First Amendment protections for anonymous speech online were dealt a serious blow earlier today when the United States Court of Appeals for the Ninth Circuit issued its opinion in United States v. Glassdoor. In its opinion, the Court ruled in favor of the US government’s efforts to compel Glassdoor to unmask anonymous reviews of employers by employees posted on the site. The ripple effects of this case for online speakers could be severe, and with the case having been placed under seal from day one, it’s not surprising that the decision reflects a clear lack of understanding of its potential impact from the Court.
Background of United States v. Glassdoor
The case started when the US government served a subpoena on Glassdoor, an online forum where current and former employees can anonymously post reviews about the salaries and work environments of their places of employment. The subpoena asked for identifying information for more than one hundred accounts that had posted reviews of an employer whose contracting practices were apparently under criminal investigation by a federal grand jury.
Glassdoor declined to unmask its users to the grand jury, citing the First Amendment right of its users to speak anonymously. It noted that Glassdoor was not attempting to interfere with a criminal investigation, but by identifying its users, the investigation “could have a chilling effect on both Glassdoor’s reviewers’ and readers’ willingness to use glassdoor.com.”
Perhaps cognizant of its overreach, the government revised its demand to eight specified reviewers. In an attempt at compromise, Glassdoor then offered to notify the eight users of the subpoena in an effort to learn if they would voluntarily cooperate with the prosecutors. After this offer was rejected, Glassdoor subsequently moved to quash the subpoena, invoking its users’ First Amendment right to speak anonymously, while simultaneously notifying the targeted users of the subpoena’s existence.
A Secretive, Closed Decision
There is a lot we still do not know about the underlying facts of this case. It reached the 9th Circuit and was placed under seal from the outset, with sealed briefs, and a sealed record, with no explanation of the same. “The Court sees no need for participation by amicus curiae at this stage of the litigation,” the appeals court stated in a July 6 order signed by the 9th Circuit’s Clerk of Court.
Nonetheless, due to the importance of the underlying issue, CDT persisted and attempted to file a motion with the Court that would allow CDT and other civil society groups to file an amicus brief to help the court understand the potential real-world impacts of its decision. CDT was denied the ability to electronically upload its motion, so our counsel hand-delivered a copy of the motion and proposed amicus brief to the 9th Circuit. Yet as recently as last week, we were told by the clerk that the motion was still under consideration, and had not been decided. The opinion issued today lists CDT as having filed an amicus brief, but the court has yet to actually rule on CDT’s request to file a brief.
The ability to speak anonymously can encourage speakers to engage more openly with one another.
Today’s ruling in favor of the government is a blow to free speech online. The court holds Glassdoor to the standard set in Branzburg v. Hayes, where the Supreme Court held that a reporter must cooperate with a grand jury investigation unless there is evidence that the investigation is being conducted in bad faith. However, newsgathering is not the crux of this case, where Glassdoor is neither a reporter nor a news organization. In the four decades since Branzburg was decided, courts consistently have recognized the severity of circumstances in which an anonymous speaker’s identity is revealed against his or her will, and therefore have imposed a variety of evidentiary requirements and multi-part balancing tests in civil cases to ensure speakers’ rights are adequately protected. Despite this, the 9th Circuit today rejected more recent case law, such as Bursey v. United States, that offer greater protections for online speech.
As CDT explains in its amicus brief, the ability to speak anonymously can encourage speakers to engage more openly with one another. This is especially true with respect to online speech, given the internet’s unique technical characteristics. Online communications necessarily depend on intermediaries, such as internet service providers and messaging platforms, to facilitate their carriage, accessibility, and storage. As a result, internet users are particularly vulnerable to having their speech published, decontextualized, and examined in ways that they do not anticipate when initially posting a comment. If a person fears that statements she makes online will be forever linked to her professional or legal identity, she is likely to refrain from voicing at least some thoughts due to concerns about potential repercussions and reprisal.
If this case stands, it will have far-reaching consequences for the ability of companies to protect anonymous speech online. These are the legal questions that will shape the future of the internet. As a society, we need to be having these discussions with each other in the open, not behind closed doors and under seal. Sealed records and inaccessible justice systems hold little hope of producing probative decisions. And in this case, a secretive court produced a troubling opinion.