Obliviate!

I’ve blogged before about people trying to force others to stop talking about the people’s past arrests or convictions; but Jason Lee Neiman wants to force others to stop talking about his past lawsuits. From Neiman v. Versuslaw, Inc. (C.D. Ill. Aug. 3, 2012):

Plaintiff is an insurance claims industry professional with over 20 years of experience. Between November 2009 and March 2011, Plaintiff was involved in litigation against his former employer, Nationwide Mutual Insurance Company (Nationwide) and several related defendants.

In approximately January 2009, Plaintiff discovered that certain Internet websites were linking copies of information related to the litigation to Plaintiff’s name, such that a simple Internet browser search for his name would provide immediate results that referenced one or more of the filings or rulings in the active litigation. According to Plaintiff, rather than linking his name to significant rulings, such as appellate decisions or even trial court summary judgment rulings, the links included attachments to rulings on matters as common as a stipulated motion to quash a subpoena. Plaintiff has alleged that these references were occurring by way of paid legal search websites such as Lexis/Nexis.com, Justia.com, Leagle.com, and Versuslaw.com (and/or its related site, Findacase.com)….

Between January 2009 and the date of filing this action, Plaintiff applied for one or more positions of employment. Plaintiff believes that the potential employers have performed Internet browser searches by way of Google.com, Yahoo.com, or Bing.com, and found documents related to litigation against his former employer Nationwide. Plaintiff also believes that the potential employers have used this information to disqualify him from candidacy for the applied position or have shared this information with others who have done so. In other words, Plaintiff alleges he “has been effectively ‘blacklisted’ as to employment opportunities due to the ease at which these references appear pursuant to a simple name search, and due to the unlawful acts of third parties who then use such information to unlawfully disqualify” his candidacy.

Plaintiff filed the Second Amended Complaint which brings the following claims against Defendants [VersusLaw, Yahoo!, Google, and Microsoft]: (1) claims under the Illinois Human Rights Act; (2) commercial misappropriation; (3) violation of § 1981 of the Civil Rights Act (42 U.S.C. § 1981); (4) violation of the Lanham Act; (5) intentional interference with current and prospective economic advantage; (6) unjust enrichment/civil conspiracy; and (7) violations of the Racketeer Influenced and Corrupt Organizations Act (RICO).

The court held that the defendants’ actions didn’t violate the laws that plaintiff points to, and in any event many of the plaintiff’s claims against some of the defendants were blocked by 47 U.S.C. § 230. But beyond this, the court held,

“[T]he First Amendment creates a privilege to publish matters contained in public records even if publication would offend the sensibilities of a reasonable person.” Moreover, “the First Amendment greatly circumscribes the right even of a private figure to obtain damages for the publication of newsworthy facts about him, even when they are facts of a kind that people want very much to conceal.” As stated, all of Plaintiff’s allegations rest on the premise that Defendants’ websites provide links to information that is in the public record. Plaintiff cannot show he is plausibly entitled to relief. Therefore, judgment on the pleadings is appropriate.

Sounds exactly right to me. I understand why Neiman is concerned: Many employers would likely be wary of hiring someone who had sued a past employer, because they might view this as a sign of possible litigiousness. Even if the earlier lawsuit was eminently well-founded, a prospective employer might not take the time and effort to investigate this, but might just move on to the next candidate, especially if Neiman is one of several comparably well-credentialed candidates for the same spot. But I don’t think this is an adequate justification for suppressing speech about legal documents that have been released by the courts as a public record.

(Disclosure: I have done paid work in my capacity as a lawyer for Google, though not on this case or these issues.)