Federal Judge Holds Statute Banning Publication of Social Security Numbers Is Unconstitutional,

when the statute is applied to a Web site's reposting of "unredacted public documents such as land and tax-lien records posted on government Web sites" that contain the numbers. The site operator is apparently using such postings to condemn the government's posting of such information: "As part of a campaign to draw attention to the issue, Ostergren routinely posts the Social Security numbers of high-profile individuals that she claims to have easily obtained from county and state government Web sites. The list includes former Florida Gov. Jeb Bush, former U.S. Secretary of State Colin Powell, former U.S. House Majority Leader Tom DeLay, former Missouri Sen. Jean Carnahan and several county clerks in Virginia."

The decision -- Ostergren v. McDonnell, handed down last Friday -- is quite narrow, focusing chiefly on the fact that the social security numbers were drawn from publicly available records, and were presented in the context of quotes from those records, rather than just as some freestanding list. I've argued before (though tentatively) that bans on publishing social security numbers are a rare example of a constitutionally permissible restriction on crime-facilitating speech. I didn't discuss, however, what happens when the laws are applied to republication of publicly available court records that themselves contain such numbers.

J. Aldridge:
Didn't Madison say the freedom of speech was defined at common law? So, I don't see a first amendment issue here unless we, as always, pretend freedom of speech means whatever goofballs get away with saying it means.

I am always critical of great society first amendment claims :-)
8.29.2008 2:50am
Scote (mail):
The problem isn't the publishing of Social Security Numbers, it is the unreasonable fact that those commonly used numbers act like a password to people's credit--which they should not.

In their zeal to issue profitable, easy to apply for credit to as many people as possible, corporations have resisted implementing proper account controls to prevent fraud. The answer isn't calling publishing SSN's Crime-Facilitating Speech but to make companies liable for the costs that their lax account security costs fraud victims as well as punitive damages. Then, and only then, will companies take proper measures to prevent account fraud--a type of fraud that should not be called "Identity Theft" because it isn't, as this British radio sketch demonstrates.
8.29.2008 2:51am
Eugene Volokh (www):
J. Aldridge: I find it pretty interesting to consider how cases do turn out (or should turn out) under current legal principles as enforced by the current legal system. Of course, it's also sometimes interesting to consider how they should turn out under the original meaning of the First Amendment, the Fourteenth Amendment, and so on. But I don't limit myself to the original meaning, and instead talk about the law as it is actually expounded and applied by actual judges, whether they're right or wrong as an originalist matter.

So you can hammer away on original meaning all you want (though your hammering sounds a bit repetitive at this point). But please keep in mind that many of the rest of us -- including, I expect, many people who might indeed prefer that judges be originalist -- are actually pretty interested in discussing actual modern constitutional law as it now exists.
8.29.2008 2:59am
Eugene Volokh (www):
By the way, even if we are talking about original meaning, Madison in his Report on the Virginia/Kentucky Resolutions made clear that he did not see the First Amendment as limited to prior restraints:
It is deemed to be a sound opinion, that the sedition-act, in its definition of some of the crimes created, is an abridgment of the freedom of publication, recognised by principles of the common law in England.

The freedom of the press under the common law; is, in the defences of the sedition-act, made to consist in an exemption from all previous restraint on printed publications, by persons authorized to inspect and prohibit them. It appears to the committee, that this idea of the freedom of the press, can never be admitted to be the American idea of it: since a law inflicting penalties on printed publications, would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say, that no law should be passed, preventing publications from being made, but that laws might be passed for punishing them in case they should be made.

The essential difference between the British government, and the American constitutions, will place this subject in the clearest light.

In the British government, the danger of encroachments on the rights of the people, is understood to be confined to the executive magistrate. The representatives of the people in the legislature, are not only exempt themselves, from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle, that the parliament is unlimited in its power; or, in their own language, is omnipotent. Hence, too, all the ramparts for protecting the rights of the people, such as their magna charta, their bill of rights, &c., are not reared against the parliament, but against the royal prerogative. They are merely legislative precautions against executive usurpations. Under such a government as this, an exemption of the press from previous restraint by licensers appointed by the king, is all the freedom that can be secured to it.

In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence, in the United States, the great and essential rights of the people are secured against legislative, as well as against executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great Britain, but from legislative restraint also; and this exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws.

The state of the press, therefore, under the common law, cannot, in this point of view, be the standard of its freedom in the United States.

One can of course say that the original understanding of the First Amendment in 1791 was different from what Madison argued later in the decade; or that the Fourteenth Amendment wasn't originally understood as applying the First Amendment to the states; or that the original meaning of the freedom of speech and the press would not have included the publication of information that might help people commit crimes against political figures (or others). But the quick assertion that Madison "sa[id] the freedom of speech was defined at common law," and that this somehow disposes of the issue, doesn't seem to me to work even if one is focusing solely on original meaning and not on current First Amendment doctrine.

It's also not clear to me what the Great Society (Johnson's 1960s program) has to do with the view that the First Amendment goes beyond freedom from prior restraints -- a view that the Court adopted either in 1919 or 1931, depending on how solid a holding you want on this.
8.29.2008 3:25am
J. Aldridge:
Eugene: Original meaning cannot mean nothing today without first invoking Article V. Article V is not a power belonging to the Supreme Court to exercise at its own pleasure or discretion.

Why do people of the united states have their own bill of rights, constitutions and supreme courts? Why did the framers of the 14th amendment desire not to change that?
8.29.2008 3:39am
J. Aldridge:
Eugene: Madison said the meaning was the same found under English common law, but there was an essential difference under our republican form of government; thereby in this country the restraint was against legislative branch (Congress) and not merely the executive (King) as in the case of Great Britain.
8.29.2008 3:51am
J. Aldridge:
Eugene: The freedom of speech, in contradistinction from written libel, could never be restrained by a law of Congress; for whether you treat the prohibition in the Constitution as absolute in itself or whether you refer to the common law for a definition of its limits and meaning the result will be the same.
8.29.2008 4:04am
byomtov (mail):
I agree with Scote .

If someone finds out my SSN and uses it to, say, get money out of my bank account by pretending to be me, why should that be my worry, rather than the bank's?

The decision in this case seems like a no-brainer. How can it be illegal to take information that is already a matter of public record and disseminate it?
8.29.2008 9:13am

Your post assumes that once something's in the public record, there it must remain for eternity. I'm not saying that's wrong, per se, but there's a bit of question begging in your post.
8.29.2008 9:16am
David Chesler (mail) (www):
I also agree with Scote. How did we ever get to the point that it's due diligence to assume that anybody who knows my social security number is I?
8.29.2008 9:57am
byomtov (mail):

I don't understand your point. Something being in the public record means it's available to anyone. Now, I guess it could be made unavailable, but anyone who got the information while it was public still has it, and surely can disseminate it while it's public. How would such a person know that the information had somehow been made unpublic?
8.29.2008 10:12am
one of many:
I don't understand your point. Something being in the public record means it's available to anyone. Now, I guess it could be made unavailable, but anyone who got the information while it was public still has it, and surely can disseminate it while it's public. How would such a person know that the information had somehow been made unpublic?

I think with a fact basis similar to the one here that the website owner would have a responsibility to make themselves aware of the removal of the information from the public record. The state has announced the intent and the power to remove the offending information from the public record, it has merely failed so far to produce the will to do so. Were there a stealth removal from the public record I am not certain what would constitute responsibility to ensure public availability before publication but here the website owner has a responsibility to, in my judgment, at least once a week check to ensure that the information has not be removed from the public record. Again, this is fact specific to this case and what would constitute a responsibility to ensure information once in the public record was still in the public record at time of publication varies with the circumstances.
8.29.2008 2:23pm
Scote (mail):
"Remove from the Public Record?" Sounds like un-ringing a bell to me.
8.29.2008 3:14pm