The Volokh Conspiracy
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Privacy/Confusion Concerns Can't Justify Ordering Search Engines Not to Report on Court Case
From Judge Tanya Chutkan (D.D.C.) today in U.S. v. Tamberg:
Defendant Alexis James Andreas Tamberg pleaded guilty to transmitting threats in interstate commerce in violation of 18 U.S.C. § 875(c) based on a series of Facebook messages threatening President Donald J. Trump and Congresswoman Alexandra Ocasio Cortez. In light of Tamberg's extensive mental health issues, which contributed to his criminal conduct, the Government sought and the court imposed a sentence of time served and two years' supervised release…. Defendant filed a Motion to Alter Judgment, asking the court to enjoin search engines, specifically, Google and Bing, from reporting on this case…. Tamberg represents that public reporting by search engines "leads to confusion" because he and his father have similar names. Defendant's name is Alexis James Andreas Tamberg; his father's name is Andreas Tamberg. According to Tamberg, the search engines report the case as "United States v. Andreas Tamberg," which "has negatively impacted" his father's life.
The court concluded that Tamberg lacked standing to raise his father's interests, but also added this:
Even if Tamberg could assert his father's privacy interests, the court could not grant the requested relief. Court orders restraining media reporting on criminal proceedings are presumptively unconstitutional under the First Amendment.
Courts may "appropriately delimit what trial participants, including the accused, can say publicly," but have very "limited authority to restrict the speech of the press and other outsiders to the litigation." To restrain speech by nonparties, the speech must "present[ ] a 'clear and present danger to the administration of justice.'" The restriction must be narrowly tailored to serve a compelling government interest.
The Supreme Court has refused to restrict "publication of information that would have been available to any member of the public who attended an open proceeding in a criminal trial" based solely on privacy interests. Cap. Cities Media, Inc. v. Toole (1983); see, e.g., Cox Broad. Corp. v. Cohn (1975) ("Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." (citation omitted)); Neb. Press Ass'n v. Stuart (1975) (Facts in criminal proceedings "are presumed to be in the public domain."); Sheppard v. Maxwell3 (1966) ("[T]here is nothing that proscribes the press from reporting events that transpire in the courtroom."); Craig v. Harney (1947) ("What transpires in the court room is public property … There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it."); Globe Newspaper Co. v. Superior Ct. (1982) (holding "Massachusetts' mandatory rule barring press and public access to criminal sex-offense trials during testimony of minor victims" violates the First Amendment); Fla. Star v. B.J.F. (1989) (barring civil liability where a newspaper publishes truthful information which it has lawfully obtained).
