When pervasive advertisements from a local merchant feature prices that seem to be just too good to be true, they may, in fact, not be the price that the average consumer will pay. Dozens of consumers who have used pseudonyms to post about their experiences with appellee Hadeed Carpet Cleaning, Inc. (“Hadeed”) on the popular website www.yelp.com, maintained by appellant Yelp Inc. (“Yelp”), report that Hadeed routinely fails to honor the advertised discount prices. Hadeed’s responses to several consumers on Yelp suggest that it recognizes the problem; yet its complaint for defamation singles out the authors of seven reviews posted on Yelp that say the same thing as the other online detractors of Hadeed and its sister business, Hadeed Oriental Rug Cleaning. Based on that allegation, Hadeed invoked the court’s subpoena power to strip its pseudonymous critics of their First Amendment right to speak anonymously.

The main question on this appeal—an issue of first impression at the appellate level in Virginia—is whether the trial court applied the proper legal standard in overriding the anonymous speakers’ First Amendment rights. Courts elsewhere have recognized that, given the valuable role played by the First Amendment right to speak anonymously in encouraging ordinary people to express themselves fully, it is necessary to balance that right against a plaintiff’s right to seek redress for wrongful speech by adopting a standard requiring a plaintiff to do more than articulate a good faith belief that the speech “maybe tortious.” Before stripping the defendant of a First Amendment right, these courts take an early look at the merits of the plaintiff’s claim to determine whether a valid claim has been alleged and whether there is a prima facie evidentiary basis for that claim. In this appeal, Yelp urges Virginia to adopt the same approach, and to remand this case to give Hadeed an opportunity to pursue its subpoena by meeting the proper standard.

Contrary to Plaintiff's assertions, evidence of copyright infringement does not automatically remove the speech at issue from the scope of the First Amendment. While "the First Amendment does not shield copyright infringement," Harper, 471 U.S. at 555-56, "copyright law contains built-in First Amendment accommodations." Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003). Perhaps the most important is the doctrine of fair use, which allows the public to use copyrighted works "for purposes such as criticism, comment, news reporting, teaching ... and scholarship." .... In this case, the Court has acknowledged that "Skywalker appears to have published the [protected materials] ... as part of a larger effort to debunk the notion that the Art of Living Foundation and Ravi Shankar possess some 'secret higher knowledge.'" Id. Although the Court need not determine at this stage if Skywalker's conduct is protected by fair use, the circumstances here create a substantial question as to whether the doctrine applies.... The Court therefore finds that even if Skywalker's speech is not "political" or "religious," as he has argued, it at least raises significant constitutional issues.

Conversely, Sony Music made no mention of the chilling effect of disclosure. Of course, this makes sense, given that the conduct at issue had little First Amendment value. However, because disclosure of Skywalker's identity here could discourage other bloggers from engaging in lawful, critical speech, the Highfields/Perry analysis is more likely than Sony Music to focus the Court on striking the proper balance between competing interests.

(1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identify the poster's allegedly actionable statements; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity.