Anonymous speakers who posted statements and videos disparaging a business on a competitor's Web site are entitled to a lesser degree of First Amendment protection than that applicable to political speech, the U.S. Court of Appeals for the Ninth Circuit ruled. The court found that the anonymous speech was commercial because it related "solely to the economic interests of the speaker and its audience," and it went "to the heart" of the business's commercial practices and business operations. The court further found that the " most exacting standard" applied by the trial court to unmasking anonymous speakers, derived from the Delaware Supreme Court ruling in Doe v. Cahill (Del. 2005) involving political speech, was too strict when appiled to commercial speech. Nevertheless, the appeals court found that the trial court did not clearly err in its conclusions on the discoverability of identifying information in the case before it.

In re Anonymous Online Speakers, 611 F.3d 653 (9th Cir. July 12, 2010) Download PDF

Editor’s Note: In a ruling filed on the same day as In Re Anonymous Online Speakers, the court in Salehoo Group Ltd v. ABC Company (E.D. Wash. July 12, 2010) quashed a subpoena seeking the identify of anonymous speakers who posted disparaging information on an Internet gripe site dedicated to criticism of the plaintiff company. Commenting that the Ninth Circuit had not yet addressed the standard applicable to unmasking anonymous speakers, the court applied the test that was articulated in Dendrite International, Inc. v. Doe No 3 (N.J. Super. Ct. App. Div. 2001), and that was subsequently modified by the Delaware court in Doe v. Cahill (Del. 2005).