Most employers are familiar with Glassdoor, Inc.’s website, which allows current and former employees to post anonymous reviews of an employer. But Glassdoor is often a thorn in the side of employers because many negative posts are the result of disgruntled employees or competitors seeking an advantage in recruiting. For the most part, employers have been limited in their ability to have such posts removed from Glassdoor and courts have protected the anonymous posts under First Amendment grounds.¹

But a recently unsealed order by the United States District Court for the District of Arizona has laid the groundwork for limiting First Amendment protections for anonymous online speakers. In particular, the District of Arizona held publishers of anonymous speech are not protected by the First Amendment from compelled disclosure of their identities pursuant to a grand jury subpoena.

In In re Grand Jury Subpoena, No. 16-03-217 (D. Ariz. May 10, 2017), Glassdoor, Inc. (Glassdoor) filed a motion to quash a grand jury subpoena seeking the identities and “associated reviewer information” of eight reviews posted on Glassdoor’s website. Id. at slip op. 1-2. The reviews in question concerned a particular—and redacted—government contractor under federal criminal investigation for fraud. Id. Glassdoor objected to producing the information on the grounds its users had a right to anonymous speech under the First Amendment. Id. at 2. After the U.S. Government rejected Glassdoor’s proposal to reach out to the reviewers individually to see if they would cooperate, Glassdoor brought a motion to quash the subpoena. Id.

The court held the “compelling interest/substantial connection” test established in Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972), did not apply to Glassdoor. Bursey concerned the attempts of the U.S. government to compel responses to questions propounded to two staff members of The Black Panther newspaper during a grand jury investigation. Bursey, 466 F.2d at 1065. The Bursey test requires that, in order to compel responses in a grand jury context, the government prove (1) the government has an “immediate, substantial, and subordinating” interest in the subject matter of the investigation and (2) there is a “substantial connection” between the information it seeks and the government’s interest. Id. at 1083. The court distinguished Bursey on the grounds the First Amendment right to speak anonymously is different than the right to “associate with a political group and anonymously print and distribute critiques of the government.” In re Grand Jury, slip op. at 3 (citing Bursey, 466 F.2d at 1085). The court seized on the political element of Bursey, and reasoned the reviewers on Glassdoor did not have a political purpose and thus were not subject to the Bursey test. Id. at 4.

On the contrary, the court held Glassdoor is akin to “reporters, scholars, or newspapers,” whose sources and information do not receive First Amendment protection under Branzburg v. Hayes, 408 U.S. 665 (1972). Id. at 5 (citing Branzburg, 408 U.S. at 684). The court reasoned that discussing employment conditions, even those of publicly-funded employers, did not make Glassdoor an advocacy group or subject to any heightened protection. Id. As a result, the court ultimately denied the motion to quash the subpoena, and held “Glassdoor, like any newsman asserting a privilege on behalf of its sources, must respond to the grand jury subpoena.” Id.

This case has potential implications for both employers and internet service provider (ISP) subpoena respondents.² Read narrowly, this case holds the identities behind anonymous speech about a given employer are not protected from compelled disclosure via grand jury subpoena. Read more broadly, this case may result in other ISP publishers of anonymous speech being unable to protect the identities of their users against disclosure when compelled by a grand jury subpoena, provided the speech is not related to political advocacy. Of course, civil subpoenas to obtain the same information are usually subject to greater hurdles. See, e.g., Awtry, 2016 U.S. Dist. LEXIS 44804, at *53 (the “First Amendment implications of ordering disclosure of the identifying information” from anonymous Glassdoor reviews outweighed “plaintiff’s interest in obtaining” same); Digital Music News LLC v. Superior Court, 226 Cal. App. 4th 216, 229 (2014) (civil subpoena could not compel the disclosure of the identity of anonymous internet news article commenter because the commenter’s “privacy interest outweigh[ed] [the propounding party’s] need to discover his or her identity”), overruled in part on other grounds by Williams v. Superior Court, No. S227228, 2017 Cal. LEXIS 5124 (July 13, 2017). Accordingly, concerns this case could be used to obtain the identities of those behind negative employer reviews for the purposes of retaliation should be limited.

The proceedings in the District of Arizona were only recently partially unsealed by an order on a stipulated motion to unseal. In re Grand Jury Subpoena, Order Granting Stipulated Motion to Unseal (June 13, 2017). On appeal, however, the Ninth Circuit ordered the case will be decided in a secret proceeding, with sealed briefing, and with no amicus briefing. In re Grand Jury Subpoena, No. 17-16221 (July 6, 2017). Until the Ninth Circuit weighs in, anonymous Internet speech is subject to lesser protections in the District of Arizona and any other courts that follow the District Court’s reasoning.

¹ See, e.g., Awtry v. Glassdoor, Inc., No. 16-mc-80028-JCS, 2016 U.S. Dist. LEXIS 44804 (N.D. Cal. Apr. 1, 2016) (denying motion to enforce Glassdoor’s compliance with third party subpoena to disclose information related to negative reviews of plaintiff’s business).

² The holding of In re Grand Jury Subpoena is not confined to ISPs, but ISPs are publishers that most frequently deal with anonymous speech.