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)
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.” (more…)