In Re Anonymous Online Speakers

• Decision Date: 12 July 2010
• Docket Number: No. 09-71265.,09-71265.
• Citation: 611 F.3d 653
• Parties: In re ANONYMOUS ONLINE SPEAKERS,Anonymous Online Speakers, Petitioner,v.United States District Court for the District of Nevada Reno, Respondent,Quixtar, Inc.; Signature Management Team, LLC; Apollo Works Holdings, Inc.; Green Gemini Enterprises, Inc.; North Star Solutions, Inc.; Northern Lights Services, Inc.; Sunset Resources, Inc.; Sky Scope Team, Inc., Real Parties in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

611 F.3d 653

In re ANONYMOUS ONLINE SPEAKERS,Anonymous Online Speakers, Petitioner,v.United States District Court for the District of Nevada Reno, Respondent,Quixtar, Inc.; Signature Management Team, LLC; Apollo Works Holdings, Inc.; Green Gemini Enterprises, Inc.; North Star Solutions, Inc.; Northern Lights Services, Inc.; Sunset Resources, Inc.; Sky Scope Team, Inc., Real Parties in Interest.

No. 09-71265.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 2, 2010.

Filed July 12, 2010.

COPYRIGHT MATERIAL OMITTED

John P. Desmond, Jones Vargas, Reno, NV, for the petitioner.

Cedric C. Chao, (argued), William L. Stern, Maria Chedid, and Somnath Raj Chatterjee, Morrison & Foerster LLP, San Francisco, CA; James R. Sobieraj and James K. Cleland, Brinks Hofer Gilson & Lione, Chicago, IL; John Frankovich and Miranda Du, McDonald Carano Wilson LLP, Reno, NV, for the real party in interest/cross-petitionerQuixtar Inc.

Appeal from the United States District Court for the District of Nevada, Edward C. Reed, Senior District Judge, Presiding.D.C.No. 3:07-cv-00505-ECR-RAM.

Before SIDNEY R. THOMAS, M. MARGARET McKEOWN, and JAY S. BYBEE, Circuit Judges.

McKEOWN, Circuit Judge:

The proceeding before us is but a short chapter in an acrimonious and long-running business dispute between Quixtar, Inc.(“Quixtar”), successor to the well-known Amway Corporation, and Signature Management TEAM, LLC(“TEAM”).Quixtar sued TEAM, claiming that TEAM orchestrated an Internet smear campaign via anonymous postings and videos disparaging Quixtar and its business practices.As part of the discovery process, Quixtar sought testimony from Benjamin Dickie, a TEAM employee, regarding the identity of five anonymous online speakers who allegedly made defamatory comments about Quixtar.Dickie refused to identify the anonymous speakers on First Amendment grounds.The district court ordered Dickie to disclose the identity of three of the five speakers.

The Anonymous Online Speakers seek a writ of mandamus directing the district court to vacate its order regarding the identity of the three speakers.Quixtar cross-petitions for a writ of mandamus directing the district court to order Dickie to testify regarding the identity of the anonymous speakers from the remaining two sources.Because neither party has established that it is entitled to the extraordinary remedy of mandamus, we deny both petitions.

Background

Quixtar is a multilevel marketing business that distributes consumer products such as cosmetics and nutritional supplements through Independent Business Owners (“IBOs”).TEAM provides business training and support materials and has sold its products, including motivational literature and educational seminars, to Quixtar IBOs.TEAM was founded by two Quixtar IBOs, Orrin Woodward and Chris Brady.As IBOs, their contracts with Quixtar included post-termination non-competition and non-solicitation provisions.Disagreement regarding contract compliance and enforceability came to an impasse in August 2007, when both Woodward and Brady were terminated as IBOs, and they joined a class action against Quixtar.

TEAM and Quixtar became embroiled in several lawsuits across the country.In this suit, Quixtar asserts claims against TEAM for tortious interference with existing contracts and with advantageous business relations, among other claims.The tortious interference claims are premised on Quixtar's contention that TEAM used the Internet to carry out a “smear campaign” with the objective and effect of inducing Quixtar IBOs to terminate their contracts at Quixtar and join a competing multilevel marketing company affiliated with TEAM.

During discovery in this suit, Quixtar took the deposition of Dickie, TEAM's Online Content Manager.Dickie refused to answer questions regarding the identity of certain anonymous online speakers.In response, Quixtar brought a motion to compel Dickie to testify regarding his knowledge of the authors of statements from five different online sources: the “Save UsDick DeVos” blog, the “Hooded Angry Man” video, the “Q'Reilly” blog, the “Integrity is TEAM” blog, and the “IBO Rebellion” blog.According to Quixtar, statements contained in these five fora support its claims of tortious interference, including comments such as: “Quixtar has regularly, but secretly, acknowledged that its products are overpriced and not sellable”; “Quixtar refused to pay bonuses to IBOs in good standing”; Quixtar “terminated IBOs without due process”; “Quixtar currently suffers from systemic dishonesty”; and “Quixtar is aware of, approves, promotes, and facilitates the systematic noncompliance with the FTC's Amway rules.”Quixtar believes that the anonymous speakers of these statements are actually TEAM officers, employees, or agents.

After reviewing the specific statements from each source, the district court ordered Dickie to testify regarding his knowledge of the identity of the anonymous online speakers from three of the sources: “Save UsDick DeVos,” the “Hooded Angry Man” video, and the “Q'Reilly” blog.The Anonymous Online Speakers from those sources filed this petition for a writ of mandamus in an effort to block Dickie's testimony.Quixtar opposes the petition and cross-petitions for a writ of mandamus directing the district court to order Dickie to reveal the speakers from the remaining two sources-“Integrity is TEAM” blog and the “IBO Rebellion” blog.

Analysis

I.Anonymous Speech and the First Amendment

First Amendment protection for anonymous speech was first articulated a half- century ago in the context of political speech Talley v. California,362 U.S. 60, 64-65, 80 S.Ct. 536, 4 L.Ed.2d 559(1960), but as the Supreme Court later observed, the Talley decision harkened back to “a respected tradition of anonymity in the advocacy of political causes.”McIntyre v. Ohio Elections Comm'n,514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426(1995).Undoubtedly the most famous pieces of anonymous American political advocacy are The Federalist Papers, penned by James Madison, Alexander Hamilton, and John Jay, but published under the pseudonym “Publius.”Id. at 344 n. 6, 115 S.Ct. 1511.Their opponents, the Anti-Federalists, also published anonymously, cloaking their real identities with pseudonyms such as “Brutus,”“Centinel,” and “The Federal Farmer.”Id.

Although the Internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech-there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to online speech.Reno v. Am. Civil Liberties Union,521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874(1997).As with other forms of expression, the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without “fear of economic or official retaliation ... [or] concern about social ostracism.”McIntyre,514 U.S. at 341-42, 115 S.Ct. 1511.

The right to speak, whether anonymously or otherwise, is not unlimited, however, and the degree of scrutiny varies depending on the circumstances and the type of speech at issue.¹Given the importance of political speech in the history of this country, it is not surprising that courts afford political speech the highest level of protection.Meyer v. Grant,486 U.S. 414, 422, 425, 108 S.Ct. 1886, 100 L.Ed.2d 425(1988)(describing the First Amendment protection of “core political speech” to be “at its zenith”).Commercial speech, on the other hand, enjoys “a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,”Bd. of Trustees of SUNY v. Fox,492 U.S. 469, 477, 109 S.Ct. 3028, 106 L.Ed.2d 388(1989), as long as “the communication is neither misleading nor related to unlawful activity.”Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y.,447 U.S. 557, 564, 100 S.Ct. 2343, 65 L.Ed.2d 341(1980).

The Internet postings and video at issue in the petition and cross-petition are best described as types of “expression related solely to the economic interests of the speaker and its audience” and are thus properly categorized as commercial speech.Central Hudson Gas & Elec. Corp.,447 U.S. at 561, 100 S.Ct. 2343.The claimed disparagement goes to the heart of Quixtar's commercial practices and its business operations.However, this characterization alone does not determine the First Amendment protections for the anonymous commercial speech central to this case.The Supreme Court has underscored that “an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”McIntyre,514 U.S. at 342, 115 S.Ct. 1511.

II.Petition by Anonymous Online Speakers

We have repeatedly emphasized that “[t]he writ of mandamus is an ‘extraordinary’ remedy limited to ‘extraordinary’ causes.”Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court,408 F.3d 1142, 1146(9th Cir.2005)(quotingCheney v. U.S. Dist. Court,542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459(2004)).This limit on our mandamus power is particularly salient in the discovery context because “the courts of appeals cannot afford to become involved with the daily details of discovery,” although “we have exercised mandamus jurisdiction to review discovery orders raising particularly important questions of first impression, especially when called upon to define the scope of an important privilege.”²Perry v. Schwarzenegger,591 F.3d 1147, 1157(9th Cir.2010)(internal quotation marks and citation omitted).

In evaluating mandamus petitions, we are 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)

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