Court Upholds Order Unmasking Three Online Critics
The dispute involved the Amway successor Quixtar and a Quixtar offshoot called Signature Management TEAM. Quixtar alleged that TEAM members were trashing Quixtar online, by posting anonymous comments about the company like "Quixtar currently suffers from systemic dishonesty," and "Quixtar is aware of, approves, promotes, and facilitates the systematic noncompliance with the FTC's Amway rules."
While Quixtar sought to learn the identity of five commenters, a trial judge found that the company had only shown that it could potentially obtain summary judgment -- meaning that its case appeared strong -- against three of the speakers.
Quixtar argued that the judge used too high a standard for unmasking and should have ordered all five of the critics identified. The commenters, on the other hand, argued that the trial judge didn't adequately consider their right to speak anonymously.
The 9th Circuit ultimately upheld the trial judge, but the opinion also says that the statements about Quixtar were "commercial" and, therefore, less deserving of protection than comments that are purely "political."
In general, commercial speech, like ads, is less protected by the First Amendment than political or editorial speech, like newspaper articles. That's one reason why the Federal Trade Commission can issue guidelines for marketers, but the authorities typically can't tell news outlets what to report.
The appellate judges reasoned that the statements in question are "commercial" because they go "to the heart of Quixtar's commercial practices and its business operations."
That conclusion seems disturbing, however. If criticizing another company's business operations is "commercial speech," then every post on a gripe site could be considered commercial. Additionally, from the ruling issued today, it appears that at least some of the comments mentioned in the opinion -- like whether a company is complying with an FTC settlement -- relate to matters of public importance. Even if those comments are "commercial speech," it's hard to see why those particular statements should be entitled to less First Amendment protection than any other remarks.