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Ninth Circuit Argues for Less Stringent Test for Protecting Anonymous Online Commercial Speech
By Kathryn Freund – Edited by Janet Freilich

In re: Anonymous Online Speakers, No. 09-71265 (9th Cir. July 12, 2010)
Opinion

The Ninth Circuit Court of Appeals denied writs of mandamus appealing the District Court of Nevada’s order to disclose the identities of anonymous online posters. Although the Circuit Court denied the writs of mandamus for procedural reasons, the decision provides a discussion of Free Speech protection of commercial speech posted on the Internet.

Judge McKeown held that the District Court committed no clear error in ordering the release of the identities of three anonymous online speakers. In discussing the various tests for protecting anonymous speech, she stated that the District Court applied too stringent a standard for commercial speech by relying on the test announced in Doe v. Cahill, 884 A.2d 451 (Del. 2005), which involved political speech. The court noted that the First Amendment affords less protection to commercial speech, and thus the balancing test between discovery and Free Speech should be based on “the nature of the speech,” with commercial speech subject to less stringent protection. In re: Anonymous Online Speakers, at *9920. In the discussion, the court noted the likelihood of an increasing number of cases involving anonymous online commercial speech and the lack of appellate decisions involving such discovery disputes.

The Internet Cases blog provides an overview of the decision and points out the significance of the case as the third federal circuit court case to address the issue of online anonymity. Citizen Media Law Project provides a more extensive overview and questions whether the Ninth Circuit’s definition of commercial speech will reduce free speech protection for “legitimate consumer criticism.”

The Plaintiff, Quixtar, Inc., claims Defendant, Signature Management TEAM, LLC (“TEAM”) created an online smear campaign to tortiously interfere with Quixtar’s business contracts. The Internet smear campaign included anonymous postings and videos. During discovery, Quixtar requested TEAM release the identities of five anonymous online posters. The District Court of Nevada ordered TEAM to release the identities of three of the anonymous posters. Both Quixtar and TEAM petitioned the Ninth Circuit for a writ of mandamus. In denying both writs, the Ninth Circuit reasoned that neither party demonstrated a need for the extraordinary remedy of mandamus.

The court provided an extensive overview of First Amendment protection of anonymous speech. In differentiating between commercial speech and political speech, the court described the Internet postings and videos as “[going] to the heart of Quixtar’s commercial practices and its business operations.” In re: Anonymous Online Speakers, at *9914. In so deciding, the court defined the level of protection given to online speakers by the impact the speech has on the other party rather than the intent of the speaker.

Judge McKeown went on to argue that Cahill represents the most stringent balancing test. Therefore, the District Court should not have applied the Cahill test because “the nature of the speech should be a driving force in choosing a standard by which to balance the rights of anonymous speakers in discovery disputes,” and Cahill dealt with political rather than commercial speech. In re: Anonymous Online Speakers, at *9920.

Only the Fourth and Sixth Circuits have previously addressed anonymous online commercial speech. The Ninth Circuit’s decision therefore represents a significant argument that lower courts should not apply more stringent tests, such as Cahill, during discovery disputes involving anonymous online commercial speech.

Kathryn Freund is a 2L at the Harvard Law School.

Posted On Jul - 27 - 2010 Comments Off

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