At 09:27 AM 5/20/2001 -0700, Charles Farley wrote:
>Tim May wrote:
>
> >Is the entire nation bound by this quashing of free speech (and the
> >contravention of SCOTUS cases cited by you, Greg, and others)?
>
>There are also Supreme Court decisions which support the Kirkland decision.
>
>i.e. "...if States were required to choose between keeping proprietary
>information to themselves and making it available without limits, States
>might well choose the former option. In that event, disallowing selective
>disclosure would lead not to more speech overall but to more secrecy and
>less speech."
>
>See concurrence in LAPD v. United Publishing (1999) where the Supreme
>Court affirmed a California law which restricted the release of
>information from the public record. The Supreme Court rejected the first
>amendment freedom of information argument.
_LAPD v. United Publishing_ is not relevant to the question of "can a
publisher violate someone's privacy by publishing information found in open
court testimony or files?".
As the majority (7-2) opinion said in _LAPD_, "[t]his is not a case in
which the government is prohibiting a speaker from conveying information
that the speaker already possesses."
How much clearer could it be that _LAPD_ is not on point in this case?
_LAPD_ discusses a First Amendment challenge to amendments to the
California Public Records Act which made people promise, as part of a CPRA
request, that they would not use certain information to offer to sell
products or services; the plaintiffs made a facial First Amendment
challenge to those amendments, and lost. The applicable part of the CPRA
required the plaintiffs to make promises or representations about their use
of information before they came into possession of it .. leading to the
discussion you cite above about choices that states might make in choosing
to disclose (or not disclose) information where they have the discretion to
make that choice. When the state no longer has a choice about disclosure,
because that disclosure has already occurred, all of that balancing and
reasoning is moot.
>The dissemination of an SSN does not contribute an idea, there is no
>speech content behind it.
Bullshit. The statement "Joe Citizen's SSN is 999-88-7777" conveys an idea
in precisely the same way that the statements "It rained yesterday" or
"Janet Reno burned children at Waco" convey ideas. The argument that
"that's not an important idea" is discredited by the efforts which the city
of Kirkland is making to suppress it - if it were not an important idea or
important information, they wouldn't bother going after the justicefiles
people, or Declan for reporting about them.
Even the number alone, without a name, communicates - to people who know it
- the fact that the number is now known to third parties who are using it
in a public fashion. If someone called me on the phone and recited my SSN
to me, you can be sure that I'd believe I'd been on the receiving end of an
idea. (Not one I'd like much, but that doesn't change the fact that an idea
had been communicated.)
>If it advances a compelling interest, in this case individual privacy, it
>seems to me a pretty good idea to restrict disclosure.
That may be - and the _LAPD_ opinion might give you some comfort if you
wanted to write a new law to control what information may, in the future,
be placed into the public record - but you have a very difficult row to hoe
if you want to "unring a bell", so to speak, and restrict information which
is presently unrestricted.
Thus far, the First Amendment hasn't allowed that sort of retroactive
restriction with classified national-security-sensitive information - but
you think it'll protect Joe Random Citizen's SSN?
If we do reach that result, we're killing our right to and expectation of a
free press in favor of propping up a doomed recordkeeping system which
provides neither security or privacy against any sort of halfway determined
attacker.
--
Greg Broiles
[EMAIL PROTECTED]
