By: Jeffrey Pietsch and Etan Zaitsu, second year law student at McGeorge School of Law

Thinking of running a smear campaign against a business competitor? Thinking of posting disparaging content about someone anonymously online? Think again. According to a decision made by the Ninth Circuit on July 12, 2010, anonymous online postings may not qualify as protected speech under the First Amendment.

In In re: Anonymous Online, turmoil between former business associates, Quixtar, Inc. (Quixtar) and Signature Management TEAM, LLC (TEAM), resulted in contract and tort litigation. Quixtar sued TEAM for tortious interference alleging that TEAM orchestrated a smear campaign against Quixtar by posting disparaging videos and comments about Quixtar anonymously on the Internet.

The defamatory postings, contained in several online videos and blogs, included comments such as: "Quixtar has regularly, but secretly, acknowledged that its products are overpriced and not sellable"; "Quixtar refused to pay bonuses to Independent Business Owners in good standing"; Quixtar "terminated Independent Business Owners without due process"; and "Quixtar currently suffers from systemic dishonesty".

During discovery, the trial court granted a motion to compel a TEAM employee to reveal the identities of the anonymous online speakers. The anonymous speakers filed a petition with the Ninth Circuit to block the order, claiming First Amendment protection for their postings. The Ninth Circuit held that while the balancing test used by the trial court in granting the motion was improper, the trial court did not clearly err in deciding to allow discovery of the identities of the anonymous posters.


Protection for anonymous speech is not new.  First Amendment protection for anonymous speech was first articulated fifty years ago in Talley v. California in 1960.  More recently a United States Supreme Court case in 1995, McIntyre v. Ohio Elections Commission, reminded us that the United States has had a respected tradition of anonymity in the advocacy of political causes since the birth of America. The Federalist Papers, for example, by James Madison, Alexander Hamilton, and John Jay, some of the most famous publications in American history, were published  under the pseudonym “Publius.”


Today, the new medium for anonymous speech is the internet, which, according to the Anonymous Online court, “stands on the same footing as other speech.” The Ninth Circuit stated that speaking 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.’”  


According to the Anonymous Online court, however, the level of protection afforded by the First Amendment to anonymous speech varies depending on the circumstances and the type of speech at issue.  Political speech, for example, is afforded the highest level of protection, while commercial speech is afforded limited protection. Of course, some speech, like the yelling-fire-in-a-crowded-theatre type, may not be protected at all if it incites violence or causes injury.


The anonymous videos and blog comments at issue in Anonymous Online were considered commercial speech, because the disparaging comments went straight to the heart of Quixtar’s commercial practices and business operations. Accordingly, the speech had only limited First Amendment protection. But categorizing the type of speech is only the first part of the analysis. Where speech is made anonymously and is potentially defamatory, a court must strike a balance between the value of protecting anonymous speech against a party’s need for relevant discovery.


The trial court in Anonymous Online, analyzed the commercial speech and whether its anonymous authors were protected from being discovered under the Doe v. Cahill standard; a standard giving speakers the highest level of protection. The Cahill standard requires discovery proponents to submit sufficient evidence to establish a prima facie case for each essential element of a defamation claim before the identities will be revealed. But even under this high hurdle, the trial court, under the weight of the facts, decided to grant the motion to compel discovery of the identities of the speakers.


The Ninth Circuit on appeal, however, held that the Cahill standard is appropriate for political-type speech; not commercial speech. The court held that in discovery disputes involving the identity of anonymous speakers, “commercial speech should be afforded less protection than political, religious, or literary speech.”  Because the trial court would have granted the discovery proponent’s motion under the less protective standard anyway, the Ninth Circuit found no clear error and upheld the decision.


This decision serves as a warning to anonymous online blog and video posters, especially in the commercial context. If your comments are potentially harmful to a business, it’s likely that a court will not be sympathetic to your First Amendment claims.  According to the Ninth Circuit, the value of protecting identities so as to promote the “robust exchange of ideas” is balanced against the potential for “irresponsible, malicious, and harmful communication.” Anonymous online posters beware: in the commercial context, the threshold for overcoming the limited First Amendment protection for your anonymous speech and identity may be fairly low.