Right to Be Forgotten

N.J. Court Orders Google to Vanish Plaintiff's Photo—Published at the Chicago Tribune—From Search Results

The "right to be forgotten" sneaking into American courts? Google has not complied with the court order -- and the plaintiff is now trying to get it held in contempt of court.

|The Volokh Conspiracy |

[1.] In Malandrucco v. Google, Hudson County (N.J.) Presiding Judge Jeffrey Jablonski has issued a remarkable and unusual temporary restraining order: He has commanded Google to

de-index [an] "explicit" post-assault image from searches of "Greg" and "Gregory Malandrucco" and/or "Malandrucco"

and has forbidden Google from

continuing to permit the display of the subject image.

The court papers make clear that the order is targeted largely at a Chicago Tribune blog post by columnist Eric Zorn about a police assault on Malandrucco and his friend Matthew Clark; the column contains photos of the two men with injuries to their faces. (The order was issued July 6, but I found it, with the help of the invaluable Lumen Database, only a few days ago, and just got the court documents; the order has apparently not been written about anywhere else.) Google has apparently not complied, and Malandrucco has asked Judge Jablonski to hold Google in contempt of court; the hearing on that will be held Aug. 17. Indeed, the request for the contempt sanctions, filed July 25, seems to have been accelerated by a remark by the judge at a hearing on July 24: "The concern that the court has is that there is not compliance with the [July 6] order."

The order against Google also seems to cover, besides the image at the Chicago Tribune, a similar image posted on an entirely different blog, which was criticizing Malandrucco and Clark and their lawsuit. But Malandrucco is apparently mostly focused on the Tribune, and on July 24, he sued the Tribune itself (Malandrucco v. Chicago Tribune), asking for an order that the Tribune post itself be taken down. At that hearing the judge seemingly agreed:

I am specifically ordering that the URL of the blog that is apparently owned or operated by Chicago Tribune, Incorporated that shows the explicit crime victim photo which is made reference in Dr. Malandrucco's papers be removed until further order of the court.

But, perhaps by mistake, the written order in the Chicago Tribune lawsuit does not include this command, but only orders the Chicago Tribune to appear at a hearing on Sept. 10.

[2.] The order against Google is legally unjustified. (Almost all I say here is also true of the apparently intended order against the Tribune as well.) To start with the substantive law, there was no evidence that the material is defamatory—the picture is apparently accurate. It is not actionable under the "disclosure of private facts" tort, since that tort does not apply to newsworthy material, and the picture of a victim of police brutality that illustrates a post about the brutality is newsworthy.

Malandrucco's complaints in the cases argue that the picture is causing emotional distress, but speech on matters of public concern (which would certainly include pictures of police brutality) cannot lead to liability for intentional infliction of emotional distress (see Snyder v. Phelps). The complaints also argue that the picture is causing economic damage, on the theory that they have caused Malandrucco to be rejected by various prospective employers and denied grants and scholarships. The judge likewise said at the hearing,

I do find that serious and irreparable harm based upon the certification that's provided by Dr. Malandrucco, that he is suffering, not only a financial impact as a result of this, but more of a greater impact to his potential of obtaining any sort of job prospects, as well as the representations that he makes in his most recent certification, that in addition to the financial harm, he is being prejudiced from exercising the career that he has sought to engage in as a college professor or university professor.

But that is both factually unproven—I suppose it's conceivable that many universities would decline to hire a professor because he had been wrongly beaten by the police and then became an anti-police-brutality activist, but it's hardly self-evident—and legally insufficient: Accurate news coverage of past events cannot be enjoined on the grounds that it may lead some employers not to want to hire you.

The complaints also argue that this material has caused "discrimination, as people often mention the assault photos [to] me though I never mention it to them. This includes landlords, friends, employers, students, and others." But there is no cause of action for accurate news coverage that may lead some people to discriminate against the person because of his having been a crime victim (or, as some of Malandrucco court papers claim, because he has an unspecified disability that stems from the attack and that he "openly report[s] on [his job] applications"). And all this is apart from Google's likely immunity from this suit under 47 U.S.C. § 230: It's clear that it would be immune from a damages lawsuit, and the cases that have considered the question also conclude that intermediaries such as Google are immune from injunctions as well.

At the hearing, Malandrucco suggested that the use of the photo, which was apparently taken by himself, infringes his copyright. But, first, such a news use of the photo would likely be a fair use; and, more importantly, copyright claims cannot be brought in a state court lawsuit. Malandrucco also claimed that there was "potential violation of both statewide and federal crime victims' rights laws," but such laws control what government officials do, not what the media or others do.

Google wouldn't comment on the lawsuits, but the Tribune passed along this statement:

We are aware of the recent complaints against Chicago Tribune and Google. We will be responding in court in due course and believe the allegations are wholly without merit.

This suit grew out of news coverage of a lawsuit alleging that off-duty Chicago police officers beat two men. It was unquestionably newsworthy at the time, and that coverage remains an important part of the public record and should not be erased from the internet.

[3.] The order against Google is procedurally defective as well: A court can't just order Google to stop displaying certain material—even temporarily—based simply on the plaintiff's say-so, at least absent some extraordinary urgency. Even a 10-day restraining order against a white supremacist rally, the Court held in Carroll v. President & Comm'rs of Princess Anne (1968), cannot be justified if the restrained party was not given proper notice and an opportunity to attend the hearing. Such a lack of notice was "a basic infirmity in the procedure by which [the injunction] was obtained":

It was issued ex parte, without notice to petitioners and without any effort, however informal, to invite or permit their participation in the proceedings. There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.

I think that any injunction entered before a full hearing on the merits at which speech is found to be constitutionally unprotected is an unconstitutional prior restraint. Even courts that allow permanent injunctions against unprotected speech (and, again, note that the speech in this case is almost certainly substantively protected) have allowed this "only after the trial court's final determination by a preponderance of the evidence that the speech at issue is, in fact" constitutionally unprotected (e.g., Hill v. Petrotech Resources Corp. (Ky. 2010)). But an ex parte restraining order, entered without any adversary hearing at all, much less a full hearing on the merits, clearly violates the First Amendment.

Finally, New Jersey law requires a showing that notice to the defendant is impractical before any ex parte restraining orders are issued. It's hard to see why that requirement would be satisfied here, especially since documents submitted by Malandrucco show that he had been talking to Google for a long time about the matter. And the New Jersey case cited by the judge at the Google hearing also allows preliminary injunctions only when "the right on which the plaintiff founds his claim [is] settled"; here, though, it's settled against the plaintiff.

[4.] Now a bit more about the backstory, which may not be relevant under current law, but might be interesting to those who wonder how the law should deal with a case like this. I did a bit of searching, and also reviewed the documents Malandrucco filed, and here is my sense of the history here.

[A.] In 2010, Malandrucco, then a University of Chicago grad student, and his friend Matthew Clark were beaten up by two off-duty Chicago police officers. This got a lot of coverage in Chicago, including in the Chicago Tribune post.

The post included a photo of the injured men; the photo was apparently taken by Malandrucco himself, and had made its way to Eric Zorn, the Tribune writer. Zorn does not have a clear recollection of how he got it, and Malandrucco has claimed that the Tribune "never received permission to publish this photo"; but I know of no reason to think that the Tribune had gotten in some improper manner, and when I e-mailed Malandrucco and a lawyer who is representing him to ask about this, I didn't get any statement suggesting that the Tribune had gotten it improperly.

Moreover, for the following several years, Malandrucco became (unsurprisingly) something of an anti-police-brutality activist. He and Clark filed a lawsuit against Chicago, which eventually led in 2013 to a $185,000 settlement. In December 2014, they cowrote an article in Vice called Our Three-Year Struggle to Get Chicago to Admit We Were Beaten by the Police. They then appeared on WBEZ (Chicago public radio) to talk about this; they stressed that they deliberately that they wanted "to put our story out there" as part of the debate about Ferguson. And they stressed the importance to them of being able to speak out about the incident:

We got the city to delete their usual full-gag-order contingency clause, which would have barred us from discussing the case publicly in any form with anyone. This has allowed us to speak out about what happened to us. It's allowed us to regain some dignity by staying vocal and trying to add to the ongoing dialogue about police violence and the broken justice system in this city and in the country.

During those years, Malandrucco also became a member of the Steering Committee of the Chicago Alliance Against Racist & Police Repression; he was listed on the letterhead as late as December 2015 as "Victim of arbitrary brutal beating by Chicago police." Malandrucco created a web site called uscop.org, on which he posted from 2011 to 2013 about police misconduct. In 2012, he presented a paper at a Chicago "panel that explored the connections between police crimes and violence in black and Latino communities"; the Vice article noted that Malandrucco "told our story and spoke out against police brutality at rallies and protests all over Chicago." In the Vice article, Clark and Malandrucco also wrote that the settlement came in part because

Our attorneys said the government was worried about our proven ability to attract media attention.

[B.] But, apparently in 2016, Malandrucco concluded that he did not want all this material with his name out there. This was not at all limited to the photo of him after the assault; he tried, with great success, to get his name removed from a vast range of items.

He got Vice to replace his byline with "Anonymous." He got the Chicago Maroon (the University of Chicago newspaper) to remove his name from their article about the incident. He got The Guardian to entirely remove the following paragraphs from a story about Chicago police violence that had initially mentioned his case (compare the Internet Archive version with the current version):

Greg Malandrucco was one of them [i.e., one of the people who got a settlement from the City without the City admitting guilt]. He and a friend, Matthew Smith [likely an error for Clark], each got $45,000 as a result of a 2010 beating they sustained outside a Mexican restaurant at the hands of men they understood to be off-duty Chicago cops. It all stemmed from Smith blocking the men's bathroom while he put on his jacket to leave.

"I had a broken nose, I had a stitched lower half of my lip. I was knocked unconscious for a brief period," said Malandrucco, who wrote about his beating for Vice.

Malandrucco is now on the steering committee of the Chicago Alliance Against Racist and Political Repression, where he seeks to press back against institutionalized police abuse.

"Even the torture cases, they extend beyond Jon Burge, they extend beyond Homan Square. We've had people in the alliance family who've been tortured by other offices, and there are other cases of police torture in which officers, when they're finally brought up on the stand, they just plead the fifth," Malandrucco said.

All in all, he claims in court filings that over 130 publications have removed material about him (not at all limited to the photo) on his request. To give an example of the thoroughness, he got Reason to remove a hat tip that was given him in a 2013 article about Chicago police misconduct; he had apparently just e-mailed Reason a pointer to the underlying news story, and the original post had thanked him—but he no longer wanted that.

[C.] Of course, publishers are free to engage in such voluntary redactions, though I am surprised at the magnitude of some of this (such as The Guardian's deletion of paragraphs from its story). Still, this history suggests that the lawsuits against Google and the Chicago Tribune are aimed not just at removing a particular photo of an otherwise anonymous citizen. Instead, they seem to be part of a broader campaign to hide a considerable amount of commentary and political activism from the publicly available record. And I think this helps reinforce the wisdom of existing American law, which generally does not let people use coercive government power to order search engines and publishers to hide such information.

Except, apparently, in a courtroom in New Jersey.

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32 responses to “N.J. Court Orders Google to Vanish Plaintiff's Photo—Published at the Chicago Tribune—From Search Results

  1. I want to know that “Judge” Jablonski got his J.D. from Cooley Law School, a TTT where the average LSAT is around 147. He’s not qualified to scoop fries for me at McDonalds, much less be a judge.

    1. While I agree that he’s not qualified to be a judge – I guess he missed the days that his Con Law class covered the First Amendment AND Due Process – just how much skill does it take to scoop fries at McDonalds? Or do you have some sort of double-secret special order for how your fries are served up?

      1. just how much skill does it take to scoop fries at McDonalds?

        More than it takes to graduate from Cooley.

  2. Some rulings just make you wish there was a procedure for sending judges back to law school.

    1. If it’s back to Cooley, not sure how much help that would be.

    2. It’s nonsense like this that provides backing for electing judges. While I normally detest the practice of politicizing the judiciary, I really want to vote this guy out. This is just wrong on so many levels, both in the very concept (that news can be censored by court order) and procedure (Google got issued orders despite not being present).

  3. How does either google or the Tribune have sufficient contacts with New Jersey to give this clown judge jurisdiction?

    And why has neither filed for removal to federal court of their cases?

    1. Early days yet, especially in the Tribune case.

  4. Yup, this is a bad order issued by Judge Jablonski.

    Not only is it unconstitutional, in the 21st century, it’s highly impractical.

    1. Yet weren’t you defending the idiot judge who issued the TRO regarding the 3d gun blueprints?

      1. Nope! I stayed off that one.

  5. Eternal battles against creeping rationalia to work around basic rights, themselves guaranteed by the wise to forestall providing dictatorial tools to be picked up some day by an enterprising charamatic.

    Shoulda saved that for a book.

  6. Perhaps Google should publish the order along with the accompanying order

  7. Gee, it seems to me that someone who was a victim of police brutality would be more likely to be hired as a faculty member than someone who was not. Could it be that the real reason for trying to have these news stories deleted is because they contain some information about what the plaintiff supposedly did just prior to becoming a police brutality victim?

    1. In theory, that’s possible, but having read those stories they don’t seem to reveal any misbehavior on Malandrucco’s part. The Tribune post certainly doesn’t.

  8. I noticed at the top of the complaint that the case was filed in the Chancery Division under general equity. A quick search of the N.J. Superior Court indicates that the state still maintains somewhat of a distinction between cases at law (civil) and cases in equity (Chancery), although there does appear to be some overlap with regards to remedies

    Perhaps someone more knowledgeable could answer the question of whether a N.J. Chancery court, when hearing a suit in equity, is obligated to follow precedent and statute, or whether it’s decisions can be based in the judge’s notion of fairness as it pertains to each specific case.

    1. They are. The distinction between the trial level Law Division and Chancery Division is entirely about where cases get assigned. Each division is bound by the same precedent, each division has its decisions reviewed by the same Appellate Division, and each is ultimately responsible to the NJ Supreme Court.

  9. Before New Jersey’s 1947 constitution, Chancery Court and Law Court were separate courts. After the 1947 constitution, the chancery division and law divisions are simply different divisions of the same court, the Superior Court of New Jersey. Both divisions are bound by the same law. Of course, regardless of what New Jersey’s 1947 constitution says, both courts would be bound by the first amendment, as incorporated by the fourteenth amendment.

    1. That doesn’t appear to be accurate. I’m looking through NJ appelate cases on Lexis, specifically cases that originated in the Chancery Division, and there are maxims of equity and equity related terms all over the place. It appears more accurate, upon further review, that NJ and Delaware are two states that have chosen to retain a distinction between cases in law and cases in equity. Even the NJ Supreme Court case linked to in this post is discussing injunctive relief in the context of equity.

      EV states that the “order against Google is legally unjustified.” Okay? The question in this case would seem to be whether the order is justified under maxims of equity. With a little searching I was able to see that NJ’s Chancery Division is an outlier from contempory state courts, and to understand it I would clearly need to have a better working knowledge of equity practice. But nowhere in this post do I see a reference to this being a case in equity as opposed to case in law.

      But, then again, what ground do I have to question the assertions of a law professor. Is it more likely the judge in question is oblivious of the law, and EV is right, or that the judge is ruling within the context of equity and EV is arguing in the context of law?

      1. Government officials still have to comply with the constitution, even if they style themselves “chancellor”, and labeling an order an “equitable decree” doesn’t exempt it from the requirements of the first amendment. While your pedantry is admirable, it doesn’t actually have any bearing on the issues raised by this situation.

        1. It does because it impacts how the court feels bound by precedent.

          Of course the 1A applies in any event . . .

          1. Again, I don’t think that courts considering traditional equity cases (such as injunctions) feel any less bound by precedent as to constitutional questions than do courts considering traditional law cases (such as damages claims).

            1. Indeed, I agree with your posts vv.

  10. Long comment. Sorry.
    I’m an attorney, admitted in NJ, and have practiced in Hudson county in the past (though not within the last 10 years or so).
    A couple points to clear up some uncertainties.
    First, there was a discussion about the division of Law and Chancery in the NJ Superior Court. It’s a primarily a functional distinction. Law Division has two main parts – Civil and Criminal. Civil is concerned with all flavors of suits for damages as the primary species of relief sought. Chancery is likewise divided into Family and General Equity parts, where the primary species of relief sought at equitable.
    But remember this: since the union of law and equity in the 1947 Constitution, all parts of the Superior Court can give both legal and equitable relief.
    This case is in General Equity, which is where you go for injunctive relief (and highfalutin things like oppressed shareholder suits,partition of real estate, etc.).
    In NJ, all Superior Court judges are assigned to their seats by an assignment order issued by the Supreme Court. The assignment order comes down yearly, and the judges generally sit in the same part for 3 years. They tend to rotate between parts.

  11. There is usually only one full-time General Equity judge per vicinage (a vicinage is one larger county or several of the smaller counties). Chancery/General Equity is one of the “plum” assignments and it’s usually given to a more senior judge, one who has sat in civil, criminal and family parts before. Inexperienced new judges don’t sit General Equity.
    As an aside, one cannot become a judge in the Superior Court without having been a lawyer for at least 10 years, then having been nominated by the Governor and confirmed by the state Senate. After 7 years, the judge is eligible to be reappointed by the Governor and has to be re-confirmed by the Senate. Most judges are, but it’s not guaranteed.
    So, while I’ve never been before this judge (and frankly never heard of him) I am fairly sure he’s been on the bench at least 7-10 years and is therefore pretty knowledgeable.
    So, what is he up to issuing this patently unconstitutional order? I shared my take earlier today and will repeat it here. I’ve spent too much time in NJ courtrooms to not know what’s going on.

    1. Before looking it up, like you, I assumed “he’s been on the bench at least 7-10 years.” Actually, he was appointed judge in March 2013 meaning he did not yet reach tenure. I am really surprised that he was appointed presiding judge in chancery division. This is particularly since much of his background prior to being appointed judge was in family law. His appointment was probably not based on merit.

  12. 1. The order linked to is a form order of the kind used by pro se litigants. (These can be found online, IIRC) I don’t see any attorney on the plaintiff’s side. There’s explicitly no reference to any attorney on whom defendant would have to serve their papers to vacate, etc., the OSC, so I’m taking this as a pro se plaintiff (who either couldn’t afford an attorney or who was laughed out of a couple offices because his case is such a loser).
    2. By granting the order, the judge will accomplish a couple things.

    First, he’ll get the defendants into court to make their arguments. This will allow the big firms who will defend these defendants to send a partner and a junior associate who needs courtroom time on a simple case where the associate can feel good about themselves Doing Right By The Constitution and still bill for the work.

    Second, he’ll let the plaintiff have his day in court. As anyone who’s litigated more than once should know, a lot of civil cases settle once the plaintiff gets to tell his story to a jury. This, because the mere telling his story to an attentive audience allows the plaintiff to release his emotional hold on the case and thus makes resolving matters a lot easier. So this plaintiff will get to tell it to the judge and either get the satisfaction of being heard or feel further victimized by The System and have fresh grist for his mill.

  13. Third, the judge will follow the NJ doctrine – common law, actually – which says pro se litigants are to have their papers indulgently treated and their arguments entertained, even when they’re obvious losers. The basic idea is to let people make their arguments and, if there’s no merit, tell them so and why. But it’s done with some respect and acknowledgement these are people who are aggrieved.

    And fourth, the judge will get to say something profound about the Constitution before he says “case dismissed” and sends the plaintiff on his way.

    It’s set for late August, when the courthouse is basically empty. I used to get summonsed for jury duty (lawyers are not exempted in NJ) and would scheme to get my service in the second half of August. Those weeks, the courthouse is a ghost town and only the most urgent matters get trials. In the days before the internet one had to go in for jury duty (rather than check a website or voicemail and only come if called) and I would report, bring some interrogatories that needed answering, and do work while no one called us to sit on a trial. I would get a lot of work done those weeks. So, by having this case in late August, the judge can dispose of it quietly.

    3. I think the professor is hoping for a bit of Streisand effect from this case, to help him get a job.

    1. Courts are required to be indulgent of pro se litigants where they do not comply with technical procedural rules. But in this case, the court granted unconstitutional interim relief. There is no basis to say that pro se litigants can obtain substantive relief based on a different standard from other litigants.

  14. I much appreciate scribe’s comment, but wanted to add a bit to respond to QuantumCatBox:

    1. Under modern American law, all judges must follow the relevant rules, as well as following precedent.

    2. Some rules in equitable cases — for instance, the rules for preliminary injunctions — tend to leave judges with more discretion than many legal rules. Sometimes, you’ll see judges cite the maxims of equity when exercising that discretion. But legal rules are sometimes quite discretionary as well (consider, for instance, many rules of evidence).

    3. When a judge is asked to issue an injunction against supposedly tortious conduct, or conduct that supposedly violates a statute, the judge — in New Jersey or elsewhere — applies the legal rules to determine what is tortious or violates a statute and what isn’t.

    The judge applies the equitable rules to resolve the equitable questions, such as where the balance of hardships lies, and the likes. But when applying, for instance, the “principle … that temporary relief should be withheld when the legal right underlying plaintiff’s claim is unsettled” (that’s from Crowe v. De Gioia, the case dealing with preliminary relief that Judge Jablonski cited in the Malandrucco v. Google hearing), the judge applies the same rules for determining “the legal right” as would be applied in a nonequitable legal proceeding (such as a suit for damages).

  15. To continue:

    4. In any event, the First Amendment rules apply equally to legal and equitable proceeding (except insofar as a few rules might, as a matter of First Amendment law, apply differently, for instance if the court concludes that injunctions against speech are less available than damages). The same is true for other constitutional rules.

  16. I have been practicing in NJ for 29 years. The distinction between Chancery and Law Division has already been explained. What has not been mentioned is that most counties have one Chancery Judge in the General Equity Part (Essex County has two). It is considered a “plum” position that was traditionally assigned to a very good judge. It is a sad commentary on the quality of NJ judges that the Chancery Judge in Hudson County issued this obviously unconstitutional order. But unfortunately, I can’t say I’m surprised. NJ Judges are political appointees. Appointments, therefore, are mostly a function of who you know, not what you know. Didn’t I see another blog post here about an NJ Appellate Division decision that found that a co-worker could have a duty to report crimes/torts that he “knew or should have known” had been committed by a co-worker even though totally unrelated to the job?

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