875 F.3d 1179
9th Cir.2017Background
- Glassdoor.com hosts anonymous employee reviews; users provide emails to post and are warned in the Privacy Policy/Terms that Glassdoor may disclose identifying data in response to legal process.
- An Arizona federal grand jury is investigating a government contractor for alleged wire fraud and theft of government funds in VA programs; 125 Glassdoor reviews related to the contractor exist, eight exemplar reviews criticize or allege improper conduct.
- The government subpoenaed Glassdoor for reviewer identifying information (IP, email, billing info) for those reviews; Glassdoor moved to quash on First Amendment grounds (associational privacy and anonymous speech).
- District court applied Branzburg’s good-faith test, denied the motion to quash, and ordered compliance; Glassdoor appealed via recalcitrant-witness process and stipulated to civil contempt sanctions pending appeal.
- The Ninth Circuit affirmed, holding Branzburg controls, finding no evidence the grand jury acted in bad faith and that the requested identities bore a substantial connection to the fraud investigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a grand jury subpoena requiring Glassdoor to produce identifying info of anonymous posters violates users’ First Amendment rights (associational privacy/anonymous speech) | Glassdoor: users form an expressive association and anonymity is essential; turning over IDs will chill speech and association | Government: Branzburg governs; absent bad faith, First Amendment does not shield identities from a grand jury subpoena seeking witness leads | Held: Branzburg applies; no bad faith shown; subpoena enforcement does not violate the First Amendment |
| Whether Bursey’s compelling-interest test, rather than Branzburg’s good-faith test, applies to subpoenas that implicate First Amendment rights | Glassdoor: Bursey requires government to show compelling interest, substantial connection, and use the least drastic means | Government: Branzburg’s good-faith standard controls grand jury subpoenas; Bursey is distinguishable | Held: Branzburg controls here because the subpoena seeks identities of potential witnesses with a substantial connection to the investigation; Bursey applies only where government shows tenuous connection or bad faith |
| Whether Glassdoor’s users reasonably expected anonymity given Glassdoor’s policies | Glassdoor: users rely on site anonymity to speak candidly | Government: Glassdoor’s Terms/Privacy notify users that data may be disclosed in response to legal process, undermining any expectation of complete anonymity | Held: Users were warned disclosure could occur; reasonable expectation of absolute anonymity is reduced, weakening Glassdoor’s claim |
| Whether remand for evidentiary hearing was required | Glassdoor: district court should hold an evidentiary hearing to probe government bad faith or tenuous connection | Government: record already shows connection; no colorable bad-faith allegation | Held: No hearing required; record sufficient and further delay would hinder grand jury function |
Key Cases Cited
- Branzburg v. Hayes, 408 U.S. 665 (1972) (reporters must comply with grand jury subpoenas absent a showing the investigation is instituted or conducted in bad faith)
- Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972) (when government action collides with First Amendment rights, court may apply a three-part compelling-interest test in limited circumstances)
- United States v. Real Enters., Inc., 498 U.S. 292 (1991) (grand jury subpoenas are presumptively reasonable; requiring extensive precompliance showings impedes grand jury secrecy and function)
- NAACP v. Alabama, 357 U.S. 449 (1958) (compelled disclosure of membership lists can infringe associational privacy)
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (anonymous speech is protected by the First Amendment)
- Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (expressive-association doctrine protects organizations formed to advance shared viewpoints)