By: Shannon Teicher and Devanshi Somaya

Perhaps now more than ever before, Twitter takes center stage for social and public discourse.  Many have wryly commented that we elected a “Tweeter-in-Chief” with President Trump, due to his prolific tweeting about everything from public policy to the ratings of his former television show.  But the Trump Administration has already demonstrated a love/hate relationship with this popular public forum by recently attempting to unmask an anonymous anti-Trump Twitter account.

After President Trump’s inauguration, a class of “alternative agency” accounts were opened on Twitter.  The users claim to be current or former employees of federal agencies, or others with special insight into the agencies, who provide opinions—and often criticism—regarding new Trump Administration policies. One such Twitter account is @ALT_USCIS, which stands for the United States Citizenship and Immigration Services, a unit within the Department of Homeland Security.  @ALT_USCIS has frequently criticized the immigration policies of the new Administration:

On March 14, 2017, the Department of Homeland Security, U.S. Customs and Border Protection, and other members of the Trump Administration issued an administrative summons to Twitter, demanding that Twitter provide them with the identity of the @ALT_USCIS accountholder.  On April 6, 2017, Twitter responded with a lawsuit in the Northern District Court of California to enjoin the summons.  Twitter asserted its users’ First Amendment right to disseminate anonymous or pseudonymous political speech.  Twitter also raised its own right to protect its “actions in providing a platform for the dissemination of its users’ speech—including its decision to permit the publication[.]”

Twitter’s Complaint covered our long history of protection for this type of speech, stretching back from The Federalist Papers that were originally published under the pseudonym ‘Publius.’  Twitter also emphasized the decision to maintain anonymity may be motivated by various fears, but chief among them is the fear of official retaliation.  Further, in the context  of an account like @ALT_USCIS that is directed at criticizing the government, the First Amendment’s protection must be at its zenith.

As a result, Twitter argued the evidentiary burden for the government was steep.  To begin, the government would need to demonstrate some criminal or civil violation has been committed.  Then it would need to establish that unmasking the anonymous speaker was the least restrictive means for the investigation and that the motivation for the information was not to suppress free speech.  Finally, it would need to establish that the government’s interest in pursuing the investigation outweighed the protected free speech rights of the anonymous speaker and Twitter.

Perhaps the government agreed, because the day after Twitter filed its Complaint, the federal agencies withdrew their summons to Twitter.  News agencies reported that the @ALT_USCIS went from 30,000 followers to 100,000 during the controversy.  While this was certainly a victory for free speech and Twitter, it is important to note that private businesses often attempt to uncover anonymous critics as well.

For example, Glassdoor is a website forum where current and former employees anonymously review their companies and management.  Given its business model, Glassdoor routinely defends against compulsory processes to reveal the identities of their members.  Glassdoor touts that it has successfully defended anonymous speakers in “more than 80 cases” and provides an online greatest hits list* in an attempt to deter future efforts of unhappy employers.

In one such case out of California, a company sought to unmask the identity of a former employee by alleging the anonymous review on Glassdoor disclosed proprietary information that violated the standard employment agreement.  The company also argued that the right to engage in anonymous speech is personal to the speaker and Glassdoor did not have standing to assert that right on the speaker’s behalf.  The trial court granted the company’s motion to identify the reviewer, but in a recent appeal, the decision was reversed.

The appellate court held that the reviewer had an unequivocal right to speak anonymously and that publishers—including website operators—are entitled to assert their anonymous users’ First Amendment rights.  As a practical matter, the court noted that “anonymous speakers cannot represent their own interests without sacrificing the very anonymity they seek to protect.”  The court also cited the company’s failure to identify the specific statements it claimed to be actionable in the review, explaining generalized allegations that a former employee breached a non-disclosure agreement were insufficient.

While these recent victories are encouraging, anonymous speech does not have unlimited protection—it generally varies by jurisdiction and is still evolving as courts address new circumstances in the online and social network contexts.  In the past, traditional media fulfilled the critical role in protecting anonymous speakers (and often have been able to employ additional tools to fight disclosure, such as state reporter’s privileges.)  However, these recent examples by Twitter and Glassdoor make clear that online forums and social networks have a crucial part to play in shaping these important protections for anonymous speech.

*Source: https://press-content.glassdoor.com/app/uploads/sites/2/2015/04/Glassdoor-Free-Speech-Legal-Fact-Sheet-03-29-17.pdf