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Ninth Circuit:
Author’s Name in Online Publication Might Not Be Shielded by First Amendment Protections
Opinion Says District Court Erred in Denying Petition Seeking Identity of Pseudonymous Writer for Overseas Defamation Case Where Citizenship of Journalist, Site Host Is Unclear
By a MetNews Staff Writer
District Court Judge James Donato of the Northern District of California erred in denying a petition, on First Amendment grounds, that sought the disclosure of the true name of the author of a story at the center of an anticipated foreign defamation lawsuit without finding that the writer or the website host are U.S. citizens or present in the country, the Ninth U.S. Circuit Court of Appeals held yesterday.
Seeking the information was Gregory Gliner, a London resident holding U.S. citizenship, who is married to the daughter of the late Russian oligarch Oleg Bourlakov. After Bourlakov, an entrepreneur in the fuel and cement industries, died in 2021 from complications from COVID-19 infection, disputes erupted over who was to inherit his estate, reportedly worth over $3 billion.
Former business partners and a purported mistress have filed lawsuits challenging the decedent’s will and seeking a share of the estate. On June 2, 2023, an online news website, Political Lore, published a story by “Edward Swensson,” accusing Gliner of persuading his wife to secretly withdraw funds from her father’s accounts.
Gliner plans to sue the operator of the Political Lore website and the author of the story for defamation in the U.K. He hired U.S. attorneys with the Clare Locke LLP firm, based in Virginia, to help determine the identities of these parties.
The Clare Locke lawyers learned that Dynadot, a San Mateo company, provided domain registration and privacy protection services for Political Lore. Dynadot’s published terms require clients to provide accurate contact information, including full names and addresses.
Discovery Request
Gliner filed a request seeking to compel discovery from Dynadot in the Northern District of California under 28 U.S.C. §1782, which provides:
“The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.”
Donato denied the request in a one-paragraph order, saying:
“Gliner’s application does not address why disclosure of the website operator and author’s identities would be justified or appropriate in light of their First Amendment interests, and is consequently denied.”
In an opinion, written by Senior Circuit Judge Carlos T. Bea and joined in by Circuit Judge Kim McLane Wardlaw and Senior Circuit Judge Richard A. Paez, the Ninth Circuit reversed, acknowledging that “it is well-settled that the First Amendment protects a publisher’s and an author’s ‘decision to remain anonymous,’ ” but said those protections only apply to U.S. citizens or those present in the county. Bea wrote:
“Here, the district court denied Gliner’s §1782 application due to its assumed impacts on the Operator and the Author’s First Amendment right of anonymity….At this preliminary procedural juncture, no evidence suggests that the Operator or the Author is a U.S. citizen or is present in the United States.”
He added:
“We find the district court’s cursory denial amounted to an abuse of discretion because the present record does not suggest that anyone’s First Amendment interests are implicated.”
Right to Information
Bea said that “[a]bsent national security concerns, the First Amendment…protects U.S. audiences’ right to ‘receive information and ideas’ from abroad.”
Applying this framework, he opined:
“The discovery Gliner seeks here is not directed at the U.S. audience of the Website and, accordingly, will not directly implicate their First Amendment rights….Yet it is possible that the First Amendment rights of the U.S. public may be indirectly implicated. For example, identifying an author may cause him to remove his article from public discourse, thereby depriving the U.S. public of the information contained in the article.”
He continued:
“The present record, however, does not support this First Amendment concern. At this point in the proceedings, it is unclear whether the Website has any U.S. users—the facts that it is largely in English and that its coverage includes so called news about the United States do not tell us much, as U.K. audiences, of course, can also read news about the United States in English. And the mere technical accessibility of the Website in the United States is not sufficient to substantiate a First Amendment claim on behalf of the U.S. public.”
Sec. 1782 Order
Bea remarked that, under §1782, a District Court “may order discovery in the United States…if…the following three requirements are satisfied: (1) the person from whom the discovery is sought resides or is found in the district of the district court to which the application is made; (2) the discovery is for use in a proceeding before a foreign tribunal that is within reasonable contemplation; and (3) the applicant is an interested person in that foreign proceeding.”
He explained that “[e]ven where all three statutory requirements are met, district courts still retain discretion to decide whether to grant discovery under Section 1782” and pointed to the 2004 U.S. Supreme Court decision in Intel Corp. v. Advanced Micro Devices Inc. as setting forth the relevant factors to be considered.
Bea took issue with Donato failing to expressly analyze any of the statutory requirements or Intel factors and concluded:
“[N]o evidence in the current record suggests the implication or infringement of any person’s First Amendment rights, yet the district court assumed both in denying Gliner’s §1782 application….We therefore vacate the decision below and remand. On remand, the district court should consider the §1782 statutory requirements and exercise its discretion under Intel in the first instance.”
He added:
“We are comfortable with a relatively permissive approach at the §1782 application stage here because we are confident that First Amendment protection, if in fact applicable, can be afforded down the road.”
The case is In re ex Parte Application of Gliner, 24-4624.
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