Court Upholds Order Unmasking Three Online Critics

In the latest court ruling addressing Web users' right to remain anonymous, the 9th Circuit Court of Appeals on Monday upheld an order unmasking three Web users, but preserving the confidentiality of two others.

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.

3 comments about "Court Upholds Order Unmasking Three Online Critics ".
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  1. Brian Hayashi from ConnectMe 360, July 12, 2010 at 8:08 p.m.

    As I understand it, the First Amendment was initially drafted to protect individuals from government censorship.

    A private company like Quixtar is not a government or state and therefore generally is not subject to the requirements of the First Amendment. Activist judiciaries have gradually accepted a broader notion of First Amendment protections.

    The real question is what will happen when international courts start in. Already we are seeing situations where China is demanding private companies like Google to surrender information about its users as a condition for continuing to operate within its borders. France has likewise enacted the Toubon Law to proactively protect French copyrights against incursion. It is only a matter of time before a foreign interest demands information about American citizens, rendering such First Amendment musings moot.

  2. Scott Johnson, July 12, 2010 at 8:41 p.m.

    The problem is the below statements are TRUE.

    "Quixtar currently suffers from systemic dishonesty," and "Quixtar is aware of, approves, promotes, and facilitates the systematic noncompliance with the FTC's Amway rules."

    For the proof, see these sites:

    Keep in mind the 9th Circuit Court is the most liberal in the country, by FAR.

  3. Robert Repas from Machine Design Magazine, July 13, 2010 at 2:25 p.m.

    Another problems about the comments is the tone by which they were made. If stated as an opinion or impression, then they probably wouldn't have been actionable because they're stating the poster's opinion. However, when stated as "fact", as these were, then the poster must be sure to have the proof to support their statements or face possible litigation.

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