In Free Speech Win, Millionaire Withdraws Attempt to Identify Anonymous Online Critic

SAN FRANCISCO — In a victory for free speech online, a federal case seeking to compel the disclosure of the identity of an anonymous online critic of pharmaceutical magnate Fredric Eshelman was voluntarily dismissed following a motion to quash, filed by the ACLU Foundation of Northern California and Public Citizen Litigation Group.

In January 2023, Dr. Eshelman sought a subpoena in the U.S. District Court for the Northern District of California to force Google to uncover the identity of an anonymous internet user, “J. Doe.”

Doe had previously urged companies to reconsider business ties with Dr. Eshelman, calling him a “piece of shit,” who “abused police resources.” Dr. Eshelman has been embroiled in public disputes related to his ranch in Wyoming and his donation to a group challenging the results of the 2020 election.

In an attempt to obtain Doe’s identity, Dr. Eshelman sought to use a statute, 28 U.S.C. § 1782, designed to obtain records and information for use in foreign proceedings. He professed an intent to file defamation suits against Doe overseas, where some of his business contacts allegedly are. The court initially granted Dr. Eshelman’s request, even though both he and Doe are Americans, but required Google to notify the user about the subpoena. The court also provided Doe and Google an opportunity to move to quash the subpoenas before Doe’s identifying information could be disclosed.

“The First Amendment is a critical shield against efforts by the rich and powerful to intimidate their critics into silence, both online and off, said Matt Cagle, senior staff attorney for the Technology and Civil Liberties Program at the ACLU Foundation of Northern California. “This was an extraordinary and wholly inappropriate use of a federal law intended for foreign proceedings to attempt an end run around constitutional rights. We are proud to support our client in opposing this threat to anonymous online speech.”

Representing Doe, the ACLU of Northern California and Public Citizen moved to quash the subpoena on June 21, arguing that Doe’s criticism was protected speech and that Dr. Eshelman’s use of the foreign proceedings statute to expose Doe’s identity raised serious constitutional concerns if applied to Doe’s speech. Instead of responding to this motion, Dr. Eshelman withdrew his subpoena just two weeks later and voluntarily dismissed the case.

“The fact that the subpoena was dropped as soon as Doe appeared to object shows that Eshelman did not have a genuine plan to sue for defamation,” said Paul Alan Levy, an attorney with Public Citizen Litigation Group. “Rather, like all too many efforts to identify anonymous posters, this was an exercise in sheer intimidation by a rich man who is too used to throwing his weight around.”

The ACLU Foundation of Northern California and Public Citizen’s motion on behalf of J. Doe can be found here. Google also filed a motion to quash, available here. More info about the case is here.