The Washington Post/Eugene Volohk: ‘Ninth Circuit poised to resolve major free speech issue in secret proceeding’

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‘Ninth Circuit poised to resolve major free speech issue in secret proceeding’
By Eugene Volokh July 22

A very interesting post from Paul Alan Levy (Public Citizen’s Consumer Law & Policy Blog); here are the opening paragraphs:

    The United States Court of Appeals for the Ninth Circuit has issued an order signed only by the Clerk declaring that a significant free speech issue bearing on the rights of anonymous Internet users will be decided in a totally secret proceeding, involving sealed briefs, a sealed record, and without any help from would-be amici (including Public Citizen) seeking to explain the dangers posed by the proceeding….

    The case arises from a subpoena served by the United States on the employer-rating site Glassdoor, originally demanding identifying information about the owners of more than one hundred pseudonymous accounts that had, it appears, been used to post reviews of a particular employer whose contracting practices were subject to a federal criminal investigation…. Glassdoor refused to produce the information demanded by the grand jury subpoena, citing the First Amendment right of its users to speak anonymously.

    In an effort to compromise, the government limited its production demand to eight specified reviewers. Glassdoor responded to that offer by proposing that it notify the users of the subpoena and provide identifying information for such of its users who were willing to be identified to the prosecutors. After the government rejected this offer, Glassdoor moved to quash the subpoena, invoking its users’ First Amendment right to speak anonymously which, Glassdoor contended, created a privilege against production of the information. At the same time, it notified its users of the subpoena, thus meeting one of the conditions of the Dendrite line of cases that it cited in its motion. Those cases rely on the First Amendment right to speak anonymously as a basis for posing procedural and substantive obstacles to civil subpoenas seeking to identify online speakers so that they can be served with process and sued for wrongful speech. Eventually, Glassdoor also invoked Bursey v. United States, a decision in which the Ninth Circuit quashed in part a grand jury subpoena directed at the process of publishing the newspaper of the Black Panther Party.

    The entire subpoena litigation was conducted under seal, but we know some of the details because, having taken a contempt citation to secure its ability to appeal, Glassdoor next obtained the government’s stipulation for the partial unsealing of the briefs exchanges by the two sides on Glassdoor’s motion to quash. Glassdoor had appealed, and raised the possibility that parties beside itself might wish to provide the Court of Appeals with the benefit of their views of the applicable law. The trial judge granted that request; as a result the briefs supporting and opposing the Glassdoor motion to quash, as well as reply briefs both from Glassdoor and from the government, are available in the public record, as is the judge’s ruling on the motion. The finer details from the papers were redacted, including for example the name of the company under investigation and some of the detail about the content of the employee reviews whose authors. …

    We know from Judge Humetawa’s opinion that she refused to apply the Bursey line of cases because she considered that it only protected against grand jury subpoenas directed at dissent against the government, and she refused to take seriously the First Amendment rights of Glassdoor’s users because — well, for reasons that showed a misunderstanding of the First Amendment rights at issue. On the one hand, the judge thought that the First Amendment privilege being asserted could extend only to political speech, and on the other hand she seems to have suggested that no First Amendment obstacles could be posed to a grand jury subpoena because newspapers do not generally have any First Amendment rights to stop grand jury intrusion into their sources absent a showing of bad faith on the part of the government; the judge deemed Glassdoor indistinguishable from a journalistic enterprise….

Grand jury proceedings have historically been secret, and there are good reasons for such secrecy; but it’s indeed dangerous to have significant legal issues resolved in secret proceedings. I’m not sure quite what should be done in cases like this, but I agree that this is an important issue, and Levy’s post is much worth reading.

 Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and an intensive editing workshop at UCLA School of Law, where he has also often taught copyright law, criminal law, tort law, and a seminar on firearms regulation policy.
Follow @volokhc





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