The Volokh Conspiracy
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Why the California Ban on "Disseminat[ing] Information" "Relating to a Sealed Arrest" Violates the First Amendment
The heart of our argument for a preliminary injunction in First Amendment Coalition, LaRoe & Volokh v. Chiu.
An excerpt from FIRE's memorandum filed last night:
Both as applied to Plaintiffs and on its face as to everyone who disseminates lawfully obtained information about sealed arrests, the anti-dissemination statute violates the First Amendment as a presumptively unconstitutional content-based speech restriction that cannot withstand strict scrutiny. Reed v. Town of Gilbert (2015); see also IMDb.com v. Becerra (9th Cir. 2020) (prohibition on "dissemination of one type of speech: 'date of birth or age information'" was a content-discriminatory restriction on a category of speech). This is all the more so given binding Supreme Court precedent protecting dissemination of lawfully obtained information, and holding that penalizing dissemination as pertains to sealed arrests is not the least restrictive means to achieve a compelling state interest. See Smith v. Daily Mail Publ'g Co. (1979) (other states had "found other ways of accomplishing the objective" of protecting the identity of juvenile offenders)….
The anti-dissemination statute regulates speech in covering only "disseminat[ing] information" and is content-based in reaching only speech "relating to a sealed arrest." Cal. Penal Code § 851.92(c). The "dissemination of information [is] speech within the meaning of the First Amendment." Sorrell v. IMS Health Inc. (2011)…. As the Supreme Court held decades ago, a state may not "punish publication" of "lawfully obtain[ed]" "truthful information about a matter of public significance," such as information about an arrestee. Daily Mail Publ'g Co.; see also, e.g., Worrell Newspapers of Ind. v. Westhafer (7th Cir. 1984) (striking down as overbroad a statute prohibiting any person from disclosing the existence of a sealed indictment before the defendant is arrested)….
[The statute] is also presumptively unconstitutional on its face. By its content-based terms, the statute penalizes disseminating lawfully obtained information about sealed arrests in an extensive number of its applications. True enough, the statute also covers those who disseminate information about sealed arrests they obtained through independently unlawful means. But more predominantly, the anti-dissemination statute punishes only what the First Amendment protects—publishing lawfully obtained information about matters of public concern. See Daily Mail Publ'g Co. And as detailed next, penalizing that range of protected expression cannot survive constitutional scrutiny because it is facially unconstitutional as to a substantial amount of the dissemination of lawfully obtained information. See United States v. Stevens (2010) (a law will be "invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep'")….
Being presumptively unconstitutional, the anti-dissemination statute triggers strict scrutiny, but Defendants cannot meet the heavy burden of showing the law is "narrowly tailored to serve compelling state interests." First, as the statute "punishes publication" of "lawfully obtain[ed,] truthful information about a matter of public significance," Defendants must show "a need to further a state interest of the highest order," Daily Mail Publ'g Co., with a showing "far stronger than mere speculation about serious harms" or "[u]nusual" incidents. And they must overcome the fact that the Supreme Court has never upheld a comparable regulation even where there were far weightier interests, such as encouraging rape victims to come forward and limiting publicity to the names of youthful offenders, than those California identified in enacting the law. Fla. Star v. B.J.F. (1989) (name of rape victim); Daily Mail Publ'g Co. (youthful offenders).
In enacting the statute, California sought to "remove barriers [to] employment and housing opportunities" that an arrest history might pose. Because "background checks conducted by consumer reporting agencies" are the primary "way information of arrests generally finds its way into the hands of potential employers, housing providers, and other decision makers," the Legislature sought to "[p]rovid[e] restraints on consumer reporting agencies" by imposing the anti-dissemination statute's civil penalty.
But any governmental interest in remedying harm to an individual's reputation— whether directly or because of economic reasons—takes a constitutional backseat to the First Amendment right to share truthful information of public concern. "[R]eputational interests" do not "justify the proscription of truthful speech." Butterworth v. Smith (1990). Likewise, the desire to prevent employment discrimination does not generally justify restricting truthful speech about people. See IMDb.com. Here, the anti- dissemination statute targets truthful statements—the fact of an arrest or the existence of a sealed record—to avoid downstream economic harm. But the First Amendment does not permit the State to privilege the reputation of a person—whether a public official, public figure, or purely private person—over the dissemination of truthful statements of public concern. Landmark Commc'ns v. Virginia (1978) (injury to "official reputation" of judges); cf. N.Y. Times Co. v. Sullivan (1964) (public officials must show falsity and actual malice); Garrison v. Louisiana (1964) (absolute defense of truth in connection with any "public affairs").
The Supreme Court's decision in Florida Star v. B.J.F. illustrates why California's interests here fall short of being of the "highest order." In Florida Star, the Supreme Court invalidated a finding of civil liability against a newspaper for publishing the name of a rape victim obtained from a publicly released police report. The story concerned only the victim's report, not an arrest or trial. The Court found that the First Amendment protected the newspaper's truthful report and that "investigation of a violent crime which had been reported to the authorities" was a "matter of public significance." In doing so, it recognized that "the privacy of victims of sexual offenses," risks to their "physical safety … if their names become known to their assailants[,] and the goal of encouraging victims" to come forward were "highly significant interests"—but these interests did not amount to a compelling "need" to punish the publication.
Compared to the privacy of a rape victim involuntarily thrust into the legal system, speculation about potential economic harm from disclosure of a sealed arrest rings hollow. That's especially so here, where officials have rushed to the defense of a high-profile CEO. Because the anti-dissemination statute does not serve a compelling state interest, it cannot survive strict scrutiny, and the Court should enjoin it….
Even if the anti-dissemination statute served a compelling interest, it still fails strict scrutiny because Defendants cannot make the "exceptionally demanding" showing that it is the "least-restrictive means" to meet that interest. "If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative." Under strict scrutiny, "[e]ven if a state intends to advance a compelling government interest, we will not permit speech-restrictive measures when the state may remedy the problem by implementing or enforcing laws that do not infringe on speech." IMDb.com.
The law is not narrowly tailored three times over: First, Supreme Court precedent forecloses the state from punishing those who publish lawfully obtained facts of public interest to reinforce the government's interests in keeping its own confidences. Second, the statute is over-inclusive because its plain language reaches any speaker, not just those with an obligation to maintain a secret, and the State ignored obvious means of narrowing the law in manners that would protect journalists, publishers, and public commentators. Third, it is under-inclusive because it exempts the government agencies and employees who do have an obligation to prevent the release of government records….
I'll also blog about the state's argument in defense of the law, once that is filed.
