Thursday, November 9, 2017
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Ninth Circuit:
Website Must Reveal Identities of Anonymous Comment Posters
Government’s Good Faith in Seeking Information Removes First Amendment Concerns—Tallman
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld a district court order denying a motion by Glassdoor Inc., which operates a website on which employees can post comments on their employers, to quash a federal subpoena requiring that it reveal identifying information relating to eight anonymous reviewers, with the appeals court rejecting the contention that compliance would breach the reviewers’ First Amendment rights.
Judge Richard C. Tallman wrote for a three-judge panel in rejecting the appellant’s argument that it is obliged to safeguard anonymity of those who post their views on Glassdoor.com based on their rights to anonymous speech and associational privacy. It is facing a $5,000 a day contempt fine for noncompliance with the subpoena, with the fine stayed pending appeal.
The government’s effort to contact those posting comments is aimed at gathering information on a contractor, for whom the eight persons work, suspected of wire fraud and misuse of government funds. Each of the postings revealed some knowledge of the matters being investigated.
The applicable test as to whether is violative of the First Amendment, Tallman said, is that set forth in the U.S. Supreme Court’s 1972 decision in Branzburg v. Hayes: whether the government is acting in good faith in seeking information. That test, he declared, is met.
Anonymous Speech
The jurist acknowledged that there is a “limited right to speak anonymously.” Whether anonymous speech is protected or not, he said, depends on the circumstances.
Pointing to circumstances which compel disclosure, he wrote:
“Here, the government seeks to unmask anonymous speakers in order to identify potential percipient witnesses in aid of a federal grand jury investigation into possible fraud. The speakers whose identities the government seeks may well be witnesses to this criminal activity, perhaps even participants in it. Presumably, once identified, federal agents will attempt to contact them to see whether they have any admissible evidence to offer in aid of the investigation and to serve those who do with a grand jury subpoena….”
Associational Privacy
Glassdoor contended that its users “associate online with other users and fellow employees to discuss the conditions at their jobs” and are therefore entitled to associational privacy.
Tallman termed the argument “tenuous,” commenting:
“Given the nature of Glassdoor.com, it is difficult to see its users as an expressive association like the Jaycees, the Boy Scouts, or the NAACP. Glassdoor’s users are necessarily strangers to each other, because they are anonymous. Users do not so much ‘discuss’ employment conditions as independently post their individual views. Although employers can comment on reviews, employees cannot comment directly on one another’s posts or otherwise engage in dialogue. The reviews of the subject company itself show no evidence that Glassdoor users share a common point of view, are engaged in a ‘common endeavor,’ or have a unifying ‘mission.’ ”
Decision in Branzburg
Glassdoor argued that the Ninth Circuit should not apply Branzburg’s “good faith” test, but should apply its own “compelling interest” set forth in Bursey v. United States, decided the day after Branzburg.
In Branzburg, the nation’s high court held, in a 5-4 decision, that the First Amendment does not shield reporters from contempt for failing to fulfill the duty any citizen has of making disclosures before a grand jury. The decision upheld contempt adjudications against reporters Paul Branzburg of the (Louisville) Courier-Journal, Earl Caldwell of the New York Times, and Paul Pappas, of WTEV television in New Bedford, Mass., each of whom, in separate cases, declined to reveal confidential news sources.
(In reaction to that decision, California elevated its reporters’ privilege, contained in Evidence Code §1070, to state constitutional status. The wording in Art. I. §2, added in 1974, is nearly identical to that of the statute.)
Case Is Applicable
Glassdoor argued that Branzburg, by its own wording, is limited to the news business, in which it is not engaged. Tallman responded:
“It’s true that the Branzburg Court stated that ‘[t]he sole issue’ before it was ‘the obligation of reporters to respond to grand jury subpoenas.’…. But the Court’s full statement was that ‘[t]he sole issue before’ it was ‘the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.’… (emphasis added). The Court went on to say that ‘[c]itizens generally are not constitutionally immune from grand jury subpoenas; and neither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he has received in confidence.’ ”
He went on to say:
“Thus, although the Branzburg Court was responding to a newsgathering claim, it made clear that the First Amendment does not provide reporters—or anyone else—with a privilege against responding to a grand jury’s inquiries. Therefore, it doesn’t matter whether the underlying claim is related to newsgathering, speech, or association. These are all First Amendment-protected activities, but none of them will prevent an individual from being required to cooperate with a good-faith grand jury investigation. Only if a witness has a legitimate claim of self-incrimination under the Fifth Amendment may he refuse to answer questions or supply information relevant to the investigation.’ ”
Tallman noted:
“Since Bursey was decided, we have consistently applied Branzburg’s good-faith test rather than Bursey’s compelling-interest test when deciding First Amendment challenges to good-faith grand jury inquiries.”
Pointing to factors indicating the good-faith nature of the probe, Tallman said:
“The information the government seeks will allow the grand jury to contact (presumably through interviews by federal agents sworn to assist the grand jury in its inquiries) and then question employees who have observed potentially fraudulent behavior by the company. Thus, there is a clear connection between the nature of the investigation—waste, fraud, and abuse by the subject—and the information the government seeks—the identity of potential witnesses to that fraud and abuse.”
He said that Glassdoor “has neither alleged nor established bad faith on the part of the government in its investigation,” and that Branzburg consequently compels the conclusion that First Amendments rights are not breached by the subpoena and that it must be enforced.
The case is In re Grand Jury Subpoena, No. 17-16221.
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