Court gives leeway to anonymous online commercial speech

Is there a “right” to speak anonymously under the First Amendment?

Perhaps not yet, but some courts are beginning to be reluctant to force anonymous speakers to reveal themselves.

Earlier this week a three-judge panel of the 9th U.S. Circuit Court of Appeals — including Las Vegas’ own Jay Bybee of the so-called White House torture memo fame — rejected efforts in litigation between two business websites to uncloak the real identities of those who had posted allegedly defamatory remarks.

The case out of Reno involved a successor of direct marketer Amway called Quixtar and a competitor called TEAM.

The opinion by Judge M. Margaret McKeown recalls what so many seem to have forgotten. The Founders were quite comfortable with anonymous speech, and for a good reason. Words could get you hanged.

“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,’ McKeown writes. “Their opponents, the Anti-Federalists, also published anonymously, cloaking their real identities with pseudonyms such as ‘Brutus,’ ‘Centinel,’ and ‘The Federal Farmer.’”

She noted that anonymous speech online is an increasingly important issue in the commercial context.

She noted, “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.’"

The court denied both parties’ claims for relief.