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 specialeducationaction.com. 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.

Comments

[Jerry B.]

As a Fairfaxian (?), I approve.

[Vaclav Matthess]

Looks right to me. I had no idea that "Fairfax" was a nickname for someone with long fair hair.

https://etymologeek.com/eng/Fairfaxian

[wolfefan]

As a former Fairfaxian (Fairfaxite?) I second Jerry B.'s comment above. I was also a Fairfax County employee in public safety for many years. While I was there I was beginning to wonder about the quality of advice the County Attorney's office was providing on some cases. I have some friends there and know them to be competent and ethical, but I also look at things like this and wonder who could have thought this was a good idea either legally or PR-wise.

[Lee Moore]

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.

So what is the legal basis for this bar ? Simply that the plaintiffs didn't object, or is there something that would apply even if they did object ?

[Dilan Esper]

The consent obviates it, but the legal standard here is that you can publish information that you lawfully obtained (even if someone else stole it or gave it to you by mistake) so long as the material is a "matter of public concern". See Bartnicki v. Vopper for the discussion of this, although you have to pull it out of splintered opinions.

To take a case close to my heart, Gawker wasn't allowed to publish the Hulk Hogan sex tape because while the fact of the sexual encounter was legitimate celebrity gossip, the actual secretly recorded footage was not a matter of public concern.

So the account and ID numbers are very likely not a matter of public concern and just like Gawker would have needed to block out the explicit parts to avoid a privacy suit, these guys have to block out the account and ID numbers.

[Lee Moore]

Thank you.

Not at all obvious where "no law ..... abridging the freedom of speech" is hiding that qualification about matters of public concern, but judges be judges.

But does this mean that the government can clamp down on frivilous speech as it pleases ? No lampooning, cartooning, jesting unless your target is some kind of public figure.

And a ban on displaying the View of Delft ? It may be a wonderful painting, but hardly a matter of public concern.

[Bob from Ohio]

"the bank account numbers, Tax ID numbers, and Federal ID numbers"

JFC They sent records with that info unredacted? So bad.

[Ed Grinberg]

When they're not malicious, they're incompetent. And you want these people teaching your kids?
Get rid of public schools.

[Rev. Arthur L. Kirkland]

" Get rid of public schools. "

Disaffected, ignorance-embracing, anti-social, powerless, right-wing cranks who hate modern America are among my favorite culture war casualties. These losers can't be replaced -- by their betters, in the natural course of American progress -- too soon.

[Pavel Petrovich]

Only the jews of the school board and the incompetent jew lawyers who advise them, would pursue retrieval of the disclosed documents....remember pentagon papers....before the jew muscle set in on DC? Even Nixon knew that it is impossible to put the genie back in the bottle.

So silly, so jewish, plead in court against the First Amendment against the people. The government of the people, for the people and by the people argues against the people's rights.....only a jew can do this.