Free Speech

Anything You File in Court Can and Will Be Used Against You by People Who Google Your Name

A future Miranda warning for litigants? "I wish the SDNY pro se clinic had made me aware that many third-party commercial services download court documents ... and publish this information on the internet."

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In Nago v. Bloomberg L.P., decided Apr. 30 by Magistrate Judge Ona T. Wang (S.D.N.Y.), plaintiff asked for "an order to seal the records" of this case, which had been settled and voluntarily dismissed:

Plaintiff expressed feelings of embarrassment and concerns regarding future employment related to the fact that his case information and documents are publicly accessible. While the Court understands Plaintiff's concerns, Plaintiff has not overcome the strong presumption of public access to judicial documents….

Even construing Plaintiff's pro se submissions liberally, the Court finds that Plaintiff has not met his burden of justifying sealing the case records. Step one of the Second Circuit's test [for public access to court documents] is easily satisfied: sealing the case file would result in sealing numerous judicial documents, including pleadings, that are both "relevant to the performance of the judicial function and useful in the judicial process." The fact that this case has settled does not change the analysis.

As to step two, because Plaintiff seeks to shield all case records from the public eye, the presumption of public access has "extraordinarily substantial weight." The "need for the public to be able to evaluate a case does not dissipate once the case is over," and the public simply "cannot evaluate a case that is sealed in its entirety."

Lastly, while the Court understands Plaintiff's desire to seal case records due to social embarrassment and concerns regarding future employment, these justifications are legally insufficient. This Court has repeatedly held that "[t]he potential for a negative impact on a party's future business or social status does not outweigh the presumption of access." Saadeh v. Kagan, No. 20-CV-1945, (PAE)(SN), 2021 WL 965334 (S.D.N.Y. Mar. 15, 2021) (refusing to seal complaint and collecting cases); see, e.g., Zabolotsky, 2021 WL 106416, at *3 (denying motion to seal case file "for the sake of [plaintiff's] livelihood and professional and personal reputation" because "[i]t is well-settled that neither generalized concerns of adverse publicity nor the possibility of future adverse impact on employment outweigh the presumption of public access") (internal quotations omitted); Badinelli v. Tuxedo Club, No. 15-CV-06273 (VB), 2018 WL 6411275, at (S.D.N.Y. Dec. 6, 2018) (refusing to seal case records, finding plaintiff's "interest in privacy, professional reputation, and earning capacity" did not "outweigh the interest in public access to the record"); Under Seal v. Under Seal, 273 F. Supp. 3d 460, 467–68 (S.D.N.Y. 2017)) (lifting seal and emphasizing that "[a] possibility of future adverse impact on employment or the celebrity status of a party is not a higher value sufficient to overcome the presumption of access to judicial documents") (internal quotations omitted). {[And e]ven if the Court granted Plaintiff's motion to seal the case records, the case name and existence of the litigation would still be public.}

And here is the heart of the litigant's letter motion to seal:

You may remember that I filed the above matter pro se and appeared before you in court. The involved parties agreed to a settlement and the case was subsequently dismissed voluntarily. I am writing to seek your order to seal these case records for the following reasons.

I wish the SDNY pro se clinic had made me aware that many third-party commercial services download court documents containing sensitive personal information (information provided solely for the purpose of participating in a vital government service) and publish this information on the internet. Internet search engines have powerful algorithms that are very adept at finding and presenting this information in search results.

I was embarrassed to learn from someone I had just met that the top search result for my name is Case No.: 19-CV-11483-GBD-OTW. After contacting as many of the websites as I could, and Google Search multiple times, to request that the information be removed, this settled case is still the top search result when my name is searched on the internet at this time. Google requires a court order to remove the content and refers me to the website owners for redress. Some of the websites have flatly refused my request without a court order.

Currently, it is common practice for potential employers, HR recruiters and hiring managers to perform internet searches on potential candidates to discover red flags that may eliminate individuals from employment consideration. Potential litigation is one such red flag that can be a decisive eliminatory factor when similarly qualified candidates are being compared. As such, I am arguing herein that I have an overriding interest which is the protection of my ability to obtain employment and thereby earn a fair living. This overriding interest warrants an order to seal the records of this case.

While acknowledging the longstanding First Amendment protection of freedom of the press which I believe underpins the precedent and practice of making civil court records available to the public, I would like to point out that technological changes—namely the internet and internet search algorithms—give nearly instant, easy access to anyone, absent of any legitimate or journalistic interest, to sensitive personal information in unsealed court records. I argue that currently there is no party with any journalistic or legitimate interest in this settled case who would object to the sealing of these records. If such party should materialize in the future, they may petition the court to have these records unsealed.

The court's decision was legally correct, and I think the legal rule is sound: "Once a matter is brought before a court for resolution, it is no longer solely the parties' case, but also the public's case." Public access to information about the case is necessary because the case leads to coercive orders (whether injunctions or damages awards) that are issued in the public's name and using government power. And it's also necessary so the public can monitor what judges do in the cases. Secret justice is less trustworthy justice.

At the same time, the easy searchability of court records can indeed be bad for litigants' career prospects, and can discourage people from filing even meritorious claims. Perhaps there are ways of dealing with these problems (e.g., some sort of pseudonymization, coupled with the ability to link the pseudonym to the real person's name but with some degree of extra work required for that); but for now, at the very least, litigants should be aware that things they file in court will likely become broadly publicly available.

NEXT: Today in Supreme Court History: May 31, 1860

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  1. idk, seems to me that the embarrassment is the embarrassment of getting caught. Hiding the fact that one sued (by sealing records) seems to me to me misleading prospective employer (at best).

    Keep in mind that the “red flag” works two ways. Any reporter or blogger can also go on the internet and find a pattern of certain kinds of lawsuits.

    Also, this case may be yet another warning not to go pro se: a lawyer might have advised a different routes, which might have included an out-of-court agreement with a non-disclosure. Those are not reachable by internet search. yeah, they might have taken a cut of the settlement, but what’s the present value of your future income once you air your dirty laundry in court?

    1. “pattern of certain kinds of lawsuits” involving the company.

    2. Not every case filed involves some embarrassing situation.

      There are thousands of cases filed every year to obtain Social Security disability benefits. The filing of the case and the ultimate decision that discloses scads of personal medical information is an increasing issue in even deciding whether or not to file a claim that a person believes is meritorious and the ability to file such suits is the greatest check on the unelected bureaucracy of the Social Security Administration.

      Changing the name of the case to using initials rather than full names was proposed on a voluntary basis by the Judicial Conference of Federal Courts in 2018. Not a perfect fix because names can still be found if the full name remains in the docket, but better than what we have now.

  2. And if you google my spouse, the top result is a 25 year old bullshit arrest on charges that were dropped the following day. Employment opportunities have in fact been lost because of it.

    I agree that the result here is legally correct. As a matter of public policy and what the law should be, it strikes me that permanently depriving someone of the ability to fully participate in the market over stuff that either happened a long time ago, or is really no one else’s business, implicates public concerns that are at least as great as the public’s right to know. Before the internet, people could simply move on; now that is much more difficult. And if people who have been injured will now be deterred from filing lawsuits seeking redress, well, that’s a pretty big problem too.

    There has to be some kind of balance. If you’re Charles Manson, that should be forever. If you were injured and filed a lawsuit, that’s different. I’m not sure exactly how to strike that balance.

    1. a 25 year old bullshit arrest should be expungeable.

      1. The issue, I presume, isnt expunged it from court records, the issue is getting whatever journalist to write up the bullshit arrest to retract the article writing up the bs arrest

      2. AC is right; the issue is an article that appeared in the local newspaper, not the court records.

        But be that as it may, there’s a long list of things that can land you on the Internet through no fault of your own that can prove financially destructive or embarrassing and that are nobody else’s business. Someone who has been the victim of a violent crime, including domestic violence, might want to move on, which includes allowing it to be forgotten. Someone who was the victim of a scam might not want the whole world to know about it, and may then be put to a choice of not suing the scam artist or taking a reputational hit. In the bad old days, it use to be that in sensational criminal trials, the names and addresses of jurors were published in the newspaper; fortunately those days are over but it illustrates how ripe for abuse the system is.

        Again, I think there somehow needs to be a balance but I’ll candidly admit I haven’t been able to figure out what it should be.

        1. Agree.

          Does the court’s reasoning apply to a defendant, dragged into court against his/her will?

          And the whiff of frivolity/illegitimacy attaches to plaintiff, no matter how justified the suit was. “Suffer any wrong that can be done you, rather than come here!”

        2. Or someone brings a BS lawsuit against you…

      3. Arrest records cannot be considered when contemplating employment as that is illegal under current non-discrimination laws.

        When I sit on hiring teams that conduct background checks I always advocate against a blanket rule that civil litigation appears and that is to be considered a “red flag” because it is inaccurate and frankly lazy. Most people I know who are home owners and reasonable people have been involved in at least one civil lawsuit, maybe in small claims court, in their adult life. Some slipped and fell on a crack on your sidewalk? Well, that is enough. Had to sue an insurance company that refused to pay out properly for that automobile accident? Happens probably in 1/10 cases. On the flip side, ever got into a fender bender and the other occupants all the sudden have back injuries? I know more than five people who have been in that situation.

        If you conduct background checks that include civil litigation then it is your duty to at least pull the pleadings and see what the lawsuit was about along with (a novel idea to most) ASKING the applicant about it if there is a legitimate concern. The problem here isn’t courts need to seal the records or legislatures need to provide an avenue to do so. Hiring managers and companies need to just get a little less lazy.

    2. “And if you google my spouse, the top result is a 25 year old bullshit arrest on charges that were dropped the following day. Employment opportunities have in fact been lost because of it.”

      That sucks, but it doesn’t change the fact that employers are best able to make decisions about what facts are relevant to their decisions, even if they sometimes make bullshit decisions.

      We don’t want the government deciding what information people should and shouldn’t have access to.

      1. The best way to handle the problem of people finding out about bullshit arrests is to make police accountable when they make bullshit arrests.

        Then you have fewer bullshit arrests, and the harm of people knowing about the arrest is mitigated by people knowing that the cop who made the bullshit arrest was punished.

      2. Yes and no. In general I agree but I think there’s an outer limit to it. What if an employer decides to try to hold down health insurance costs by requiring all manner of invasive medical tests — colonoscopies, urine samples taken directly from the bladder by means of a catheter, etc. Or all your credit card statements and bank records for the past five years. Or maybe install a security camera inside your house so the employer can satisfy itself that you’re not engaged in illegal or other unsavory activities. Or maybe if you’re divorced copies of everything you gave your attorney. I can argue a business rationale for all of those things, but at some point the cost to the individual is just too high, and the link to a valid business reason is just too tenuous.

        I’m not sure where that line gets drawn, but I do think it exists.

        1. Didn’t you hear? Free markets are the answer, as they are the answer to all questions. The would-be employee can simply go work somewhere else. [/sarc]

          1. You were doing so well up until the closing tag. An employer requiring pre-employment catheters is going to be paying people a hell of a lot of money.

            But the solution to the larger problem is to separate employment from health insurance.

            1. Do yourself a favour, and google monopsony labour markets.

              1. Because imperfect competition always leads to catheters? That’s an economic theory I’m not familiar with.

                And in any event, the monopsony is caused by BOE’s like … wait for it … requiring employers to provide health insurance.

              2. Do yourself a favour

                Given your long and fairly consistent track record of posts that betray a fundamental ignorance of the topics on which you comment you might want to dial back the pompous arrogance a bit.

      3. 12″
        Unfortunately, K_2’s story speaks more to the sorry training of most people who perform interviews and make hiring decisions.
        Almost anything done more than 10 years ago is irrelevant to job performance now absent a compelling trail of subsequent action.

        It is the job of police to make arrests even of questionable items. Better to blame the journalist who troll the gutters from scraps of excrement.

    3. If your wife had been arrested for burning down a store for BLM, employment opportunities would have been enhanced. Some arrests are woke. Kill a police officer, get book opportunities.

    4. > I’m not sure exactly how to strike that balance.

      Maybe something like the right to be forgotten in the EU?…

  3. He wishes to remove his case from search results so prospective employers won’t know he has sued in court because it is embarrassing. Perhaps he sued an employer and future prospective employers think that might make him a troublemaker, and perhaps they don’t think it worth the hassle of delving into the details to to guess whether he’d sue them too.

    But I bet he’d be upset if businesses tried to seal court records of their lawsuits against former employees.

    He also wishes the pro se clinic had warned participants that the results of their lawsuits would be public knowledge. I wonder what else he does in public which would embarrass him if he knew it was public. Perhaps he needs to live a more exemplary public life in general.

  4. Again liability should go to the misusers of the information. If the business is to sell pvc pipes, but the contract is lost due to sex allegations, liabilty is with the customer. Sex allegationd are irrelevant to the pipe business. They represent sex based discrimination. They violate the Civil Rights Act.

    1. You are going to sue the customer for not doing business with you?
      I worked sales in a geography that customers were well know to only do business with persons of a specific church congregation.

      1. Eastern Idaho? (Utah is the easy answer, but TBH I’ve heard that the Mormons in Idaho Falls and other Eastern Idaho cities are even tighter in hiring and doing business with other LDS members.)

      2. Customer should restrict decision to business factors. If a customer says, no blacks, no Jews, no females need apply, those are not business factors. Would the Civil Rights Act apply?

        1. Someone said, looked up the applicant who sued a prior employer. That is a relevant business consideration, higher risk of ruinous litigation. You could then say, this harasser will grab our female workers getting us sued. I don’t have a good answer.

          Police were fired for Facebook post of racist opinions. They should be fired only for discriminatory actions on the job.

        2. “Customer should restrict decision to business factors. ”
          Customers are welcome to consider any factor, rational or irrational, that the like.
          They may or may not be right, but they remain the customer.

        3. Would the Civil Rights Act apply?

          No. A customer is not a public accommodation.

          1. How about an interviewer for an employer, or a federal agency contract officer, or a police internal affairs investigator, or an executive committee choosing a law firm partner, or a church, a dating service?

            1. How about it?

              The law is pretty clear what a prospective employer may ask. A prospective employee can say anything at his/her own peril

  5. Yeah, this comes up from time to time and for me its just … like I have no idea what to do about this. Public access is important. So is the ability for people to move on, even if they truly did do something wrong. The first amendment protects the former. The latter ought to be defended as well, but how to do that … *shrugs*

    Expecially now with search engines and the ability to easily gain whatever information you want, combined with the ability to spend falsehoods easily and amplify them with no counter … its somewhat problematic.

    Like as a tech person I find what Europe is doing around tech regulation deeply troubling … yet I understand it.

    Perhaps if we had a more forgiving society this would be less of an issue, but unfortunately our technology and our culture no longer encourages that it seems.

  6. I am utterly unsympathetic toward the plaintiff. These people want to roll back time to “the way it was before the internet” while ignoring that in those days, courts and communities were smaller. Community members and potential employers back then were equally aware of the existence of lawsuits and equally biased against litigious employment candidates.

    This ‘longing for the good ol’ days’ is a longing for a time that never really was. Yes, there was a brief period where communities were too large for conventional gossip but pre-internet. But that’s not the vast majority of our history.

    1. ” This ‘longing for the good ol’ days’ is a longing for a time that never really was. ”

      Words to live by . . . especially for conservatives.

      1. Or reactionaries. And it’s not conservatives that are pushing the incredibly reactionary concept of decolonization.

      2. No, Artie, time is moving far too slowly for me. Can’t wait for the re-election of Trump after the Republican Party backs up the trucks at 3 AM with the freshly printed ballots with votes for Trump. All agents of the Commie Party will then be cancelled.

        1. The Orange Clown is never going to be re-elected. And they more he works at it, the more likely it is the the R’s will never again have a POTUS or majority in either house of Congress

          1. That theory gets tested in 2022. Even dumb woke jurisdiction may realize their votes are relared to the violent hellscapes they are now inhabiting. Even blacks may realize, vote for a black, and it’s, welcome to Detroit. For the past 700 years, there has not been a successful black run jurisdiction. Do not bring up that dirty Commie traitor, Ivy indoctrinated Obama, one of the very worst Presidents, a failed nitwit.

            1. The Orange Clown will remain rotting on the trash heap of history

    2. I overall agree with you. However, a pro see plaintiff does not understand all the implications of what he or she is doing. That is why there is a pro se office in court, to help them navigate the legal system. And why the rule is that pro see pleadings are read liberally.

      I don’t think it is unreasonable for the pro se office to give fair warning that if you file a complaint, it may well show up on the internet forever, if someone puts your name in the search box.

    3. Rossami, if you are serious about what you say, you ought to countenance modification of legal rules premised on, “good ol’ days,” social customs and media realities. Adverse publicity hazards are orders of magnitude greater now than pre-internet—when all the rules you like so much were laid down.

      Today, we have cost free, world-wide publicity, organized by media entrepreneurs who enjoy legal impunity for their publications, and who edit nothing prior to publication. None of that applied when the legal rules about publication of court proceedings were laid down.

      I continue to wonder when it will dawn on EV that the internet publishing revolution really does warrant some changes in laws relating to publication.

      1. “I continue to wonder when it will dawn on EV that the internet publishing revolution really does warrant some changes in laws relating to publication.”

        And there were in fact significant changes in laws relating to publication due to the internet publishing revolution.

        1. TwelveInch, you got that exactly backward. The internet publishing revolution did not begin when the internet began. It began when Section 230 kicked it off. Section 230 caused the revolution, by enabling liability-free, no-editing publishing. The changes necessary now are changes to somehow cope with liability-free, no-editing publishing, and with the quasi-monopolistic business models it enabled Or, if coping proves socially or constitutionally impossible, to get rid of Section 230.

      2. Those changes would be out of date by the time they could be enacted.
        Academics still have not figured out that their open access ideology has spawned a cancer of predatory publishing. You can say similar things about “news” reporting. The advocates seldom think more than 1 move deep.

      3. when all the rules you like so much were laid down.

        The first amendment is not a mere “rule.” it is a fundamental precept of a free society.

        1. Sorry, the First Amendment immunizes a bunch of scams.

        2. DN, nothing in the 1A precludes shared liability among publishers and contributors. I get that you wish that were not so, but as a lawyer you obviously do know it is so. Why do you keep going back to that well?

          Of course, you also continue to write as if you do not understand, or even acknowledge, that my argument is on behalf of press freedom, and not against it. You like to characterize private editing as, “censorship.”

          I insist, at the very least, that government censorship is a far greater burden. You can see as well as anyone that by striking down shared liability Section 230 unleashed a torrent of swill, and called forth in response near-hysterical demands for government censorship. That is the real threat to press freedom, and it is a direct result of Section 230.

          The idea is utopian that there will ever be a long-lasting, stable publishing regime based on unedited, cost-free, world-wide publishing for everyone. Societies will not stand for the consequences. They will demand government censorship. They are already demanding it, as thread after thread on this blog shows—with endlessly repeated OPs exampling government overreach, and endless comments favoring this or that scheme of government censorship for private publishing.

          The alternative—and the only safe-harbor for press freedom—is a return to the previous practice of shared liability among publishers and contributors—which is what Section 230 struck down. Experience has already shown the resulting private editing can accomplish without government interference—and without prejudicing particular viewpoints—the constraints which the public will otherwise turn to government to enforce.

          The right public policy is to return to shared liability, return to private editing, and to discourage monopolistic tendencies in the marketing of advertising. Profusion and diversity among private publishers is the best available protection for press freedom, and the only protection available which does not invite in the heavy hand of government.

          I have made these points again and again, and have never yet got a cogent counter-proposal that was both well-informed about the business of publishing, and free of calls for government intervention against 1A guarantee of press freedom. I am open to modifying my views if such a suggestion can be found.

          1. nothing in the 1A precludes shared liability among publishers and contributors

            Setting aside your longstanding misuse of the word “publisher,” liability for what? We’re talking about posting court documents.

            You like to characterize private editing as, “censorship.”

            No. I like to characterize “private editing” at government gunpoint as censorship. “Liability” is censorship.

            1. Setting aside your longstanding misuse of the word “publisher,” liability for what? We’re talking about posting court documents.

              Finally, you ask a question which engages sufficiently with publishing practice to permit a constructive answer. The answer is, as you know, liability for libel. What you don’t notice, apparently, is the larger beneficial effect that liability enables. It means, in short, that everything published normally gets read by an editor prior to publication. Doing that consumes effort and requires expense. Publishing business wisdom long-since took note that if the effort and expense were inevitable, it would make sense to get more out of them than mere protection against libel suits.

              On that basis, editing to prevent libel led directly to competition among publishers on the basis of content quality—content quality measured on every conceivable axis. That insight is the flip side of noticing that licensing an end to private editing with Section 230 is what unleashed the flood of published swill which now discredits publishing, and makes press freedom hateful to so many new-risen advocates of government censorship of the private press.

              1. The answer is, as you know, liability for libel.

                We’re. Talking. About. Posting. Court. Documents. There is no liability for libel.

                1. Wait. You’re saying it is OK that the Supreme Court told the whole world that Ernesto Miranda was a rapist by publishing their decision? Mr. Miranda couldn’t sue Earl Warren for making Miranda infamous?

                  (Well, accused rapist, later convicted on re-trial)

                  Fun fact, from the wiki article on the case I googled to find his first name: “(after serving sentence following retrial) … he returned to his old neighborhood and made a modest living autographing police officers’ “Miranda cards” that contained the text of the warning for reading to arrestees.” Gotta wonder how that worked. Did the officers knock on his door with a card and a fiver? Mail order?

      4. I continue to wonder when it will dawn on EV…

        I’ll repeat to you what I said to Martinned: Your chronic displays of fundamental topical ignorance don’t support your condescension toward those who are far more well-informed than yourself.

  7. As pointed out above, it’s not just employment. For any kind of interaction it’s interesting to know if the party on the other side is hard to get along with.

    I don’t see a solution. I’m sympathetic to Krychek’s wife’s situation, OTOH if I’m buying a house, hiring a contractor or employee, etc, etc, it’s pretty nice to know if either A)they sue people a lot or B)they get sued a lot.

    For a concrete example, suppose I’m thinking about applying for work at Acme Corp., and I see a large number of ex-employees have sued them for various things. I certainly want to know that, and would consider it a red flag for working there. But each of the ex-employees who sued Acme would individually prefer their names not be involved, lest some employer think they are overly litigious. If you let each of them do that individually, though, then Acme’s history is hidden from view.

    1. For any kind of interaction it’s interesting to know if the party on the other side is hard to get along with.

      Indeed. And especially where the value of, “hard to get along with,” is read to exclude every manifestation of private agency which constitutes personal liberty. Empowering private employers to mistake that kind of reading for a freely-available business advantage seems unwise.

  8. What happens on the web stays on the web.
    Deal with it.

    1. Sure, one way to deal with it is to change the rules governing publishing on the web. Repeal Section 230, for instance.

      1. Can you elaborate on how repealing S230 will stop courts from publishing decisions and other court documents online?

        (if your response is just a pull-the-string-on-Chatty-Cathy thing, unrelated to the post at hand, never mind!)

        1. Absaroka, I am not as familiar with the history of court publishing practices as I would like to be to answer your question. Please correct me if I seem mistaken.

          My impression is that prior to the internet relatively few court filings were actually published, just as relatively few cases were fully published. The effort to go to the courthouse and look up the case in paper files was all the practical protection that anonymity usually required. It was convenient, because cases were public in fact, but, as a practical matter, far more private than today. I am supposing that a return to that practice, coupled with joint liability for publishers and contributors, coupled with private editing prior to publication, would largely recreate those prior conditions.

          Only by reducing the editing burden to zero does it become practical to publish privately the personal information of every nobody who has become willy-nilly a party to a civil lawsuit. The argument could be made that the privilege from liability which attends publishing court proceedings does reduce the editing burden to zero, but it would not in any way reduce the run-and-fetch-it burden, if that remained applicable.

          Maybe that means it would not be possible to run the courts online, if that is in fact what now happens. If it is, I question the wisdom of continuing it. Court transcripts, for instance, are prolific sources of lies—which almost always escape perjury charges. A premise that every lie which gets told in court ought thereby win liability-free publication world-wide strikes me as a premise in need of re-thinking.

          Detailed answers to questions you and others might raise are among the unaddressed needs which I suggest free-speech advocates such as EV ought to be more attentive to. I insist we are long past the time when it was reasonable to assert that the new online publishing world is utopia realized, and nothing major remains to be adjusted.

          1. The careful reader will note that you didn’t answer his question: “Can you elaborate on how repealing S230 will stop courts from publishing decisions and other court documents online?”

            If it is, I question the wisdom of continuing it.

            Of course you do. In every single context, you come out in favor of less speech. But it’s weird how you think that only historians can talk about history, and only newspaper publishers are qualified to discuss publishing, but you know how to run a judicial system despite not being a practicing lawyer.

            Now, though, you not only want to overturn §230 and also eliminate the 1A, but you additionally want to repeal computers. Your argument boils down to, “The Internet makes it too easy to communicate. If there’s more communication, there’s more defamation. Therefore, we need to get rid of the Internet.”

            1. Remember that you’re both arguing with someone who thinks that the metadata collected by his cellular phone service provider, on their equipment, documenting interactions between his phone and their equipment is his private property.

            2. Of course you do. In every single context, you come out in favor of less speech.

              Nieporent, when I call for public policy to promote diversity and profusion among private publishers—as I have done again and again—how is that a call for less speech? In that context, what do you suppose, “diversity,” means? What do you suppose, “profusion,” means?

              1. You call for policy to benefit institutional speech, by limiting individual speech. Your idea is that there should be more editors, but fewer speakers.

                Here, you’re calling for less information to be published about the judicial system.

                And in other instances, you call for censorship of students to benefit schools.

                1. And let’s not forget how you want to silence speakers by narrowing “fair use” in copyright law.

                2. DN, try to be more discerning. You are perhaps correct that I would limit publishing more than you would. I don’t think libel is of no consequence. I don’t think libel should be practiced with impunity. I don’t think copyright law needs to be relaxed to permit all-but-unlimited theft on the internet. So yes, if your preferences are the standard, then I want less publishing opportunity for individuals than you do, at least in cases like those.

                  But my standard of comparison is not you. My standard of comparison is the level of publishing opportunity customarily available to individuals pre-internet. My advocacy is for far more individual opportunity than that.

                  As I see it, the practicalities and economies afforded for publishing by the efficiencies of the internet make achieving that goal look easy. I see only two obstacles likely to obstruct that outcome.

                  The first obstacle is the utopian notion that there is no difference between publication and speech, and that everyone with a keyboard ought to be able to publish anything at all without prior review by anyone else. Society will not stand for the damaging consequences that will deliver.

                  Libel must be off limits, or society will force government to put an end to press freedom. The right method to control libel is the proven, time-honored practice to make publishers jointly liable with their contributors for civil damages. Except for enunciating standards to define libel, and for providing a forum to hear civil cases, there should be no room for government initiative in a libel case.

                  The second problem is any attempt to governmentize publishing, by picking winners and losers, and enabling business models which tend toward monopolization of publishing by a few private companies. That is the Section 230 problem.

                  You seem to support both kinds of obstructive policies. I oppose both kinds.

                  The fulcrum on which our differences balance is the role of government in publishing. I insist that the only safe harbor for press freedom is a vast and thriving national ecosystem of private publishers, representing any and all conceivable opinions.

                  If individual authors and creators are frustrated in their approach to one publisher, they must be free to go to another and try again, with a reasonable prospect for success. Diversity and profusion among private publishers supply that prospect. If denied success, individuals with energy and a desire to do so should be free to set up as publishers themselves.

                  Public policy should be tailored to promote those outcomes. Public policy should not be tailored to perpetuate dominance by a few gigantic publishing businesses, making them the gatekeepers for all the publishing that matters. That is where present policy is headed, to the alarm of almost everyone. Unfortunately, most folks can’t think of anything better as a remedy, except to authorize government to step in. That is how press freedom may die. You seem to be advocating in that direction—I sincerely hope without intent to kill press freedom, but only because you don’t understand the likely consequences of your utopian advocacy.

                  1. “If individual authors and creators are frustrated in their approach to one publisher, they must be free to go to another and try again…”

                    Or even … publish it themselves on the internet that you seem to abhor.

                    (and I’m still wondering how repealing 230 will stop the courts, or anyone else, from publishing public records)

                  2. The fulcrum on which our differences balance is the role of government in publishing. I insist that the only safe harbor for press freedom is a vast and thriving national ecosystem of private publishers, representing any and all conceivable opinions.

                    The only safe harbor for press freedom is press freedom. Everyone with a keyboard ought to be able to publish anything at all without prior review by anyone else. That is free speech. Which is the same thing as free publication. You oppose this. You want censorship. Imposed by government. On the absurd, baseless, ludicrous, self-serving theory that if we don’t have censorship imposed by government then we will have censorship imposed by government.

          2. Let’s be more specific: in your halcyon pre-internet days, You go to the courthouse and get a document – say, a decision. You then widely disseminate true copies of it (by sticking it under windshield wipers, buying billboards, leaving copies on porches, pasting them on telephone poles, buying prime time TV ads, etc, etc.). Now everyone in the country knows about my unfortunate predilection for unnatural acts with toadstools.

            I’m unhappy about you publicizing that and want to take you (or the NYT, or CBS, for publishing your ad) to court. Are you proposing that there be some legal reason I can get damages from you/them for disseminating court records that I would have preferred remain obscure? Or is it just that you preferred a world where, as a practical matter, only the powerful can spread the dirt widely?

            1. Absaroka, your comment is provable nonsense, as a matter of history. We know from experience that people rarely behave as you suggest.

              As for, “the powerful,” if by now you are unable to discern that my arguments are about protecting 1A press freedom against the powerful, it’s your problem, not mine. I have been explicit and repetitive, but deliberately misconstrued again and again, by you and others.

              I will say it again. No one has discovered any safe harbor for press freedom except for diversity and profusion among private publishers. Section 230 has worked systematically against that.

              It remains mysterious to me why so many Volokh commenters refuse to engage on the subject of Section 230, and its malign consequences. It is clear that right wingers do not want that discussed. The stubbornness looks ideological, but there isn’t even the usual surfeit of rationalism to connect all the denials and evasions to any system of thought, let alone to an identifiable ideology.

              The only generalization I can fit to the pattern is that this really is about frustration and resentment from right wingers. News gathering by mainstream media accounts for almost everything they know about the nation’s public life. They prefer to cherish resentment anyway. They wanted the mainstream media brought low. They expected the internet somehow to make that happen. It has not worked out that way. Apparently, it is unbearable for right wing ideologues to be challenged to discuss what went wrong. Utopian dreams die hard.

      2. “Repeal Section 230, for instance.”

        You just said that the internet publishing revolution warrants some changes in laws relating to publication, now you want to repeal the changes in laws relating to publication brought about by the internet publishing revolution?

        1. Question answered above.

          1. Question answered above.

            Not even close.

  9. The Streisand Effect isn’t limited to defamation lawsuits, although that’s one of the situations in which it is most likely to kick in. Indeed, Streisand herself wasn’t a defamation plaintiff, she just wanted the publicly available photos of her property not to be posted on the internet.

    What struck me most about Prof. V’s post is the cogency and clarity of the pro se plaintiff’s submission to the court. He had, and made, a persuasive argument, but the relief he sought was something that the court lacked power or even discretion to grant.

    I’m inclined to think that the proper legislative remedy for this and similarly situated litigants’ plights isn’t using the power of the courts and the civil government behind them to rewrite history or hide what’s in court records. Rather, as with free speech that one finds repulsive, the best available remedy is probably more free speech designed to make the counterargument.

    Presumably, for example, this former plaintiff’s letter-motion to seal is now part of the court records available directly through the court’s clerk and indirectly through on-line services that mirror them in readily searchable form. Although it was written in an unsuccessful effort to seal the court’s records about this matter that he initiated, his letter nevertheless gives the outside reader — tomorrow’s prospective employer or other concerned investigator — additional useful context, and does the writer considerable credit.

    Perhaps our legislatures (state and federal) should regularize, and write into the rules of civil procedure, formal methods to ensure that this sort of additional context can be made available on a routine basis. Professor Volohk, you could turn this into an upper-class seminar project for your students!

    1. the best available remedy is probably more free speech designed to make the counterargument.

      Good luck arguing with Google’s algorithm…

    2. Although it was written in an unsuccessful effort to seal the court’s records about this matter that he initiated, his letter nevertheless gives the outside reader — tomorrow’s prospective employer or other concerned investigator — additional useful context, and does the writer considerable credit.

      Maybe. But I think most would-be employers see this, and think, this person is a pain in the behind. If I hire her, we might be on the receiving end of a lawsuit in a few years. Better to pass. Her eloquent letter is not going to change that thinking.

    3. Rather, as with free speech that one finds repulsive, the best available remedy is probably more free speech designed to make the counterargument.

      That nostrum has a proper use in defense of policy arguments. In particular cases, where the publication in question has already done actual damage, it reads more like a taunt directed at the damaged party.

  10. As a point of comparison, I just realised that the Dutch judiciary also has an English version of its anonymisation guidelines: https://www.rechtspraak.nl/English/Pages/anonymization-guidelines.aspx

  11. Many states or cities have passed “ban the box” laws, prohibiting employers from asking on a job application whether the applicant has been convicted of a crime (and in most instances, only allowing such inquiries after the employer has found that the applicant otherwise meets the qualifications for the job).
    But employers/interviewers can always Google the applicant. Certainly may not be 100% accurate, but in at least some cases it will provide evidence of a criminal charge or conviction that the employer can’t ask about on the application.
    And the only potential solution would seem to be a European-style “right to be forgotten” law, but I am pretty sure that would require a constitutional amendment in light of the 1A. (Even if it is illegal for a prospective employer to Google a job applicant, it’s so easy to do, and would be very hard to catch unless the interviewer is dumb enough to talk about what he/she found.)

    1. Get rid of Section 230 and this problem will shrink to a tiny fraction of what it is now. Make internet publishers read everything they publish beforehand, and make them jointly liable with contributors for damages. Bullshit publications about nobodies will shortly become about as common as they were pre-internet—which is to say, vanishingly rare.

      1. I realize that you are contractually obligated to make a frivolous pro-censorship argument in every thread mentioning the Internet, but Section 230 has precisely zero to do with this discussion.

        1. Nieporent, if with regard to the 1A, you went to court to insist that private editing was censorship, what do you think would happen?

          1. I think that judges familiar with NYT v. Sullivan would nod at this obviously true statement.

            1. Nieporent, cite the language from NYT v. Sullivan which says, or even implies, that private editing is contrary to the 1A, or even burdens the 1A.

              1. Sigh. We’ve been over this many times. I explain it to you, and then you run and hide and pretend you didn’t see it and repeat your same § 230 nonsense in another irrelevant thread in a few days.

                We are not talking about “private editing.” We are talking about editing at the command of the government, with the Sword of Damocles of defamation liability hanging over the editor’s head. NYT v. Sullivan and its progeny say that imposing liability on speakers is censorship. Sometimes that’s permitted under the 1A, but that doesn’t make it not-censorship.

                1. Once again, please cite the language which says imposing liability on publishers (not speakers) is censorship. If you can’t find that language in NYT v. Sullivan, feel free to include, “its progeny.”

                  1. You are perfectly capable of looking up the case and reading it. I have faith that you can even do a CTRL-F on “censor” (though of course the concept does not require use of the word).

                    The government imposing liability on publishers or speakers — NYT v. Sullivan does not turn on this imaginary distinction — is censorship. That is why such imposition of liability is strictly constrained by the first amendment.

        2. David, you are a lawyer, so I am bringing this down to the 4th grade.

          You cannot stop publication, not even the Chinese Commie Party can. Yo can make anyone using it liable. Any interviewer brings up a post gets cancelled. Ruin the employer. To deter.

          1. David, blink once if you understood that, twice if you want me to put it it another way.

          2. “Any interviewer brings up a post gets cancelled.”
            if the post is directly relevant to an essential job duty, the interviewer has not problem. Although i would not do so, I’d work to convince the applicant to withdraw hir (=his/her) apllication

  12. If a record of filing lawsuits and getting sued in lawsuits was that bad then, how the hell did Trump ever get elected?

    1. There’s a long list of jobs that Trump’s background would disqualify him from, including anything that requires a security clearance. What a red state voter thinks is important and what your typical hiring committee thinks is important is not the same thing.

  13. If it makes the guy feel any better, I googled him and his case and the stuff that popped up easily was just (to a non-lawyer) boring procedural stuff, not whatever he’s embarrassed about.

    1. But for many employers the mere fact that he sued is more important than what the suit is about.

  14. I appreciate trhe fact that Professor Volokh is acknowledging that there is more than one side to this issue, and further, as society evolves, unintended consequences arise that were not previously an issue in esfablishing rules and setting boundaries.

    This is a key deason why it’s important not to overconstitutionalize. The balance between values and considerations ( like the public’s right to know vs litigants’ well-being) may change over time, especially when rules start having bew consequences. In order to promote justice and keep the peace, society may find it necessary to revisit these boundaries.

    1. It’s not just about litigants’ well-being, it’s about access to the courts in the first place. If you have a meritorious claim, but going to the court will cause you more harm than what that claim is worth, that’s a big problem. And if technological developments mean that that kind of thing happens a lot, it’s starting to rise to the level of a constitutional problem.

      1. “It’s not just about litigants’ well-being, it’s about access to the courts in the first place. If you have a meritorious claim, but going to the court will cause you more harm than what that claim is worth, that’s a big problem. And if technological developments mean that that kind of thing happens a lot, it’s starting to rise to the level of a constitutional problem.”

        It’s never a constitutional problem when people make decisions based on accurate information.

        1. It’s never a constitutional problem when people make decisions based on accurate information.

          Constitutional problems are recognizable ideologically? I don’t think so. I think constitutional problems in the U.S. are whatever problems trouble the sovereign People sufficiently to decree government action to correct them.

          1. “I think constitutional problems in the U.S. are whatever problems trouble the sovereign People sufficiently”
            Thanks for your answer on the ConLaw quiz #1

        2. So you don’t think it would be unconstitutional for the government to charge a filing fee of $100k before anyone can file a civil suit in Federal court, as long as would-be litigants know about it in advance?

          1. Sigh.

            That’s not what I said. I responded to your claim that it can be unconstitutional to permit a third party to learn about a lawsuit if that third party’s reaction might prevent the plaintiff filing the lawsuit.

  15. I would like to start a dating service that provides the entire file of the dating prospect. Does that exist?

    1. Behar,
      no one is interested in having a mental deficient as a matchmaker

      1. Could you imagine ending up on a blind or first date with Behar?! Holy smokes. Yeesh.

        1. Thank you for today’s good laugh

          1. That really hurt my feelings. You have persuaded me to become woke.

        2. If you were an intelligent female, it would be instant obsession.

  16. The use of Google or searches on social media to do background checks on prospective employees is a simple fact of our time.

    Acme Widget will do that–because if Acme is contemplating hiring Joe Smith–and calls Joe Smith’s previous employer(s) and asks, “How did Joe do there?”–Acme will not get an answer. The employer(s) may have fired Joe because he was frequently late, drunk or insubordinate. But all the previous employer(s) will say is, “Joe worked here from X date to Y date”. End of story, end of information.

    1. That is how a serial killer nurse got to kill dozens more patients. The fear of litigation by prior employers killed dozens of patients. All those patients were killed more by the lawyer profession than by the serial killer nurse. He could have been stopped after 5 victims, not after 400. This stinking profession is ridiculous.

      https://en.wikipedia.org/wiki/Charles_Cullen

  17. I’m sure you realize that, by publicizing the case number, you are giving yet more unwanted attention to the person who was desperately trying to maintain some semblance of privacy.

    At the same time, it is interesting to note that a search for that case number produces results in Google and Bing, but *not* in DuckDuckGo.

  18. For what it’s worth, plaintiff used a preprinted form to file his initial complaint, and the form warns on page 1:

    “The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social’security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.”

    What this doesn’t say is that potential employers would take advantage of the fact that the information is public, and I guess that didn’t occur to plaintiff until it was too late.

  19. If someone is really worried about this, they could apply for a name change.

    That may not be enough to defeat a determined investigator. But it is enough to defeat a lazy person relying on Google searches + stereotypes.

    I do not doubt that this problem is somewhat real, but likely overhyped. Some employers will care, some employers will not. There are always more opportunities in life than there is time to pursue them anyway, so why cry over spilled milk?

    1. There are always more opportunities in life than there is time to pursue them anyway, so why cry over spilled milk?

      At least for high-status white people who haven’t yet had their reputations traduced in court.

      1. Show us on the doll where the libeler touched you.

      2. At least for high-status white people who haven’t yet had their reputations traduced in court.

        What about low-status white people? Or high-status black people? Or middle-class Americans of Asian ancestry? Or….

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