Defamation on the internet is often perpetrated by an anonymous author. When the 'speaker' is anonymous, the first internet libel law issue that the attorney and client face is trying to identify who to sue. Typically, the attorney will file a "John Doe" lawsuit for libel and ask toe Court to issue a subpoena to the web host, web site owner or ISP to identify the person who posted the alleged defamatory statement so the defendant can be named.
Following is an analysis of the Ninth Circuit Court’s (Court) handling for the internet law issue of whether to compel the identification of anonymous Internet speakers that was raised in the case of Quixtar v. Signature Management Team. The instant case is Anonymous Online Speakers v. United States Dist. Court for the Dist. of Nevada Reno (In re Anonymous Online Speakers), 2010 U.S. App. LEXIS 14166 (9th Cir. Nev. July 12, 2010).
A previous post on internet libel law outlining the background for this Ninth Circuit opinion can be found here: Ninth Circuit Lowers the Standard for Identifying Anonymous Internet Speakers.
Under consideration in this action is a petition from the U.S. District Court for the District of Nevada case of Quixtar, Inc. v. Signature Management TEAM, LLC. Notably, the petition raises an issue of first impression for the Ninth Circuit, who stated, “we have not previously considered First Amendment claims of an anonymous, non-party speaker on the Internet in a circumstance involving commercial speech.”
Addressing the petition, the Ninth Circuit ruled that the district court was in error when it decided Quixtar using the Cahill summary judgment standard. The court reasoned that the Cahill standard applied to a different category of protected speech than that at issue in the petition. Specifically, the Cahill standard applies to political speech and the facts in Quixtar only raise issues as to the anonymity of internet speakers engaged in commercial speech which receives less protection under the law than political speech.
Protected speech: First Amendment freedom of speech rights and the right to post content on the internet while remaining anonymous;
When a United States Court is called upon to determine; whether or not the identity of persons posting website content on the Internet (Internet speakers) should remain anonymous, that Court begins by recognizing the issue is one involving a First Amendment right. Indeed, in the July 12, 2010 Ninth Circuit opinion for this case; In re: Anonymous Online Speakers v. United States District Court for the District of Nevada Reno (Anonymous Online Speakers) Circuit Judge Margaret McKeown writing the opinion on intenet libel law stated;
“The Supreme Court has underscored that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre, 514 U.S. at 342.” Anonymous Online Speakers, at 7.
That line of reasoning is the cornerstone from which the three circuit judge panel delivered an opinion which has now lowered the bar that a plaintiff in the Ninth Circuit is required to meet in order to have a court compel discovery of anonymous Internet speakers’ identity. Circuit Judges Sidney R. Thomas, M. Margaret McKeown and Jay S. Bybee presided over a motion to issue a mandamus overturning the discovery ruling in Quixtar Management v. Signature Management Team, 566 F.Supp.2d 1205.
In evaluating a petition for a writ of mandamus, the Ninth Circuit is ‘guided by the practically enshrined Bauman Factors’;
(1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief;
(2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal;
(3) whether the district court’s order is clearly erroneous as a matter of law;
(4) whether the district court’s order is an oft repeated error or manifests a persistent disregard of the federal rules; and
(5) whether the district court’s order raises new and important problems or issues of first impression.
Id. at 9 (citing Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977)). Emphasis is placed on the third Bauman factor, “the absence of the third factor, clear error, is dispositive.” Burlington, 408 F.3d at 1146.
However, it is important to note that satisfying the Bauman factors does not necessitate that a court will grant mandamus. “Ultimately, mandamus is discretionary and “even where the Bauman factors are satisfied, the court may deny the petition.” Id., citing; San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1099 (9th Cir. 1999).
Before evaluating the petition according to the Bauman factors, the court first sites to Perry and examines the relationship between the First Amendment and compelled discovery in the context of a petition for mandamus;
The Court started off examining First Amendment protected speech by citing to the earlier Ninth Circuit ruling in Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. Cal. 2010). Perry involved a party to the same-sex marriage lawsuit in California who attempted to obtain campaign communications relating to campaign strategy and advertising of proponents for a ballot proposition.
Although Perry involved neither anonymous speakers nor commercial speech; the structure of the Ninth Circuit’s analysis of First Amendment rights and compelled discovery is useful when applied to the instant online law case. The Perry analysis instructs a court to first decide whether the proponents of the order (opponents of disclosure) made a prima facie case of arguable First Amendment infringement and then shifts the burden to plaintiffs to "demonstrate a sufficient need for the discovery to counterbalance that infringement." Id. at 11.
In deciding Perry, the Ninth Circuit found that, “the district court erred in determining that "the First Amendment privilege, as a categorical matter, does not apply to the disclosure of internal campaign communications." Id. at 10. Further, the Court speculated that permitting discovery in that instance "would likely have a chilling effect on political association," and that plaintiffs had "not shown a sufficient need for the information." Id.
That is where the applicability of the Ninth Circuit’s holding in Perry ends. To examine protected speech and compelled disclosure in the context of anonymous speakers using commercial speech, the Court had to look elsewhere for standards in internet libel law.
Cahill Summary Judgment Standard;
This is where Doe v. Cahill, 884 A.2d 451 (Del. 2005), comes into play. Cahill concerned political speech from an anonymous speaker. At the district court level in Quixtar and before reaching the Ninth Circuit’s Court of Appeals, the U.S. District Court for the District of Nevada applied the Cahill standard which;
“Requires plaintiffs to be able to survive a hypothetical motion for summary judgment and give, or attempt to give, notice to the speaker before discovering the anonymous speaker’s identity." Id. at 15
The two standards promulgated by the Ninth Circuit in Cahill and Perry vary widely. Perry places the initial burden on the opponent of a motion to compel disclosure. It requires the opponent to demonstrate that, if granted, the motion would cause infringement of First Amendment rights. It then requires the proponent of the motion to demonstrate that the need for disclosure outweighs potential First Amendment infringement.
In contrast to Perry, Cahill places a much higher burden on the proponent of disclosure. The initial burden is on the proponent to establish a prima facie case for each essential element of his Internet defamation claim, and then to give (or attempt to give) notice to the speaker before the court will compel disclosure.
The Delaware Supreme Court promulgated the tough Cahill standard with, “concern that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously.” Id. at 16.
In the instant case of Anonymous Online Speakers, the Court of Appeals placed emphasis on the nature of the protected speech in question and highlighted the fact that commercial speech is afforded less protection under internet law than other forms of protected speech.
Before examining any of the other Bauman factors, the Court analyzed the dispositive third factor;
In determining the third Bauman factor, whether the district court’s order is clearly erroneous as a matter of law, the Ninth Circuit initially approved of the district court’s approach to balancing factors;
“The district court here appropriately considered the important value of anonymous speech balanced against a party’s need for relevant discovery in a civil action. It also recognized 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.” Id. at 17.
Then the Ninth Circuit clearly iterated that it disagreed with the lower court’s finding. It noted that the district court erred by applying the Cahill standard (protecting political speech), because the instant case Quixtar is distinguishable from Cahill. Judge McKeown noted that Quixtar involves commercial speech and as such receives less protection under the law;
“The district court applied Cahill, which elevates the bar to disclosure to the highest level. Because Cahill involved political speech, that court’s imposition of a heightened standard is understandable. In the context of commercial speech balanced against a discretionary discovery order under Rule 26, however, Cahill’s bar extends too far.” Anonymous Online Speakers, at 17.
The Court of Appeals found that the district court’s ruling was clearly erroneous. It stated that the lower court erred in applying the Cahill test to the commercial speech at issue in the instant case. and then declined to analyze the other four Bauman factors because the third factor (clearly erroneous) is dispositive;
“We deny the anonymous speakers’ petition for writ of mandamus. We leave to the district court the details of fashioning the appropriate scope and procedures for disclosure of the identity of the anonymous speakers.” Anonymous Online Speakers, at 19.
The Court provides very little insight into the scope and procedure for disclosure of anonymous speakers on the internet but briefly states that;
“On this point, we note that the parties have a protective order in place that provides different levels of disclosure for different categories of documents to various recipients, such as disclosure for “Attorneys’ Eyes Only.” Id.
And the Court notes that there are other ‘tools available’ without actually enumerating anything other than the aforementioned protective order;
“A protective order is just one of the tools available to the district court to oversee discovery of sensitive matters that implicate First Amendment rights. See Perry, 591 F.3d at 1164 (noting that a protective order can ameliorate the harms of disclosure).” Id.
The Ninth Circuit concludes by denying the parties’ request for mandamus. Then, Circuit Judge McKeown makes some interesting comments about the deficiency of Quixtar’s cross-petition request for mandamus;
“The cross-petition suffers from a fundamental error--Quixtar fails to present any foundation for its request for mandamus relief. Quixtar’s cross-petition lacks even a citation to our opinion in Bauman, which established the factors we consider to evaluate a writ of mandamus. Quixtar’s cross-petition falls into the category of a garden variety discovery dispute: it offers no extraordinary circumstance that merits exercising our mandamus power.” Id. at 20, 21.
“Neither party has shown that it is entitled to relief. We deny both the Anonymous Online Speakers’ petition and Quixtar’s cross-petition for writ of mandamus.” Id. at 21.
It remains to be seen how courts will handle future cases where First Amendment rights come into conflict with online libel and defamation claims brought against anonymous Internet users. The Anonymous Online Speakers opinion remains an important ruling in which the Ninth Circuit did reinforce pertinent points (e.g. the distinction between commercial and political speech).
However, by delivering the ruling without laying out any specific standard or set of factors not already enumerated in general privacy law, the Court provides very little new insight into how the legal system should decide future defamation claims against anonymous Internet users.