The Volokh Conspiracy

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Free Speech

Frequent Pro Se Plaintiff Suing Court Document Archive PlainSite Over Publication of Court Records


Paul Alan Levy (Public Citizen) and Oliver Edwards are defending against the claims (in Joe Johnson v. Think Computer Corp.) on behalf of PlainSite's operator (Think Computer Corp.); an excerpt (and I'll also excerpt Johnson's counterarguments when they're filed):

The plaintiff is a prolific pro se litigant who has been criticized for frivolous litigation by several judges among the many who have presided over the many pro se lawsuits that he has filed in the past three decades. In this case, he sues to challenge a website that hosts judicial records from thousands of lawsuits across the county, because the website includes information about his civil and criminal litigation history, including information that the plaintiff himself placed in public records when he filed papers in his lawsuits, including the name, address, telephone number and email address of his representative in court: himself.

The plaintiff first wrote to the defendant Think Computer Corporation in 2016, threatening to file suit if it did not take down the records of one lawsuit, and warning that if this request were not honored, "[Y]ou will be subject to a civil lawsuit, and will be tied up in litigation for the next year or so litigating this issue." The plaintiff also threatened to sue defendant's owner personally, even to embroil the owner's parents into the matter.

However, the First Amendment and Article 40 of the Maryland Declaration of Rights protect the public's right of access to judicial records, and protect Think Computer's right to assist the public with access to those records. All the legal claims are subject to dismissal. Moreover, their utter lack of merit, coupled with the plaintiff's repeated threats to impose the cost and trouble of litigation on Think Computer, its owner and even the owner's parents, show bad faith that warrants invocation of Maryland's anti-SLAPP law to support immediate dismissal of this action with prejudice….

[B]ecause judges addressing his litigation have discussed Johnson's name and contact information in the course of resolving motions in his cases, that information appears in online judicial dockets for his cases, and on privately-operated sites that host the same information for the convenience of members of the public. Inspection of the PlainSite website reveals that, with one exception, the only identifying information about plaintiff is his name, address, telephone number and email address.

The decision cited above from a federal judge in Pennsylvania specifies Johnson's birth date, a key part of the reasoning of that decision because the date was needed to disambiguate Johnson from others with the same name, which was an issue in his criminal prosecution there. The federal court docket in that case, which is available on PlainSite as well as the federal courts' PACER system and CourtListener does not reveal any filing by Johnson seeking to have his birth date redacted from the opinion. Johnson did file a motion to seal all the records in that criminal case, which was denied.

As early as 2003, Johnson was subjected to a vexatious litigant order in the United States District Court for the Eastern District of Virginia, directing the clerk not to accept pleadings from Johnson and warning that he would be in contempt if he submitted pleadings. The actual order in the Virginia federal court case is attached as Exhibit H, and indicates that the Fourth Circuit also entered an unreported vexatious litigant order against Johnson. In the following unreported decision from September 2016, which is available on the Maryland Courts website, the Court of Special Appeals expressed its frustration with Johnson:

Johnson borrowed money and refuses to repay it. And, as part of his efforts to avoid repaying the money he owes, he files lawsuits. And he files lawsuits. And then he files more lawsuits. He is undeterred in this filing by the fact that the defenses that he raises to his repayment obligation are frivolous. He is undeterred by the fact that courts have already rejected these same defenses. He just keeps filing more lawsuits.

[Footnote:] It may be possible to detect a tone of frustration in this Opinion. In trying to avoid a debt honestly acquired, Johnson has squandered far more than his share of the public resource that is this and other courts.

See also United States v. Johnson (3d Cir. 2021) ("Johnson's conduct was not just a waste of public time and resources. It disrupted the administration of justice, interfered with the orderly work of the federal courts, and flouted the respect due to judges and attorneys sworn to uphold the law.); Johnson v. Experian Info. Sols. (D. Md. 2015) (characterizing Johnson's litigation as frivolous); Johnson v. Affiliated Computer Servs. (N.D. Tex. 2011) (same)…..

The central flaw of Johnson's lawsuit appears at the beginning of his complaint, in the first and second counts, where plaintiff alleges that his name, addresses and telephone number are "rightfully the property of plaintiff," and that defendant Think Computer has wrongfully disclosed this information to the world. That is not what the public record reveals and it is not what Maryland law provides. Moreover, Johnson's claims in this Court are precluded by the federal constitution, by the Maryland Declaration of Rights, and by federal law.

Plaintiff Johnson has voluntarily, deliberately and repeatedly disclosed his name, addresses and telephone number to the public by filing hundreds of lawsuits, acting as counsel for himself pro se, in Maryland and federal courts, where the rules require disclosure of that information in filed papers. Once Johnson revealed that information to the courts, it became a matter of public record, subject to both the common law and the First Amendment right of public access.

None of the common law or statutory theories that Johnson invokes to support his claims against Think Computer can override those rights. Indeed, the Maryland Legislature specifies what personal information merits special protection against disclosure, but does not forbid disclosure of name, addresses and telephone number. In any event, the First Amendment and federal law protect Think Computer's right to access and disclose court records containing that information, and to list the information derived from those public records. Johnson's complaint against the posting of his name, addresses and telephone number is also barred by the statute of limitations, and furthermore, this Court lacks personal jurisdiction over Think Computer, a corporation headquartered in California, despite the fact that its website can be viewed in Maryland.

Johnson also complains that, after he warned Think Computer that he would sue it—in fact, after he repeatedly threatened, beginning in 2016, to tie Think Computer up in court for years if it would not take his information off its site— and then followed through on his threat by filing this action, Think Computer characterized him as a vexatious litigant. Those communications with the court were absolutely privileged under Maryland law, and in any event, this characterization is an opinion protected by the First Amendment….

The motion to dismiss offers a good deal more argument on this, but here's an excerpt on the First Amendment defense as to Johnson's name, address, phone number, and birth date:

Both the Maryland courts and the United States Court of Appeals for the Fourth Circuit have long held that the First Amendment protects the public's right of access to judicial records. Maryland decisions also find such protection in Article 40 of the Maryland Declaration of Rights. Moreover, although the cases recognize that there may be countervailing interests warranting non-disclosure of certain details, "it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." To override the First Amendment right of access to judicial records, the information must intrude on privacy to a far greater extent than the information at issue here—Johnson's name, mailing address, email address and phone number (and, in one judicial opinion, his birth date)….

Finally, not only is Johnson wrong that the law protects against access to information in judicial records that reveals his name, addresses, and telephone numbers, but the First Amendment bars Johnson's claim based on the disclosure of private information that Think Computer lawfully obtained from other sites hosting judicial records. As Supreme Court decisions demonstrate, even if information is otherwise protected by a privacy rule, the First Amendment protects the disclosure of that information so long as the person making the disclosure obtained the information lawfully. Thus, in Bartnicki v. Vopper (2001), the First Amendment protected a talk radio host against claims based on his having played a recording of a telephone conversation after obtaining it from others, even though the recording was made in violation of federal and state wiretapping laws.

Similarly, in Cox Broadcasting Corp. v. Cohn (1975), the Court held that Georgia could not impose sanctions, or enable a private cause of action, for the accurate publication of a rape victim's name that had been obtained from judicial records that were open to public inspection. And in The Florida Star v. B.J.F. (1989), the Court held that publication of the name of a rape victim's name mistakenly left open in a police department's pressroom, could not be subjected to an action for damages even though a state statute forbade the publication and authorized a private action for damages. See also Oklahoma Publishing Co. v. Oklahoma County District Court (1977) (state could not prevent publication of juvenile's name that reporters had learned while attending a hearing); Smith v. Daily Mail Publishing Co. (1979) (state could not bar publication of name of juvenile heard on a police radio band). Because PlainSite has only published judicial records, and information contained in judicial records, that were made publicly available on court web sites, the First Amendment bars Johnson's lawsuit….