NLRB loses subpoena fight over 'blind box' advertisement

SIXTH CIRCUIT–In mid-July the federal appeals court in Cincinnati (6th Cir.) held that the National Labor Relations Board could not enforce a subpoena demanding that a newspaper reveal the identity of a blind box advertiser.

The NLRB had appealed the decision of a federal district court in Detroit that refused to order the Midland (Michigan) Daily News to disclose the identity of the person or company that placed a blind box ad in the classified section of a June 1996 edition of the newspaper.

A unanimous three-judge panel of the appellate court held that because the ad was lawful commercial speech of a sort that might be chilled if newspapers could be forced to disclose the identities of anonymous advertisers, the First Amendment prevented such disclosure unless the government could demonstrate a compelling need for disclosure. In an opinion written by Judge Robert Krupansky, the court held that the NLRB failed to demonstrate such a need in this case.

“Indeed, if this court permitted the Board to obtain the identity of Midland’s advertiser, without demonstrating a reasonable basis for seeking such information, the chilling effect on the ability of every newspaper and periodical to publish lawful advertisements would clearly violate the Constitution,” Krupansky wrote.

The ad stated that the anonymous advertiser had a vacancy for a journeyman electrician and invited applicants to send their resumes to a box at the newspaper. Two members of a local electrician’s union responded to the ad, and after receiving no response for three days, filed a complaint with the NLRB alleging that the advertiser discriminated against them because of their union affiliation. Without further investigating the complaint, the NLRB asked the newspaper to reveal the advertiser’s identity. When the newspaper refused, the board issued an investigatory subpoena demanding the release of documents that would identify the advertiser.

The newspaper refused to comply with the subpoena, and the federal district court refused to order the newspaper to comply. In affirming the trial court’s judgment, the appellate court noted the brief period of time between the union members’ applications and their complaint to the NLRB, as well as the board’s failure to do any additional investigation before serving a subpoena on the newspaper. Under the circumstances, the court held, the board’s actions were not the “least extensive means” by which it could pursue its investigation without burdening the newspaper’s First Amendment rights. (Nat’l Labor Relations Bd. v. Midland Daily News; Media Counsel: Robert Black, Midland)