One aspect of Internet communications that is getting an increased amount of attention is the right of an anonymous Internet poster to remain anonymous, particularly if the posting is relevant to subsequent litigation. It is not difficult to envision an inflammatory anonymous Internet post about a coworker or supervisor, or even a strongly opinionated anonymous post about a person or business, easily becoming relevant to, or even the subject of, litigation. A brief perusal of the posts made to the various Las Vegas legal gossip blogs reveals myriad anonymous postings, some of which are informative, some of which are critical, and some of which are downright insulting, inflammatory, and likely defamatory.
Although First Amendment protections for anonymous online speech are the same as for anonymous speech made through traditional print or broadcast media, these protections do not necessarily mean that a person has the unfettered right to say anything online and remain anonymous (or free from civil or even criminal liability). A recent opinion from the Ninth Circuit Court of Appeals dealing with a lawsuit pending in the District of Nevada makes clear that the First Amendment does not provide the absolute right to remain anonymous online.
In In re Anonymous Online Speakers, _ P3d. _, 2011 WL 61635 (Jan. 7, 2011), the Ninth Circuit refused to overturn an order from the District of Nevada permitting the disclosure of the identity of anonymous blog posters in a commercial contract and business tort lawsuit. In the case, Quixtar, Inc. (successor to the Amway Corporation) alleged that former employees left Quixtar to start their own company, and in doing so stole Quixtar’s customers and engaged in an Internet smear campaign against Quixtar by making anonymous Internet blog posts deriding its business practices and products. Quixtar sought, and obtained, an order from the District Court forcing an individual to disclose the identity of the bloggers, i.e, the Anonymous Online Speakers, during a deposition; the Speakers petitioned the Ninth Circuit to overturn the District Court’s order.
The Ninth Circuit noted that anonymous speech has played an integral role in the history of American politics and is protected by the First Amendment. Moreover, because “the 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,’” the Court confirmed that anonymous online speech is likewise protected. However, the level of protection available depends on the nature of the speech at issue. Speech of political nature always receives the highest level of protection. Commercial speech receives protection as long as it is not misleading or related to unlawful activity. Other types of speech, such as obscenity, receive no protection.
In this case, the Ninth Circuit held that the District Court properly applied these principles and correctly balanced the important value of anonymous speech versus a party’s need for relevant information in a civil lawsuit. The Ninth Circuit highlighted the District Court’s recognition of the “‘great potential for irresponsible, malicious, and harmful communication’ and 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,’” and concluded that Quixtar made a sufficient showing of need for the information, thereby justifying the District Court’s decision. In sum, the Ninth Circuit refused to overrule the District Court’s decision, thereby permitting disclosure of the anonymous Speakers’ identities.
The Ninth Circuit’s decision is important because while clearly acknowledging that anonymous online speech is protected under the First Amendment, it also serves as a reminder that such protection is not absolute and does not mean that the identity of an online speaker can never be disclosed.
All this means is that before ordering the disclosure of the identity of an online speaker, a court must balance the First Amendment’s protections (the availability of which depend heavily on the nature of the speech at issue) with a party’s need for the information in the litigation. In sum, the Ninth Circuit’s decision should serve as a reminder that although the First Amendment’s protections are broad, they are not absolute, and depending on the circumstances, may not prevent a court from ordering the disclosure of an anonymous online speaker’s identity.