Grand Jury Subpoena v. ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE GRAND JURY SUBPOENA, No. No. 17-16221
16-03-217,
D.C. No.
2:17-mc-00036-
UNITED STATES OF AMERICA, DJH
Appellee,
v. OPINION
GLASSDOOR, INC.,
Movant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted October 16, 2017
San Francisco, California
Filed November 8, 2017
Before: Richard C. Tallman and Consuelo M. Callahan,
Circuit Judges, and David A. Ezra, * District Judge.
Opinion by Judge Tallman
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 IN RE GRAND JURY SUBPOENA
SUMMARY **
Subpoena / First Amendment Rights
The panel affirmed the district court’s denial of
Glassdoor, Inc.’s motion to quash a grand jury subpoena
duces tecum that would require Glassdoor to disclose the
identifying information of eight users who posted
anonymous reviews about another company on its Internet
website; and sustained the contempt order entered to enforce
it.
Glassdoor argued that complying with the subpoena
would violate its users’ First Amendment rights to
associational privacy and anonymous speech.
The panel held that to determine whether the subpoena
violated the First Amendment, the proper test on the record
of this case was the good-faith test the Supreme Court
established in Branzburg v. Hayes, 408 U.S. 665 (1972).
The panel rejected Glassdoor’s contention that the district
court should have applied the compelling-interest test laid
out in Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972).
The panel held that because Glassdoor had neither
alleged nor established bad faith on the part of the
government in its investigation, under Branzburg,
enforcement of the subpoena duces tecum to identify
potential witnesses in aid of its inquiries did not violate the
First Amendment rights of Glassdoor’s uses. The panel
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
IN RE GRAND JURY SUBPOENA 3
further held that Glassdoor had not shown that any other
evidence was necessary to rule on its objection.
COUNSEL
Eric D. Miller (argued), Nicola C. Menaldo, and Todd M.
Hinnen, Perkins Coie LLP, Seattle, Washington, for
Movant-Appellant.
Andrew C. Stone (argued) and Gary M. Restaino, Assistant
United States Attorneys; Krissa M. Lanham, Deputy
Appellate Chief; Elizabeth A. Strange, Acting United States
Attorney; United States Attorney’s Office, Phoenix,
Arizona; for Appellee.
Kurt Wimmer and Jadzia Butler, Covington & Burling LLP,
Washington, D.C.; Sophia Cope, Electronic Frontier
Foundation, San Francisco, California; for Amici Curiae
Center for Democracy & Technology, Committee for
Justice, Electronic Frontier Foundation, Media Alliance, and
Public Participation Project.
OPINION
TALLMAN, Circuit Judge:
Glassdoor, Inc. appeals the denial of its motion to quash
a grand jury subpoena duces tecum that would require
Glassdoor to disclose the identifying information of eight
users who posted anonymous reviews about another
company on its Internet website, Glassdoor.com. Glassdoor
argues that complying with the subpoena would violate its
users’ First Amendment rights to associational privacy and
4 IN RE GRAND JURY SUBPOENA
anonymous speech. It contends that the district court should
have applied the compelling-interest test we laid out in
Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972), to
determine whether the subpoena violates the First
Amendment. The government argues that the good-faith test
the Supreme Court established in Branzburg v. Hayes,
408 U.S. 665 (1972), controls.
We agree that on the record before us, Branzburg, which
was decided the day before we issued Bursey, supplies the
proper test. Because there is no evidence that the grand
jury’s investigation of fraud, waste, and abuse by a third
party in performing a government contract is being
conducted in bad faith, we affirm the denial of the motion to
quash, and we sustain the contempt order entered to enforce
it.
I
Glassdoor, Inc. operates Glassdoor.com, a website
where employers promote their companies to potential
employees, and employees post reviews of what it’s like to
work at their companies. In these reviews, employees rate
their employers in a variety of categories and describe
workplace environments, salaries, and interviewing
practices.
The reviews on Glassdoor.com are anonymous. But to
post reviews, users must first provide Glassdoor with their
e-mail addresses, though the addresses do not appear on the
site. Before Glassdoor accepts a posting, the contributor is
warned his or her information may be disclosed when
required by law, either through a subpoena or court order.
Glassdoor’s Terms of Use incorporate a Privacy Policy that
assures users the company generally “do[es] not disclose . . .
individual account or usage data to third parties.” But the
IN RE GRAND JURY SUBPOENA 5
Privacy Policy expressly warns users that Glassdoor “will
disclose data if we believe in good faith that such disclosure
is necessary . . . to comply with relevant laws or to respond
to subpoenas or warrants or legal process served on us.”
Finally, Glassdoor’s Terms of Use also inform users that
Glassdoor reserves the right “to take appropriate action to
protect the anonymity of [its] users against the enforcement
of subpoenas or other information requests.” The company
is attempting to do that here in the face of an ongoing federal
criminal investigation.
An Arizona federal grand jury is investigating a
government contractor that administers two Department of
Veterans Affairs (VA) healthcare programs. The grand jury
is examining whether the subject 1 of its inquiries has
committed wire fraud and misused government funds in
violation of 18 U.S.C. § 1343 and 18 U.S.C. § 641,
respectively.
As of March 2017, current and former employees of the
subject company had posted 125 reviews on Glassdoor.com.
1
We use the term “subject” to mean the object of a grand jury’s
inquiries prior to the point in an investigation where a subject becomes
a “target,” against whom the grand jury is contemplating returning an
indictment based on evidence obtained during its investigation. A
“subject” is “a person whose conduct is within the scope of the grand
jury’s investigation,” while a “target” is “a person as to whom the
prosecutor or the grand jury has substantial evidence linking him or her
to the commission of a crime and who, in the judgment of the prosecutor,
is a putative defendant.” U.S. Attorneys’ Manual, § 9–11.151 (2009).
The investigation here is at an early stage and may well result in the
grand jury’s decision not to accuse the subject of any criminal acts. We
do not identify the subject of these inquiries to protect—to the extent we
can while adjudicating this subpoena challenge—the secrecy embodied
in Federal Rule of Criminal Procedure 6(e), designed to protect innocent
parties who are ultimately never indicted for any crime.
6 IN RE GRAND JURY SUBPOENA
Many of the reviews criticize the subject’s management and
business practices. For example, one anonymous employee
wrote that it “[m]anipulate[s] the system to make money
unethically off of veterans/VA.” Another asserted that
“[t]here’s a real disconnect between how this program runs
and how the VA thinks the program runs.”
On March 6, 2017, the government served Glassdoor
with a subpoena that ordered it to provide the grand jury with
“Company Reviews” and associated “reviewer information”
for every review of the subject on Glassdoor.com. The
requested “reviewer information” included “internet
protocol addresses and logs associated with all reviews
including date and time of post, username, email address,
resume, billing information such as first name, last name,
credit card information, billing address, payment history,
and any additional contact information available.” The
government attached eight “exemplar reviews,” all of which
were critical of the subject.
Glassdoor notified the government that it believed “the
scope of the request raise[d] issues associated with the First
Amendment.” The government agreed to limit its request to
the reviewer information associated with just the eight
exemplar reviews, and it told Glassdoor the information
would enable it “to contact those reviewers as third party
witnesses to certain business practices relevant to [its]
investigation.” Glassdoor maintained its objection to the
subpoena and filed a motion to quash.
The district court denied Glassdoor’s motion. It held that
Bursey’s compelling-interest test was inapplicable because
the facts of Bursey were distinguishable. Applying
Branzburg, it held that Glassdoor had not shown the grand
jury investigation was being conducted in bad faith, and it
IN RE GRAND JURY SUBPOENA 7
ordered Glassdoor to respond to the subpoena on pain of
contempt.
Glassdoor chose to bring a recalcitrant witness appeal
rather than comply with the subpoena. 28 U.S.C. § 1826.
The parties stipulated to a judgment of civil contempt and
sanctions of $5,000 per day until Glassdoor fully complies
by producing the requested information. The district court
entered an order in accordance with the stipulation of
contumacious conduct and stayed enforcement of the
monetary sanctions pending resolution of this appeal. We
have jurisdiction under 28 U.S.C. § 1291.
II
We review the district court’s denial of a motion to quash
a grand jury subpoena, as well as the district court’s
imposition of contempt sanctions, for abuse of discretion.
See In re Grand Jury Subpoena (Mark Torf/Torf Envtl.
Mgmt.), 357 F.3d 900, 906 (9th Cir. 2004) (denial of motion
to quash); In re Grand Jury Proceedings, 33 F.3d 1060, 1061
(9th Cir. 1994) (per curiam) (contempt).
“[M]ixed questions of law and fact contained within the
analysis of a civil contempt proceeding” are reviewed de
novo. In re M.H., 648 F.3d 1067, 1070–71 (9th Cir. 2011).
The district court’s “underlying factual findings are
reviewed for clear error.” Mathews v. Chevron Corp.,
362 F.3d 1172, 1180 (9th Cir. 2004).
III
Glassdoor argues that the grand jury subpoena violates
its users’ First Amendment rights in two ways: it infringes
8 IN RE GRAND JURY SUBPOENA
on their right to associational privacy and their right to
anonymous speech. 2
Implicit in the First Amendment is a “right to associate
for the purpose of engaging in those activities protected by
the First Amendment.” Roberts v. United States Jaycees,
468 U.S. 609, 618 (1984). Because there is a “vital
relationship between freedom to associate and privacy in
one’s associations,” in some circumstances, forcing
organizations to disclose their members’ identities can
infringe on their associational rights. NAACP v. Alabama,
357 U.S. 449, 462, 466 (1958).
Glassdoor claims that its users constitute an expressive
association because they “associate online with other users
and fellow employees to discuss the conditions at their jobs.”
Therefore, requiring Glassdoor to identify eight of its users
violates those users’ right to associational privacy.
Glassdoor’s associational claim is tenuous. The
Supreme Court’s expressive-association jurisprudence
contemplates groups of people who have associated to
advance shared views or “join in a common endeavor,”
Jaycees, 468 U.S. at 618, not people who happen to use a
common platform to anonymously express their individual
views. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640,
2
The government does not contest that Glassdoor has third-party
standing to assert the rights of its users, but we must satisfy ourselves
that Glassdoor has standing. See Bd. of Nat. Res. of State of Wash. v.
Brown, 992 F.2d 937, 945 (9th Cir. 1993). We are satisfied here because
Glassdoor has established an injury in fact of its own, it has a sufficiently
close relationship to its users, and its users would face “genuine
obstacles” to the assertion of their own putative right to anonymity. See
McCollum v. Cal. Dep’t. of Corr. & Rehab., 647 F.3d 870, 879 (9th Cir.
2011).
IN RE GRAND JURY SUBPOENA 9
649–50 (2000) (holding that the Boy Scouts is an expressive
association because it is an organization with the “mission”
of “instill[ing] values in young people”); Jaycees, 468 U.S.
at 622 (“According protection to collective effort on behalf
of shared goals is especially important in preserving political
and cultural diversity . . . .”) (emphasis added); NAACP,
357 U.S. at 460 (“Effective advocacy of both public and
private points of view . . . is undeniably enhanced by group
association.”).
Given the nature of Glassdoor.com, it is difficult to see
its users as an expressive association like the Jaycees, the
Boy Scouts, or the NAACP. Glassdoor’s users are
necessarily strangers to each other, because they are
anonymous. Users do not so much “discuss” employment
conditions as independently post their individual views.
Although employers can comment on reviews, employees
cannot comment directly on one another’s posts or otherwise
engage in dialogue. The reviews of the subject company
itself show no evidence that Glassdoor users share a
common point of view, are engaged in a “common
endeavor,” or have a unifying “mission.” Some reviewers
are very positive, leaving comments like “This is a great
company!” and “Unlimited opportunities for growth.”
Others are negative: “Poor management;” “Nothing but a
circus with total clowns;” “It was . . . very hard to watch the
slow process of [the subject] cause delays of care daily.” 3
3
The First Amendment “does not require that every member of a
group agree on every issue in order for the group’s policy to be
‘expressive association.’” Boy Scouts, 530 U.S. at 655. But this
principle presupposes that a group has an official policy, as the
petitioners in Boy Scouts did regarding acceptance of homosexual scout
masters. See id. at 651–53. Here, neither Glassdoor nor its users have
10 IN RE GRAND JURY SUBPOENA
In short, we are skeptical of the claim that Glassdoor’s
users constitute an expressive association. But we certainly
recognize enforcing the subpoena implicates their First
Amendment rights, because they have a limited right to
speak anonymously.
“[A]n author’s decision to remain anonymous . . . is an
aspect of the freedom of speech protected by the First
Amendment.” In re Anonymous Online Speakers, 661 F.3d
1168, 1173 (9th Cir. 2011) (quoting McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 342 (1995)). This is true
whether the speech occurs online or offline. See id.
However, the right to speak anonymously is not unlimited.
Id. The degree of scrutiny applied to alleged infringements
of the right to speak “varies depending on the circumstances
and the type of speech at issue.” Id.
Here, the government seeks to unmask anonymous
speakers in order to identify potential percipient witnesses in
aid of a federal grand jury investigation into possible fraud.
The speakers whose identities the government seeks may
well be witnesses to this criminal activity, perhaps even
participants in it. Presumably, once identified, federal
agents will attempt to contact them to see whether they have
any admissible evidence to offer in aid of the investigation
and to serve those who do with a grand jury subpoena ad
testificandum.
IV
At virtually the same time, the Supreme Court and our
court decided cases in which witnesses challenged grand
an official stance on the subject, nor can they—the site is designed to
allow individual users to express their own opinions.
IN RE GRAND JURY SUBPOENA 11
jury subpoenas that would have required them to identify
individuals who wished to remain anonymous, but who
might have had information about criminal activity or
organizational membership.
In Branzburg v. Hayes, the Supreme Court held that a
reporter—even one who has promised his sources
anonymity—must cooperate with a grand jury investigation
unless there is evidence that the investigation is being
conducted in bad faith. 408 U.S. at 689–91, 707–08. The
next day, in Bursey v. United States, we held that when a
grand jury investigation into the activities of a group thought
to be subversive “collides with First Amendment rights,” the
government must satisfy a three-prong “compelling interest”
test. 466 F.2d at 1083.
Glassdoor argues that we should apply Bursey’s
compelling-interest test, while the government contends that
Branzburg’s good-faith test controls. We hold that
Branzburg supplies the correct test, for the reasons set forth
below.
A
In Branzburg, the Supreme Court held that requiring
newspaper reporters to appear and testify before grand juries
regarding the identity of their sources did not violate the
reporters’ First Amendment rights. 408 U.S. at 667.
Branzburg was a consolidation of three cases involving
journalists who had reported on illicit drug activity or the
Black Panthers. Id. at 667, 672, 675. Each had been
subpoenaed to testify before a grand jury, and each had
refused to answer questions about the identity of his sources
and, in some cases, what he had seen while reporting. Id. at
668, 673, 676.
12 IN RE GRAND JURY SUBPOENA
The reporters argued that requiring them to identify their
sources or testify to what they were permitted to see would
deter sources from speaking to them in the future, hampering
their ability to gather news. See id. at 679–80. The Court
rejected this argument, declining to create for reporters “a
testimonial privilege that other citizens do not enjoy.” Id. at
690. However, the Court stated that reporters would be
entitled to relief from the courts if a grand jury investigation
were “instituted or conducted other than in good faith.” Id.
at 707–08.
1
Glassdoor insists that because it is not a reporter and is
not claiming a “newsman’s privilege” for itself, Branzburg
is inapplicable. It emphasizes that the Branzburg reporters
sought to vindicate their own First Amendment right to
gather news, while Glassdoor is asserting its users’ First
Amendment right to speak and associate anonymously. But
this is a distinction without a difference. At its core,
Glassdoor’s argument is very similar to the one rejected in
Branzburg.
In Branzburg, the reporters argued that “to gather news
it is often necessary to agree . . . not to identify the source of
information,” and that if reporters were forced to identify
anonymous sources, they and other potential sources would
“be measurably deterred from furnishing publishable
information, all to the detriment of the free flow of
information protected by the First Amendment.” Id. at 679–
80.
Although Glassdoor is not in the news business, as part
of its business model it does gather and publish information
from sources it has agreed not to identify. It argues that
“[a]nonymity is an essential feature of the Glassdoor
IN RE GRAND JURY SUBPOENA 13
community,” and that “if employees cannot speak
anonymously, they often will not speak at all,” which will
reduce the availability of “information about what it is like
to work at a particular job and how workers are paid.” In
other words, forcing Glassdoor to comply with the grand
jury’s subpoena duces tecum will chill First Amendment-
protected activity. This is fundamentally the same argument
the Supreme Court rejected in Branzburg.
Furthermore, Branzburg makes it clear that Glassdoor’s
users do not have a First Amendment right not to testify
before the investigating grand jury about the comments they
initially made under the cloak of anticipated anonymity. See
id. at 695 (“[I]f the authorities independently identify the
informant, neither his own reluctance to testify nor the
objection of the newsman would shield him from grand jury
inquiry . . . .”). Therefore, Glassdoor cannot refuse to turn
over its users’ identifying information on the grounds that it
is protecting its users’ underlying rights.
2
Glassdoor also argues that Branzburg is limited to “news
gathering,” and that because Glassdoor is asserting its users’
rights to speak and associate anonymously, Branzburg is
inapplicable. It’s true that the Branzburg Court stated that
“[t]he sole issue” before it was “the obligation of reporters
to respond to grand jury subpoenas.” Id. at 682. But the
Court’s full statement was that “[t]he sole issue before” it
was “the obligation of reporters to respond to grand jury
subpoenas as other citizens do and to answer questions
relevant to an investigation into the commission of crime.”
Id. (emphasis added). The Court went on to say that
“[c]itizens generally are not constitutionally immune from
grand jury subpoenas; and neither the First Amendment nor
any other constitutional provision protects the average
14 IN RE GRAND JURY SUBPOENA
citizen from disclosing to a grand jury information that he
has received in confidence.” Id.
In rejecting the reporters’ arguments for creating a
constitutional “reporter’s privilege,” the Court stated that
“the only testimonial privilege . . . that is rooted in the
Federal Constitution is the Fifth Amendment privilege
against compelled self-incrimination.” Id. at 689–90
(emphasis added). It expressly declined to “create another
by interpreting the First Amendment to grant newsmen a
testimonial privilege that other citizens do not enjoy.” Id. at
690.
Thus, although the Branzburg Court was responding to a
newsgathering claim, it made clear that the First Amendment
does not provide reporters—or anyone else—with a
privilege against responding to a grand jury’s inquiries.
Therefore, it doesn’t matter whether the underlying claim is
related to newsgathering, speech, or association. These are
all First Amendment-protected activities, but none of them
will prevent an individual from being required to cooperate
with a good-faith grand jury investigation. Only if a witness
has a legitimate claim of self-incrimination under the Fifth
Amendment may he refuse to answer questions or supply
information relevant to the investigation.
3
One factor does distinguish Glassdoor’s users from the
anonymous sources in Branzburg: there, at least two of the
reporters had promised not to reveal the identities of those
they observed while reporting. Id. at 667–68, 672–73. Thus,
their sources reasonably expected anonymity.
But here, Glassdoor’s Privacy Policy puts its users on
notice before their first submission is posted that their
IN RE GRAND JURY SUBPOENA 15
identifying information could be revealed to the government
in response to a subpoena or court order. The fact that
Glassdoor’s users do not have a reasonable expectation of
complete privacy further undermines Glassdoor’s contention
that enforcing the subpoena would violate its users’ rights to
anonymous speech or association.
B
Bursey is of no help here. There, a district court had held
two staffers of the Black Panther newspaper in contempt for
refusing to answer certain questions from a grand jury that
was investigating a death threat against President Richard
Nixon. Bursey, 466 F.2d at 1065. The questions
propounded to the witnesses during their grand jury
appearances went well beyond any legitimate connection to
federal crimes.
We reversed, stating that “[w]hen governmental activity
collides with First Amendment rights” in the context of a
grand jury investigation, potential witnesses may not be
compelled to answer questions unless the government
establishes: 1) that the government has an “immediate,
substantial, and subordinating” interest in the subject matter
of the investigation; 2) “that there is a ‘substantial
connection’ between the information it seeks” and its
compelling interest in the investigation; and 3) that “the
means of obtaining the information is not more drastic than
necessary” to advance the government’s interest. Id. at
1083.
The Bursey court recognized the government’s
compelling interest in investigating threats against the
President, but held that the grand jury’s questions regarding
the inner workings of the Black Panther newspaper and the
identities of staff members who published the paper lacked
16 IN RE GRAND JURY SUBPOENA
a “substantial connection to the compelling subject matter of
the investigation.” Id. at 1086–88. Therefore, the witnesses
could not be compelled to answer the objectionable
questions. Id. at 1088.
The government petitioned for rehearing en banc,
arguing that the court’s reasoning in Bursey was inconsistent
with the Supreme Court’s recent decision in Branzburg. Id.
at 1090. We rejected that argument for two reasons. First,
“[t]he press function with which the [Branzburg] Court was
concerned was news gathering,” but “[n]ews gathering [was]
not involved” in Bursey. Id. Second, Bursey’s holding that
the government must demonstrate a “‘substantial
connection’ between the information sought and the criminal
conduct which the Government was investigating” was not
inconsistent with Branzburg. Id. at 1090–91. Thus, the
Bursey panel ruled that its decision was in harmony with
Branzburg. Id. at 1091.
1
Glassdoor nonetheless argues that Bursey controls and
compels us to quash the subpoena. We are unpersuaded.
The circumstances that led to our decision in Bursey are very
different than those here. In Bursey, there was evidence that
the government was engaged in a fishing expedition
designed to gather as much background information as
possible about the activities of a dissident group. A
legitimate grand jury investigation that had been launched in
response to a threat against the President had turned into “a
general probe of the affairs of the Black Panther Party.” Id.
at 1065. The grand jury had questioned Black Panther
staffers about the “internal management of the paper,”
demanding that they name “the people who edit the paper,”
“the people who normally work on the newspaper,” “the
person who is the current editor-in-chief of the newspaper,”
IN RE GRAND JURY SUBPOENA 17
“the person currently responsible for distributing the
newspaper,” and “the people . . . who do layout work for the
paper.” Id. at 1066, 1068–69. They also asked the staffers
to identify Black Panthers whose photographs had appeared
in a different magazine. Id. at 1065–66.
Here, on the other hand, there is no evidence that the
government is on an improper fishing expedition. Glassdoor
is not being asked about the inner workings of Glassdoor
itself, or being required to identify users simply because they
have Glassdoor accounts. To the contrary, the government
has only requested the identifying information of users who
appear to have relevant information about the manner in
which the subject of the grand jury’s investigation
administered its government contracts. And it has narrowed
its request for information from all 125 users who posted
reviews about the subject to the eight whose reviews
arguably describe what may be fraudulent behavior.
2
Since Bursey was decided, we have consistently applied
Branzburg’s good-faith test rather than Bursey’s
compelling-interest test when deciding First Amendment
challenges to good-faith grand jury inquiries. Glassdoor
acknowledged in its briefs and confirmed at oral argument
that it is not alleging any bad faith on the part of the Arizona
grand jury conducting this particular investigation.
In Lewis v. United States, we applied Branzburg to
affirm a judgment of contempt against a radio station
manager who refused to comply with a grand jury subpoena.
501 F.2d 418, 422–23 (9th Cir. 1974) (Lewis I). Lewis I did
not mention Bursey. See id. The following year, we
affirmed a different contempt judgment against the same
appellant, citing Branzburg and stating that reporters would
18 IN RE GRAND JURY SUBPOENA
be protected from grand jury subpoenas only “where a grand
jury investigation is instituted or conducted other than in
good faith.” Lewis v. United States, 517 F.2d 236, 237–38
(9th Cir. 1975) (Lewis II). Again, there was no mention of
Bursey.
In In re Grand Jury Proceedings (Scarce), a doctoral
student claimed that a “‘scholar’s privilege’ . . . akin to that
of a reporter” should protect him from being forced to
answer questions from a grand jury investigating criminal
activity at a research facility. 5 F.3d 397, 398 (9th Cir.
1993). We disagreed. Relying on Branzburg, we held that
because there was no evidence of bad faith, the appellant was
required to cooperate with the grand jury. Id. at 400.
Since Bursey was decided in 1972, we have never relied
on it to quash a grand jury subpoena such as the one before
us, and we see no reason to do so here.
3
Glassdoor argues that our denial of the government’s
petition for rehearing in Bursey fatally undermines the
government’s contention that Branzburg applies here.
According to Glassdoor, in Bursey, we “considered and
rejected the argument that Branzburg overrules Bursey.”
Therefore, Bursey controls and the district court should have
applied its three-prong, compelling-interest test. However,
the government does not argue, and we do not hold, that
Branzburg overruled Bursey, only that Branzburg should be
applied here.
We reached a similar conclusion in Scarce, where we
determined that Bursey does not preclude application of
Branzburg’s good-faith test. See 5 F.3d at 402. In Scarce,
we recognized that balancing the government’s interests
IN RE GRAND JURY SUBPOENA 19
against an individual’s First Amendment rights was
appropriate in Bursey, where there was not a substantial
connection between the information the government sought
and its investigation. Id. But because there was a substantial
connection in Scarce, Bursey was inapplicable and no
balancing of interests was necessary. See id.
Similarly, here, there is a substantial connection between
the information the government seeks and the criminal
conduct it is investigating. Therefore, Branzburg applies.
Neither Bursey’s original holding nor the panel’s subsequent
denial of the government’s petition for rehearing compels a
different result.
C
Branzburg’s good-faith test is also more appropriate than
Bursey’s compelling-interest test given the nature and
importance of grand jury proceedings. Grand juries, which
are responsible for “determining whether or not a crime has
been committed,” occupy “a unique role in our criminal
justice system.” United States v. Real Enters., Inc., 498 U.S.
292, 297 (1991). “[T]he law presumes, absent a strong
showing to the contrary, that a grand jury acts within the
legitimate scope of its authority.” Id. at 300. “A grand jury
subpoena issued through normal channels is presumed to be
reasonable, and the burden of showing unreasonableness” is
“on the recipient who seeks to avoid compliance.” Id. at 301.
In Real Enterprises, the Supreme Court held that the
relevancy, admissibility, and specificity standards that apply
to trial subpoenas do not apply to grand jury subpoenas, in
part because “[a]ny holding that would saddle a grand jury
with minitrials and preliminary showings would . . . impede
its investigation and frustrate the public’s interest in the fair
and expeditious administration of the criminal laws.” Id. at
20 IN RE GRAND JURY SUBPOENA
298–99 (quotation omitted). The Court also found that
“[r]equiring the Government to explain in too much detail
the particular reasons underlying a subpoena threatens to
compromise ‘the indispensable secrecy of grand jury
proceedings.’” Id. at 299 (quoting United States v. Johnson,
319 U.S. 503, 513 (1943)).
Requiring the government to satisfy the three prongs of
Bursey’s compelling-interest test every time a grand jury
subpoena implicates the right to anonymous speech or
association would clearly invite the kind of “minitrials and
preliminary showings” the Supreme Court rejected in Real
Enterprises. And requiring the government to disclose the
specifics of a grand jury investigation to establish that a
subpoena did not violate the First Amendment would
threaten “the indispensable secrecy of grand jury
proceedings.” See id.
Branzburg’s good-faith test does not pose the same
dangers.
V
Because we hold that Branzburg controls, the only
question is whether there is evidence that the grand jury is
acting in bad faith. The Branzburg majority noted that grand
jury investigations “instituted or conducted other than in
good faith” pose “wholly different” First Amendment issues
than the good-faith investigations at issue there and stated
that “[o]fficial harassment of the press . . . would have no
justification.” 408 U.S. at 707–08.
Justice Powell elaborated in a concurrence, explaining
that a reporter “will have access to the court on a motion to
quash” if he “is called upon to give information bearing only
a remote and tenuous relationship to the subject of the
IN RE GRAND JURY SUBPOENA 21
investigation, or if he has some other reason to believe that
his testimony implicates confidential source relationships
without a legitimate need of law enforcement.” Id. at 710
(Powell, J., concurring).
We incorporated all those aspects of bad faith into our
analysis in Scarce, holding that the appellant there was “not
entitled to a First Amendment privilege” because he did not
argue that the grand jury’s questions “were posed in bad
faith, that they had a tenuous relationship to the subject of
the investigation, that law enforcement did not have a
legitimate need for the information, or that they were posed
as a means of harassment.” 5 F.3d at 400.
Here, Glassdoor does not assert that the grand jury
investigation is being conducted in bad faith, or that the
subpoena is intended to harass. It does contend that there is
only a tenuous connection between the information the grand
jury seeks and the subject of its investigation, arguing that
“[t]here is no substantial connection between the identities
of employees the government seeks to obtain and its
investigation into criminal fraud.” This assertion is belied
by the record.
The grand jury is investigating the subject government
contractor for fraud, waste, and abuse of federal funds. Each
of the employees whose contact information the government
seeks posted a review of the subject that referenced
potentially fraudulent conduct. Some postings are very
specific as to the nature of the misconduct. For example, one
reviewer wrote, “Highly inefficient system that focuses more
on call quotas ([the subject] makes revenue by charging the
VA for the calls that are made). There is no intention of
designing a more efficient system to assist Veterans because
that would reduce the number of calls made . . . which equals
less revenue.” Others are less specific: “Everything is
22 IN RE GRAND JURY SUBPOENA
supposedly ‘for the Veterans’ but all they care about is
numbers.”
Read in isolation, the less specific reviews might not
indicate that the reviewers have information about fraud.
But when read together with the other reviews—several of
which describe a scheme whereby the subject seeks to
maximize call volume without delivering improved service
to veterans—the statement that “all they care about is
numbers” supports an inference that the reviewer has
observed fraudulent conduct.
The information the government seeks will allow the
grand jury to contact (presumably through interviews by
federal agents sworn to assist the grand jury in its inquiries)
and then question employees who have observed potentially
fraudulent behavior by the company. Thus, there is a clear
connection between the nature of the investigation—waste,
fraud, and abuse by the subject—and the information the
government seeks—the identity of potential witnesses to that
fraud and abuse.
Because Glassdoor has neither alleged nor established
bad faith on the part of the government in its investigation,
under Branzburg, enforcement of the subpoena duces tecum
to identify potential witnesses in aid of its inquiries does not
violate the First Amendment rights of Glassdoor’s users.
VI
Glassdoor argues that if even if we choose not to reverse
the district court’s denial of the motion to quash outright, we
should remand with instructions for the district court to hold
an evidentiary hearing. But Glassdoor has not shown that
any other evidence is necessary to rule on its objection.
IN RE GRAND JURY SUBPOENA 23
Absent a colorable allegation of bad faith on the part of
the government, and without a credible argument that there
is a tenuous relationship between the information Glassdoor
holds and the focus of the investigation, under Branzburg,
Glassdoor’s motion to quash is unavailing. But even if we
were to apply the test in Bursey, we would still affirm the
denial of the motion to quash on this record.
The government clearly has a legitimate and compelling
interest in the grand jury’s investigation into possible
violations of federal law. “[T]he investigation of crime by
the grand jury implements a fundamental governmental role
of securing the safety of the person and property of the
citizen.” Branzburg, 408 U.S. at 700; see also Dole v. Serv.
Emp. Union, AFL-CIO, Local 280, 950 F.2d 1456, 1461 (9th
Cir. 1991) (“[T]here is little doubt that the Department’s
purpose of investigating possible criminal violations of [a
federal law] serves a compelling governmental interest.”).
The grand jury is conducting a criminal investigation
into alleged fraud and abuse by a government contractor that
administers veterans’ healthcare programs. If the allegations
are true, the subject is not only misusing taxpayer funds, it is
deliberately making it more difficult for veterans to access
healthcare. The government’s interest in investigating such
behavior is self-evident.
The district court correctly ruled that there is a
substantial connection between the subject matter of the
investigation and the identifying information of the eight
users whose Glassdoor posts allude to potentially fraudulent
behavior. We agree. Any incidental infringement on
Glassdoor’s users’ First Amendment rights is no more
drastic than necessary to vindicate those compelling
interests.
24 IN RE GRAND JURY SUBPOENA
We see no reason to remand for further development of
the record. Doing so would only delay the grand jury
investigation even further for no good reason, and the
Supreme Court has cautioned against presenting grand jury
investigations with “procedural delays and detours” that
“frustrate the public’s interest in the fair and expeditious
administration of the criminal laws.” Real Enters., 498 U.S.
at 298–99 (quoting United States v. Dionisio, 410 U.S. 1, 17
(1973)).
“[T]he longstanding principle” that the public “has a
right to every man’s evidence . . . is particularly applicable
to grand jury proceedings.” Branzburg, 408 U.S. at 688
(internal quotations and citations omitted). This case
presents no reason to carve out an exception to that principle.
AFFIRMED.