a hosting service. Online, anonymity is spurious; someone out there almost always knows who you are. Each one of these links in the chain could be subpoenaed, and if and when they refuse to comply, courts will have to decide whether the claim is meritorious, or whether the anonymous actor deserves protection.
That's why the standards that courts choose to employ in making those decisions are so important. Will they, like Virginia did, defer to a claim without a showing of falsity or harm? Or will they require more? How will they balance the very real concerns of those whose good name is at stake, with those who may be vulnerable to retaliation, say an employee who speaks ill of an employer, or a citizen of a police chief?
But that's not necessarily a bad thing. If courts can craft a fair standard, they'll be able to balance the competing interests of free speech and protection from defamation on a case-by-case basis. If the court finds that you should be found, you'll be found.
Levy, for his part, thinks that's right."That's the way it should be," he told me. "Because you shouldn't, and Public Citizen doesn't believe that you should be able to go accuse somebody of wrongful conduct, make a very factual statement, which you know to be false, and get away with it." Courts just need to make sure that is, indeed, the case.