The Volokh Conspiracy

The bill is HB8, though there’s a Senate amendment; apparently, the Legislature plans to enact the bill as amended. The bill bars the government from releasing information about who has applied for or gotten a concealed carry permit, and the Legislature certainly can impose such restrictions on the government itself. But then it also criminalizes speech by everyone else (I merge the House Bill and the adopted Senate amendment):

Absent a valid court order requiring the release of information or unless a recipient of a concealed handgun permit is charged with a felony offense involving the use of a handgun, it shall be [a misdemeanor] ... to release, disseminate, or make public in any manner any information contained in an application for a concealed handgun permit or any information regarding the identity of any person who applied for or received a concealed handgun permit issued pursuant to this Section.

So blogging that you happen to know that a gun control advocate actually has a concealed carry permit himself would be a crime. Or say that you know someone has a concealed carry permit, and that person is sued for supposedly making death threats, or is criminally prosecuted for a felony offense involving a shotgun, or otherwise seems dangerous and unstable — mentioning the permit in publicly discussing the situation would be a crime. Mentioning applicants’ names in giving examples of cases where you think a concealed handgun permit was wrongly issued, or wrongly denied, would be a crime, too. So would talking about a person’s concealed carry permit in a biography of the person, or in a newspaper or magazine story that is trying to give a sense of the kind of person he is.

This is a clear First Amendment violation. Florida Star v. B.J.F. (1989) struck down a law banning the publication of the names of rape victims, once the information was released by the police (even when it was released in violation of department policy). This statute is thus unconstitutionally overbroad, because it has no exception for these kinds of erroneous-release situations. But even if the statute were limited to exclude information gleaned from public records, it would still be unconstitutional: It would be a content-based restriction on speech. It would apply to speech about crime, lawsuits, threats to public safety, and other matters of public concern.

And while in theory even such content-based speech restrictions might be constitutional if they are “narrowly tailored” to a “compelling government interest,” this test has rightly been extremely hard to satisfy (consider Florida Star itself). Indeed, one reason our free speech protections are so strong is that courts have been extremely hesitant to uphold speech restrictions under this test. They are thus very likely to strike down the statute — and if they do uphold it, the precedent would risk undermining free speech protection more broadly. The Second Amendment (or, to be precise, the desire to keep confidential people’s exercise of their gun rights) shouldn’t be a basis for undermining the First Amendment.

Thanks to the Media Law Resource Center’s Media Law Daily for the pointer. UPDATE: I initially wrote that the Senate plans to pass the bill as amended; I now realize that the Senate did so pass the bill, but the expectation is that the House will concur in the amendments. I revised the opening sentence accordingly.

There has been a lot of outrage expressed recently over the contents of an affidavit filed in support of a search warrant to search the e-mail accounts of reporter James Rosen. The government’s affidavit offered the view that Rosen violated the law by aiding and abetting the alleged violations of laws prohibiting the disclosure of classified national security information. Specifically, the affidavit stated, “there is probable cause to believe that the Reporter . . . has committed a violation of 18 U.S.C. 793(d) either as Mr. Kim’s co-conspirator and/or aider and abetter.” To some, the fact that the government would make this argument shows that the Obama Administration is engaging in a War on Journalism. According to this thinking, the Obama Administration is not only trampling on the rights of a free press by going after its sources. Incredibly, they even think of a reporter as a criminal — and are willing to say so in court.

I think you get a different sense of this affidavit if you understand the privacy laws, however, and in particular a federal law called the Privacy Protection Act, 42 U.S.C. 2000aa. It’s a pretty complicated law, so it will take me a minute to explain. But I think I can explain why the affidavit filed in the Rosen search had this language, and why claims that this language reveals a “war on journalism” are based on a misunderstanding.

Here’s the background. The Privacy Protection Act was a response to a Supreme Court decision called Zurcher v. Stanford Daily, 436 U.S. 547 (1978). In Zurcher, the Supreme Court held that the Fourth Amendment permits the government to execute a search warrant at a newspaper to recover evidence of a crime that reporters had gathered in the course of investigating the news. The Supreme Court reasoned that warrants can be issued when there is probable cause to believe evidence of a crime is located in the place to be searched, and there is no Fourth Amendment principle that third-parties are exempt from such searches.

You can see the major problem created by Zurcher. If the government is allowed to execute warrants wherever the evidence is, and reporters often have to gather evidence of crime in the course of gathering news, then the government can get lazy and just raid reporters’ homes and offices to find out what the reporters have learned rather than conduct the government’s own investigation.

That problem hadn’t arisen historically because the Supreme Court had earlier adopted the “mere evidence” rule, by which the government was prohibited from obtaining warrants to collect mere evidence; the government only had the power to collect contraband, stolen goods, or the fruits of crime, which necessarily excluded searches of the offices of reporters for evidence of crime. But the Supreme Court had overturned the mere evidence rule in 1967 in Warden v. Hayden, setting up the question in Zurcher eleven years later. So the combination of Hayden and Zurcher meant that the Fourth Amendment allowed the government to target innocent reporters who just happened to to have gathered evidence of crime in the course of gathering the news.

Congress enacted the Privacy Protection Act just two years after Zurcher. The Privacy Protection Act is pretty complicated, and its exceptions have exceptions to its exceptions. But it contains pretty specific guidance for when the government can conduct searches to gather evidence from reporters made in the course of gathering the news in cases involving the disclosure of classified information. The rule is that the government can only do that when “there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” 42 U.S.C. 2000aa(a). The idea is that the government can’t gather evidence from journalists who happen to have evidence of that crime in their possession except in the rare cases in which there is probable cause to believe that the journalist is involved in the crime, too. In other words, investigators generally can’t take the short-cut of going to the press for the evidence — but when there is probable cause that the press is involved in the crime, the usual Fourth Amendment rules apply.

That brings us to the affidavit filed in the Rosen case. If you read the affidavit, it is pretty clear that the part discussing Rosen’s own potential criminality is designed to show compliance with the Privacy Protection Act. Here’s paragraph 46, the key paragraph that has caused so much concern:

Based on the above, there is probable cause to believe that the Reporter (along with Mr. Kim) has committed a violation of 18 U.S.C. 793(d) either as Mr. Kim’s co-conspirator and/or aider and abetter, and that the evidence of crime is likely to be contained in the [ ]@gmail.com account. Accordingly, the FBI’s request to search the contents of that account falls squarely within section 2000aa(a)’s exception permitting searches of media-related work product materials, even when possessed by a national news reporter because there is “probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” 42 U.S.C. 2000aa(a).

The first sentence in that paragraph has caused a lot of anxiety among reporters. But the first sentence is just the set-up for the second sentence, in which the affidavit explains that this matters because it triggers the exception under the Privacy Protection Act. (For a discussion of the underlying criminal law, and in particular the interesting question of whether the laws on disclosing national security information can apply to reporters under the First Amendment, see this excellent post by Eugene.)

I am only making a narrow point, I should stress. I am not arguing that investigators made a good decision when it obtained Rosen’s e-mail. I am not expressing a view about whether the Privacy Protection Act’s exception is too broad, or what the law or policy of criminal investigations involving the media should be. My point is just that the controversial language in the affidavit shouldn’t be read out of context. That language was necessary to demonstrate compliance with a privacy law Congress enacted to provide safeguards for the press.

UPDATE: I tried to stress the narrowness of the post, but it seems I have failed. Let me try again. Different people have voiced different objections to the investigation of Rosen’s e-mails. Some have argued that the investigation is wrong because the government should not obtain evidence from journalists — or at least e-mails — at all. Others have argued that the affidavit is troubling because it reveals DOJ’s apparent view about substantive law that a journalist who asks a source to disclose classified information with the goal of publishing it has committed a federal crime.

This post is responding to a different argument: That the fact of labeling a journalist a criminal in a court filing demonstrates an effort to intimidate the press and further a “war on journalism” by treating journalists like criminals. See, for example, this CBS News story today from Jan Crawford. The argument I’m responding to (as seen in Crawford’s piece) is that labeling a journalist a criminal reflects a hidden motive to intimidate reporters. My sense is that an awareness of the relevant law puts a different perspective on the language, as the motives behind developing a point in an affidavit that is required under the law may be different from developing a point gratuitously when it is not required by law. When a point required by law is developed in an affidavit, it may have been added with the relatively simple motive of complying with the law.

John Villasenor – a professor of engineering at UCLA and a Brookings Institution senior fellow – has a new article at Slate on the domestic use of drones.  (The article part of a conference held yesterday at the New America Foundation in conjunction with Arizona State University on domestic drone policy, with many fine participants; well worth checking out.)  The article’s fundamental point is that many features that will likely figure in FAA regulations intended to ensure safety in domestic airspace as drones are allowed to enter it will also be supportive of privacy concerns.  By no means does this make the problems of privacy go away, but it’s important to be aware of the ways in which safety regulation will affect and, in important ways, reinforce privacy.

From Nieman v. Versuslaw, Inc. (7th Cir. Mar. 19, 2013) (nonprecedential):

Jason Nieman, an insurance-claims professional, ... [sued] asserting invasion of privacy and retaliation against Yahoo, Google, Microsoft, and VersusLaw, Inc., a legal-research website that provides the public with access to records of judicial decisions for a fee. Nieman alleged that the search engines operated by these companies have enabled potential employers to find documents related to a lawsuit he brought against a past employer; as a result, he contends, he has been passed over by these employers who might be wary of his litigiousness....

According to his complaint, Nieman discovered in 2009 that certain legal-search websites (such as Lexis/Nexis.com, Justia.com, Leagle.com, andVersusLaw.com) were linking copies of documents from his prior lawsuit to his name. That litigation involved a former employer and was settled in 2011. When Nieman encountered difficulty obtaining another insurance job, he suspected that potential employers had learned of his prior lawsuit online and “blacklisted” him from employment opportunities. Nieman alleged that in late 2011 he wrote to each of the defendants and asked them to delink his court cases from their online search results. The defendants declined. Google pointed out that it simply aggregates information already published on the internet. VersusLaw responded that its publication of public records was protected by the First Amendment and that it would block links to public records only by court order.

Nieman asserted claims for (1) commercial misappropriation of his name; (2) intentional interference with current and prospective economic advantage; (3) unjust enrichment/civil conspiracy; (4) retaliation under the Illinois Human Rights Act and 42 U.S.C. § 1981; (5) violation of the Racketeer Influenced and Corrupt Practices Act; and (6) violation of the Lanham Act....

Nieman maintains that the First Amendment’s protections are not absolute. Citing our decision in Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222,1232 (7th Cir.1993), he argues that the First Amendment does not protect the publication of private facts in which the public has no legitimate interest and that would deeply offend a reasonable person. The defendants’ publication of court documents from his prior lawsuit, he asserts, should not be protected because it facilitates and encourages unlawful retaliation on the part of prospective employers who rely on third-party content and the judicial orders in question do not have any countervailing precedential value.

Haynes does not help Nieman here. That case concerned the publication of personal facts about the plaintiff, not the republication of documents contained in public records. In Haynes we affirmed the grant of summary judgment for the defendant publisher on an invasion-of-privacy claim, noting that the reader had a legitimate interest in the facts discussed in the book, and the facts were no longer private because they were already published in the judicial record of the plaintiff’s divorce and child-support proceedings.

The First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed. [Many citations omitted.-EV] We have explained that judicial “[o]pinions are not the litigants’ property. They belong to the public, which underwrites the judicial system that produces them.” Other legal documents included by the court as part of the public record of the judicial proceedings are also covered by the First Amendment privilege. The for-profit nature of the defendants’ aggregation websites does not change the analysis; speech is protected even when “carried in a form that is ‘sold’ for profit.” All of Nieman’s claims are based on the defendants’ republication of documents contained in the public record, so they fall within and are barred by the First Amendment privilege. Accordingly, we need not address any of Nieman’s remaining arguments.

As I noted last year, when I blogged about the trial court decision in this case, I understand why Nieman 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. (Perhaps an accurate sign, given Nieman’s further litigation in this case.) 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. And a prospective employer might be especially concerned when an earlier court decision stated,

In closing, the Court admonishes Plaintiff that, going forward, he should carefully evaluate the merits of his motions and pleadings prior to filing them with the Court. The Court understands that Plaintiff is pro se and is entitled to some latitude, but also notes that a continuing onslaught of meritless motions will only result in delaying resolution of this matter; needlessly consuming judicial resources; and imposing unnecessary costs on the parties. If Plaintiff persists, the Court may hold him liable for attorneys’ fees incurred by Defendants in responding to any frivolous motions, or the Court may impose a fine on Plaintiff. Plaintiff should dedicate his efforts to the viable claims still before the Court instead of continuing with his “kitchen sink” approach to prosecuting this case.

But even if plaintiff’s past lawsuits had been entirely well-founded, I don’t think plaintiff’s concern about future employers’ not liking the lawsuits can justify 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.)

That’s what the St. Paul Pioneer Press reports:

Andrew Henderson watched as Ramsey County sheriff’s deputies frisked a bloody-faced man outside his Little Canada apartment building. Paramedics then loaded the man, a stranger to Henderson, into an ambulance.

Henderson, 28, took out his small handheld video camera and began recording.... [A] deputy, Jacqueline Muellner, approached him and snatched the camera from his hand, Henderson said. “We’ll just take this for evidence,” Muellner said. Their voices were recorded on Henderson’s cellphone as they spoke, and Henderson provided a copy of the audio file to the Pioneer Press. “If I end up on YouTube, I’m gonna be upset.” ...

Randy Gustafson, spokesman for the Ramsey County sheriff’s office ... said, “It is not our policy to take video cameras. It is everybody’s right to (record) ... What happens out in public happens out in public.”

One exception might be when a law enforcement officer decides that the recording is needed for evidence, he said. In that case, the officer would generally send the file to investigators and return the camera on the spot, Gustafson said....

A week later, Henderson was charged with obstruction of legal process and disorderly conduct, both misdemeanors. He had been filming from about 30 feet away, he said....

The deputy wrote on the citation, “While handling a medical/check the welfare (call), (Henderson) was filming it. Data privacy HIPAA violation. Refused to identify self. Had to stop dealing with sit(uation) to deal w/Henderson.” ...

The allegation that his recording of the incident violated HIPAA, or the federal Health Insurance Portability and Accountability Act, is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School.

The rule deals with how health care providers handle consumers’ health information.

“There’s nothing in HIPAA that prevents someone who’s not subject to HIPAA from taking photographs on the public streets,” Granick said. “HIPAA has absolutely nothing to say about that.”

When Henderson tried to get back the camera, another deputy refused to release it, and said (Henderson also recorded this), “I think that what (the deputies) felt was you were interfering with someone’s privacy that was having a medical mental health breakdown. They felt like you were being a ‘buttinski’ by getting that camera in there and partially recording what was going on in a situation that you were not directly involved in.” Somehow the recording on the camera also vanished, though there’s a dispute over how that happened.

It seems to me that there’s no legal basis for this prosecution, or for the seizure of the camera — Minnesota apparently doesn’t have any ban on such recordings, and in any event it seems likely that there’s a First Amendment right to record such police-citizen interactions in public places. (See Glik v. Cunniffe and ACLU v. Alvarez for cases recognizing such a right, in closely related contexts.) Nor can the police step in and punish the photographers in the name of protecting people’s privacy, just as the government may not stop TV stations from recording news footage in public place in the name of protecting people’s privacy.

Thanks to Christopher Rohrbacher for the pointer.

I should say at the outset that I approach this delicate subject sheepishly, but this development bears noting. In a rare example of a Western country taking steps to restrict previously recognized sexual liberties, Germany is seeking to ban bestiality. (Its supporters call it zoophilia – are opponents zoophobes?) This will presumably put out to pasture Germany’s erotic zoos, where visitors go beyond heavy petting.

Germany legalized bestiality in 1969, together with sodomy. When Justice Scalia analogized from the decriminalization of the latter to the former in his Lawrence dissent, he was widely denounced, but apparently the liberal Germans agreed with him, at least until now.

I suspect the motives behind the ban are entirely moralistic. Yet the government cannot come out and say so. Thus effort is made to distinguish the matter from Germany’s libertarian approach to sexual matters by suggesting the animals do not consent in the way consenting humans do. Yes, but they don’t consent to being bought or sold, or butchered, either, and they are not human, so consent is a red herring. This would not pass intermediate scrutiny in the U.S.

It is an invariable aspect of sexual morality regulation that those who regard a practice as amoral, or vile, also believe it has negative practical effects. The latter allows one regard one’s own knee-jerk preferences as sound social policy rather than moralizing. In today’s post-morality world, vestigal aversions to prostitution, polygamy and incest have to be justified with strained public policy arguments.

If erotic zoos are bad, it is not because, as critics contend, it is “animal rape,” any more than prohibitions on intercourse with human remains can be justified by the “non-consent” of the corpse. Requiring two-sided consent in zoophilia situations privileges the person/person intercourse model in a way which is neither neutral nor value-free.

Usually it is harder to roll back new social rights than to extend them – the “non-retrogression principle.” I’d be interested to see if the zoophiles mount a challenge based on European human rights law, and how it fares. Berlin may find it is closing the barn door after the animals have escaped.

The Gallaudet incident, in which a university administrator was suspended for signing a referendum petition related to same-sex marriage, leads me to bring up again what I mentioned before: Most of the reasons that support having a secret ballot — rather than the non-secret systems that were used in America throughout most of its first century — tend to apply to initiative and referendum signatures.

Both an election and a threshold signature requirement to put something on an election are generally aimed at accurately measuring public opinion. Such an accurate measurement is much more likely if the measurement is undistorted by people’s fear of being attacked, fired, ostracized, or even annoyed by those who disagree with them. So just as our electoral system keeps secret people’s votes, both for or against candidates and for or against ballot measures, so it should try to keep secret people’s signing initiative, referendum, and recall signatures.

To be sure, unlike with a secret ballot, a petition signature could not be fully secret -— for instance, the government would know what you signed, though it doesn’t know how you voted, and it’s possible that the signatures would be briefly visible as other people are signing the petitions (though that could be minimized, for instance if there’s just one signature per page, and each page is concealed after it’s signed). But we should still try to make the signatures as secret as possible.

It’s true that the public availability of signatures might help prevent fraud, for instance if someone sees what purports to be his signature on a petition that he knows he never signed. But the same argument could be made as to public availability of each voter’s ballots, tied to his name — after all, maybe that might let a voter see that the ballot was somehow altered. Yet we forgo this potentially fraud detection value of the open ballot, because the value of figuring out what voters really think, uninfluenced by fear of retaliation, is so great. I think the same should apply to initiatives, referendum, and recall signatures.

Finally, I’ve heard some people try to distinguish ballot measures from candidates, or to try to distinguish signing a petition from voting on the resulting referendum, initiative, or recall. But I don’t think these distinctions should make a difference: Voting for laws, it seems to me, is not materially different, for secret ballot purposes, from voting for lawmakers. And being one of the very many people who puts a question on the ballot is not materially different from being one of the very many people who then votes on the question.

UPDATE: Some commenters argue that acts of “legislating” should be different from mere voting. But, again, I just don’t see the difference. When you vote for a candidate, you’re helping make a lawmaker. When you sign a nominating petition for a candidate, you’re helping make a lawmaker. When you vote to recall a candidate, you’re helping unmake a lawmaker. When you sign a petition to recall a candidate, you’re helping unmake a lawmaker. When you vote on an initiative or a referendum, or for that matter on a constitutional provision or statute proposed to the people by a legislature or a constitutional convention, you’re helping make a law. When you sign a petition supporting an initiative or a referendum, you’re helping make a law. If a secret ballot is good for some of these things, why isn’t similar secrecy — to the extent possible, recognizing (as I noted above) that the government will have to see your signature eve

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.)

As I noted last year, the New Jersey Supreme Court rejected a similar claim as to convictions (paragraph break added):

G.D. [argues] that the record of his conviction [for possession with intent to distribute cocaine] was expunged [some years later] and, therefore, his conviction — as a matter of law — is deemed not to have occurred. G.D. submits that, after the expungement of his record, the pronouncement that he was convicted of a crime was simply false and the dissemination of the expunged information violated his privacy rights....

It is true that under the expungement statute, as a matter of law, an expunged conviction is “deemed not to have occurred,” N.J.S.A. 2C:52-27. But the expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories.

It is not intended to create an Orwellian scheme whereby previously public information — long maintained in official records — now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.

But in Connecticut, a new lawsuit (Martin v. Hearst Corp. (Conn. Super. Ct. filed June 11, 2012)) is making much the same claim as was made in New Jersey, except as to arrest records. According to the Complaint, a Hearst publication stated, on Aug. 26, 2010, that plaintiff Lorraine Martin had been “arrested and charged with numerous drug violations Aug. 20 after police received information that a pair of brothers were selling marijuana in town,” and other defendant publishers made similar statements. But, Martin argues, “[s]ince January 11, 2012, DEFENDANTS’ respective online publications of the [statements] were, and continue to be, false and defamatory.” Why false? Apparently on the grounds that state law provides for arrest records to be erased under certain conditions, such that “Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”

Moreover, Martin argues, the case should be certified as a class action on behalf of people whose names defendants have published “in the police blotters and/or news sections of their respective online versions of their print newspapers as having been arrested, when in fact they are not deemed to have been arrested.” The plaintiff’s theory appears to be that, whenever anyone has an arrest record erased, the newspapers have to remove the statement about the arrest from their online archives. And this theory would cover anyone covered by the erasure statute, which applies not only to people who were found not guilty but also to people who participated in a court-administered diversionary program in which successful completion meant the charges would be dropped, and potentially to other dismissals as well.

But I think this theory is mistaken, for the same reason given by the New Jersey Supreme Court. A government may choose to ignore certain past arrests for its own purposes. It may choose not to disclose such arrests to others. It may even authorize people to lie under oath about those arrests (I set aside in this post the question whether that is a sound idea). But the First Amendment protects other people’s rights to talk about arrests that had — as a matter of historical fact — actually happened. A statute can’t rewrite history, and force others to pretend that something didn’t happen when in fact it did happen.

Now, as I mentioned in a different post, it’s possible that a publisher must correct any factual inaccuracies in its online archives, if those inaccuracies come to light after an article is posted. But there is nothing inaccurate about an article’s continuing to report on an arrest that had in fact happened. At most the article would have to be updated to note that the charges have been dropped, in order to prevent “libel by omission,” on the theory that the facts given produced a “clear inference” that was incorrect, and that extra facts would have cleared up. (See also this case, which was cited by the Connecticut libel by omission case that I linked to above.)

But at least one of the complained-about articles has been updated to so note (though I’m not sure exactly when). Moreover, the class allegations aren’t limited to people as to whom the story never noted the dropping of the charges — the class would include even those for whom the story quite completely reports that the person was arrested and the charges were later dropped.

Even if the charges were later dropped and no update was added to the story, I’m not certain that the story would constitute libel by omission; the law on that question is fuzzy. And if the charges were dropped because of a plea bargain or a diversionary program, rather than because of a conclusion that the arrestee wasn’t guilty (again, the class allegations are broad enough to cover these situations), I think the newspapers’ case would be especially strong even in the absence of an update about the dropping of the charges: The implication from the report of the arrest, which is that there’s good reason to think the arrestee may be guilty, would remain accurate. (I asked Ms. Martin’s lawyer exactly why the charges against her specifically were dropped, but he said he couldn’t comment on the case; in any case, many class members would have had the charges against them dropped for reasons other than their innocence.)

But in any event, it seems to me that publishing an update is the most that the newspaper could be legally obligated to do, even when it learns that the charges were dropped because the police concluded the arrestee was innocent. To the extent that this lawsuit argues the contrary, and demands a deletion of the accurate report of the arrest, I think the First Amendment firmly bars any such claim.

[UPDATE: The contempt motion has been withdrawn, though the gag order remains.]

The Courier-Journal (Louisville) reports:

Frustrated by what she felt was a lenient plea bargain for two teens who pleaded guilty to sexually assaulting her and circulating pictures of the incident, a Louisville 17-year-old lashed out on Twitter.

“There you go, lock me up,” Savannah Dietrich tweeted, as she named the boys who she said sexually assaulted her. “I’m not protecting anyone that made my life a living Hell.”

Now, Dietrich is facing a potential jail sentence, as the attorneys for the boys have asked a Jefferson District Court judge to hold her in contempt because they say that in naming her attackers, she violated the confidentiality of a juvenile hearing and the court’s order not to speak of it.

A contempt charge carries a potential sentence of up to 180 days in jail and a $500 fine.

An order barring a victim from revealing the names of her assailants is, I think, clearly unconstitutional, even when the assailants are juveniles. Oklahoma Publishing Co. v. District Court (1977) expressly rejected the notion that courts or legislatures may bar the publication of the names of juvenile offenders; that case involved a newspaper’s publishing the name of the juvenile offender, which it learned from a court hearing, but the rationale applies at least as strongly to a person’s publishing a name that she learned from the attack itself. Likewise, even when it comes to grand jury proceedings — probably the most historically secret part of the criminal justice system — Butterworth v. Smith (1990) held that, while a grand jury witness could be barred from revealing what he learned as part of the grand jury proceedings, the witness could not be generally barred from revealing information that he had learned on his own (even if that was the subject of his testimony).

The same applies here, I think. Dietrich revealed what she knew even before the trial — the names of her attackers — and that they are juveniles cannot strip her of her First Amendment rights on this score. And while she also revealed that they got a plea bargain, something she presumably learned through the court proceedings, that strikes me as the sort of information about the court system and the prosecutor’s office that the state cannot stop people from revealing. (Note that parties who get some confidential information from other parties via discovery may be barred from revealing it, see Seattle Times Co. v. Rhinehart, and the same may be true about much confidential information learned through grand jury proceedings or through closed proceedings, but Butterworth shows that this principle is limited; and it doesn’t apply to what was learned by the speaker independently of the proceedings and, I think, to information about the sentences that the prosecutor urged.)

Dietrich’s problem, I think, is that she seems to have violated the court order, rather than challenging it when it was entered. (All this is based on what I read in the newspaper story, which I realize may not be fully accurate.) Under Walker v. City of Birmingham (1967), a person generally is not allowed to violate even an unconstitutional court order; he must challenge it on appeal (or via a similar procedure, such as mandamus), or abide by it. But even that “collateral bar” rule has an exception for “transparently invalid” court orders, and it seems to me this exception applies here. And in any event, the collateral bar rule can’t justify the judge’s decision in issuing this order.

I have to run now, but I might have more to say on this tomorrow.

I’m writing an article that indirectly touches on this question, and I thought I’d ask our readers for their take on it. I’d particularly like to hear from people who are knowledgeable about privacy law, and who (unlike me) support information privacy speech restrictions, such as the disclosure-of-private-facts tort.

Minnesota has an interesting statute that allows courts to enjoin speech that “ha[s] a substantial adverse effect ... on the ... privacy” of a person, Minn. Stat. Ann. § 609.748. Five months ago it was used to issue an injunction banning online speech by a person about his ex-girlfriend, Johnson v. Arlotta (2011), but it has been used before as well.

I’m curious what people think of this — again, especially people who generally support the disclosure tort — given the lack of a statutory or judicial definition of what constitutes “privacy” for purposes of the statute, and the criminal penalties for violating the order. How should the statute be read, and is it constitutional? Should “privacy” be read as tortious invasion of privacy, with all the common-law twists on that (e.g., the exception for newsworthy speech, and the requirement that the speech be said to the public and not just as gossip within a circle of friends)? Is that sufficiently clear for an order that can be enforced through criminal penalties? Also, are temporary restraining orders under the statute — which may be issued ex parte — unconstitutional prior restraints?

Here’s the relevant excerpt:

(a) “Harassment” includes:
(1) a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target;
(2) targeted residential picketing; and
(3) a pattern of attending public events after being notified that the actor’s presence at the event is harassing to another....

(c) “Targeted residential picketing” includes the following acts when committed on more than one occasion:
(1) marching, standing, or patrolling by one or more persons directed solely at a particular residential building in a manner that adversely affects the safety, security, or privacy of an occupant of the building ....

Subd. 4. Temporary restraining order. (a) The court may issue a temporary restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if the petitioner files a petition in compliance with subdivision 3 and if the court finds reasonable grounds to believe that the respondent has engaged in harassment. When a petition alleges harassment as defined by subdivision 1, paragraph (a), clause (1), the petition must further allege an immediate and present danger of harassment before the court may issue a temporary restraining order under this section....

(b) Notice need not be given to the respondent before the court issues a temporary restraining order under this subdivision....

(c) The temporary restraining order is in effect until a hearing is held on the issuance of a restraining order under subdivision 5. The court shall hold the hearing on the issuance of a restraining order if the petitioner requests a hearing. The hearing may be continued by the court upon a showing that the respondent has not been served with a copy of the temporary restraining order despite the exercise of due diligence or if service is made by published notice under subdivision 3 and the petitioner files the affidavit required under that subdivision.

(d) If the temporary restraining order has been issued and the respondent requests a hearing, the hearing shall be scheduled by the court upon receipt of the respondent’s request. Service of the notice of hearing must be made upon the petitioner not less than five days prior to the hearing. The court shall serve the notice of the hearing upon the petitioner by mail in the manner provided in the Rules of Civil Procedure for pleadings subsequent to a complaint and motions and shall also mail notice of the date and time of the hearing to the respondent. In the event that service cannot be completed in time to give the respondent or petitioner the minimum notice required under this subdivision, the court may set a new hearing date....

Subd. 5. Restraining order. (a) The court may grant a restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if all of the following occur:
(1) the petitioner has filed a petition under subdivision 3 [and the order has been served on the respondent];
(2) the sheriff has served respondent with a copy of the temporary restraining order obtained under subdivision 4, and with notice of the right to request a hearing, or service has been made by publication under subdivision 3, paragraph (b); and
(3) the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.
A restraining order may be issued only against the respondent named in the petition; except that if the respondent is an organization, the order may be issued against and apply to all of the members of the organization. If the court finds that the petitioner has had two or more previous restraining orders in effect against the same respondent or the respondent has violated a prior or existing restraining order on two or more occasions, relief granted by the restraining order may be for a period of up to 50 years. In all other cases, relief granted by the restraining order must be for a fixed period of not more than two years. When a referee presides at the hearing on the petition, the restraining order becomes effective upon the referee’s signature....

(c) If the court orders relief for a period of up to 50 years under paragraph (a), the respondent named in the restraining order may request to have the restraining order vacated or modified if the order has been in effect for at least five years and the respondent has not violated the order....At the hearing, the respondent named in the restraining order has the burden of proving by a preponderance of the evidence that there has been a material change in circumstances and that the reasons upon which the court relied in granting the restraining order no longer apply and are unlikely to occur. If the court finds that the respondent named in the restraining order has met the burden of proof, the court may vacate or modify the order. If the court finds that the respondent named in the restraining order has not met the burden of proof, the court shall deny the request and no request may be made to vacate or modify the restraining order until five years have elapsed from the date of denial. An order vacated or modified under this paragraph must be personally served on the petitioner named in the restraining order.

Subd. 6.... (b) Except as otherwise provided in paragraphs (c) and (d), when a temporary restraining order or a restraining order is granted under this section and the respondent knows of the order, violation of the order is a misdemeanor.
(c) A person is guilty of a gross misdemeanor who knowingly violates the order within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency.
(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates the order:
(1) within ten years of the first of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency;
(2) because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363A.03, age, or national origin;
(3) by falsely impersonating another;
(4) while possessing a dangerous weapon;
(5) with an intent to influence or otherwise tamper with a juror or a judicial proceeding or with intent to retaliate against a judicial officer, as defined in section 609.415, or a prosecutor, defense attorney, or officer of the court, because of that person’s performance of official duties in connection with a judicial proceeding; or
(6) against a victim under the age of 18, if the respondent is more than 36 months older than the victim....

Minnesota law defines “harassment” to include,

repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.

If someone complains about “harassment,” a court can issue an order banning such “harassment,” and violation of the order will then be a crime. Given this, what are you free to say about other people in Minnesota, assuming you want to say it several times, and they’re willing to go to court to stop you?

Say that you have been (accurately) telling your and your ex’s acquaintances that your ex cheated on you, or infected you with a sexually transmitted disease — is that a “repeated incident[] of intrusive or wanted ... words ... that ha[s] a substantial adverse effect on the [ex's] privacy”? What if you tell people that someone holds some publicly condemned religious or political beliefs that he has tried hard to conceal? The list could go on.

Note that there’s nothing in the statute that purports to limit this to speech that is a tortious disclosure of private facts, though that tort is itself constitutionally questionable, both on overbreadth grounds and vagueness grounds (given the lack of clear definition of the “newsworthiness” exception to the tort, an exception that does not appear in the statute).

When I blogged about the Roommates.com case recently, I pointed out the Ninth Circuit seemed to assume that if discriminating in one’s choice of roommates is legal, it would also be legal to advertise a discriminatory preference.  I suggested that this wasn’t so clear.  Some commentors thought it was absurd to suggest that HUD would try to penalize expressing discriminatory roommate preferences when advertising for a roommate, given that the underlying discrimination is both legal and protected by the constitutional right to intimate association.  But here is what HUD’s website has to say:

It is illegal for anyone to

• Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.

Last week, Eugene blogged about the Ninth Circuit’s opinion in Fair Housing Council v. Roommate.com.  As Eugene noted, the court, in an opinion by Judge Alex Kozinski,

holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

I agree that (a) the Fair Housing Act was not meant to impinge on roommate decisions and (b) if a is wrong, the right to intimate association nevertheless prohibits the government from interfering with one’s choice of roommate.

However, I was surprised that the opinion didn’t address a more subtle argument, to wit: if the Fair Housing Act does apply to roommate situations, even if it would be unconstitutional for the government to punish someone for his choice of roommate it is not unconstitutional for the government to prohibit someone from advertising discriminatory preferences.

The reasoning would be that while who one chooses to live with involves intimate association rights, publicly advertising one’s discriminatory preferences in an advertisement for a roommate is not only not an “intimate” activity, it’s a very public one.

Indeed, it’s my understanding that during the Clinton Administration, HUD’s position was that it could (and would) prohibit advertising that expressed discriminatory preferences even when acting on those preferences would be constitutionally protected.  (The relevant regulations allowing punishment for such behavior were eventually withdrawn because of a related controversy over what was seen as HUD’s overly vigorous interpretation of what constituted discriminatory advertising.)

It’s not clear that HUD’s position has changed.  Judge Kozinski points out that HUD recently dismissed a claim against a woman who advertised for a Christian roommate on a church bulletin board based in part on the unique context of the ad, but it’s not clear that HUD would take the same position about an ad seeking a white roommate published in the Washington Post classifieds.

As I discuss in You Can’t Say That!, I think that as a policy matter people should be able to advertise discriminatory roommate preferences.  Beyond standard libertarian concerns, banning such advertisements doesn’t actually decrease discrimination, it just imposes costs all around, not least on, e.g., a black individual seeking housing who winds up traveling to meet various potential roommates who will inevitably turn him down.  Meanwhile, the people who will be most affected by an advertising ban will be members of small minority groups who will have difficulty satisfying their roommate preferences if they can’t advertise them.  It’s easy enough to find a white or black roommate in Washington, DC, but what if you are a Gay Hispanic Republican, seeking the same (discrimination based on political affiliation is banned in DC)?  The counter-argument, of course, is that allowing discriminatory advertising creates dignitary harms to members of disfavored groups and “normalizes” the public expression of discriminatory housing preferences.

Given my Gay Hispanic Republican example, if I were a judge I’d likely be sympathetic to the argument that bans on advertising discriminatory preferences puts too great a burden on the exercise of intimate association rights to be constitutionally permitted. Whether precedent supports such an argument, however, is not clear.  I expect that the next major case against an entity like Roommate.com will need to take up this issue.

Fair Housing Council v. Roommate.com (9th Cir. Feb. 2, 2011) holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

The opinion is by Chief Judge Kozinski, joined by Judge Reinhardt. Judge Ikuta concurs as to federal law, but concludes that state law does apply to roommates; she would therefore remand for further briefing in district court on the constitutional question. Thanks to How Appealing for the pointer.

UPDATE: Link fixed, sorry about that.