Attempt to force Google to remove materials fails, because Google wasn’t even a party to the lawsuit

Should be pretty obvious, but it apparently wasn’t obvious to the trial court. From Thursday’s Texas Court of Appeals decision in Google, Inc. v. Expunction Order (Tex. Ct. App. June 5, 2014):

The Commission for Lawyer Discipline filed a notice to nonsuit an action it had brought against Calvin Jackson. Jackson filed a motion to expunge all records related to the action. The trial court nonsuited the action and granted the motion to expunge. The order of expunction required appellant, Google, Inc., to take certain action, even though it had never been a party to the suit…. We reverse and vacate the trial court’s order as it applies to Google….

A county court at law judge from Galveston County filed a grievance against Jackson, alleging certain improper actions in a proceeding before his court. The commission issued a complaint, and Jackson elected to proceed in district court. Some time later, the commission filed a motion to nonsuit the action it had brought against Jackson. The same day, the trial court signed an order nonsuiting the action with prejudice.

Two days later, Jackson filed a motion for expunction of all records relating to the disciplinary action. Jackson identified the motion as “unopposed.” The motion identified Google, among others, as an entity that “may have records pertaining to Jackson in connection with the disciplinary action and which are subject to expunction.” The motion asked the trial court to require all parties that he had identified to have relevant records to expunge those records.

The trial court signed the proposed expunction order. The order identified Google as an entity to whom the order must be sent. The order further required all identified recipients to expunge or destroy all records relating to the action other than certain, specifically identified records….

Constitutional due process requires a party to be served with process and to receive notice of an action to which it is an interested party. A judgment rendered in violation of due process is void. As a corollary to this rule, “[i]t is a basic tenet of American jurisprudence that before a court can affect a person’s interest in in personam litigation, that person must either be a party to litigation before the court or in privity to a party in litigation before the court.”

It is clear from the record that Google was never named as a party to the suit, was never served with process, never waived or accepted process, and never made an appearance in the suit before the expunction order was entered. Nothing in the record establishes that Google stands in privity to the commission or to Jackson. Accordingly, we hold that Google was not a party to the suit and that the trial court lacked jurisdiction to enter orders against Google….

Seems quite obviously correct. This is the case I wrote about back in April; according to an April 20 article in the Houston Chronicle,

[I]n a stunning and all-encompassing gag order signed over a year ago and now being appealed to Houston’s 1st Court of Appeals, attorney Calvin C. Jackson, who was accused of forging attorney signatures on court records, demands Google erase all mention of those accusations from the entire Internet including other websites….

The gag order, signed by visiting San Antonio Judge Richard Price in February 2013, forces Google and other search engines to wipe out all record of the allegations from the Internet. It also compels the search engine to find third parties who posted the information to get it back and destroy it. The order also prohibited Google and parties to the suit from talking about the allegations after the order was signed.

Indeed, even the gag order seemed to be secret: “Neither Babcock nor the court, district clerk or any of the parties connected to the case would release a copy of the order, saying the release was prohibited under the final order expunging records.”

As the Southeast Texas Record (a legal newspaper) reported at the time the charges were filed,

The Commission For Lawyer Discipline has filed suit against Houston attorney Calvin C. Jackson over allegations he committed forgery.

According to a lawsuit filed June 18, Jackson “deceitfully” filed pleadings in a June 2010 lawsuit in Galveston County Court at Law No. 3 under the forged signatures of the plaintiff’s counsel.

Jackson was representing one of the defendants in the litigation, which was consolidated into another case….

“The respondent, as defense counsel, had no authority to act on behalf of the plaintiff,” the suit says.

“Further, the respondent’s fraudulent filings caused delay, and wasted the court’s time and resources.”

Galveston County Court at Law No. 3 Judge Christopher Dupuy found Jackson in contempt of court on Sept. 9, 2011.

According to the Chronicle, “[t]he allegations against [Jackson] were settled, but no one connected to the case would say what happened because of the gag order.”

If the facts are as reported, then this order clearly violates the First Amendment; a court can’t order a publisher — whether Google, some other Web site, the Houston Chronicle, or this blog — to delete formerly public records. Even damages liability in such cases is generally unconstitutional, see Florida Star v. B.J.F. (1989) (in which the Court said that a newspaper had a right to publish even an erroneously released name of a rape victim, notwithstanding a state statute prohibiting such publication). The First Amendment case against an injunction is even clearer. But, as we see from Thursday’s decision, a court needn’t even reach the First Amendment issue if an injunction is issued against an entity — such as Google — that wasn’t even named as a party in the lawsuit.

Disclosure: I have represented Google in the past, though not on anything having to do with this case. I have also filed an amicus brief in Martin v. Hearst Corp., arguing that a court cannot impose damages liability on a publisher that declines to take down a Web page accurately reporting an arrest that has since been expunged.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
SECTION: {section=national, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, moderationrequired=false, display_more=true, includefeaturenotification=true, defaultsort=reverseChronological, comments_period=14, canvas_allcomments_id=washpost.com/km4ey0dajm, includevoteofftopic=false, allow_videos=false, childrenitemsperpage=3, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, includesorts=true, includeheader=true, defaulttab=all, includeverifiedcommenters=true, includerecommend=true, maxitemstop=2, includereport=true, source=washpost.com, allow_photos=false, maxitems=7, includepause=true, display_ugc_photos=false, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, moderationrequired=false, display_more=true, includefeaturenotification=true, defaultsort=reverseChronological, comments_period=14, canvas_allcomments_id=washpost.com/km4ey0dajm, includevoteofftopic=false, allow_videos=false, childrenitemsperpage=3, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, includesorts=true, includeheader=true, defaulttab=all, includeverifiedcommenters=true, includerecommend=true, maxitemstop=2, includereport=true, source=washpost.com, allow_photos=false, maxitems=7, includepause=true, display_ugc_photos=false, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Comments
SECTION: {section=national, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, moderationrequired=false, display_more=true, includefeaturenotification=true, defaultsort=reverseChronological, comments_period=14, canvas_allcomments_id=washpost.com/km4ey0dajm, includevoteofftopic=false, allow_videos=false, childrenitemsperpage=3, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, includesorts=true, includeheader=true, defaulttab=all, includeverifiedcommenters=true, includerecommend=true, maxitemstop=2, includereport=true, source=washpost.com, allow_photos=false, maxitems=7, includepause=true, display_ugc_photos=false, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, moderationrequired=false, display_more=true, includefeaturenotification=true, defaultsort=reverseChronological, comments_period=14, canvas_allcomments_id=washpost.com/km4ey0dajm, includevoteofftopic=false, allow_videos=false, childrenitemsperpage=3, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, includesorts=true, includeheader=true, defaulttab=all, includeverifiedcommenters=true, includerecommend=true, maxitemstop=2, includereport=true, source=washpost.com, allow_photos=false, maxitems=7, includepause=true, display_ugc_photos=false, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Most Read National
Next Story
David Bernstein · June 6