The Volokh Conspiracy

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Free Speech

Court Rejects Fairfax County School Board's Attempt to "Claw Back" Released Public Records


Timothy Sandefur (In Defense of Liberty) has the details:

This morning's ruling in favor of Virginia moms Callie Oettinger and Debra Tisler is a victory for freedom of speech, and an instructive example of the bullying tactics that school boards across the country have adopted toward parents who dare to challenge how their tax dollars are being spent—or who even just ask questions, as in this case. Now that we are at last allowed to discuss the case publicly, here's a recap of how the Fairfax County School Board abused its authority to violate the constitutional rights of parents seeking to protect their children's best interests….

Some months ago, Debra filed a request under Virginia's Freedom of Information Act, seeking information about how much money the School Board was spending on its lawyers, and why. The Board turned over 1,300 pages of electronic documents, which Debra shared with her friend Callie, who runs the website After carefully deleting any potentially confidential information about students or employees, Callie published some of these pages on her website, to show local residents that the Board was wasting taxpayer money.

That's when school bureaucrats, embarrassed by what the documents contained, demanded that the two women take the information off the website and "return" (that is, destroy) the documents. It sent them a second batch of 1,300 pages—this time with items deleted which had not been deleted the first time around. And when Callie and Debra said no, the Board sued them, asking the Court to forbid them from publishing the documents or sharing the information they contained. On September 30, a Virginia judge agreed, issuing an order that barred them from sharing the information pending further legal review….

Fortunately, [a new court decision] refused to go along. It held that forbidding Callie and Debra from disseminating the documents would be an unconstitutional prior restraint. It relied on the 1989 Supreme Court decision Florida Star v. BJF, which held that even if the government accidentally gives someone information, that person has the right to publish it.

"This is about as much a prior restraint as there ever could be," the court declared today.  "No question about it….  What defendants are doing is enforcing their rights under the first Amendment." …

The court did bar the defendants from publishing "the bank account numbers, Tax ID numbers, and Federal ID numbers" in the records, but the plaintiffs didn't object to that restriction.