The Volokh Conspiracy

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Free Speech

Grandmother Has Right to Publish Government Documents About Investigation into Grandson's Death

The Third Circuit holds that, once the government released the documents, it couldn't then forbid the grandmother (or others) from publishing them.


The case is Schrader v. District Attorney, decided yesterday by the Third Circuit (in an opinion by Judge Stephanos Bibas, joined by Judges Patty Shwartz and Julio Fuentes). First, what I think is the heart of the First Amendment argument:

The DA could have gotten a protective order stopping Bowie from sharing the discovery documents before he did so. Instead, the DA got a protective order only after Bowie had shared them. When "the government has failed to police itself in disseminating information," prosecuting someone who later publishes that information "can hardly be said to be a narrowly tailored means of safeguarding" confidentiality.

And now a longer excerpt:

Child-abuse information matters to both victims and the public. The government encourages victims to report abuse by keeping their information private. But the public has a strong interest in holding the government accountable for how it confronts this serious crime. So once this information enters the public domain, the government can rarely claw it back.

Victoria Schrader wants to use documents released by the government to criticize it for how it handled her grandson's life and untimely death. Yet she worries that Pennsylvania officials will use Pennsylvania law to punish her for doing so. Because the First Amendment protects her criticism, the District Court properly enjoined the officials from prosecuting her. But because one of her alleged injuries is too speculative, we will vacate the injunction with instructions to narrow it.


Dante Mullinix died when he was only two. (Because the District Court used Dante's full name throughout its opinion and order, and Dante is no longer with us, we will too.) Before he died, his aunt, Sarah Mercado, thought he had been in danger. So she filed a report with the York County Office of Children and Youth Services, imploring them to protect him. Her report led Youth Services to investigate Dante's welfare. But that investigation would not save him.

Tyree Bowie, who was dating Dante's mother, was charged with murdering him. In criminal discovery, Bowie got documents from the Youth Services investigation that were stored in a statewide database. He passed them along to Mercado, who believed he was innocent. Mercado wanted to advocate Bowie's innocence and blame Youth Services for failing to protect her nephew. So she started a Facebook group called "Justice for Dante" and posted some of the documents to the group. Bowie was eventually acquitted.

In the meantime, those posts caught the eye of York County District Attorney David Sunday. The DA charged Mercado with violating Pennsylvania's Child Protective Services Law. The Law makes it a crime to "willfully release[ ] or permit[ ] the release of any information contained in the Statewide [child-abuse] database … to persons or agencies not permitted … to receive that information." The DA later dismissed the charge without prejudice.

Victoria Schrader, Dante's grandmother and Mercado's mother, shares Mercado's views. She wants to publish "documents that had been generated in the course of [Youth Services' investigation]," including the documents that Mercado has already posted on Facebook, to "further publicize [Youth Services'] failures and … [to] advoca[te] … Bowie's innocence." But she fears that she too will be prosecuted if she does so.

So Schrader sued to enjoin the DA and Pennsylvania's Attorney General from prosecuting her. Invoking the First Amendment, she claims that the Law is unconstitutional both on its face and as applied to her….


Content-based laws are "those that target speech based on its communicative content." Some laws do that on their face by "regulat[ing] speech [based on its] particular subject matter." Others "regulate[ ] speech by its function or purpose" as a "proxy" for its subject matter. But that "subtler" strategy cannot evade content-based scrutiny.

The Law is one such function-or-purpose statute. Though the Law regulates the information by its source, the source itself is defined by its subject matter. Recall that it punishes a "person who willfully releases … any information contained in the Statewide [child-abuse] database" to unauthorized persons. By law, the Statewide database has twenty-three types of information about "child abuse." So the Law "single[s] out [a] topic or subject matter for differential treatment": child abuse. Because the database is a "proxy" for subject matter, the Law is content-based.

Thus, the DA must satisfy strict scrutiny. A content-based law like this one is "presumptively unconstitutional and may be justified only if the government proves that [it is] narrowly tailored to serve compelling state interests."

The DA fails to meet this daunting burden. True, the state generally has a "compelling interest in protecting its child-abuse information." But the strength of those "privacy interests fade[s] once information already appears on the public record." Mercado has already posted on Facebook the child-abuse documents that Schrader wants to share.

Even if the state still has a compelling interest, prosecuting Schrader for republishing Mercado's documents is not narrowly tailored to serve that interest. To narrowly tailor, the state must choose "the least restrictive means among available, effective alternatives." But there are "available, effective alternatives" to prosecuting Schrader. Take these two:

First, there are protective orders. The DA could have gotten a protective order stopping Bowie from sharing the discovery documents before he did so. Instead, the DA got a protective order only after Bowie had shared them. When "the government has failed to police itself in disseminating information," prosecuting someone who later publishes that information "can hardly be said to be a narrowly tailored means of safeguarding" confidentiality.

Second, there are civil penalties. The Law could, for instance, authorize fines. Here, the DA "has offered little more than assertion and conjecture to support [his] claim that without criminal sanctions the objectives of [the Law] would be seriously undermined." Landmark Commc'ns, Inc. v. Virginia (1978).

The DA has not met his burden to explain away these two alternatives. Because the law is not narrowly tailored, the state may not apply it to stop or punish Schrader for publishing the Facebook documents….

Another strand of First Amendment law also protects Schrader's intended speech: the Daily Mail test. If one "lawfully obtains truthful information about a matter of public significance[,] then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." The Daily Mail test applies even when a content-neutral state law seeks to punish a publisher who is not part of the press. Bartnicki v. Vopper (2001)….

Daily Mail's test supports Schrader's right to speak. First, she got the Facebook documents lawfully: "Even assuming the Constitution permitted a State to proscribe receipt of information, [Pennsylvania] has not taken this step." Instead, the Law bans only releasing confidential child-abuse information. Second, the Facebook documents are undisputedly authentic. And third, they are significant to the public: the government's investigation of child abuse, especially involving a child who ultimately died, is "a matter of paramount public import."

Because Schrader meets the Daily Mail criteria, "punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order." And as explained earlier, the Law is not narrowly tailored as applied to Schrader. So under the Daily Mail test, the state cannot constitutionally use it to punish her….

Victoria Schrader wants answers for her grandson's death. In search of the truth, she seeks to criticize those in power by publishing the very information that they had before his death. Though Pennsylvania's Child Protective Services Law serves weighty interests, it cannot be used to punish her for doing so. We will vacate and remand to let the District Court enter a narrower injunction, which should still protect her on her search.

This generally seems correct to me, though I hope to have a post soon about a particular argument that might (or might not) be not quite right.

Aaron D. Martin (Mette Evans & Woodside) represents Schrader.