Tuesday, May 1, 2001
The Ward's Prayer
by Clinton Fein
Our Judge which Art an Identity
Thy Decision Wrong
Give us this day our constitutional prerogatives
And lead us not to speak code
For thy Social Security is Government Scrutiny, governed by bad legislation.
Justicefiles.org positions itself as "a revolutionary attempt to provide accountability in government on a scale never before seen in this country (or for that matter, the world)." The site offers access to a database of police officers; prosecutors and "those that are part of the criminal justice system" as compiled from court records, including the publication of home addresses, phone numbers, Social Security numbers and other personal information. A recent and somewhat misguided ruling by a Washington Judge ordered the proprietors of the web site to remove the Social Security numbers on the Kirkland portion the site, after the City of Kirkland filed a suit asserting that this publication of their personal information "invades their privacy interests and is causing them continuing injury."
In his May 10, 2001 ruling, Judge Robert H. Alsdorf stated the following:
While there are readily accepted remedies after the fact, such as monetary damages for libelous or other wrongful speech, injunctions are rarely granted to stop the exercise of free speech except in those rare circumstance where it poses an immediate danger to others, such as uttering direct and credible threats to kill or injure. Injunctions are allowed for speech that is "directed to inciting or producing imminent lawless action and is likely to induce or produce such action." Brandenburg v. Ohio, 395 U.S. 440, 447 (1969). In the absence of evidence of such threats, speech generally cannot be enjoined, however repugnant, offensive or distasteful it may otherwise be.However, in his final determination, Judge Alsdorf distinguished between certain material that he thought should be published, such as legally obtained private addresses and phone numbers and similar private information, which he felt were protected by the First Amendment, and just the Social Security numbers that he thought were entitled to privacy. Citing a "compelling interest in keeping Social Security numbers private," Alsdorf issued an injunction directing the removal of all SSNs from defendants' web site.
Following the injunction, Elena Luisa Garella, (a Seattle attorney representing one of the publishers of the site, William Sheehan), sent an email to Wired News reporter Declan McCullagh detailing the basic premise of the decision. McCullagh decided to test the court, asserting:
"I believe that same information is available from public court records and other lawful public sources, and I'm including it here for journalistic purposes -- to demonstrate what kind of information the site in question has."So McCullagh sent an email to an email list he maintains containing a list of three social security numbers that were taken from the justcefiles.org web site. He further archived the email on his web site politechbot.com. On May 14, 2001, The City of Kirkland's lawyers at Preston Gates sent him a letter ordering him to delete the three Social Security numbers from his site.
McCullagh took his position on this case, he states: "because it highlights how nebulous 'privacy rights' are being used to limit free expression."
We felt the same way about the alleged privacy argument the government used in United States v. ApolloMedia to try and impose a prior restraint on our speech by gagging us while simultaneously attempting to garner private information about the users of our site. A prolonged battle all the way to the Fifth Circuit Court of Appeals, (and one that effectively gagged employees of ApolloMedia, my attorneys, and myself for nearly a year) finally resulted in a First Amendment victory for ApolloMedia, parent of annoy.com.
Rather than retell the story, McCullagh granted annoy.com permission to reproduce his emails, as we have done below. In so doing, some interesting legal, journalistic, artistic and ethical issues arise.
Firstly, the information McCullagh published on his web site is now published on ours. Since the government itself has recognized and treated us as a journalistic entity, what McCullagh has done and the injunction against justicefiles.org constitutes legitimate news and deals with issues, which we have a compelling interest in covering and which visitors to our site have in learning.
Further, the accompanying graphic representation of this story is designed to provoke thought and pose questions: What is code, what is art, what is speech?
If a publicly available document containing information such as a Social Security number that a Judge has found within the constitution to order private, is the display of one of those numbers backwards constitutionally protected?
And while the reflection of the number in a mirror might appear to be the exact number, can mirror images of information publicly available be prohibited? What about upside down? Or as a postcard?
Since the ruling applies only to justicefiles.org, can an entity like annoy.com be restricted by a prior restraint from publishing information that is both publicly available and newsworthy, or simply art, as the case may be?
While we strongly disagree with the Judges injunction and our distaste for prior restraints automatically triggers a defensive reaction, there are a few items worth noting.
The government engaged in the unconstitutional filing of ex-parte motions in United States vs. ApolloMedia and the federal magistrate in Houston did little more than serve as a rubber stamp with a terse one sentence ruling. Judge Alsdorf at least did more than many trial courts would do, by trying to explain in reasons and in public, his decision.
In a telephone conversation with Elena Luisa Garella, she expressed frustration at the ruling insofar as the extent to which it relied on misinformation documented in the City of Kirklands Motion that Sheehan had based his opposition to the City's Motion on the defense of "waiver." The relevance here is that the entire burden of proof was thus shifted from plaintiff having to prove the information was private to begin with to defendant having to establish the affirmative defense of waiver.
What Sheehan actually argued was that the preliminary injunction should not be issued because the City of Kirkland failed to present evidence proving that the identifying information was in fact "private facts." One of the essential elements of the City's case is the burden of demonstrating that the information was private before it was posted on Sheehan's web sites.
While Garella's frustration and response to the injunction make sense, there are additional reasons the court was wrong. Namely that the First Amendment prohibition against prior restraints is so strong and because the privacy interest on the facts is really weak.
It is still an unsettled question whether the publication of truthful private facts, that constitute a far worse and terrible invasion of privacy, is entitled to First Amendment protection. Given the recent Supreme Court decision in Barnicki v. Vopper and other recent rulings, indicators suggest that even the High Court would likely rule that publication of the most private of information is constitutionally protected by the First Amendment.
Judges like others make mistakes all the time. As Alsdorf pointed out, the area of law in this area is still unclear and presents unique and interesting challenges that the founding fathers could not have imagined when drafting the constitution.
The undeniable fact, which thankfully safeguards against prior restraints on speech, is that the Internet facilitates an immediate means of undermining them by publication of the very material that is enjoined. On a global scale way beyond the jurisdiction of the court issuing the Order. Already, in this case, Canadian hackers are reported to have hijacked the URL and were able to publish the information enjoined by the Order. And of course, there are always mirror sites that spring up like moles in these situations.
Our decision to publish the graphic, McCullagh's emails and this editorial is unequivocal. Judges need to understand that prior restraints on speech yield detrimental consequences. All too often, the issuing of prior restraints does little more than invite violation and sharpen the focus of what may have otherwise remained in relative obscurity. Our position is consistent with our commitment to freedom of expression, the relevance of this case to our own experiences relating to prior restraint and to point out clearly that prior restraints should not be issued and do not work. No matter how well-intended a prior restraint may be, it is flagitious, perhaps even more so when accompanied by sweet reason rather than the gag orders of a precisian.
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