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.