The Volokh Conspiracy
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Court Throws Out Lawsuit Over Journalist's Publication of Information About Sealed Arrest
From the tentative ruling in Doe v. Substack, Inc. released last week; I'm told it was largely adopted in the hearing at Feb. 4, with a minor modification noted below (for more on the current state of a challenge to Cal. Penal Code § 851.92(c), brought by the Foundation for Individual Rights and Expression on behalf of the First Amendment Coalition and me, see here):
Plaintiff Maury Blackman … was arrested in December 2021 for domestic violence at a time when he was the CEO of Premise Data, a private company. As is customary, police officers prepared a report ("Incident Report") describing the incident and their encounters with Blackman and another person present. No charges were ultimately pursued against Blackman arising from the incident and the Superior Court entered an order sealing the arrest and related records under Penal Code sections 851.91 and 851.92 on February 15, 2022.
In September 2023, after the sealing order, [Jack] Poulson published a blog post reporting the arrest and relating what was described in the Incident Report. Poulson later reported on his blog that Blackman was terminated in part because of the incident. Poulson had previously published other blog posts about Premise Data, including concerning (according to those posts) its contracts with U.S. Special Operations Forces for intelligence collection, its contracts with the United States Department of Defense, and Blackman's security clearance.
Poulson's post about the arrest appeared on his newsletter, published by Substack. He also posted a redacted version of the Incident Report on an eponymous website owned by Tech Inquiry. The Tech Inquiry website is a source of articles and data about surveillance, weapons companies, and public contracts. Poulson is the founder and executive director of Tech Inquiry….
Blackman unsuccessfully attempted to have Poulson's posts removed based on the sealing order. Blackman has submitted a declaration describing financial and nonfinancial injuries from Poulson's blog posts. All of the claims asserted in the complaint relate to the blog posts and the effect of their publication on Blackman. The San Francisco Chronicle has covered Blackman's lawsuit.
Blackman sued, and the defendants moved to have the complaint dismissed under the state "anti-SLAPP" statute. Under that statute, a defendant must show that its speech was "in connection with a public issue" (to oversimplify), and the court concluded the defendants' speech qualified:
Poulson was reporting on a blog post about Blackman, the CEO of a company with that Poulson had previously covered as part of his Substack newsletter, a public newsletter with at least 3,000 subscribers, concerning companies making surveillance technologies. This was a writing in a public forum. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897 ["the Web, as a whole, can be analogized to a public bulletin board"].) And it concerned the character and conduct of the CEO of a company with government contracts in the security and intelligence arena. The character and trustworthiness of members of the business community have been held to be of public significance where business leaders hold themselves out as trustworthy and advertise their businesses to members of the public; the court cannot see how the character and trustworthiness of the leader of a business with contracts with the U.S. government and a security clearance can be of any less public significance….
Blackman contends that Poulson's speech is outside the anti-SLAPP statute because it was illegal, regardless of its public significance … citing Flatley v. Mauro (Cal. 2006) …. The speech at issue in Flatley was extortion, a threat to publicly accuse the plaintiff of rape unless the plaintiff paid money to the defendant….
To assess the argument that Poulson's speech was illegal, it is useful to review the law about sealing with some precision, because courts in California (and elsewhere) have recognized that there is a "continuum" of illegal acts by newsgatherers, and only wrongful conduct at the "extreme end" will overcome the First Amendment protection for reporting…. "'At one extreme, routine … reporting techniques, such as asking questions of people with information (including those with confidential or restricted information) could rarely, if ever, be deemed an actionable intrusion. At the other extreme, violation of well-established legal areas of physical or sensory privacy—trespass into a home or tapping a personal telephone line, for example—could rarely, if ever, be justified by a reporter's need to get the story. Such acts would be deemed highly offensive even if the information sought was of weighty public concern; they would also be outside any protection the Constitution provides to newsgathering.'" ….
The record of Blackman's arrest was sealed pursuant to Penal Code section 851.91. That section permits "[a] person who has suffered an arrest that did not result in a conviction" to petition the court to have "arrest and related records sealed." When the court grants relief, as the Superior Court did here, provisions of Penal Code section 851.92 then apply.
Specifically, "[a]rrest records" and the incident reports that document the arrest that are sealed "shall not be disclosed to any person or entity except the person whose arrest was sealed or a criminal justice agency." Once an arrest is sealed, it becomes unlawful for someone to "disseminate[] information relating to a sealed arrest." That provision is subject to a "civil penalty" enforceable by a public prosecutor, but not by the arrested person and not through criminal sanctions. The arresting agency is supposed to stamp its digital or paper master copies of the incident report with stamped "'ARREST SEALED: DO NOT RELEASE OUTSIDE THE CRIMINAL JUSTICE SECTOR.'"
In this case, either the arresting agency did not do so, or the copy of the Incident Report that Poulson received duplicated the master copy before the court issued its sealing order. It is undisputed that the copy of the Incident Report that Poulson received did not include any language indicating the arrest was sealed, and the police did not inform Poulson of this when he called to verify the authenticity of the report.
Blackman alleges that Poulson committed a misdemeanor by knowingly possessing the Incident Report, but he is incorrect even as to the period after Blackman made him aware that the arrest had been sealed. Penal Code 11143 makes it a misdemeanor for a member of the public to knowingly possess a "record." Record is defined in that statute as "state summary criminal history," a summary of all criminal history related to a particular person maintained by the state, which is distinct from the Incident Report alleged to have been unlawfully disseminated here. In any event, this provision exempts journalists, as does Labor Code 432.7(g), another provision Blackman relies on.
Nor is Blackman correct that Poulson committed a violation of Penal Code 166 by disseminating the Incident Report related to a sealed arrest; as relevant, that statute prohibits "[w]illful disobedience of the terms, as written, of a … court order." The sealing order here does not include written terms that, by themselves, create an obligation by Poulson or anyone else not to disseminate the Incident Report; those obligations are a legal consequence of granting relief pursuant to 851.91 and 851.92 but do not independently arise from the written terms of the Superior Court's February 15, 2022 order.
Thus, to summarize, Poulson did not violate any law in obtaining the Incident Report. There is no evidence that Poulson and the other defendants had reason to believe the Incident Report was sealed when Poulson first published his September 2023 post reporting the incident.
In disseminating the sealed Incident Report, the defendants' conduct violated Penal Code 851.92(c), but no criminal liability attached to that conduct. Instead, civil penalties sought by the Attorney General or other public prosecutors were available, but there is no evidence that any public prosecutor ever sought penalties, although the San Francisco City Attorney did contact at least some of the defendants to request that they remove information about the Incident Report….
Poulson's conduct was not at the "extreme end" of bad newsgatherer behavior. Indeed, it was farther from the extreme end than the conduct at issue in Bartnicki v. Vopper (2001). That case involved a federal law prohibiting disclosure of intercepted communications for which civil or criminal penalties were available. The Supreme Court nonetheless concluded that to apply it to a truthful publication of an intercepted conversation concerning a matter of public significance would violate the First Amendment. In any event, "the Supreme Court's use of the phrase 'illegal' [in Flatley] was intended to mean criminal, and not merely violative of a statute."
Thus, to the extent Blackman claims that the speech was illegal and therefore [was not eligible for anti-SLAPP protection], his claims are unpersuasive.
Once a defendant bringing an anti-SLAPP motion shows that the speech was on a public issue, the plaintiff must show that he "has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law."
This court is persuaded that the First Amendment's protections for the publication of truthful speech concerning matters of public interest vitiate Blackman's merits showing. In Jenni Rivera Enterprises v. Latin World Entertainment Holdings (Cal. App. 2019), the court found no minimal merit in a lawsuit against Univision for broadcasting a program based on confidential information about a celebrity that was obtained through a breached non-disclosure agreement ("NDA"). The plaintiff in that case showed sufficient merit at step two to proceed with its claims against the former manager who breached the NDA, and the producers of the program who knowingly induced the breach. But as to Univision, the court stated:
"It is uncontroverted Univision had no knowledge of the nondisclosure agreement at the time it entered into the license agreement with [the producers]. The evidence of Univision's actions, after it learned of the nondisclosure agreement, that arguably contributed to [the former manager's] continued breaches of the agreement consisted of continuing to pay license fees to [the producers] and promoting [the former manager's] involvement with the Series. Even if those actions were sufficient to serve as the basis of liability for tortious interference, they are not sufficiently 'wrongful' or 'unlawful' to overcome the First Amendment newsgathering and broadcast privileges. Therefore, the First Amendment protected Univision's use and broadcast of the Series."
Similarly, in this case there is no evidence that Poulson and the other defendants knew the arrest was sealed before Poulson reported on it, and all defendants' actions in not taking down the arrest information after Blackman informed them of the sealing order was not so wrongful or unlawful that they are not protected.
Blackman further contends that Poulson's speech that he was arrested is false, and therefore not protected by the First Amendment, because an arrest is "deemed not to have occurred" when it is sealed. This contention is unpersuasive; the arrest occurred but Blackman has been exempted from some of the consequences of an arrest (although not all; law enforcement officers, for instance, will still see the arrest if they run Blackman's name through the state criminal history database). "Deemed not to have occurred" is language that effectuates this exemption from some of the consequences of the arrest, but it cannot alter how past events unfolded. [The tentative ruling had an extra "not" after "cannot," but a lawyer present at the hearing reports that the judge deleted it in her final decision. -EV]
Blackman also argues that Poulson's speech is false because it misleadingly implied that Poulson was present and viewed the events instead of reporting observations by police officers, and further implied that Blackman was guilty of or convicted of a crime. This is not how falsity is assessed for purposes of First Amendment analysis; a journalist does not become subject to suit because he does not include every detail the subject of the piece would like him to include. Adopting Blackman's frame of analysis would greatly expand the potential liability of the press and chill protected speech.
In sum, Poulson's activity in writing about the Incident Report is directly protected by the First Amendment….
The court concluded that it didn't need to decide whether "Penal Code 851.92(c)'s prohibition on dissemination of information relating to sealed arrest records is an unconstitutional content-based restriction on speech, which fails the strict scrutiny test applicable to content-based restrictions." That is the issue being litigated in FAC's and my lawsuit challenging the statute.
The court also held that the First Amendment protection extended to defendants Amazon Web Services, Substack, and Tech Inquiry, and that they were also protected by § 230, since plaintiff was trying to hold them liable for Poulson's speech.
For more on the case, see this longish article in the Gazetteer (S.F.) (Joel Rosenblatt) (registration required, but payment not required).
