John Doe Subpoenas: Toward a Consistent Legal Standard

Abstract

This Note considers the rising trend of anonymous online harassment and the use of John Doe subpoenas to unmask anonymous speakers. Anonymous online harassment can chill more speech than it generates, suggesting that the First Amendment interest in protecting the anonymity of such speakers is lower than for other anonymous speech. This Note argues that public figure doctrine should be adapted to John Doe subpoenas to distinguish between online harassment and more valued anonymous speech. It then breaks John Doe subpoena standards up into six constituent factors, evaluates the current standards, and proposes a final standard that consistently balances the needs of plaintiffs and defendants and helps judges to distinguish online harassment from other forms of anonymous speech.