Free Speech

Posting Public Records Can't Justify Anti-Harassment Order

So holds the Washington Court of Appeals.

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The case is Catlett v. Teel, a precedential decision handed down today by the Washington Court of Appeals (written by Justice Stephen Dwyer, joined by Judge John Chun and Chief Judge David Mann). The Pennsylvania Center for the First Amendment and I filed an amicus brief in this case—many thanks to our superb local counsel, Hyland Hunt; to my students Tanner Laiche, Rachel Levin, and Caleb Mathena, who worked on the brief; and to Scott & Cyan Banister for their generous support of our First Amendment Amicus Brief Clinic.

From the court's opinion:

Robert Teel appeals from the entry of an antiharassment protection order that restrains his behavior. The protection order was based solely on Teel's actions in causing public records to be published—a right that is protected under both the United States and Washington Constitutions.

Accordingly, the protection order is invalid under chapter 10.14 RCW, which provides that an antiharassment protection order cannot be based on actions that qualify as constitutionally protected speech. In addition, the protection order imposes an unconstitutional content-based restriction and serves as an unconstitutional prior restraint on Teel's speech….

Robert Teel and Annemarie Catlett were involved in a romantic relationship that ended in March 2017. In April 2017, a deputy from the Island County Sheriff's Office telephoned Teel to inform him that Catlett did "not want him to come around" anymore. Teel subsequently availed himself of a website entitled MuckRock.com to make a request for public records concerning Catlett from the Island County Sheriff's Office.

MuckRock is a third party Internet service through which users can initiate public records requests. By default, the requests and returned records are made publicly available on MuckRock's website. However, users can check a box to "Embargo" the requests and records, making them private.

Teel used MuckRock to submit [various] public record requests about Catlett, and also one "regarding a convicted felon named Terry Martin. Teel later testified that he had suspected that Catlett and Martin had been engaged in a money laundering scheme." The request about Martin produced some information that also mentioned Catlett: "This document stated that Catlett and Martin were romantically involved and that Catlett telephoned the Island County Sheriff's Office to report that Martin had been harassing her." The posted "court documents regarding Martin's conviction for fraud were imbedded in Internet hyperlinks that contained records about Catlett."

Catlett [eventually] filed a petition for a protection order. In the petition, Catlett asserted that Teel had been stalking and harassing her. [Details of other, limited interactions between Teel and Catlett omitted, because the harassment order wasn't based on them. -EV] … [T]he superior court concluded that Teel's actions in "making multiple public records requests … as to have them appear when Ms. Catlett's name was searched on the internet" constituted unlawful harassment [and entered a protection order as a result]. Additionally, the superior court awarded attorney fees to Catlett….

Courts can enter protection orders upon finding that "unlawful harassment" exists: "At [a] hearing, if the court finds by a preponderance of the evidence that unlawful harassment exists, a civil antiharassment protection order shall issue prohibiting such unlawful harassment."

"Unlawful harassment" is defined, in relevant part, as "a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose." Thus, "unlawful harassment" requires a finding of a "course of conduct." …

[T]he statutory definition of "course of conduct" expressly excludes from its ambit constitutionally protected free speech:

"Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. [It] includes, in addition to any other form of communication, contact, or conduct, the sending of an electronic communication, but does not include constitutionally protected free speech….

The Court of Appeals held that the order was unjustified:

The [U.S.] Supreme Court has explained that the publication of public records is protected speech under the First Amendment…. [T]he Washington Constitution provides [even] broader protection than does the First Amendment to the publication of public records…. "Const. art. 1, § 5 guarantees an absolute right to publish and broadcast accurate, lawfully obtained information that is a matter of public record by virtue of having been admitted into evidence and presented in open court." …

When information enters the public record—regardless of how that occurs—the public generally has access to that information pursuant to the Public Records Act. It is true that an individual's right to privacy may sometimes prevent the initial disclosure of certain types of information. However, an individual's right to privacy cannot prevent the publication of information that has previously been lawfully disclosed….

Here, Teel initiated public records requests concerning Catlett and Martin and, as a result, MuckRock received the records and published them on its website. These public records contained numerous police reports and court documents, including (1) reports detailing Catlett's behavior that led to her arrest for harassment and domestic assault, (2) a restraining order against Catlett, (3) an incident report stating that Catlett should be evaluated by a mental health professional, (4) an incident report stating that Catlett and Martin were romantically involved and that Martin harassed her, and (5) court documents regarding Martin's fraud conviction.

Because the public records that Teel caused to be published are all police reports and court records, Teel's actions enjoy protection under the First Amendment.  To be valid under the First Amendment, then, the protection order must be "narrowly tailored to a state interest of the highest order." Although we have stated generally that "[p]rotecting citizens from harassment is a compelling state interest," the question presented to us is whether the specific protection order entered against Teel is narrowly tailored to further a compelling state interest. It is not…. [A]n individual does not have a privacy interest in public records that are lawfully subject to disclosure pursuant to Washington law….

{Even if the government had unlawfully disclosed the contested public records to Teel— which it did not—Teel's right to publish these records might still be protected under the First Amendment. Indeed, "where the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release." Florida Star v. B.J.F. (1989). In such a circumstance, "it is most appropriate to assume that the government had, but failed to utilize, far more limited means of guarding against dissemination than the extreme step of punishing truthful speech."}

Indeed, … [t]he Public Records Act states that "the policy of this chapter [is] that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others." Undoubtedly, the publication of public records that are already subject to disclosure encourages the free and open examination of such records by making them even more accessible to the public. Thus, by restricting Teel from publishing public records, the protection order is directly at odds with the policy of the Public Records Act. The protection order is not narrowly tailored to further a compelling state interest. Therefore, it is violative of the First Amendment [and of the Washington Constitution]….

Catlett asserts[ that] Teel's actions in causing public records to be published did not constitute constitutionally protected speech because it harassed her. However, "'[t]here is no categorical "harassment exception" to the First Amendment's free speech clause.'" … [S]peech that harasses does not lose its constitutional protection by virtue of that fact alone….

Catlett [also] asserts that Teel's actions in causing the identified public records to be published is not constitutionally protected speech because it constitutes libel…. Catlett does not contend that the information contained in the identified public records was false. Instead, she asserts that, because documents regarding Martin's criminal proceedings were imbedded in Internet hyperlinks to records concerning her, an individual visiting these hyperlinks might believe that Catlett was involved in Martin's criminal behavior. However, in determining whether a statement is defamatory, we are "bound to invest words with their natural and obvious meaning, and may not extend language by innuendo or by the conclusions of the pleader." … Because Catlett does not contest the veracity of any of the individual public records, Teel's actions in causing them to be published does not constitute libel.

The court also held that the protection order implicitly restricted future similar speech by Teel, and therefore "imposes an unconstitutional content-based restriction on his speech":

By design, protection orders entered pursuant to chapter 10.14 RCW prohibit conduct that is logically connected to the conduct that serves as the basis for the order. RCW 10.14.080(3) ("[I]f the court finds … that unlawful harassment exists, a civil antiharassment protection order shall issue prohibiting such unlawful harassment.").  Because the protection order was based solely on Teel's actions in causing public records about Catlett and Martin to be published, it prohibits Teel from publishing public records about Catlett—and to some extent Martin [to the extent they mention Catlett]—in the future. In other words, the protection order imposes a content-based restriction by preventing Teel from publishing public records on certain topics—namely, those concerning Catlett and Martin.

This content-based restriction is not narrowly tailored to promote a compelling governmental interest [for reasons largely mirroring those given above -EV] ….

And the court held it was an unconstitutional prior restraint:

[T]his prior restraint is plainly unconstitutional under article I, section 5 [of the Washington Constitution]. "[U]nlike the First Amendment, article I, section 5 categorically prohibits prior restraints on constitutionally protected speech." …

This prior restraint on Teel's speech also violates the United States Constitution. To be valid under the First Amendment, a prior restraint "first, must fit within one of the narrowly defined exceptions to the prohibition against prior restraints, and, second, must have been accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech." The exceptional cases permitting prior restraints include prohibitions against obscenity, incitements to violence, and restrictions during times of war. Near v. Minnesota (1931). No recognized exception applies here.

Sounds quite right to me.

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  1. How does this contrast with protections against libel?

    A common tactic I’ve seen is have several people make false and fictitious complaints to the police at which point these allegations become public records which the defamed person can not rebut.

    1. What makes that tactic “common”? How many times have you seen a conspiracy to defame a person? The conspirators should be jointly and severally liable to their victim for that kind of defamation, and a final court judgment on the issue would support a permanent injunction against their repeating the defamation.

      1. Not if the police department refuses to publicly release the names of the conspirators.

    2. A common tactic I’ve seen is have several people make false and fictitious complaints to the police at which point these allegations become public records which the defamed person can not rebut.

      No, you haven’t.

  2. A minor quibble with the opinion is that it conflates “harassment” in a more general, ordinary meaning of the term – behavior that is annoying – with “harassment” in the specialized legal sense – threats, denial-of-service attacks or similar repeated unwanted contact attempts, and other behavior that falls outside First Amendment protections.

    I have generally thought that the First Amendment is slightly narrower than Professor Volokh would have it, particularly regarding intentional behavior directed at an individual that is repeated and annoying beyond a certain threshold. I would use an analogy to denial-of-service attacks to say that people can say annoying things about others, but can’t do annoying intrusions that targets can’t ignore and that disrupt their lives, even if they aren’t true threats or similar.

    But I agree that publishing embarassing public records on a web site, while annoying, is protected even under a slightly narrower conception of First Amendmnet protection.

    1. It’s the statutory definition of harassment. “… which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose.” The problem isn’t the court’s use of the term as being close to colloquial definition, it’s that the statutory definition is sharply limited by the First Amendment and First Amendment jurisprudence. Which is why nonsense like the trial court’s decision is allowed to proliferate.

      Great decision Eugene. We need more cases like this.

  3. Curious about something which is probably none of my business, but I’ve seen it several times and it makes me curious about how academia handles side projects like this. Does it count as research?

    “thanks … and to Scott & Cyan Banister for their generous support of our First Amendment Amicus Brief Clinic.”

    What kind of support is actually needed? Filing fees? Air travel sometimes / normal times? Surely not bribing clerks 🙂

    1. Professor Volkokh runs a First Amendment climic, a kind of practicum course, at UCLA. As part of the course, students identify file amicus curiae briefs in pending cases.

      This brief was filed as part of the student First Amendment clinic. Professor Volokh identifies the students who worked on the brief, as part of their coursework in his class, in the post.

    2. You are quite correct that bribes to clerks come from a separate account would of course never happen. Our expenses include:

      • fees for pro hac vice admission,
      • filing fees (rarely),
      • copying and printing costs,
      • travel expenses for the students and me to cases where I present oral argument, or the (regrettably rare) cases where students do.

      The travel expenses are the main cost, though pro hac vice admission can be up to $1000 in some jurisdictions, and more commonly $300 to $500 or so. These have naturally declined during the pandemic, and might continue to be lower as more courts continue with Zoom arguments, but they have been quite substantial for some arguments in the past.

      1. Thanks. I’ve never been part of academia, was a lousy student, spent all my time poking around libraries and learning what I wanted instead of what the staff wanted 🙂 Not much experience with it in a long time.

  4. “a deputy from the Island County Sheriff’s Office telephoned Teel to inform him that Catlett did “not want him to come around” anymore.”

    She also wanted to convey that she didn’t feel him any more, and that whatever he was looking for, he should give it up.

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