The Volokh Conspiracy

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Free Speech

Posting Public Records Can't Justify Anti-Harassment Order

So holds the Washington Court of Appeals.


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 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.