EFF Tells Court to Protect Anonymous Speakers, Apply Proper Test Before Unmasking Them In Trademark Commentary Case

Judges cannot minimize the First Amendment rights of anonymous speakers who use an organization’s logo, especially when that use may be intended to send a message to the trademark owner, EFF told a federal appeals court this week.

EFF filed its brief in the U.S. Court of Appeal for the Second Circuit after several anonymous defendants in a case brought by Everytown for Gun Safety Action Fund appealed a district court’s order that mandated the disclosure of their identifying information. Everytown’s lawsuit alleges that the defendants used its trademarked logos in 3-D printed gun part plans and sought the order to learn the identities of several online speakers who printed them.

Unmasking can result in serious harm to anonymous speakers, exposing them to harassment and intimidation, which is why the First Amendment offers strong protections for such speech. So courts around the country have applied a now well-established three-step test when parties seek to unmask Doe speakers, to ensure that the litigation process is not being abused to pierce anonymity unnecessarily. But in granting the order in this case, the district court instead applied a looser test that is usually used only in P2P copyright cases. The court then ruled that the online speakers could not rely on the First Amendment here because “anonymity is not protected to the extent that it is used to mask the infringement of intellectual property rights, including trademark rights.”

That ruling cannot stand. As we explained in our friend-of-the-court brief, “Although the right to speak anonymously is not absolute, the constitutional protections it affords to speakers required the district court to pause and meaningfully consider the First Amendment implications of the discovery order sought by Plaintiffs, applying the correct test designed to balance the needs of plaintiffs and defendants in Doe cases such as this one.”  By choosing to apply the wrong test, and even then in the most cursory way, the district court fell far short of its obligations.

To be clear, at this point we aren’t commenting on the merits of Everytown’s trademark claim. Instead, we’re worried about something else: that the court’s ruling, if affirmed by the Second Circuit, will be used in other trademark cases to minimize the interests of speakers who use trademarks as part of their commentary. 

The traditional, robust legal test under the First Amendment requires those seeking to identify anonymous speakers to give them notice and meet a high evidentiary standard, which ensures the plaintiffs have meritorious legal claims and are not misusing courts to intimidate or harass anonymous speakers. If those steps are met, the First Amendment requires courts to weigh several factors, including the nature of the expression at issue and whether there are ways to provide plaintiffs with the information they need short of publicly identifying the anonymous speakers.

The district court instead relied on the lower standard used in cases involving peer-to-peer networks, which offers insufficient protections for anonymous speakers and should never have been used in this case.

If the court had looked instead to trademark precedent, it would have found that several sister courts have applied the more traditional test in trademark cases. And that is as it should be. As we explain:

as courts around the country have recognized, trademark uses may implicate First Amendment interests in myriad ways. Thus, trademark rights must be carefully balanced against constitutional rights, to ensure that trademark rights are not used to impose monopolies on language and intrude on First Amendment values

The Second Circuit granted defendants’ request for an administrative stay of the district court’s order and plans to more fully review the appeal next week. We hope that the court will reverse the district court’s order and require it to seriously consider the competing interests here before issuing any other unmasking orders, in this or any other case.