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.