The Ninth U.S. Circuit Court of of Appeals has stated its intention to decide an important free speech issue on the rights of anonymous speakers on the internet in secret without the benefit of amici briefs. The case arose when the United States served a subpoena on Glassdoor, an employer-rating site, that sought the identities of over 100 psuedonymous accounts that posted reviews on an employer subject to federal criminal investigation. Glassdoor refused to comply citing the First Amendment right of its users to anonymous speech. The Ninth Circuit is keeping the entire case under seal prompting this comment from Paul Alan Levy in Consumer Law & Policy Blog, July 19, 2017, “…it is hard to see what legitimate secrecy interests are preserved by the requirement that the merits briefs of the parties be kept entirely secret — and will oral argument be held behind doors as well? And without real benefits from secrecy, the concealment of the arguments that persuade the Court of Appeals to reach its result in this significant First Amendment case will result in a serious loss of the sort of public accountability that the First Amendment and common law right of access to judicial records is intended to preserve.”
Law professor Eugene Volokh echoes Levy’s concern about the Ninth Circuit’s decision to keep the proceedings under wraps, “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,” The Washington Post, July 22, 2017.
In a separate case, a California appeals court revived a defamation lawsuit in which a software company sued authors of critical posts on Glassdoor. One of the posts said, “Management does not respect their employees. They belittle them in public, foster a negative atmosphere, and cast aspersions upon them.” A lower court declared the posts opinion but the court of appeals found that six of the seven posts made factual assertions subject to verification. The appeals court decision allows the plaintiff to proceed to determine the posters’ identities. (FindLaw, July 24,2017, by Willaim Vogeler, Esq.)