Anonymous bloggers not always protected

Earlier this week, the Ninth Circuit issued an opinion resulting from a case where Amway-successor Quixtar, Inc. had sued it competitor Signature Management TEAM, LLC (“TEAM”) for allegedly carrying out an “Internet smear campaign” to induce Quixtar’s independent business owners to terminate their contracts with Quixtar and instead join a competing multilevel marketing company affiliated with TEAM.   In re. Anonymous Online Speakers, 2010 U.S. App. LEXIS 14166 (9th Cir. Nev. July 12, 2010)

The alleged “Internet smear campaign” included a set of anonymous blogs of both text and video postings.  At the lower court, during discovery, Quixtar obtained a court order compelling TEAM to identify the anonymous bloggers.  TEAM, arguing that the anonymous bloggers were protected by the First Amendment, appealed the order to the Ninth Circuit.  In response, Quixtar cross-petitioned the Court to order a TEAM employee to reveal the bloggers’ identity.

In the end, the Ninth Circuit held that the bloggers’ identity was not protected from the discovery process.

The Ninth Circuit explained:

[T]he ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without fear of economic or official retaliation … or concern about social ostracism.

It added that the anonymous speech issue had existed in print materials long before the Internet.  For instance, even the U.S. Constitution has roots in anonymous speech: James Madison, Alexander Hamilton, and John Jay published under the pseudonym “Publius” the famous The Federalist Papers, a series of anonymous essays advocating the ratification of the Constitution.  Online speech, therefore, stands on the same footing as other speech, the Court said. 

However, freedom of speech –anonymous or otherwise – is not unlimited, the Court reminded.  The level of scrutiny depends on the circumstances of each case.  Obscenities, libelous speech, and  “fighting words,” for instance, lack First Amendment protection.  On the other hand, “commercial speech” has some First Amendment protection (generally when not misleading or related to unlawful activity), and “political speech” is offered the greatest protection.

In this case, the blogs had been directed specifically toward Quixtar’s commercial practices and business operations, and were therefore “commercial speech.”  However, the characterization alone does not determine First Amendment protections for anonymous speakers, as the “decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”

The Court also considered a party’s right to obtain discovery.  It looked to another 2010 case, Perry v. Schwarzenegger, where the court had denied the request of a party in a California same-sex marriage suit to obtain internal campaign communications from proponents of a ballot proposition.  591 F.3d 1147 (9th Cir. Cal. 2010).  In that case the court reasoned that, because the communications “would likely have a chilling effect on political association,” greater protection was necessary.

But the TEAM bloggers’s speech was commercial, not political. So the Court looked to other cases that focused on “commercial speech,” but could find little established standards.   

The Court said that the Delaware Supreme Court had, in Doe v. Cahill, established the “most exacting” standard, but it involved political, not commercial speech.  884 A.2d 451 (Del. 2005). Under the Cahill standard, for a plaintiff to discover an anonymous speaker’s identity, the plaintiff must be able to survive a hypothetical motion for summary judgment, such as showing sufficient evidence to establish each essential element of a defamation claim. 

The Ninth Circuit said, however, that “commercial speech should be afforded less protection than political, religious, or literary speech.”

In the end, the Ninth Circuit Court of Appeals agreed with the lower court’s decision to balance a party’s need for relevant discovery with the right to First Amendment protection.  It concurred with the lower court that, “particularly in the age of the Internet, the ‘speed and power of internet technology makes it difficult for the truth to “catch up” to the lie.’”

In conclusion, the court decided that neither Quixtar nor TEAM were entitled to relief. 

First, it denied the anonymous bloggers’ request to vacate the order compelling disclosure of the bloggers’ identity.  It explained that, for discovery purposes, the parties already had a protective order in place that provided different levels of disclosure for different categories of documents, such as disclosure for “Attorneys’ Eyes Only,” which could reduce the harms of disclosure.

Next, the Court denied Quixtar’s motion to compel the TEAM employee to disclose the identity of the anonymous bloggers, reasoning that Quixtar had not offered enough “extraordinary circumstance” to merit the court to grant the motion.

What can bloggers and businesses take from this case? 

Anonymous bloggers should realize a couple of things: First, not all speech is protected.  Second, although their anonymity will usually remain protected – it will not necessarily always be. 

Businesses, on the other hand, should be made more aware of the prevalence of anonymous blogging on the Internet, and that any action against an anonymous blogger may result in a lengthy court action, after which damage may have already been effected.  To monitor the Web, businesses can use tools, such as Google Alerts, which can search for a specific business name to give them updates as others publish content about them.

You can access a copy of the court’s opinion here.