Anonymous Online Speakers v. United States District Court
38 Media L. Rep. (BNA) 2057, 2010 U.S. App. LEXIS 14166, 611 F.3d 653 (2010)
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Rule of Law:
The extraordinary remedy of a writ of mandamus to compel or prevent disclosure of anonymous online commercial speakers' identities in discovery is rarely granted and requires a showing that the district court's order was clearly erroneous, a high bar not met when the court applies a strict standard, even if that standard may be overly protective for commercial speech.
Facts:
- Quixtar, a multilevel marketing business, distributes consumer products such as cosmetics and nutritional supplements through Independent Business Owners (IBOs).
- Signature Management TEAM, LLC (TEAM) provides business training and support materials and sells products, including motivational literature and educational seminars, to Quixtar IBOs.
- Orrin Woodward and Chris Brady, founders of TEAM, were terminated as Quixtar IBOs in August 2007, and their contracts with Quixtar included post-termination non-competition and non-solicitation provisions.
- Quixtar asserted claims against TEAM for tortious interference, alleging TEAM used the Internet to carry out a "smear campaign" with the objective of inducing Quixtar IBOs to terminate their contracts and join a competing multilevel marketing company affiliated with TEAM.
- Benjamin Dickie, TEAM's Online Content Manager, managed content from five different online sources (e.g., "Save Us Dick DeVos" blog, "Hooded Angry Man" video, "Q’Reilly" blog) that contained disparaging statements about Quixtar.
- Statements from these online sources alleged that Quixtar products were overpriced, it refused to pay bonuses, terminated IBOs without due process, suffered systemic dishonesty, and facilitated noncompliance with FTC rules.
Procedural Posture:
- Quixtar filed a lawsuit against Signature Management TEAM, LLC (TEAM) in the United States District Court for the District of Nevada, asserting claims including tortious interference with existing contracts and advantageous business relations.
- During discovery, Quixtar took the deposition of Benjamin Dickie, TEAM's Online Content Manager, who refused to answer questions about the identity of certain anonymous online speakers.
- Quixtar filed a motion to compel Dickie to testify regarding his knowledge of the authors of statements from five different online sources.
- The district court ordered Dickie to testify regarding the identity of anonymous online speakers from three of the five sources: "Save Us Dick DeVos," the "Hooded Angry Man" video, and the "Q’Reilly" blog.
- The Anonymous Online Speakers from those three sources filed a petition for a writ of mandamus with the Ninth Circuit, seeking to block Dickie’s testimony and vacate the district court's order.
- Quixtar opposed the petition and filed a cross-petition for a writ of mandamus, asking the Ninth Circuit to direct the district court to order Dickie to reveal the speakers from the remaining two sources: "Integrity is TEAM" blog and the "IBO Rebellion" blog.
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Issue:
Does a district court's order compelling the disclosure of the identities of certain anonymous online commercial speakers, while denying disclosure for others, constitute clear error warranting the extraordinary remedy of a writ of mandamus from the appellate court?
Opinions:
Majority - McKeown, Circuit Judge
No, the district court's order compelling disclosure for some anonymous speakers and denying it for others does not constitute clear error warranting a writ of mandamus. The Ninth Circuit emphasized that mandamus is an "extraordinary remedy" limited to "extraordinary causes," particularly in the discovery context, and requires consideration of the Bauman factors, with the absence of "clear error" being dispositive. The court recognized First Amendment protection for anonymous online speech, noting that while commercial speech enjoys some protection, it is less than political speech. The district court applied the demanding Doe v. Cahill standard, which requires plaintiffs to survive a hypothetical motion for summary judgment to compel disclosure, a standard typically applied to political speech. Although the Ninth Circuit suggested that the Cahill standard might be "too far" for commercial speech, it concluded that the district court's decision, having applied such a high hurdle and still finding grounds to compel some disclosure, did not demonstrate "clear error" under the highly deferential standard of review. The court also denied Quixtar's cross-petition because it failed to present any foundation or "extraordinary circumstance" for mandamus relief, deeming it a "garden variety discovery dispute." The court left the specifics of disclosure scope to the district court, noting protective orders as a tool to balance First Amendment rights with discovery needs.
Analysis:
This case significantly reinforces the high bar for obtaining a writ of mandamus, particularly in discovery disputes involving First Amendment rights to anonymous speech. It clarifies that while anonymous commercial speech is protected, its level of protection is generally lower than that afforded to political speech, suggesting that a less stringent disclosure standard might be appropriate for commercial contexts. The decision guides district courts in balancing discovery needs with anonymous speech rights, encouraging a nuanced approach based on the nature of the speech, and highlights the utility of protective orders as a tool to mitigate potential harms of disclosure while facilitating litigation.
