First Amendment Coalition, LaRoe & Volokh v. Chiu

We're challenging a California statute that bans publishing "information relating to a sealed arrest."

Just filed today, by our lawyers at the Foundation for Individual Rights and Expression (Adam Steinbaugh, JT Morris & Zachary Silver) and the Coalition's David Snyder and David Loy. We are challenging Cal. Penal Code § 851.92(c), which provides,

Unless specifically authorized by this section, a person or entity, other than a criminal justice agency or the person whose arrest was sealed, who disseminates information relating to a sealed arrest is subject to a civil penalty of not less than five hundred dollars ($500) and not more than two thousand five hundred dollars ($2,500) per violation. The civil penalty may be enforced by a city attorney, district attorney, or the Attorney General. This subdivision does not limit any existing private right of action. A civil penalty imposed under this section shall be cumulative to civil remedies or penalties imposed under any other law.

Speaking for myself, I'd like to write about a particular lawsuit and particular government actions that stem from the publication of information relating to a sealed arrest—but any detailed post on these matters would itself end up containing such information, and would thus itself violate the statute. We're trying to block the enforcement of the statute, relying on precedents such as Smith v. Daily Mail Publishing Co. (1979), which struck down a state law barring the publication of the names of juvenile defendants. I hope to be able to blog more about the case as it proceeds, and especially once we get an injunction.

UPDATE: I should add that the S.F. City Attorney's office recently sent demand letters based on the statute to a Substack newsletter author and to Substack itself; that is one thing that I'd like to discuss in much more detail in a future post.

Comments

[John F. Carr]

The case is 3:24-cv-08343 in the Northern District of California, assigned to Magistrate Judge Thomas S. Hixson.

https://www.courtlistener.com/docket/69406998/first-amendment-coalition-v-chiu/

[Davy C]

Arrests should not be sealable in the first place. But if the state is going to do it, the punishment needs to only apply to state employees.

According to the statute, "Nothing shall prohibit disclosure of information between criminal history providers." So... what, they can pass the information between themselves, but not actually divulge it to the public? That seems like a weird exception.

[Noscitur a sociis]

The only real defense I can muster is that it’s so obviously unconstitutional that perhaps there’s no risk that anyone would actually try to enforce it.

[TwelveInchPianist]

"We're challenging a California statute..."

Weak prose. You are blasting the statute.

[cannpro]

Sounds like the arrest report was illegally obtained. If the SFPD had no right to disseminate the report, the reporter had to right to it in the first place. Why does he have the right to publish a report he doesn’t have the right to possess?

[TwelveInchPianist]

Because of the first amendment.

[cannpro]

The first amendment gives me the right to publish illegally obtained information I have no right to? Tell that to Gawker after losing a lawsuit for publishing the Hulk Hogan sex tapes.

[TwelveInchPianist]

Can I tell it to the NYT after publishing the Pentagon Papers?

[cannpro]

Didn’t work for Gawker.

[Kazinski]

Gawker would have been fine if it reported on the existence of the sex tape, even a blow by blow account of the action, but it was airing the entire sex tape that opened up Gawker to liability.

Reporting on the arrest, even if they didn't obtain the material legally is clearly protected by the first amendment.

[cannpro]

Still haven’t explained how Gawker is different. Why is this clearly protected by the first amendment and not Gawker?

[mr.anon]

Volokh did explain it: privacy law protects a cognizable right. No govt entity was involved in acquiring/releasing the Gawker tape. Distinguishable from the public/govt realm stuff being discussed here ("public concern/significance/interest").

[cannpro]

If you’re going to respond It would be nice to get complete sentences instead dropping buzzwords. “Public concern/significance/interest” doesn’t explain anything.

[mr.anon]

Yes it does mean something. The cases (incl. Sup Ct) use the phrases “public concern,” “public significance,” “public interest” (and more), all more-or-less synonymously, but without a precise delineation (~”I know it when I see it,” as noted before). So I’m just quoting the law as it’s written, not inventing anything (no new "buzzwords") myself.

[cannpro]

Great! Your buzzwords still don’t explain the difference. I don’t see how Gawker is any less of the “public’s concern” or “interest” than this case. It’s never expounded upon. You’re treating these as magical words that get you out of trouble.

Either Gawker was wrongly decided or Florida Star was.

[mr.anon]

But wait, I just explained that what I'm doing is quoting the law as it's written ("public concern/significance/interest," let's call it PCSI), and that those cases haven't defined that precisely, so surely you can't fault ME for such language. But they (the cases) have certainly defined it to the "I know it when I see it" level, namely, "govt origin/ownership/involvement vis-a-vis the public." In the case of Florida Star, the cops/govt WAS involved (published the info, "inadvertently" they claim, but that doesn't matter), so it was correctly decided. In the case of Gawker, govt WAS NOT involved (it was all private, both the video-recorders and the publishers/Gawker), so it was correctly decided too.

[Drewski]

"I don't understand why it's okay to photograph police in public without their knowledge but when I take pics of my hot neighbor getting dressed everyone acts all upset."

[cannpro]

The “I know it when I see it” standard is no standard at all. But it sounds like you’re claiming a secondary standard, that as long as it was the government that initially disclosed the information (even erroneously) then it’s not protected, but for private parties it’s different.

That is at least a coherent standard. Problem is that is clearly not the law. The majority explicitly disclaimed that standard in Florida Star and there are hundreds of cases of people going to jail or facing liability for disclosing information that came from the government. Classified documents, HIPAA violations, etc.

So far no one has been able to apply a consistent standard that separates these cases. The case law here is a complete mess.

[David Nieporent]

I don't understand why you're setting these up as antagonistic cases. The Gawker case had nothing to do with how the video was obtained.

I don’t see how Gawker is any less of the “public’s concern” or “interest” than this case.

Well, that sounds like a you problem.

[David Nieporent]

That is at least a coherent standard. Problem is that is clearly not the law. The majority explicitly disclaimed that standard in Florida Star and there are hundreds of cases of people going to jail or facing liability for disclosing information that came from the government. Classified documents, HIPAA violations, etc.

What on earth are you talking about? There are hundreds of cases of reporters going to jail for disclosing classified information that they received? Since when?

[cannpro]

Disclosing classified information will get you thrown in jail.

[David Nieporent]

Disclosing classified information will get you thrown in jail.

It will not, unless you are under a pre-existing duty not to disclose it, such as when you have agreed not to do so as a condition of your employment. You seem unable to distinguish between disclosing it and reporting it after it has been disclosed.

[David Nieporent]

but it was airing the entire sex tape that opened up Gawker to liability.

Actually, they only published ("aired" isn't really the right word; this was on their website) a short excerpt from it.

[David Nieporent]

The first amendment gives me the right to publish illegally obtained information

Yes!¹ As the Court has ruled repeatedly. This is virtually on all fours with Florida Star v. B.J.F., 491 U.S. 524 (1989). There's also Bartnicki v. Vopper, 532 U.S. 514 (2001).
​
​
¹You've gone down the wrong path because you misunderstand the facts. The reporter did not "illegally obtain" it. That the law prohibited the police from releasing it did not impose any legal obligation of any sort on anyone else. The reporter obtained it entirely legally.

If he had broken the law — say, he had hacked into the SFPD's computers, or bribed a cop — to obtain the info, then he could be punished.

[cannpro]

In Florida Star the Supreme Court explicitly said they were not holding that there is a constitutional right to disclose wrongfully obtained information. Only in cases where it was in the “public interest”. Which is completely amorphous and meaningless. Anyone can claim information is in the public interest, or isn’t.

[David Nieporent]

Anyone can claim information is in the public interest, or isn’t.

Anyone can, of course, "claim" anything. Anyone who kills someone "can claim" he was in fear for his life when he did so. That does not mean that it is not possible to adjudicate instances of homicide vs. self-defense. Normal people of ordinary intelligence can distinguish between public and private the vast majority of the time.

explicitly said they were not holding that there is a constitutional right to disclose wrongfully obtained information.

Sure. But — in exactly the same way as in Florida Star — this information was not wrongfully obtained, so that caveat is irrelevant. There is nothing wrongful about opening your mail and seeing information that someone sent to you. Again: if the Substack writer (or Professor Volokh) had hacked into the SFPD's computers, or bribed a cop, or the like, we'd be in different territory.

Bartnicki distinguishes very clearly the difference between the illegal interception of the call and the innocent receipt of the recording.

[cannpro]

People of ordinary intelligence cannot distinguish information in the public interest vs that which isn’t. You can’t even do it. You have refused to give even one example of something which would fall in each category.

[David Nieporent]

At this point I'm not convinced you're qualified to discuss what people of ordinary intelligence can do, particularly since I did in fact give examples of each. Once again: official government actions: public interest; the consensual sexual activities of private citizens: not.

[cannpro]

And why is one in the public interest and not the other? Most people find government actions boring and uninteresting. On the other hand large portions of the public find consensual sex act titillating. Sounds like you’re projecting your own personal values on society. Not a great standard for first amendment jurisprudence.

[mr.anon]

Oh Come On. You’re pretending that PICS (esp. the word “public”) means “whatever a lot of PEOPLE find titillating (in some emotional sense).” That’s obviously not what “public” means in the context of this discussion. Instead, PICS obviously means “whatever he GOVT finds titillating (in the sense of making it ‘official,’ such as storing it in an officially guarded database)”.

Again, all this is perfectly clear, and easily available to anybody who deigns to read Seager (say). IOTTMCO (= Intuitively Obvious to the Most Casual Observer). Your refusal to read/understand (Seager, say) disqualifies you from further comment. Or to paraphrase yourself: This is why people hate non-lawyers (when they pretend they’re smarter than lawyers).

[David Nieporent]

And why is one in the public interest and not the other?

I can explain it to you, but I can't understand it for you.

[Eugene Volokh]

What do you think about Florida Star v B.J.F. (1989)? That case held that people are generally free to republish information obtained from the government -- including the names of rape victims -- even when the government erroneously released it (as it had in that case). "Nor does the fact that the Department apparently failed to fulfill its obligation under § 794.03 not to 'cause or allow to be ... published' the name of a sexual offense victim make the newspaper's ensuing receipt of this information unlawful."

The Gawker case involved a lawsuit for disclosure of private, nonnewsworthy facts, namely a sex tape. Unlike Florida Star and this case, it doesn't involve punishment for the disclosure of material that had been obtained from public records.

[cannpro]

I don’t really see how Florida Star and this case is compatible with Gawker and other cases that involve wrongfully acquired information. You say Gawker involved the disclosure of “private nonnewsworthy facts”. I’m not even going to pretend “newsworthy” has a coherent meaning. You claim Florida Star and this case involve the publishing of a public record. But that’s clearly not true. This isn’t a public record, the arrest record was sealed and not available to the public. He published a wrongfully obtained non-public record.

[Noscitur a sociis]

Was the rape victim’s name available to the public?

[cannpro]

No.

[mr.anon]

Actually, Yes. Betty Jean Freedman, see https://en.wikipedia.org/wiki/Florida_Star_v._B._J._F.

[Noscitur a sociis]

So…

[cannpro]

Under statute § 794.03 the name was not available to the public.

[mr.anon]

Statutes don't trump the Constitutition (First Amend).

[cannpro]

I never said it did. The question was “the rape victim’s name available to the public”. Factually and legal the answer is no.

[mr.anon]

It was unclear to me earlier about what you were commenting on, but now that you've clarified yourself, you're still wrong, and this has never been at issue. Directly from the first few lines (syllabus) of Florida Star (https://supreme.justia.com/cases/federal/us/491/524/), we read:
"the Department prepared a report, which identified B.J.F. by her full name, and placed it in the Department's [very public] pressroom." So factually and legally, the answer is Yes.

[cannpro]

Wrong again. That is a description of the state illegally disclosing non-public information to the newspaper. If I disclose a piece of information, that doesn’t mean the information was automatically public to begin with. That’s circular reasoning. That would mean the Hulk Hogan sex tapes were always public information the moment Gawker released them.

[mr.anon]

No (if I understand what you’re saying). We both/all surely/must agree that “factually,” BJF’s name was public; the question is “legally.” And there are 2 senses of “legal” here: (i) did the cops legally divulge; (ii) did Florida Star legally divulge. Up to now, everyone here has spoken about sense (ii) (and that answer is Yes). But now you’re raising sense (i) for the first time (and that answer is No). But the consensus of this thread is still the same: Daily Mail + Florida Star + Barnicki rules (i.e., is good law according to Sup Ct), and can be mashed-up (legally correctly) this way:

[“Right to Report,” “Fair Report Privilege”] [I]f a newspaper [or an individual] lawfully obtains [even if originally illegally obtained by an arm’s-length third party] truthful information about a matter of public significance [including, but not limited to, “official/governmental” documents], then [govt/]state officials may not constitutionally punish publication of the information, absent a need to further a [compelling] state interest of the highest order [which is considered a standard at least as stringent as Strict Scrutiny].

[David Nieporent]

No; you're confusing two entirely different things. In one case, the information had been made public by some clerk at the police station. The newspaper merely reported on that already-public information.

In the other case, the information was private. Gawker was the entity that made it public. The video was public after Gawker released it, but the issue is Gawker's action.

[David Nieporent]

I never said it did. The question was “the rape victim’s name available to the public”. Factually and legal the answer is no.

You're mistaken. Factually the answer was yes. That's how the Florida Star got the name.

[David Nieporent]

Under statute § 794.03 the name was not available to the public.

No; under statute § 794.03 the name was not supposed to be available to the public. But it was in fact available; the government had released the information.

[cannpro]

This is pedantic hairsplitting. “Supposed to be available” and “available” mean the same thing regarding public records. It was not publicly available to anyone who asked for her name as the government would simply refuse to disclose it. When the reporter asked he got her name cause someone messed up and he got lucky.

Accidentally disclosing a confidential record doesn’t mean it wasn’t confidential. Arguments like these are why people hate lawyers.

[mr.anon]

"Pedantic hairsplitting?" Welcome to Law 101. Or more to the point: Law deals with real-world/real-language problems/issues, hence is for that very reason slippery, and is subject to continually on-going refinement/clarification/correction. If instead law were more pure logic-based (like mathematics, my field, is/can be), then we wouldn't need lawyers/judges (just publishers/reporters of the laws/cases). But it ain't.

[mr.anon]

“Arguments like these are why people hate lawyers” (referring to hairsplitting)? No. The reason “people hate lawyers” is that they’re perceived as too result-driven, in the sense of “winning their case at all cost (including/esp. lying/deceiving about applicable law),” as opposed to “seeking justice, as their oath of profession supposedly binds them.” (Disclaimer: I’m not here subscribing to this point of view, just articulating it, I think accurately.)

[David Nieporent]

This is pedantic hairsplitting. “Supposed to be available” and “available” mean the same thing regarding public records.

They literally do not, and you know that well since you yourself said "Factually and legal[ly] the answer is no." (Emphasis added.) You acknowledge the distinction between the two.

Accidentally disclosing a confidential record doesn’t mean it wasn’t confidential.

Of course not; rather, it means that it no longer is confidential.

[cannpro]

Hulk Hogans sex tapes are no longer confidential, because they were disclosed. Public information. Perfectly legal what Gawker did.

[mr.anon]

OMFG.

That's right, *NOW* (AFTER Gawker published), because now the Hulk Hogan tapes are: (i) NOT protected (by privacy law); (ii) ARE protected by Right to Report (because Matter of Public Interest/Concern/Significance, MoPICS, because official court proceedings, and the public's interest in privacy law, and how it's applied in the courts). So NOW it's perfectly legal to disseminate the tapes (and even also covered by CDA §230 if anyone cars), which is why Hogan/Thiel cannot sue all the many publishers out there NOW.

But *THEN* (BEFORE Gawker published), neither item (i,ii) obtained, and the situation was the opposite of (i,ii): the tapes (i') WERE protected (by privacy law), and (ii') WERE NOT MoPICS, hence NOT protected by Right to Report.

You intentionally stupid fucking idiot troll.

[John F. Carr]

Quoting the complaint:

37. In or about February 2022, the CEO petitioned a California state court to seal an arrest report documenting his arrest.
38. The California state court granted the CEO’s petition to seal the arrest.
39. Nevertheless, the San Francisco Police Department subsequently released the arrest report in response to a public record request under the California Public Records Act.
40. On information and belief, the San Francisco Police Department failed to mark the arrest report with the stamp required by California Penal Code section 851.92(b)(3): “ARREST SEALED: DO NOT RELEASE OUTSIDE THE CRIMINAL JUSTICE SECTOR.”

The reporter who obtained the arrest record did not have reason to know that it was protected by law.

The law does not make liability conditional on a culpable mental state. Let's say Donald Trump is arrested in front of a hundred video recorders. You post a video on XTok and forget about it. Trump pulls some strings and has the arrest record sealed. Are you now liable for disclosing information about a sealed arrest?

Maybe the law is not really that broad. Only the Supreme Court of California can give an authoritative ruling about what the law means. If a constitutional construction is possible the federal courts have the option to ask the California Supreme Court for a ruling.

[Krayt]

Note the scum, the powerful trying to censor, call it a "civil" penalty, trying to work their way down the bramble path of "it's not a criminal penalty, therefore, ok!"

[mr.anon]

To "cannpro:" You're quite wrong. While I admit I'm not yet knowledgeable about Gawker or about this LaRoe/Volokh case (just now seeing it all, will read-up on them next), the issues under discussion have been fully decided (at Sup Ct level) in Florida Star and kindred (and explicated in the fine article by Susan Seager at https://www.americanbar.org/content/dam/aba/publications/communications_lawyer/cl-v32-2-summer16.pdf). In particular, the issue of "legality of access" that you seem concerned about is resolved in Bartnicki.

[cannpro]

So I just read Florida Star and I have to be honest; the dissent made more sense and pointed out the majority’s inconsistencies. The majority admitted that parties could face civil liability for publishing truthful, wrongfully obtained information. From Florida Star:

“Nor need we accept appellant's invitation to hold broadly that truthful publication may never be punished consistent with the First Amendment. Our cases have carefully eschewed reaching this ultimate question… we pointedly refused to answer even the less sweeping question "whether truthful publications may ever be subjected to civil or criminal liability“

SCOTUS appears to have split the baby. Disclosing such information isn’t protected by the first amendment, except when it is like in Florida Star or Bartnicki because they involve a “matter of public significance“. Whatever the hell that even means. Those cases are about as clear as mud, with nothing to distinguish them from hundreds of similar cases like Gawker where the mere fact that defendant had no right to the information is determinative. SCOTUS has really made a mess out of this one.

[Krayt]

Free people do not have to justify freedom. Government has to justify censorship.

[Malika]

Since I've posted here I've always thought this principle from Krayt is the best one for freedom of speech.

[JoeFromtheBronx]

Reasonable. The government will defend the law in question.

The courts, part of the government, should clearly explain themselves when they decide. If not, it will inhibit freedom.

The person here thinks they have not.

[Stupid Government Tricks]

Courts are government institutions populated by government employees. Expecting them to be neutral and objective regarding malfeasance by other government employees, many of whom the courts depend on for budgets and enforcement, is naive.

[mr.anon]

Agree that "public concern/significance/interest" hasn't been (and perhaps can't be) precisely delineated, sort-of along the lines of "I know it when I see it." But the trend/arc is clear: If it's official (gov't) document (either produced by govt, even if inadvertent, or produced by public and given to govt, such as legal complaint/petition), then it's public (even if no member of the public has discovered it quite yet). And once a member of the public has it, it's First Amendment protected (esp. against Prior Restraint). Yes, some things are "exceptions" to First Amendment protection (at least ex post facto of being published, see https://www.everycrsreport.com/reports/95-815.html), but no such "public" thing has yet been so designated (by Sup Ct).

[cannpro]

Um, what? People go to prison all the time for disclosing government documents.

[mr.anon]

Um, no they don’t, at least under the conditions being discussed here. The Teixeira case? He was govt employee, under “contract”/oath to not-disclose. The secondary publishers (who got the info from him) faced no prosecution (for the reasons we’re discussing here).

[Malika]

Don't worry, the incoming administration will work to fix that!

https://www.newsweek.com/donald-trump-gives-republicans-order-press-freedom-bill-1989230

[TwelveInchPianist]

Huh? The linked bill has nothing to do with that. And Trump is probably correct to kill it.

[John F. Carr]

A conviction under the Espionage Act requires proof beyond a reasonable doubt of a culpable mental state. Most protected documents will have classification markings and as a general rule kept away from people who haven't voluntarily assumed a duty of confidentiality. You can also violate the act by sharing "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."

The courts are more deferential to national security than to privacy of ordinary criminal defendants.

[David Nieporent]

Um, what? People go to prison all the time for disclosing government documents.

Yes, "people" do. That is, people who have a pre-existing legal obligation to keep those documents confidential. Not the press when the press has not violated any law in obtaining those documents.

(Sometimes reporters go to jail for contempt for refusing to divulge who gave them the information. But not for the act of publishing in the first place.)

[Satchmo_Lives]

I honestly believe cannpro does not understand the distinction. He keeps using "disclosure" as to mean publication when he really needs to say "initial disclosure/made available/leaked/handed over" classified or sealed documents to an entity that then published it.

"People go to prison all the time for disclosing leaking government documents [to a publisher]."

You have expressed the fact many times. At this point, he is either incapable of understanding or refuses to do so

[JoeFromtheBronx]

You might not think “matter of public significance“ was defined clearly but private/public has been a dividing line in the regulation of speech for the breadth of our life as a nation.

Others can in a few sentences to your approval define what that term means though ultimately no “magic words” will magically determine line drawing in life or law. It will be a somewhat rough case-by-case determination. Some cases are much more clear.

I think there are some grounds to argue that the specific information here should be protected as private. People are innocent until proven guilty. Exposing arrest records, especially before suitable court proceedings to protect the innocent, can cause significant harm.

B.J.F. involved information the police left open for public view so is of limited value.

DAILY MAIL PUBLISHING “relied upon routine newspaper reporting techniques to ascertain the identity of the alleged assailant.” It too would be of limited reach here unless again the government disseminated the information and the press got it.

There is an overall 1A right against the government blocking publication (prior restraint, to use a buzzword) though the Pentagon Paper Case did not block the government from penalizing illicitly obtaining the material.

[John F. Carr]

The Pentagon Papers could easily have led to convictions. Nixon's people ruined the case.

[David Nieporent]

a “matter of public significance“. Whatever the hell that even means.

Are you just playing dumb? Those are ordinary English words; why do you have trouble understanding them? There may of course occasionally be situations that involve gray areas where it's hard to determine which side of the line something falls on; that's okay because law is a human endeavor, not a computer program, and thus requires the exercise of human judgment. Was a given act "reasonable"? I can't give you a mathematical formula to compute whether it was, but we hold people liable for negligence all the time. (Well, I can give the formula: B = PL. But actually computing it, not so much.)

[cannpro]

No, I’m not claiming there are gray areas. I’m claiming the term is completely and total useless. I can’t think of any fact that is a matter of public significance that can be distinguished from one that isn’t.

[David Nieporent]

I can’t think of any fact that is a matter of public significance that can be distinguished from one that isn’t.

Okay, so you aren't playing dumb; you're actually dumb? Government activities are matters of public significance. A private citizen's consensual sexual proclivities are not.

[cannpro]

Rape victims’ names aren’t matters of government activities.

[mr.anon]

You're kidding, right? With comments like that, it sadly appears (it pains me to admit it) that you now are indeed trolling us, seemingly because you refuse to actually read-up on the materials we're talking about (such as esp. the Seager article).

Nobody is saying what you're trying to say they're saying (that rape victims name are matters of government activities). Instead, what the actual law (good/precedential/correct, per Sup Ct) does say is that OFFICIAL GOVT *PROCEEDINGS* (such as, esp., court documents, whatever they contain, such as names of people) WHICH ARE EXPOSED TO THE PUBLIC can indeed be FAIRLY REPORTED/PUBLISHED (because 1A says so). This says nothing about getting ACCESS to certain materials (such as rape victim name): if the govt wants to keep it confidential, it needs to impound/seal it, and then getting access to such materials can proceed as a separate issue. Once it's out of the bag (known to anybody without some special duty to not-disclose it), there's no provision (nor should there be) to claw it back into secret govt coffers.

[mr.anon]

Here’s a quote from Seager (cleaned up, emphasis added):

“As the Supreme Court explained in Cox, public records BY THEIR VERY NATURE are of interest to those concerned with the administration of government, and a public benefit is performed by
the reporting of the true contents of the records by the media.”

In other words (than “by their very nature”): once the govt puts its imprimatur (stamp of approval) on a document/record, it becomes IPSO FACTO a “matter of public interest/concern/significance (PICS).” That’s, like, what it MEANS for someting to be PICS.

[cannpro]

You are once again lying. These are not public records, They were private records that were mistakenly released to a single reporter who went on to publish them. They were never "exposed to the public" by the Government.

The Sup Ct. in Florida Star even acknowledged they weren't public records. Can't you read? It said publishing the private records were protected the first amendment anyway, even though sometimes publishing private records can be criminalized. It never clearly elucidates what criteria to use drawing a line. So we're left in the dark.

[mr.anon]

Well of course I’m not “lying;” you are, because you’re making up your own personal definitions of the words you’re using when you say “these are not public records” (you slip-slide around language willy-nilly without anchoring it to reality-based English, the typical ploy of a troll).

For example, you’re now newly making-up some argument that emphasizes “(i) mistaken release to a (ii) single reporter,” as if that somehow validates your arguments. But that’s absurd on both its items: (i) “mistake” doesn’t alleviate anything, because whether or not a piece of info becomes exposed doesn’t care about mistake or on-purpose; (ii) “single reporter” doesn’t alleviate anything, because whether or not a piece of info becomes exposed doesn’t care about single or multiple reporters.

To go further, I’ll assume (since you continue to harp on Florida Star, despite the caveat it represents only one aspect of the elephant) that the “record” you’re referring to is the “fullname of BJF,” and that you’re claiming (relying on your above bogus argument about “mistake” and “single reporter”) the said fullname was (iii) “not public record,” and (iv) “never exposed by govt to the public (= non-govt in this context).”

Your claims are objectively false (absent your slip-sliding willy-nilly personal definitions). It is indeed solid/objective truth (by the above scotching of “mistake”/”single reporter”) that: (iv) the said fullname was indeed exposed to the public/non-govt (BEFORE being exposed, the fullname was private, but AFTER being put in an official book in the pressroom they became public domain); and hence (iii) at that (after-exposure) point the fullname became public record (by meaning of “public” = “non-govt” in this context). And thence it was (iii’) published “publicly” (= widely available) by Florida Star (1A protectedly via Fair Report Privilege).

All the above numbered items, as I’ve explained them, are objective truth, per the clear/plain meaning of words, per, say, the legal-standard Plain/Ordinary Meaning Canon/Rule, see https://en.wikipedia.org/wiki/Plain_meaning_rule and the Garner/Scalia book (Reading Law: The Interpretation of Legal Texts).

As for your complaint about “not elucidating criteria to use drawing the line,” refer again to my comment in this thread that I called “Right to Report, Fair Report Privilege” (as well as what everybody else has written in this thread). That elucidates the criteria, in words even a third-grader like you should be able to understand (but cannot).

I really don’t expect I’ll reply to any more of your lunatic ravings, because I/we have all become convinced of your trollhood, and nothing more is to be gained by any of the sane people on this thread.

[mr.anon]

Thank you "David Nieporent," you're right, and here's another example: A "complaint" (in the sense of a legal/tort document) against somebody isn't a "public" thing — UNLESS/UNTIL it's officially submitted to the govt, at which point it DOES become a "public" thing. Cite/proof (still precedential, and origin of the Fair Report Privilege): Cowley v. Pulsifer (thank you O.W. Holmes).

[mr.anon]

[Distinguishing between "public" (known to the govt), and "publicly accessible/published" (known to the public domain). Perhaps not good linguistically, but such a distinction need to be acknowledged.]

[mr.anon]

"No citizen is responsible, upon pain of criminal and civil sanction [for contempt], for ensuring that the internal procedures [impoundment/sealing] designed to protect the legitimate confidences of government are respected." — Ashcraft v. Conoco

[cannpro]

[mr.anon]

“The term prior restraint [signaling prima facie a priori violation of First Amendment Speech/Press] is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur. … Temporary restraining orders and permanent injunctions — i.e., [any/all] court orders that actually forbid speech activities — are classic examples of [automatic/transparent invalid/ illegal un-Constitutional prohibited] prior restraints.” — Alexander v. U.S.

[Malika]

What's the idea behind this law? To protect the privacy and reputation of people who have merely been arrested from public stigma?

[WAYSMEANS]

If you haven't already, I recommend taking a look at the Schrader case I handled in the Third Circuit last year. Protects release of otherwise legally confidential child abuse information that came into the hands of a private citzen. https://www2.ca3.uscourts.gov/opinarch/222037p.pdf

[mr.anon]

Wow, good case, thanks for sharing. Totally relevant to this thread, and correct outcome. It also happens to touch upon other issues of interest to me in the case I'm currently involved in, all supporting me.

[cannpro]

Having finally read Florida Star vs B.J.F I have several thoughts. First it’s poorly written and inconsistent with itself at multiple places which I’ll get into. But since it is the closest case out there to this lawsuit involving Eugene I’ll break down the similarities.

Florida Star involved a newspaper publishing confidential non-public records that were accidentally disclosed to it by the government involving the name of a rape victim. Eugene likewise involves obtained confidential non-public arrest record the was accidentally disclosed. The court found publishing the information was protected by the first amendment for 3 reasons:

1) The information was lawfully obtained. This is where the majority was the most inconsistent. Actually the information wasn’t lawfully obtained as the disclosure was in violation of statute. OK, maybe what they really meant was that although it was unlawful for the government to give the information, it wasn’t unlawful for the newspaper to receive the information.

2. Even though the information wasn’t public, or legally disclosed the newspaper had no reason to believe it wasn’t a public record it had the right to disseminate.

3. The law in question was under inclusive by only applying to an “instrument of mass communication”, and not all other forms of disclosure.

When it comes to #s 2 and 3 Eugene’s suit doesn’t apply since the California law applies to all disclosures and Eugene already knows the records were not lawfully disclosed.

When it comes to # 1? Who knows. The court contradicts itself multiple times. It says there are cases where wrongfully disclosed information by the government can be blocked from publication, just not in this case. No reason is given to separate Florida Star from other cases beside a vague “public interest”, whatever that means. Like I said, extremely poorly written decisions.

Ironically for Eugene SCOTUS did address Rap sheets. Stating “ The privacy interest in maintaining the practical obscurity of rap sheet information will always be high. When the subject of such a rap sheet is a private citizen and when the information is in the Government's control as a compilation, rather than as a record of 'what the government is up to,' the privacy interest . . . is . . . at its apex, while the . . . public interest in disclosure is at its nadir”

So maybe #1 doesn’t apply either because arrest records are different from the names of rape victims. Who knows? Oh, well. Florida Star certainly wasn’t SCOTUS’ finest writing.

[mr.anon]

This sort of deep analysis of Florida Star is getting too far into the weeds, because it focuses on just one case. To get a good overall idea of the full picture, please do take a look at the Susan Seager article I cited in this thread, which I also summarized under “Right to Report, Fair Report Privilege.” She writes so well, it would hard to miss her thrust, or disagree with her. It seems that most contributors to this thread (esp. some recent good comments by “David Nieporent”) are in agreement with one another, except for “cannpro,” who seems intelligent, but not quite articulating clearly enough whatever his core objection is (sorry, not bad-mouthing, just an observation).

[cannpro]

Sorry, but Eugene Volokh explicitly asked me my thoughts and it’s the case most similar to this one. My beef isn’t even with the results in this case. What bugs me is how inconsistent the case law is on this question. Sometimes wrongfully disclosed information can be republished, sometimes it can’t and there doesn’t appear to be a rhyme or reason most of the time in court rulings.

[mr.anon]

I asked for "core objection," and you obliged with "no rhyme or reason," so thank you for that. But to repeat again: Susan Seager article rhymes and reasons very well.

[David Nieporent]

For some reason, you think the Gawker case was about "wrongfully disclosed" information; it was not. How Gawker obtained the 'information' was not relevant to the case. It was indeed about whether there was legitimate public interest in the information or not. That's the "rhyme or reason" that distinguishes.

[cannpro]

There was just as much “legitimate public interest” in the Gawker case as there was in Florida Star and this one. Arguably more so.

I certainly have no interest in the names of rape victims or possible arrest records of tech bros who allegedly beat their girlfriend. I can’t think of anything more boring. But sex tapes of Hulk Hogan? I could watch that all day. That is infinitely more interesting to the public.

[David Nieporent]

Yes, that's why I said legitimate public interest rather than merely public interest.

[cannpro]

lol. Just keep moving the goal posts. Who made you the arbiter of what’s “legitimate”? Publishing rape victims names and sealed arrest reports aren’t legitimate; only bottom feeders care about that stuff. Sex tapes are fun.

[mr.anon]

Who made him arbiter? Just the Sup Ct. Read/understand Seager (see my comment preceding this one, about you trolling us), or else please just shut up. You've jumped the shark, and refuse/deny the truth (of the state of the law).

[David Nieporent]

Just keep moving the goal posts.

Since I just repeated the same thing I had already said, how that can constitute keeping moving the goal posts? They're in the same place they were before.

Who made you the arbiter of what’s “legitimate”?

Nobody. But James Madison et al. made the courts such an arbiter.

[mr.anon]

"Cannpro" wrote: "Disclosing classified information will get you thrown in jail" (never mind for now exactly what "classified" is supposed to mean). Yes and no. Yes, if you're Jack Teixeira, or somebody like him who has a special legal duty to not-disclose. But No, if you're just a regular citizen(-journalist) who has no such duty, and hence is protected by 1A Speech/Press. This is just so blazingly obvious, from the weight of what's been discussed in this thread. Proof (e pluribus unum): Pentagon Papers (in the case of "classified" meaning "govt-labeled Top Secret").

[Alpheus W Drinkwater]

This was an interesting discussion, and thank you for taking the time to engage in it. If you aren't sick of the topic, how does the prosecution of Julian Assange by the DOJ fit in with your point that only people who have a "special legal duty to not-disclose..." would be thrown in jail? Clearly Assange had no such legal duty.

[Absaroka]

The wiki page says that the accusations go beyond just getting handed an unsolicited envelope/thumb drive/whatever, e.g.:

"The charges allege that Assange sought to help Chelsea Manning crack a password hash so that Manning could use a different username to download classified documents."

"Assange allegedly told the Hacking At Random conference that WikiLeaks had obtained nonpublic documents from the Congressional Research Service by exploiting "a small vulnerability" in the United States Congress' document distribution system, ..."

I'd also welcome a discussion of the line between, say, passively receiving an unsolicited document in the mail and actively conspiring. Can you say 'that info would be interesting if you can get it?', or 'let's communicate with encrypted email', or 'Minox makes a good spy camera'?

[mr.anon]

Good on you, both "Alpheus" and "Absaroka." Full analysis of the Assange case (which is clearly MoPICS: govt secrecy laws and how it's applied in courts) is hampered by the lack of govt-speak (the deep info remains undisclosed in prosecutors' vaults), but from what we can glean from various snippets, Assange CONSPIRED with Manning (who WAS prosecuted) to get/disclose the info (seemingly by encouraging Manning to give him the encrypted docs, and then using major compute power to break encryption), sucking him into the vortex of Manning's duty to non-disclose.

[mr.anon]

As for “Absaroka’s” last paragraph, that’s a gray area: not the fact that “passive reception” and “active conspiracy” are different (they are), but exactly where the dividing line is. Assange/Manning gives us an example of the latter. For an example of the former (literal “unsolicited in mailbox”), see the Atmore case (resolved in journalists’ favor, but now at §1983 phase, see https://ij.org/case/atmore-alabama-retaliation/).