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How to find out the identity of anonymous Internet content posters

In a case of first impression before the Court of Appeals for the Ninth Circuit, the threshold that a plaintiff must meet to receive an order from the courts to compel the identification of anonymous internet content posters was lowered in the recently rendered decision in In re: Anonymous Online Speakers v. United States District Court for the District of Nevada Reno (interested parties – Quixtar v. Signature Management Team), No. 09-71265 (9th Cir. July 12, 2010).

The issue in Anonymous Online Speakers was whether to grant a petition and/or cross-petition for a writ of mandamus to compel disclosure (or conversely to bar disclosure) of anonymous, non-party Internet content posters’ identity in a circumstance involving First Amendment protected commercial speech.

At this district court level, the District Court for the District of Nevada decided Quixtar Inc., v. Signature Management Team LLC, using the established Cahill standard.

However, on appeal, Circuit Judges Sidney R. Thomas, M. Margaret McKeown and Jay S. Bybee determined that the District Court committed error in reaching its conclusion that the Cahill standard applied to the facts of the instant case.

Writing the appellate opinion, Judge McKeown noted that the type of speech involved in the instant action was commercial speech and the type involved in the Cahill case was in the more highly protected category of political speech. Then McKeown properly stated that the two cases are distinguishable and the district court erred in applying the Cahill standard to decide In re: Anonymous Online Speakers v. United States District Court for the District of Nevada Reno.

If the Cahill  standard doesn’t apply to Anonymous Online Speakers, then what standard did the Ninth Circuit Court of Appeals apply?

They haven’t decided. After drawing attention to the fact that the Ninth Circuit has not previously considered First Amendment claims of an anonymous, non-party Internet speaker in a circumstance involving free speech, the Court stated, “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.

However, there are some guidelines the Ninth Circuit pointed to that are particularly pertinent to Internet defamation attorneys in making a determination of whether disclosure of anonymous internet content posters identity may be compelled in the context of a request for a writ of mandamus;

The issue of whether or not the identity of persons posting website content on the Internet (Internet speakers) should remain anonymous is one involving First Amendment rights;
The Court placed emphasis on the nature of the protected speech in question and highlighted the fact that commercial speech is afforded less protection under the law than other forms of protected speech;
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 1156 (citing Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977));

The third Bauman factor is dispositive;
Satisfying the Bauman factors does not necessitate that a court will grant mandamus;
The Cahill standard, “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.” Doe v. Cahill, 884 A.2d 451, 461 (Del. 2005).

(Elaborating on the Cahill standard) 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.

For a detailed analysis of the Ninth Circuit Anonymous Online Speakers case and the primary issue of whether disclosure of anonymous internet content posters identity may be compelled in the context of a request for a writ of mandamus, click here (Analysis: In re: Anonymous Online Speakers v. United States District Court for the District of Nevada Reno (interested parties – Quixtar v. Signature Management Team)

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