The Volokh Conspiracy

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Free Speech

Attempted Vanishing of Online Posts, All the Way Down

Don Lichterman was convicted of forgery; I wrote about it. Someone using his name tried to get Google to vanish my article; I wrote about that. Now someone is trying to get Google to vanish that later article -- and to vanish online court records that refer to Mr. Lichterman's case.


Back in April 2017, I blogged about a federal forgery prosecution (here's the Reason paywall-free version of the original Washington Post blog post):

Don Lichterman, who runs some small independent music labels (Sunset Recordings and some related companies), was sued for copyright infringement (Abshier v. Sunset Recordings)—and got so upset about what he saw to be libelous statements about him made as a result of the lawsuit that he forged a libel takedown order to send to WordPress, which hosted the blog that contained the statements. Lichterman was caught and prosecuted for forgery (U.S. v. Lichterman), and eventually pleaded guilty.

Earlier this month, I learned that someone has been trying to get Google to deindex that very post (i.e., keep it from showing up in search results, for instance when someone is Googling "Don Lichterman"), so I blogged about it. Now I see that someone, again using Lichterman's name, is trying to deindex my original Washington Post blog post, the Reason archives copy of that post, and my new Reason post (see this Lumen Database copy of the takedown request). Indeed, that person is also trying to deindex three online copies of court dockets, at PacerMonitor, CourtListener, and PlainSite; two refer to Lichterman's forgery prosecution, and one to the Abshier case that indirectly led to the forgery. (See also this takedown request.)

Now what could be the basis for this request? It's not a court order requiring the removal of various pages; such an order would be unconstitutional, but in any case no such order exists. Rather, it's an order from the forgery case that states, in relevant part,

The Court has received the attached letter from the defendant. The letter states that certain documents should be filed under seal, but notes that the sentencing transcript is not filed under seal.

The Court was never asked to, and did not, file the sentencing transcript under seal. In any event, there was no basis to seal the sentencing transcript.

The Court did order the Pre-Sentence Report, and the Sentencing submissions fron the parties to the Court, to be filed under seal, and they were so filed.

The Court also told the parties to file their submissions in the record not under seal after redacting any personal identifying information.

The record reflects that the Government submission was so filed. Defense counsel should also ensure that its subnission is filed in the record not under seal, after redacting any personal identifying information.

There is no basis for any other action by the Court.

And the "explanation of court order" accompanying the deindexing request says,

deletion or redaction of 'all personal identifying information' (Don Lichterman) and therefore the name itself must be stricken from all documents and from your network.

But of course the court order says nothing about deleting or redacting "all personal identifying information" generally: Rather, it notes that the prosecution and the defense were ordered to file their "Sentencing submissions" (the referent of the word "submissions" in the next paragraph) "after redacting any personal identifying information."

Nothing orders anyone, whether the parties, the court, or anyone else, to redact Mr. Lichterman's name or other information from any other document. Indeed, the Criminal Complaint to which I linked in my posts remains unsealed and unredacted in the court records (because it's not one of the sentencing submissions). Likewise, the dockets at PacerMonitor, CourtListener, and PlainSite are drawn from court dockets that continue to include Mr. Lichterman's name. The order offers no basis for deindexing anything, either as a matter of legal obligation or as a matter of respect for a court's legal or factual ruling. (Google sometimes deindexes pages that have been found by a court to be libelous or otherwise legally actionable, but there is no such finding here.)

The Google people understand this, I think; they haven't deindexed any of this material, and I expect that they won't. But someone seems to be pushing the contrary view. If you ever get takedown requests or deindexing requests based on theories like this, be skeptical.

UPDATE: Tim Cushing (TechDirt) also wrote on this matter.