FAN 84 (First Amendment News) Can newspapers publish truthful information disclosing police officers’ personal information? — Cert. petition pending
It’s been almost 15 years since the Court last heard a First Amendment case involving the press — Bartnicki v. Vopper (2001). That was during the Rehnquist Court era and four of the Justices that sat on that case (Rehnquist, Stevens, Souter, and O’Connor) have been replaced (by Roberts, Alito, Kagan, and Sotomayor). What does that portend for the institutional press? Media lawyers are asking just that question in light of a cert. petition pending before the Court.
The case is Sun-Times Media, LLC v. Dahlstrom. Here are the issues before the Court:
- Whether, under the First Amendment to the United States Constitution, police officers may sue a newspaper for publishing truthful information relating to matters of public concern if a judge determines that the information on balance was unworthy of constitutional protection;
- whether, in cases where information was allegedly unlawfully supplied to a newspaper by authorized government sources, the government may punish the acquisition and ensuing publication;
- whether the First Amendment to the United States Constitution permits an interpretation of the Driver’s Privacy Protection Act (DPPA) that allows local police officers to sue a newspaper for publishing information provided by the Illinois Secretary of State; and
- whether public officials can invoke the DPPA’s restrictions on “disclosure” of “personal information” that “identifies an individual” to censor a newspaper’s investigative report on a questionable police lineup because the report contained descriptive information supplied by the state government (e.g., height, weight, eye and hair color) that is not listed in the DPPA’s definition of “personal information.”
- “The Seventh Circuit Destabilized Decades of First Amendment Jurisprudence by Allowing the Press to be Sanctioned for Truthful Reporting on Matters of Public Safety”
a. “The Seventh Circuit adopted a balance that chills speech by allowing a judge to limit First Amendment protections to the passages deemed most important”
b. “The Seventh Circuit unnecessarily answered the Bartnicki question and got it wrong by shifting the verification burden from the government to the press”
c. “The DPPA cannot withstand constitutional scrutiny if it can be utilized to chill investigative reports on public officials that pose no safety risk to them,” and
d. “The Seventh Circuit undercut constitutional protections for news gathering.”
→ In its brief in opposition, the Solicitor General’s Office argued that
- “the doctrine of constitutional avoidance . . . has no application here. Petitioner’s statutory interpretation is not a plausible one.”
- The government also argued that “[t]he only constitutional claim petitioner raises in this Court is an alleged First Amendment right to disseminate information that it unlawfully obtained. As the court of appeals recognized, that claim lacks merit. . . . Each of the decisions that petitioner cites . . . is one in which the information was obtained lawfully by the entity that disseminated it (although the disseminating entity’s source may have originally obtained the information through unlawful behavior in which the entity was not involved). And the cited decisions indicate that the government has strong and legitimate justifications for preventing the dissemination of information by a person who acted unlawfully in obtaining it—including an interest in effectively deterring ‘the initial unlawful acquisition of that same information.'”
→ According to Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press, “what is particularly troubling about this case is that the 7th Circuit concluded that a newspaper could be held liable under the DPPA both for obtaining information in violation of the DPPA and for publishing that information. From our perspective, this case raises very real concerns about the possible limits of Bartnicki in cases involving the publication of information that a newspaper knows (or in a Court’s view should know) was obtained unlawfully.”
[ht: Tony Mauro]
Floyd Abrams Defends (Most) Donor Disclosure Laws
[Y]our opposition to disclosure requirements as reflected in your editorial “Show Us Your Donors” (Nov. 5) is not only at odds with Citizens United but with virtually all Supreme Court rulings in this area and the views of all but one of the present members of that Court. . . .
It is true that if a showing can be made that the effect of disclosure in a particular case would be, as the Court put it in Citizens United, that a “group’s members would face threats, harassment or reprisals if their names were disclosed” that a serious constitutional issue might be raised. But that is the exception, not the norm, and there is no basis to conclude that since disclosure might lead to public criticism, that is reason enough to avoid the obligation to disclose, let alone to hold it unconstitutional. . . .
→ See FAN 83.2 (First Amendment News) “Court Declines to Hear Compelled Disclosure Case”
Quote of the Week . . . from Justice Kennedy re Citizens United Read More