Journalist’s Publishing Information About Sealed Arrest Protected by First Amendment

From yesterday’s Blackman v. Substack, Inc., by California Court of Appeal Justices Tracie Brown and Danny Chou and Marin County Judge Andrew Sweet:

“‘[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.'” (The Florida Star v. B.J.F. (1989).) …

Penal Code sections 851.91 and 851.92 provide for the sealing of arrest records in certain situations when the arrest did not result in a conviction, and the latter statute prohibits dissemination of sealed documents. Plaintiff Maury Blackman’s 2021 arrest was sealed pursuant to these statutes, but the San Francisco Police Department (SFPD) publicly released the investigative police report for the arrest to a third party without restriction, and an anonymous source subsequently sent that report to defendant Jack Poulson. Poulson wrote about Blackman’s arrest online, and Blackman sued Poulson and the entities that provided online platforms for Poulson’s postings.

The Court of Appeal held that Poulson’s posts were constitutionally protected:

First, the evidence in this case establishes that Poulson lawfully obtained the incident report. Blackman contends that The Florida Star and Bartnicki v. Vopper (2001) are distinguishable because those cases did not involve a law that criminalized the receipt of the information at issue, whereas Penal Code sections 11134 or 13304 and Labor Code section 432.7, subdivision (g)(3) allegedly criminalize the knowingly unauthorized receipt and possession of the incident report in certain circumstances. It is undisputed, however, that Poulson did not know that the incident report was sealed when he received it. And, in any event, we agree with the trial court that Poulson was exempt from any illegality created pursuant to these statutes. (See Pen. Code, §§ 11143, 11304 & Lab. Code, § 432.7, subd. (g)(3) [exempting from their application persons described in Evid. Code, § 1070.)

O’Grady v. Superior Court (Cal. App. 2006), relied on by Poulson, is instructive on the question of whether Poulson constitutes an exempt “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication” under Evidence Code section 1070, subdivision (a). In O’Grady, the petitioner bloggers resisting discovery were authors of articles on, and the proprietors of, “O’Grady’s PowerPage” and “Apple Insider,” which published news about Apple computers and products online. These publications had fixed internet sites, published multiple times per week, and had operated for many years with hundreds of thousands of visitors per month. The court found that Evidence Code section 1070, subdivision (a) applied to petitioners as “covered persons” because petitioners “flatly declared that they are also editors and reporters” and the respondent offered no basis to question that characterization. The court then determined that the statute did not exclude online media, and the term “periodical publication” was ambiguous in the online context. Looking to the statute’s purpose, the court concluded that the Legislature intended the phrase “periodical publication” to include all ongoing, recurring news publications while excluding non-recurring publications such as books, pamphlets, flyers, and monographs. The court thus concluded that the statute protects publications like the petitioners’, “which differ from traditional periodicals only in their tendency, which flows directly from the advanced technology they employ, to continuously update their content.”

Here, Poulson’s undisputed declaration states that he is “an independent journalist focused on the intersection of technology and national security.” Poulson writes primarily through his publicly available newsletter, All-Source Intelligence, started in April 2023 and published through Substack, but he has also done freelance investigative work for The Guardian and The Intercept. Poulson provided the website for his newsletter, stated that he publishes it approximately once a week, and he declared that he had 3,000 subscribers at the time of his declaration. Similar to O’Grady, Poulson’s declaration provides sufficient evidence that he is a reporter connected with an ongoing, recurring online news periodical publication.

Next, the publications discussing the arrest and the posting of the incident report itself were truthful publications on a matter of public significance. We accept the trial court’s determination that the publications were truthful because Blackman does not dispute the truthfulness of the publications on appeal….

This case bears a strong resemblance to The Florida Star. The incident report is the same type of government record as the police report in The Florida Star. The incident report was ordered sealed, and, similarly, state law prohibited the release of the name of the rape victim in The Florida Star. The government in both cases nonetheless publicly released the government records at issue without restriction, and Poulson, like the reporters in The Florida Star, reported on significant information from the publicly released police record.

With respect to the one factual difference from The Florida Star—the 18-month lapse in time between the arrest and Poulson’s September 14 article—the reasoning of Gates v. Discovery Communications, Inc. (Cal. 2004), as well as the high court’s justifications for the rule it adopted in The Florida Star, lead us to reject Blackman’s request that we find the lapse in time to be dispositive…. Gates … reason[ed] that the following considerations that drove the high court’s decisions did not lend themselves to temporal limitation: (1) the press’ responsibility to report the operations of government, including judicial proceedings regarding crimes; (2) by placing the information in the public domain on official court records, the State must be presumed to have concluded the public interest was thereby being served; and (3) The Florida Star “‘rested in large part on the fact that the government had, by making the information available to the press, impliedly determined its dissemination was in the public interest, and could not then [fairly] punish a newspaper for’ relying on that determination.” …

[And] although the state interest in protecting Blackman’s privacy interests is significant, it does not survive strict scrutiny. “Once the government has placed such information in the public domain, ‘reliance must rest upon the judgment of those who decide what to publish or broadcast,’ [citation], and hopes for restitution must rest upon the willingness of the government to compensate victims for their loss of privacy and to protect them from the other consequences of its mishandling of the information which these victims provided in confidence.” …

The court also concluded that Blackman’s claims against Substack (for publishing Blackman’s newsletter) and Tech Inquiry (where Blackman “posted the incident report and links to his article”) were barred by 47 U.S.C. § 230; a brief excerpt:

[W]e are not convinced by Blackman’s brief argument that the CDA does not apply to claims alleging violation of a state court order. The CDA states, “‘No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.'” Blackman quotes the dissenting opinion in Hassell v. Bird (Cal. 2018), a case addressing whether Yelp Inc. (who had not been sued) had to comply with an order to take down defamatory consumer reviews, which stated, “None of the policies within section 230(b) state or suggest an express immunity from compliance with state court orders.” But that dissent also states, “What this case does not implicate is the kind of situation where section 230 does confer immunity—against a cause of action filed directly against the platform, seeking to hold it liable for conduct as the publisher of third party content.” …

And the court also concluded that the speech was “in connection with a public issue” and was thus entitled to the various procedural protections of the California anti-SLAPP statute, which included ordering Blackman to pay about $400K in defendants’ attorney fees.

David Greene and Victoria Noble of the Electronic Frontier Foundation represent Poulson; Joshua A. Baskin and Thomas R. Wakefield (Wilson Sonsini) represent Substack; and Susan E. Seager represents Tech Inquiry.

Thanks to D Gill Sperlein and Ronald London (FIRE) for filing an amicus brief in the case on behalf of FIRE, the First Amendment Coalition, and me; the court declined to reach our arguments in that brief, which argued that Cal. Penal Code § 851.92(c) is presumptively facially unconstitutional, but I’m still glad to see the result the court reached.