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Defamation suits involving anonymous online speech swing between extremes: Some cases involve vulgar postings meant to harass and ridicule, while others take on a whistleblower-like significance in exposing possible political or corporate malfeasance. Despite the prevalence of such cases, there are no national standards guiding a judge’s determination of when to reveal the identities of anonymous posters. Instead, courts have applied a jumble of tests. Some worried observers see the lack of uniformity and the accompanying uncertainties as threats to speak anonymously—a right the
Supreme Court has jealously guarded.
Complicating the issue is the variety of scenarios present in these defamation cases. These suits can be broadly separated into two factions: legitimate defamation suits sometimes called “cybersmears,” and illegitimate suits aimed merely at intimidating critics that resemble illegal Strategic Lawsuits Against
Public Participation (SLAPPs), which are sometimes called “cyber-SLAPPs.” Cybersmear suits are typical defamation actions brought against an anonymous poster who has sought to sully the reputation of his or her target; such speech is not constitutionally protected. CyberSLAPPs, on the other hand, are baseless
lawsuits that corporations, politicians, or others bring to silence critics engaged in constitutionally protected political speech online. Legitimate cybersmear cases and illegitimate cyberSLAPPs are both filed as defamation claims and can appear indistinguishable at first glance, making it difficult to balance one person’s right to speak anonymously against another person’s right to protect his or her reputation against defamation.