Brief Challenging California Law Banning Publication of Information About Sealed Arrests

From the Introduction to an amicus brief filed by Gill Sperlein and Ronnie London (the Foundation for Individual Rights and Expression) on behalf of FIRE, the First Amendment Coalition, and me in Blackman v. Substack, Inc.:

The trial court correctly granted Defendants' special motion to strike in holding Blackman's claims arose from activity protected by California's anti-SLAPP statute and that he failed to demonstrate a probability of success on those claims. That ruling safeguards an essential concern of the First Amendment: the ability of journalists to report on matters of public concern using lawfully obtained information. A contrary decision—one that would permit private parties like Blackman to impose liability on journalists for publishing truthful information of public interest—would violate Supreme Court precedent.

"Blackman was arrested in December 2021 for domestic violence at a time when he was the CEO of Premise Data[.]" "[P]olice officers prepared a report ('Incident Report') describing the incident[.]" "No charges were ultimately pursued against Blackman," and "the Superior Court entered an order sealing the arrest records under Penal Code sections 851.91 and 851.92[.]" Defendant Poulson "published a blog post reporting the arrest and relating what was described in the Incident Report," and "there is no evidence [he] and the other defendants knew the arrest was sealed before [he] reported on it[.]"

Before ultimately filing the action below, Blackman pressured Poulson to remove the information from the internet. And he received help doing so from San Francisco City Attorney David Chiu, who "contact[ed] at least some of the defendants to request that they remove information about the Incident Report."

Aware of these efforts, and as regular opponents of resorts to legal process to deny the public access to information about public issues, amicus Volokh sought to write about Blackman's censorial efforts, while amicus FAC and LaRoe wanted to comment publicly—including in the press, on FAC's website, and in public letters to lawmakers or other officials—about the risks to press freedom and transparency exemplified by the efforts of Blackman and the government to suppress Poulson's publication. But they were concerned that they, too, would be targeted by Blackman and the City Attorney.

The Superior Court ultimately determined "Poulson did not violate any law in obtaining [and publicly disclosing] the Incident Report." And the federal district court in FAC v. Chiu issued a stipulated preliminary injunction enjoining enforcement of the anti-distribution statute against amicus FAC and its advocacy director, or against amicus Volokh.

That result is consistent with how the Supreme Court has time and again struck down misguided state efforts to forbid the publication of lawfully obtained information about matters of public concern. When the "State attempts the extraordinary measure of punishing truthful publication in the name of privacy," the First Amendment requires the government to show it is justified by an interest of the "highest order." Fla. Star v. B.J.F., 491 U.S. 524, 533, 540 (1989) (internal quotation marks omitted).

That stringent test is not satisfied even by weighty considerations like encouraging rape victims to contact police or discouraging wiretapping. See, e.g., id. at 534 (name of a rape victim); Bartnicki v. Vopper, 532 U.S. 514, 534–35 (2001) (broadcast of phone call known to have been recorded unlawfully); Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 838 (1978) (information about the investigation of a judge). Once a publisher has obtained information in a lawful manner—even if the publisher's source obtained it unlawfully—the government may not "punish the ensuing publication of that information based on a defect in the chain." Bartnicki, 532 U.S. at 528 (internal quotation marks omitted).

Amici FAC and Volokh's experiences demonstrate the stakes. FAC's Advocacy Director Ginny LaRoe co-authored an opinion piece critical of how Blackman, with the help of the San Francisco City Attorney, pressured Defendants to cease publication of legally obtained and constitutionally protected information by threatening to invoke the anti-dissemination statute to impose civil penalties. The opinion piece, published in a San Francisco newspaper, contained information about the sealed arrest record. Because he opposes efforts to remove online content through court orders, copyright takedown notices, and similar complaints—and because he regularly links to source material—amicus Volokh also sought to write about Blackman's attempts to conceal the arrest report.

Like Defendant Poulson, amici FAC and Volokh legally obtained copies of the arrest report, as well as information about Blackman's attempts to conceal information in the report. Given Blackman and Chiu's aggressive attempts to silence the Defendants, amici FAC and Volokh became understandably concerned they, too, might risk facing civil penalties and private lawsuits for money damages, such that they secured the above-referenced stipulated preliminary injunction….

[T]he First Amendment prohibits application of the anti-dissemination statute to any journalist reporting on lawfully obtained information. The "dissemination of information [is] speech within the meaning of the First Amendment." Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011). The anti-dissemination law is presumptively unconstitutional because it is a content-based restriction that targets speech "by particular subject matter," see Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015), i.e., that "relating to a sealed arrest." Cal. Penal Code § 851.92(c). And it fails strict scrutiny: The statute is not narrowly tailored to serve a compelling government interest, California's asserted interest in reputation does not serve a compelling interest, Butterworth v. Smith, 494 U.S. 624, 634 (1990), the statute is both over-and under-inclusive, and it is not the least restrictive means of achieving its stated purpose….

And a short excerpt from the long body of the argument:

Being a content-based restriction on speech, the anti-dissemination statute triggers strict scrutiny, but the law is not "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," it must "further a state interest of the highest order," with a showing "far stronger than mere speculation about serious harms" or "[u]nusual" incidents. And Blackman 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, 491 U.S. at 534 (name of rape victim); Daily Mail Publ'g Co., 443 U.S. at 99–104 (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 means for information about arrests to "find[] 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 government 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, 494 U.S. at 634. Likewise, the desire to prevent employment discrimination does not generally justify restricting truthful speech about people. See IMDb.com, 962 F.3d at 1125–26.

Here, the anti-dissemination statute targets truthful statements—the fact of an arrest or the existence of a sealed record—for the purpose of preventing the downstream economic harm caused by damage to reputation, which may inhibit employment or housing prospects. 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, 435 U.S. at 841–42 (injury to "official reputation" of judges); cf. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (public officials must show falsity and actual malice); Garrison v. Louisiana, 379 U.S. 64, 72 & n.8, 74 (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 held 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. The trial court correctly granted Defendants' special motion to strike because Blackman cannot demonstrate a probability of prevailing on his claims given that the First Amendment fully protects the Defendants' publications….