Free Speech

"Right to Be Forgotten" as to Court Opinions Rejected …

... by a federal district court decision yesterday, in a case brought by a pro se litigant in New Jersey.

|The Volokh Conspiracy |

A. In 2017, Bonner lost a case in New Jersey state appellate court, Bonner v. Cumberland Reg'l High Sch. Dist. Justia.com, a site that (among other things) publishes online copies of state and federal court opinions, included that nonprecedential New Jersey decision; Bonner then sued in federal court, asking the federal court to order Justia to remove the opinion. Yesterday federal District Judge Peter G. Sheridan granted Justia's motion to dismiss (Bonner v. Justia, Inc., 2019 WL 3892858):

Plaintiff seems to believe the New Jersey [appellate] opinion is his personal property…. Plaintiff seeks to prevent the [opinion] from being "reported, copied, distributed, shared, or by any other means used by anyone or any website." "[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." …

Plaintiff is proceeding pro se, and the Court should read Plaintiff's complaint [here, amended] generously and hold it "to less stringent standards than formal pleadings drafted by lawyers." … [But t]he amended complaint is substantively meritless, as was the original complaint.

Plaintiff is essentially attempting to seal the Appellate Division's Opinion, which—like federal court documents—[is] open to the public. There is a heightened public interest in disclosure of materials that are filed within the Courts, which outweighs private interests in confidentiality, as the Courts are funded by the public and in general judicial proceedings are not done in secret….

Because Plaintiff has had two opportunities to set forth a cause of action, and failed to do so, to allow another amendment to the complaint would be futile. As such, there appears to be no cause of action for the conduct the amended complaint is dismissed with prejudice.

This is clearly the right result, but, to my shock, I've seen one case in which a trial court did order a different online repository (leagle.com) to remove a person's name from a published court opinion archived at that repository (more on that in a later post). And, as I've noted before, I've seen cases in which trial courts wrongly ordered Google to deindex a photo in a newspaper (Malandrucco), or wrongly ordered media outlets to remove stories (Thorworth and Barone).

Trial courts sometimes do the darndest things, including in cases brought by pro se plaintiffs. While litigating pro se is often a handicap, it's sometimes an advantage: pro se litigants often don't know what's impossible, so they ask for it—and sometimes get it. But not this time.

B. Bonner also asked—beyond his request that the New Jersey state court opinion be removed—that any order issued by the federal court resolving Justia's motion to dismiss Bonner's complaint "not 'be reported, copied, distributed shared, or by any other means used by anyone or any website.'" (Bonner's request also stated, "Confidential Notice: This letter and the things contained herein are confidential information and are not to be copied, shared, or distributed by any source"; but motions are generally public documents, just as opinions are.)

I had been tracking the case on Bloomberg Law, because I have been writing about attempts to get court opinions hidden. I thus noticed that request to seal, and filed a motion to intervene and oppose the request. The federal court granted my motion to intervene, and denied Bonner's request to issue the order under seal. Again, that strikes me as clearly right.

There is more to this litigation, but I will save that for one or two upcoming posts.

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  1. In the federal district decision, “Volokh” is mentioned more than times than “Bonner” (10 to 3)! 🙂

  2. What if the plaintiff was an EU citizen demanding takedown under the GDPR law. GDPR is said to apply to US private parties. What about US courts? Can one argue GDPR in a US federal court?

    1. I presume the GDPR (I always read that as the “German Democratic Peoples Republic”) doesn’t apply to US private parties if they don’t do business in the EU or visit there.. I hope that’s what you mean.

    2. IIUC the General Data Protection Regulation purports to apply outside the EU. I don’t know if it would be enforcable in US courts.

      I’ve suggested before that the US should make it a crime for any foreign legislator, law enforcement officer, or judge to deprive a US person or business of their freedom of speech.

      1. How about disclaimers on Hollywood movies, “Warning: This movie was crafted to view the Chinese government positively so it, and other products by this studio, may be sold in China.”

        We should not allow foreign dictatorial speech in this country without a notice to US citizens at a minimum.

      2. GDPR applies in the EU, but also to things put on the worldwide (!) web by people located outside the EU. Specifically:

        1. [The GDPR] applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.
        2. [The GDPR] applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:
        (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or
        (b) the monitoring of their behaviour as far as their behaviour takes place within the Union.

        So it doesn’t apply to data processing outside the EU of data belonging to people equally not located in the EU. Hope that clears things up.

        1. Martinned: What if a European citizen (a person who is indeed “located in the EU”) demands that Justia (or I) take down a copy of an opinion (or excerpts from the opinion posted on my blog) in an American case in which he was involved? (I assume that’s the sort of thing that anorlunda was asking about.)

          1. I’m not sure if having a court opinion on the web counts as “processing” for GDPR purposes. Google’s indexing might, and (like I said below) general fundamental rights principles might apply as well.

            In principle, I don’t see the jurisdictional objection to a European court deciding on an application by an EU citizen resident in the EU about what can be lawfully published in the EU.

            (As for what I think the merits decision should be on something like that, I think it’s right that art. 6 GDPR and Google Spain both require a balancing test, where there is ample room for recognising the public interest in publishing certain data. For criminal convictions, I’d say it depends on what the crime was and how old the conviction is.)

          2. The EU has ordered Google to take down links to court cases involving EU citizens. They don’t order the court to erase the conviction record, but order Google to not publicize it. Google is private.

            In the US, we often depend on private services to publish court decisions online. Courts are not prepared to do physical or online publishing and indexing. Applying the same logic, could an EU citizen use GDPR to demand that someone like LexisNexis erase entries documenting US court decisions? LexisNexis is private.

            Hypothetically, could the EU citizen demand that oyez.org redact his name, from SCOTUS briefs and decisions that Oyez publishes?

            The US has tried using extraterritorial reach to inhibit abortion information.

            Extraterritorial reach of laws is scary, but the Internet is making a mockery of national laws restricting information.

            1. Like I said, I don’t think it’s fair to describe various laws that govern publication on the internet as “extraterritorial”. (Although there is currently a case before the ECJ that does seek an order requiring the defendant to remove information off the internet all over the world, not just in the EU. But I don’t think the plaintiffs in that case will win. In January, the Advocate General agreed.)

              This is more akin to seeking to restrain access to information about abortion in the US, something that Ireland used to do a lot, for example, until the 14th amendment to the Irish Constitution explicitly protected the right to receive information about abortion.

              But yes, it seems clear that companies like LexisNexis are data processors, and that the manner in which they process data about data subjects in the EU can be regulated by EU law.

  3. Your right to be forgotten ends where the other guy’s right to remember begins.

    1. The issue isn’t with anyone’s right to remember, but with people’s right to look stuff up.

      1. Martinned: Well, literally, the issue isn’t with anyone’s right to be forgotten, either (no court can actually order someone to forget, at least with current technology); it’s with people’s right to require others to take down material (and not repost it). I assume TwelveInchPianist was working with the figurative “right to be forgotten” usage, and coming up with a figurative “right to remember” usage on the other side, no?

        1. “At least not with current technology.” Hmm, do you know something we don’t? That seems kinda ominous.

          1. Sorry, quote was a bit wrong, but the gist was correct…. MY bad.

        2. This is correct, thank you.

        3. And my point was that right to be forgotten cases like Google Spain are usually about search engines, not about taking things down from websites.

          1. “And my point was that right to be forgotten cases like Google Spain are usually about search engines, not about taking things down from websites.”

            They’re about taking down certain search results from websites. That’s literally “taking things down from websites.

            1. I’m sorry, but the distinction between the data processing that goes on behind the scenes, that makes Google’s search results page possible, and the publication of the search results itself can be confusing.

              You understand that a Google search results page doesn’t exist until someone enters a search and the magic algorithms do their thing? So the effect of data protection law is to regulate those algorithms, which affects what will ultimately be published on the search results page, but not by taking something that was originally on that page and removing it.

          2. But many websites themselves have search engines. The NYT lets me search for any article ever published by the paper. Does that mean that the New York Times is allowed to maintain the existence on its website of a story about a person, but not to allow it to be seen if somebody searches the New York Times for it?

  4. This is clearly the right result as a matter of US law, since there is no right to privacy under US law.

    Since various people have mentioned the GDPR, it might be worth clarifying that the right to be forgotten is not something legislated for in the GDPR. It was recognised by the ECJ in its Google Spain case (Case C-131/12), interpreting the old Data Protection Directive in light of art. 7 and 8 of the Charter of Fundamental Rights.

    You’d think that a website full of libertarians would sympathise with the desire not to live in a totalitarian surveillance state…

    1. ?? Sure, nothing totalitarian about the government telling websites what they can and cannot publish. Especially outside the territory.

      1. Sure, your version of Ayn Rand is totally a better basis for policy than a century of actual experience with totalitarianism.

        1. Sure. Similarly, I feel qualified to lecture my wife about have to avoid car accidents, because I’ve been in many more car accidents than her.

    2. Martinned: Whatever the merits of some kind of privacy rules might be, I can’t see how restricting public access to court opinions — or archived newspaper articles — helps prevent “a totalitarian surveillance state.” Certainly the misdeeds of the totalitarian states I’m familiar with, European or otherwise, weren’t materially facilitated by this sort of public access.

      Again, I can imagine some privacy rules helping prevent the creation of a totalitarian surveillance state (though I’m not sure about that). I can imagine a “right to be forgotten” preventing some other bad things (though I think it will on balance do more harm than good). I’m just saying here that, whatever good it might do, helping fight tendencies to a future totalitarian surveillance state doesn’t seem to me to be one of its virtues.

      1. I think present day American society shows vividly what happens when you treat ex-cons as lifelong lepers. Recognising their right to privacy with respect to past criminal convictions (or the other way around: stopping public and private authorities from surveilling people’s criminal histories) helps people rebuild their life and prevents the emergence of a permanent unemployed/criminal underclass.

        To the extent that your point hinges on the distinction between a surveillance *state* and surveillance more generally, I think you’re underestimating the extent to which all sorts of fascists and other totalitarians have enlisted the help of private organisations to surveil the population and keep everyone in line. Remember who it was that was keeping an eye on Havel’s greengrocer: not just the Party, but also his customers and competitors. Note how Tommy Robinson’s thugs are beating up the Enemies of Brexit so that Farage and Johnson can keep their hands clean, just like the SA did for Hitler and Clodius did for Caesar. Note how Google and other GAFAs loyally serve the Chinese government. You don’t prevent a totalitarian surveillance state by making laws that only constrain surveillance by the state.

        1. 1. Whatever one might say about the justice or injustice of refusing to hire people with criminal convictions, keeping conviction records publicly accessible is very far removed from “totalitarian,” it seems to me.

          2. Likewise, whatever one might say about surveillance by private organizations of people based on their views (e.g., blacklists of alleged Communists, white supremacists, anarchists, opponents of gay rights, etc.), I don’t see how public access to the records of criminal convictions — and to news stories about convictions — facilitates “totalitarian surveillance,” whether “state” (the term you used) or private.

          There are many things that might be wrong in various ways (though I don’t think public access to criminal justice records is one of them); but only a very few of them are “totalitarian.”

        2. You ignore the absolute right of citizens to be safe and secure in their homes and in their lives. Criminals rarely, if ever, reform. They are always looking to commit their next crime. I have the right to know if my neighbor has been convicted of a sex offense, or if the school bus driver was convicted of driving while intoxicated, or if my accountant has been convicted of embezzlement.

          Criminals don’t want to “rebuild their lives”, they want to commit more crimes. My right to safety always trumps their “right to privacy.” If you don’t want to be part of the “criminal underclass”, then don’t commit a crime in the first place.

    3. This is clearly the right result as a matter of US law, since there is no right to privacy under US law.

      That is not exactly correct. The issue, rather, is that under US law, information related to, e.g., one’s interactions with the judicial system, or things that were once newsworthy, are not ever deemed “private.”

  5. The weird thing about this situation is that there’s nothing in the underlying opinion that he’s seeking to have “sealed”¹ that’s actually interesting. You can usually read an opinion in a case like this and say, “Well, he’s not entitled to that relief, but I can see why he wants it.” Here it’s not just clear why he feels the desire to suppress an innocuous opinion.

    ¹I put that in quotes because suing Justia, which is what he’s currently doing, is not actually about sealing.

    1. Well, it’s less weird now that I did a dive into PACER wrt Bonner. He isn’t a guy trying to suppress an opinion because it’s actually harmful to him; he’s just, shall we say, reality-challenged.

  6. “Plaintiff is proceeding pro se…”

    You don’t say!

  7. I know this will come as a surprise, but Bonner has also filed suits in federal court against the CIA and “Walt Disney.”

  8. We dealt with such requests frequently during my time at the LII. Very often the complaints were reasonable ones — they came from people who were not parties to the case, and were mentioned only at the margins of the story or reasoning in the opinion. I had a lot of sympathy for them — they were often collateral damage caused by a judge whose prose was wandering. We published opinions of the Supreme Court, the NY Court of Appeals, and the Circuit Courts, so they were not nearly as sensitive to privacy issues as what you’d find in, say, Family Court, so our encounters with this were relatively few. But I would say that the majority were, in fact, objections by people who never should have been mentioned in the first place. It’d be interesting to know how often that happens. That said, judicial proceedings need to be open.

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