Sowing Wild Oats: Online Anonymous Commercial Speech, Corporate Takeovers, and A New Commercial Speech Doctrine

Abstract

The interpretation of commercial speech and determining the appropriate level of First Amendment free expression protection have always been problematic. This interpretation is made all the more difficult when such speech is offered anonymously or pseudonymously. The case of pseudonymous online comments on Yahoo’s financial bulletin by Whole Foods’ CEO John Mackey brings to the fore the ambiguity between free speech and commercial speech. Using Mackey’s online comments as a fulcrum for analysis, we discuss the current state of commercial speech and examine some appropriate responses to potentially false or self-serving commercial speech. More specifically, we provide a brief overview of First Amendment jurisprudence addressing anonymous speech and commercial speech, and then argue that a variation on the New York Times v. Sullivan standard should be used in commercial speech cases—requiring First Amendment free-speech protection only for commercial speech that addresses “important public issues.”