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Government erroneously releases information; someone publishes it. Can government order the publisher to take it down?

Yes, argues the Georgia attorney general’s office in Schick v. Board of Regents of the University System of Georgia (Ga. Super. Ct. filed May 15, 2014), with regard to these e-mails:

[T]he Board of Regents … requests that the Court enter an order directing Plaintiff, David Schick, to remove from his blog, four pages of documents that are exempt from disclosure under the Georgia Open Records Act (“ORA”). These four pages were inadvertently disclosed by the Board of Regents on a CD produced to Plaintiffs attorney on August 5, 2013. The exempt documents disclose the identity of a number of individuals who applied for the position of president at one of the Board of Regents colleges or universities. None of these individuals were finalists or eventually selected for the position for which they had applied….

Here’s the problem for the government — in Florida Star v. B.J.F. (1989), the court dealt with the government’s inadvertent release of the name of a rape victim, not just a disappointed job candidate. The Florida Star published the name, and then the victim sued under a Florida law that barred any publication of a rape victim’s name. The court overturned a verdict in the victim’s favor, in large part because the newspaper published what the government itself released (however erroneously):

[T]he government retains ample means of safeguarding significant interests upon which publication may impinge, including protecting a rape victim’s anonymity…. The government may classify certain information [in its custody], establish and enforce procedures ensuring its redacted release, and extend a damages remedy against the government or its officials where the government’s mishandling of sensitive information leads to its dissemination. Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts….

[P]unishing the press for its dissemination of information which is already publicly available is [also] relatively unlikely to advance the interests in the service of which the State seeks to act. It is not, of course, always the case that information lawfully acquired by the press is known, or accessible, to others. But where the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release. We noted this anomaly in Cox Broadcasting [v. Cohn]: “By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served.” … “[O]nce the truthful information was ‘publicly revealed’ or ‘in the public domain’ the court could not constitutionally restrain its dissemination.”

A … final consideration is the “timidity and self-censorship” which may result from allowing the media to be punished for publishing certain truthful information. Cox Broadcasting noted this concern with overdeterrence in the context of information made public through official court records, but the fear of excessive media self-suppression is applicable as well to other information released, without qualification, by the government. A contrary rule, depriving protection to those who rely on the government’s implied representations of the lawfulness of dissemination, would force upon the media the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication. This situation could inhere even where the newspaper’s sole object was to reproduce, with no substantial change, the government’s rendition of the event in question….

[T]he fact that state officials are not required to disclose [certain information] does not make it unlawful for a newspaper to receive them when furnished by the government. Nor does the fact that the Department apparently failed to fulfill its obligation … [not to reveal such information] make the newspaper’s ensuing receipt of this information unlawful…. It is, clear, furthermore, that the news article concerned “a matter of public significance,” in the sense in which the Daily Mail synthesis of prior cases used that term. That is, the article generally, as opposed to the specific identity contained within it, involved a matter of paramount public import: the commission, and investigation, of a violent crime which had been reported to authorities.

One could, I suppose, argue that an injunction to take down material erroneously released by the government should be allowed, even when damages or criminal liability for publishing such material is forbidden, because the danger of an injunction doesn’t cause as much “self-censorship” — people can still publish anything they get from the government, without having to second-guess whether it was properly released; they just need to take down particular material once so ordered by the court. But the self-censorship argument is just one part of the court’s analysis, and the other factors continue to cut in favor of First Amendment protection: One of the cases on which the court relied was indeed an injunction case (Oklahoma Publishing Co. v. Oklahoma County District Court (1977)). Indeed, historically injunctions against speech have been seen as less constitutionally tolerable than liability for such speech.

Note also that the “public significance” threshold set forth by Florida Star is quite low: It suffices that the story as a whole be about a matter of public significance (without any separate analysis of whether the name of a particular person is of public significance). The hiring process for a state university president surely qualifies.

Finally, though Florida Star involved a newspaper (and therefore spoke of newspapers), the analysis would be the same for anyone who speaks to the public, whether or not he is a member of the mainstream media, as this article discusses (both historically and as a matter of modern First Amendment law).

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.



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