Constitutional Law Prof Blog

D.C. Circuit Rebuffs Challenge to Per-Election Base Campaign Contribution Limits

Steven D. Schwinn, John Marshall Law School

The en banc D.C. Circuit unanimously ruled this week that FECA's per-election base limits on campaign contributions don't violate free speech.

The ruling could give the Supreme Court a chance to reevaluate its stance on the constitutionality of base contributions, or at least per-election base contributions, in light of its most recent ruling on contributions, McCutcheon v. FEC. The Court in that case held that aggregate limits on base contributions violate free speech, even if base contributions themselves don't.

The plaintiffs in Holmes v. FEC challenged FECA's $2,600 base limit per candidate per election. The law means that a person can contribute up to $2,600 to a candidate in a primary, another $2,600 to that candidate in the general, and yet another $2,600 to that candidate in any runoff. In the usual course of things (without a runoff) this allows a person to contribute up to $5,200 to a candidate for the whole cycle.

The plaintiffs claimed that per-election restriction violated free speech, although they didn't take on all base limits. In other words, they wanted to contribute $0 to their favored candidates in the primaries, but $5,200 in the generals. The per-election restriction prevented them from doing that, and they claimed that this violated the First Amendment.

The D.C. Circuit disagreed. Citing Buckley v. Valeo (upholding per-election base limits against a free speech challenge, but not ruling specifically on the per-election nature of them) the court said that Congress's decision in FECA to create per-election restrictions (and not entire cycle restrictions) was a permissible way to implement base limits. In short, the court said that Congress had to create some timeframe for base contribution restrictions--because that's how base contributions work--and a per-election timeframe doesn't seem unreasonable. Said the court:

Contrary to plaintiffs' account of FECA, there is no $5,200 base contribution ceiling split between the primary and general elections. Instead, the Act by its terms established a $2,000 contribution limit, adjusted for inflation, which 'shall apply separately with respect to each [primary, general, and runoff] election.'

. . .

To impose a meaningful contribution ceiling, then, Congress has no choice but to specify some time period in which donors can contribute the maximum amount. There are a host of alternatives in that regard.

. . .

Just as Buckley did not require Congress to explain its choice of $1,000 rather than $2,000 as itself closely drawn to preventing corruption, we see no basis for requiring Congress to justify its choice concerning the other essential element of a contribution limit--its timeframe--as itself serving that interest.

District Court Lets Post-Abbasi Bivens Claim Move Forward

Steven D. Schwinn, John Marshall Law School

Judge Colleen Kollar-Kotelly (D.D.C.) denied individual defendants' renewed motion to dismiss a plaintiff's Bivens claim for retaliatory prosecution in violation of the First Amendment. The ruling, which applies the Supreme Court's ruling from this summer in Ziglar v. Abbasi, means that the plaintiff's First Amendment Bivens action can move forward. (This isn't a ruling on the merits; it only says that the plaintiff's claim survives a motion to dismiss in light of Abbasi.)

The ruling is notable, because the Court appeared to substantially restrict Bivens actions in Abbasi essentially to those very few situations where the Court has allowed a Bivens action. (We posted on this here.) But this ruling reads Abbasi differently--not to prohibit a Bivens action under the First Amendment.

The case, Loumiet v. United States, arose when an attorney for a target of an investigation by the Office of the Comptroller of the Currency complained to the OCC Inspector General that OCC investigators engaged in "highly unusual and disturbing" behavior during their investigation, including making racist comments to the target's staff. The OCC then initiated an enforcement proceeding against the plaintiff pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act, claiming that the plaintiff had "knowingly or recklessly . . . breach[ed his] fiduciary duty," and as a result "caused . . . a significant adverse effect" on the target of the investigation. An ALJ recommended dropping the matter, and the OCC agreed. The plaintiff filed for attorney's fees under the Equal Access to Justice Act and won in the D.C. Circuit. That court ruled that "the Comptroller was not 'substantially justified' in bringing the underlying administrative proceedings against [the plaintiff]."

The plaintiff then brought a Bivens claim for retaliatory prosecution in violation of the First Amendment, among other claims. The court earlier declined to dismiss the case, but the individual defendants asked the court to reconsider after Abbasi came down this summer.

The court in this ruling again declined to dismiss the case.

The court assumed, without deciding, that the case raised a "new context" under Bivens. (The court said that the D.C. Circuit hadn't yet had an opportunity to rule on Abbasi, so it couldn't really say what a "new context" was in the post-Abbasi world of Bivens--in particular, whether Abbasi set a new standard for "new context.") The court went on to say that special factors did not counsel against a Bivens remedy:

Unlike the facts in Abbasi, this is not a case in which "high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis." Rather, Plaintiff's prosecution was separate from, and subsequent to, the OCC's enforcement action against his bank client; the prosecution against Plaintiff does not seem to have been "urgent," driven by "crisis," or, for that matter, necessary to the underlying enforcement action against Plaintiff's client. Indeed, the Court already made a fact-specific inquiry that a Bivens claim will not deter lawful enforcement activity.

Finally, the court said that the defendants couldn't show that the plaintiff had alternative relief, here under the FIRREA, the Administrative Procedure Act, or the Equal Justice Act.

District Judge Rules for President in CFPB Dispute

U.S. District Judge Timothy J. Kelly (D.D.C.) ruled in favor of the President in the ongoing dispute over who is acting director of the Consumer Financial Protection Bureau. We last posted here; WaPo has a story here.

Judge Kelly ruled from the bench against Leandra English, the CFPB deputy director, and declined to unseat Mick Mulvaney, President Trump's appointee.

This is hardly the final say in the matter. We'll post on any written decision when it's released.

One CFBP Acting Director Sues to Stop the Other

Steven D. Schwinn, John Marshall Law School

As has been widely reported, two acting directors of the Consumer Financial Protection Bureau showed up for work today. One told employees to ignore the other; the other sued. (Politico reports on the confusion at the Bureau here.)

Leandra English, the former deputy director appointed by outgoing Director Richard Cordray, was in line for the job under a Dodd-Frank provision that says that the deputy director becomes acting when the director leaves. But Mick Mulvaney was also in line for the job after President Trump appointed him pursuant to the Federal Vacancies Reform Act. We outlined the competing appointment provisions in a post yesterday. OLC came down on the President's side; so did the CFPB general counsel (who was appointed by Cordray)--and for the same reasons as the OLC.

English sued in the D.C. District Court seeking declaratory and injunctive relief. Here's the gist of her argument:

The President apparently believes that he has authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988. But the Vacancies Act, by its own terms, does not apply where another statute "expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity"--which is exactly what the Dodd-Frank Act does. The President's interpretation of the FVRA runs contrary to Dodd-Frank's later-enacted, more specific, and mandatory text. The President's stance is also difficult to square with the relevant legislative history: An earlier version of the Dodd-Frank Act, which would have specifically allowed the President to use the Vacancies Act to temporarily fill the office, was eliminated and replaced with the current language designating the Deputy Director as the Acting Director. And the President's attempt to appoint a still-serving White House staffer to displace the acting head of an independent agency is contrary to the overall design and independence of the Bureau.

Greenhouse on Calabresi's Court-Packing Plan

Check out Linda Greenhouse's review in the NYT of Prof. Steven Calabresi's piece, Proposed Judgeship Bill. Calabresi argues that Congress should "immediately pass a judgeship bill funding new federal judgeships for the federal courts of appeals and the federal district courts" in order to meet the "woefully understaffed" federal courts. (Greenhouse wrote that she learned of the piece from a post at Think Progress.)

Greenhouse says that Calabresi's piece, styled as a "Memorandum to the Senate and the House of Representatives," is a "head-snapping" effort to stack the lower federal courts with conservatives. She also argues that it's based on a false premise that there's a workload crisis in the lower federal courts. (There isn't a crisis, she says, or at least not a new one. Federal appeals have remained more-or-less steady for the last decade.)

Calabresi also argues that administrative law judges should be eliminated and replaced with Article III administrative law judges.

He says that Congress should make these changes in the currently pending Reconciliation Bill, "because that Bill cannot be filibustered in the Senate."

OLC Sides with President in CFBP Dispute

Steven D. Schwinn, John Marshall Law School

The Office of Legal Counsel issued a memo on Saturday concluding that the President had authority to appoint OMB Director Mick Mulvaney as acting head of the Consumer Financial Protection Bureau, even though the CFPB chain-of-succession says that CFPB Deputy Director Leandra English should take over the job.

The opinion, while significant, is not binding on the courts, where this dispute will inevitably be resolved.

The dispute pits two appointment authorities against each other. On the one hand, the CFPB statute says that the CFPB Deputy Director shall "serve as acting Director in the absence or unavailability of the Director." This means that English, the acting Deputy, should get the job. (Richard Cordray, the former Director, appointed English as acting Deputy shortly before he resigned on Friday.) But on the other hand, the Federal Vacancies Reform Act gives the President authority to "temporarily authoriz[e] an acting official to perform the functions and duties" of an officer of an Executive agency whose appointment "is required to be made by the President, by and with the advice and consent of the Senate." This means that Mulvaney should get the nod.

So who wins? OLC says the President does.

The Federal Vacancies Reform Act says that its process shall be the "exclusive means" for authorizing acting service "unless" another statute expressly designates an officer to serve as acting. The CFPB statute does just that. But according to OLC, this doesn't mean that the CFPB statute prevails; it simply means that both the CFPB statute and the Federal Vacancies Reform Act provide available methods for appointment:

By its terms, [the Vacancies Reform Act says that it] shall be the "exclusive means" of filling vacancies on an acting basis unless another statute "expressly" provides a mechanism for acting service. It does not follow, however, that when another statute applies, the Vacancies Reform Act ceases to be available. To the contrary, in calling the Vacancies Reform Act the "exclusive means" for designations "unless" there is another applicable statute, Congress has recognized that there will be cases where the Vacancies Reform Act is non-exclusive, i.e., one available option, together with the office-specific statute.

But even so, how do we know the President wins? According to OLC,

as with other office-specific statutes, when the President designates an individual under the Vacancies Reform Act outside the ordinary order of succession, the President's designation necessarily controls. Otherwise, the Vacancies Reform Act would not remain available as an actual alternative in instances where the office-specific statute identifies an order of succession, contrary to Congress's stated intent.

Finally, because Congress didn't include the CFPB Director in the statutory carve-outs to the Vacancies Reform Act for other independent agencies, OLC concluded that it's subject to that Act, even though Congress designed it as independent. That's because the carve-outs refer to multi-member boards (which the CFPB is not) and other specified agencies (not including the CFPB).

 

(Second) Federal District Judge Enjoins Transgender Military Ban

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion  in Stone v. Trump, United States District Judge Marvin Garvis of the District of Maryland isued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures. 

Recall that after several tweets this past July (which Judge Garvis embeds in the opinion), President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." 

Recall also that last month in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions denying the motion for preliminary injunction regarding the Sex Reassignment Directive based on a lack of standing and granting the motion for preliminary injunction regarding the Accession and Retention Directives.

Judge Garvis has ordered a complete preliminary injunction.  Unlike Judge Kollar-Kotelly in Doe, Judge Garvis found that several plaintiffs in Stone had standing regarding the Sex Reassignment Directive which takes effect March 23.  Specifically, Judge Garvis found that it highly unlikely that plaintiffs Stone and Cole would be able to complete their medical plan before that date and that it was "at the very least plausible" that any policy exceptions would be applied to their scheduled post-March-23rd surgeries.

As for the merits, and the likelihood of success, Judge Garvis agreed with Doe. Judge Garvis discussed the Fifth Amendment protection of equal protection as applied to the military and found reason not to apply military deference, specifically mentioning the presidential tweets:

There is no doubt that the Directives in the President’s Memorandum set apart transgender service members to be treated differently from all other military service members. Defendants argue that deference is owed to military personnel decisions and to the military’s policymaking process. The Court does not disagree. However, the Court takes note of the Amici of retired military officers and former national security officials, who state “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.”  President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”

Similarly and succinctly, Judge Garvis found an equal protection violation:

The Court finds persuasive the D.C. Court’s reasons for applying intermediate scrutiny: transgender individuals appear to satisfy the criteria of at least a quasi-suspect classification, and the Directives are a form of discrimination on the basis of gender.  The Court also adopts the D.C. Court’s reasoning in the application of intermediate scrutiny to the Directives and finds that the Plaintiffs herein are likely to succeed on their Equal Protection claim.

[citations omitted]. 

However, Judge Garvis also based the equal protection violation on a finding of failure to satisfy "rational basis" (or perhaps rational basis "with bite") review:

Moreover, the Court finds that, based on the exhibits and declarations currently on the record, the Directives are unlikely to survive a rational review. The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest. See U. S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).

Thus, the Trump Administration now has two district judge opinions to appeal should it desire to pursue its new policies limiting transgender service members.

 

 

District Judge Permanently Enjoins Trump's Sanctuary Cities EO

Judge William H. Orrick (N.D.Cal.) granted summary judgment for the plaintiffs and issued a nationwide permanent injunction against the defunding and enforcement provisions of President Trump's sanctuary cities executive order.

The ruling deals a serious blow to the President and his efforts to rein in sanctuary cities. This ruling goes to the EO itself, not AG Sessions's interpretation and enforcement of the EO, as the more recent temporary injunctions did. We posted most recently on the case in Philadelphia here.

Judge Orrick noted that nothing had changed from his earlier temporary injunction. He summarized his ruling this way:

The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves. Because the Executive Order violates the separation of powers doctrine and deprives the Counties of their Tenth and Fifth Amendment rights, I GRANT the Counties' motions for summary judgment and permanently enjoin the defunding and enforcement provisions of Section 9(a).

Recall that Section 9(a) says that "[i]n furtherance of [the policy to ensure that states and their subdivisions comply with 8 U.S.C. Sec. 1373], the [AG] and the Secretary [of Homeland Security] . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes . . . ." Importantly, the EO didn't specify which federal grants were at risk; it apparently applied to all federal grants.

AG Sessions tried to restrict the EO to JAG/Byrne grants from the Justice Department, but Judge Orrick had nothing of it: "The AG Memorandum not only provides an implausible interpretation of Section 9(a) but is functionally an 'illusory promise' because it does not amend Section 9(a) and does not bind the Executive Branch. It does not change the plain meaning of the Executive Order."

Judge Orrick said that a nationwide injunction was appropriate "[b]ecause Section 9(a) is unconstitutional on its face, and not simply in its application to the plaintiffs here . . . ."

District Court Halts Government's Sanctuary Cities Enforcement Against Philadelphia

Steven D. Schwinn, John Marshall Law School

Judge Michael Baylson (E.D. Pa.) granted a preliminary injunction yesterday against the government's enforcement of it's anti-sanctuary cities moves against Philadelphia, and enjoyed AG Sessions from denying the city's Byrne JAG grant for FY 2017.

The ruling is a major victory for the city, and a significant strike against the federal crack-down on sanctuary cities. It follows a similar, but less sweeping, ruling in the Chicago case.

Judge Baylson ruled that AG Sessions's order to condition DOJ Byrne JAG grants on Philadelphia's agreement to give federal authorities notice when city officials detain an unauthorized alien (the "notice condition"), to give federal authorities access to city jails (the "access condition"), and to certify that it complies with 8 U.S.C. Sec. 1373 likely violate federal law and the Constitution.

In particular, Judge Baylson ruled that the conditions violate the Administrative Procedure Act, because they're arbitrary and capricious. He also ruled that they "are improper under settled principles of the Spending Clause, the Tenth Amendment, and principles of federalism." On the constitutional issues, he said that the conditions are not sufficiently related to the purposes of the Byrne JAG grant program (in violation of the conditioned-spending test under South Dakota v. Dole), because "[i]mmigration law [the purpose of the conditions] has nothing to do with the enforcement of local criminal laws [the purpose of Philadelphia's Byrne JAG grant]." He also said that the conditions were ambiguous (also in violation of South Dakota v. Dole), because "the Access and 48-hours Notice Conditions cannot have been unambiguously authorized by Congress if they were never statutorily authorized," and the "malleable language [of Section 1373] does not provide the 'clear notice that would be needed to attach such a condition to a State's receipt of . . . funds.'" (The court also said, but "[w]ithout specifically so holding," that "Philadelphia is likely to succeed on the merits of its Tenth Amendment challenge" to the conditions, because the notice and access conditions "impose affirmative obligations on Philadelphia, with associated costs of complying with such conditions," and because the compliance condition (on 1373) "would inherently prevent Philadelphia from, among other things, disciplining an employee for choosing to spend her free time or work time assisting in the enforcement of federal immigration laws" (and thus commandeers the city).

Finally, Judge Baylson noted that Philadelphia isn't a sanctuary city, anyway--at least not in the way defined by federal law. In particular, he wrote that the city "substantially complies with Section 1373."

SCOTUS Grants Certiorari on First Amendment Challenge to California's Regulation of "Crisis Pregnancy Centers"

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court has granted certiorari in National Institute of Family and Life Advocates (NIFLA) v. Becerra to the Ninth Circuit's opinion  upholding the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act).  The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California.  The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

Recall that affirming the district judge, the unanimous Ninth Circuit panel rejected both the free speech and free exercise of religion claims advanced by NIFLA in seeking a preliminary injunction.  After finding that the challenge was justiciable as ripe, the panel opinion, authored by Judge Dorothy W. Nelson, first considered the free speech challenge which is at the center of the case.  The panel concluded that the California statute's requirement of disclosure of state-funded services merited intermediate scrutiny under the First Amendment, which it survived, and that the unlicensed disclosure requirement survived any level of scrutiny.  The Ninth Circuit rejected the argument that the FACT Act was viewpoint-discrimination subject to strict scrutiny. The Ninth Circuit did agree with the challengers that the disclosure requirement was content-based, but held that not all content-based regulations merit strict scrutiny under Reed v. Town of Gilbert (2015). The court looked back to Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), noting that it did not announce a standard for abortion-related disclosure and applied Ninth Circuit precedent of Pickup v. Brown (2013) in which the court upheld a California statute banning conversion therapy under a "professional speech" intermediate standard of scrutiny. The panel upheld the statute applying intermediate scrutiny.

The Ninth Circuit ruling is at odds with other opinions, including, as the opinion noted, the Second Circuit in Evergreen Ass’n, Inc. v. City of N.Y.(2014) and the Fourth Circuit en banc in Centro Tepeyac v. Montgomery Cty. (2013) applied strict scrutiny and held similar provisions unconstitutional because there were other means available to inform pregnant women, including advertising campaigns.  Thus, it is this circuit split that will inform the United States Supreme Court arguments.

The Supreme Court's decision should resolve the debate concerning state regulation of crisis pregnancy centers but could also be much broader concerning so-called professional speech.

 

 

FISA Court Says Groups Have Standing To Seek Court Rulings on Data Collection

Steven D. Schwinn, John Marshall Law School

A sharply divided Foreign Intelligence Surveillance Court, sitting en banc for the first time in its history, ruled that the ACLU and Yale Law School's Media Freedom and Information Clinic have standing to seek redacted portions of FISC rulings that set out the legal basis for a government bulk-data-collection program. The ruling means that the movants' efforts to obtain the rulings can move forward, although it does not say anything about the merits.

The case arose after two newspapers in June 2013 released classified information about a surveillance program run by the government since 2006. The DNI then declassified further details about the bulk-data-collection program and acknowledge that the FISC approved much of it under Section 215 of the Patriot Act, the "business records" provision.

The movants filed a motion with the FISC, asking the FISC to unseal its opinions on Section 215. They argued that because officials had revealed key details of the program, there was no need to keep the legal justification for it secret, and moreover that they had a First Amendment right of access under Richmond Newspapers v. Virginia.

The government released more information about the program, including a white paper that explained how FISC judges periodically approved the directives to telecommunications providers to produce bulk telephonic metadata. At the same time, the FISC asked the government to review several of its opinions and then released redacted versions of those opinions relating to Section 215.

The movants then filed another motion to unseal classified sections of the FISC rulings. The government provided yet more redacted FISC opinions and moved to dismiss the second motion. The government argued that it would merely duplicate already-released opinions, and that the movants lacked standing.

As to standing, the FISC disagreed. In particular, the court said that the movants had a concrete and actual harm, "because the opinions are currently not available to them. . . . [M]oreover, it is sufficiently 'particularized' from that of the public because of Movants' active participation in ongoing debates about the legal validity of the bulk-data-collection program." The court emphasized that for the purpose of determining standing, it "must . . . assume that Movants are correct that they have a constitutional right of access--so long as that right is cognizable." In other words, the court said that the movants' standing couldn't turn on the viability of their substantive claim.

The dissent argued that "[n]o member of the public would have any 'right' under the First Amendment to ask to observe a hearing in a FISC courtroom. Still less should we be inventing such a 'right' in the present circumstances." Moreover, the dissent said that the movants, instead of seeking access to judicial proceedings, really only wanted the FISC "to rule that they have a 'right' of access to the information classified by the Executive Branch and that Executive Branch agencies must defend each redaction in the face of Movants' challenge." The dissent said that the movants therefore had no legally protected interests.

Ninth Circuit Requires Disclosure of Identifying Information on Website Rejecting First Amendment Claim

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in In Re Grand Jury Subpoena, No. 16-03-217, a panel of the Ninth Circuit rejected an attempt to quash a grand jury subpoena seeking identifying information of users who posted anonymous reviews of a company on the website, Glassdoor.com.  Glassdoor is a website where "employers promote their companies to potential employees, and employees post reviews of what it's like to work at their companies."  The subpoena relates to a company involved in the grand jury's investigation of a government contractor administering Department of Veterans Affairs healthcare programs, seemingly prompted by comments that the company was acting unethically.

Glassdoor raised two First Amendment claims supporting the appeal of the denial of its motion to quash.  First, Glassdoor argued that its users' right to associational privacy was infringed.  The unanimous panel opinion, authored by Judge Richard Tallman, quickly dispatched this "tenuous" claim.  There is no actual association among the users who "do not so much 'discuss' employment conditions as independently post their individual views."  Thus, the users do not constitute "an expressive association like the Jaycees, the Boy Scouts, or the NAACP."  Indeed, the court implied that this associational argument was inconsistent with Glassdoor's other claim: anonymity.  

The court considered this second claim, the right to anonymous speech, more extensively.  The court decided that the applicable precedent was Branzburg v. Hayes (1972), in which the United States Supreme Court famously held that a reporter did not have a First Amendment right to protect sources, known as the "reporters' privilege."   As the Ninth Circuit expressed it, Branzburg held that "a reporter - - - even one who has promised his sources anonymity - - - must cooperate with a grand jury investigation unless there is evidence that the investigation is being conducted in bad faith."  Judge Tallman's opinion rejected the argument that Branzburg is limited to newsgathering and that a Ninth Circuit case, rendered one day after Branzburg and proposing a compelling interest test, should control. Thus, for the Ninth Circuit, the only issue was whether the grand jury proceeding was in bad faith; an assertion that Glassdoor did not make.

In short, the court found no reason to "carve out an exception" to the Branzburg principle and no reason to remand. Glassdoor has few legally viable options other than to disclose the identifying information on the website.