Constitution Protects Publication of Politicians’ Home Address/Phone Number–Publius v. Boyer-Vine
Doe Publius (nice alias) runs the “The Real Write Winger” blog, hosted by WordPress. He was unhappy about California’s ammunition purchase registry, which publishes “the driver’s license information, residential address and telephone number, and date of birth for anyone who purchases or transfers ammunition in California.” To protest, he made a blog post, “Tyrants to be registered with California gun owners,” that included the names, home addresses and home phone numbers of 40 legislators (the so-called “tyrants”) who supported the registry. This resulted in several legislators getting angry calls at home.
California Gov’t Code Sec. 6254.21(c) allows politicians to “opt-out” of having their home contact information published via a notice-and-takedown scheme:
No person, business, or association shall publicly post or publicly display on the Internet the home address or telephone number of any elected or appointed official if that official has made a written demand of that person, business, or association to not disclose his or her home address or telephone number.
Sec. 6254.21(e) adds that “An interactive computer service or access software provider, as defined in Section 230(f) of Title 47 of the United States Code, shall not be liable under this section unless the service or provider intends to abet or cause imminent great bodily harm that is likely to occur or threatens to cause imminent great bodily harm to an elected or appointed official.”
A state legislative counsel issued a takedown-and-staydown demand to WordPress that included the threat that “we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s fees.” As quoted by the court, the letter did not attempt to address WordPress’ obvious Section 230 immunity or, for that matter, show how the (e) exception applied to WordPress, i.e., how WordPress intended “to abet or cause imminent great bodily harm that is likely to occur or threatens to cause imminent great bodily harm.” (Indeed, in a footnote, the court says California “does not suggest Publius’s speech was a threat or otherwise not protected by the First Amendment”). Nevertheless, and despite its probable legal immunity, WordPress promptly removed–without further explanation–Publius’ blog post after receiving the demand. Note that WordPress’ “user guidelines” say it’s not OK to “disclose the sensitive personal information of others,” so WordPress may have decided to enforce its own guidelines even if Section 230 immunized it if it took no action.
Separately, Hoskins runs the Northeastshooters.com message boards in Massachusetts. A user, headednorth, reposted Publius’ directory of home addresses and phone numbers. The legislative counsel sent a similar takedown demand to Hoskins, and he complied.
The Court Opinion
The plaintiffs sought a declaration that Sec. 6254.21(c) violates the First Amendment, the Dormant Commerce Clause and Section 230. The court grants a preliminary injunction based on the First Amendment and DCC but not Section 230; and seemingly to emphasize how ridiculous the government’s position is, it requires the plaintiffs to post a bond of $1.00.
Standing. Hoskins had standing because “As the owner of Northeastshooters.com, Hoskins has a First Amendment right to distribute and facilitate protected speech on the site….Defendant’s takedown demand letter threatening legal action against Hoskins if he did not immediately comply and remove headednorth’s post, coupled with Hoskins’s compliance with the demand, constitutes a cognizable constitutional injury.” In a footnote, the court adds “Hoskins, as the owner and operator of Northeastshooters.com, has third-party standing to assert the First Amendment rights of its anonymous users, such as headednorth.” Paging Hassell v. Bird!!!
Publius’ injury was the removal of his blog post, but the state contested that it was responsible for the removal of his post because WordPress did the deed. The court says it’s plausible that WordPress acted only because of the state’s takedown-staydown demand.
First Amendment. The court says Sec. 6254.21 triggers strict scrutiny because it’s “content-based on its face: it applies only to speech that contains certain content—the ‘home address or telephone number of any elected or appointed [California] official.'” The court quotes Bartnicki v. Vopper: “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” More specifically, “the First Amendment protects the right to publish highly personal information of private individuals, such as the names of rape victims and juveniles involved in legal proceedings, when they relate to matters of public concern.” Here, publication of the legislators’ information was part of a political protest against the ammo registry, which disclosed similarly private info for ammo traders. The court explains:
Plaintiffs’ means of protesting the legislation is by compiling their own “database” of the legislators’ residential addresses and phone numbers. Like the plaintiff in Ostergren, that information is not just “integral to [Plaintiffs’] message,” it is their message.
The court then explains a number of reasons why the law isn’t narrowly tailored:
* the law only requires the politician to subjectively perceive a threat, irrespective of whether the threat is credible
* the law doesn’t distinguish between information that is private and information that has already been publicized
* the law is underinclusive because it only restrict Internet publication, not other media.
Dormant Commerce Clause. The court says that, as applied to Hoskins, the law reaches extraterritoriality to govern activity taking place solely outside California. “The statute does not limit its application to California, nor does it require that websites displaying officials’ home address or telephone numbers bar California only internet users’ access.”
Section 230. Hoskins apparently takes the position that California violated Section 230 by sending him a takedown demand. I like that theory, but that’s not how Section 230 works. The court says Section 230 only acts as a shield from lawsuits and possibly a sword against statutes that violate it; it’s not a sword against wrongful takedown demands (compare the uncited 17 USC 512(f), which is such a sword, though imperfect). Citing Google v. Hood, the court says that the law’s imposition of liability on intermediaries isn’t ripe for review because no such imposition occurred in this case.
Watching the watchers. I don’t personally love the protesting method of publishing a politician’s home contact information. I don’t think a politician should have to sacrifice all privacy as part of the job; they deserve private spaces where they can feel personally safe. This case reminds me a little of the Planned Parenthood v. ACLA case involving the publication of home addresses of doctors who performed abortions, followed by strikethroughs in their names when they were killed. Politicians shouldn’t have to feel this kind of stress.
However, in this case, this particular protest against the ammo trader registry effectively made its point that government-mandated disclosures are a powerful and possibly overly blunt tool. Furthermore, Sec. 6254.21 expressly suppresses truthful information, which is a big no-no. This reminds me a little of the anti-IMDb law recently passed by the California legislature, which also was struck down as unconstitutional in IMDb v. Becerra
Internet exceptionalism. The law regulates the publication of politicians’ personal information online, but not in other media. What justifies this Internet exceptionalism? Probably nothing. The court says in a footnote that “Ironically, a newspaper could face no liability under § 6254.21(c)(1) for publishing in print the same information that it posts online.” I can (and eventually will) make the case for Section 230’s exceptionalism, but I can’t construct any cogent argument for 6254.21’s exceptionalism.
State laws that provide qualified exclusions for Section 230. The law expressly acknowledges Section 230, but then it provides an inconsistent exclusion from liability that’s narrower than Section 230’s immunity. (Hoskins raised this implicit conflict, but apparently too late). State legislatures have occasionally made this type of gesture to Section 230, and though it wasn’t resolved in this case, those efforts to provide narrower immunities than Section 230 will fail in court. Even if the base law survived, Section 230 would override the state’s exception.
Dormant Commerce Clause. I’ve long taken the position that all state-based efforts to regulate the Internet violate the Dormant Commerce Clause. This ruling is a nice and clean application of that principle. At minimum, states that want to regulate the Internet should expressly limit their laws to situations when all relevant parties are located in their state and they all know that fact. Even then, I may have DCC concerns, but any state law without such territorial restrictions should be constitutionally dubious.
What’s Next? Last Friday, the parties filed a joint status motion:
Defendant has advised that it will not appeal the preliminary injunction ruling but rather wishes to proceed with discovery and, ultimately, to a final judgment in the District Court. The parties agree the case should not require a trial.
Defendant has further advised that it objects to Doe Publius proceeding pseudonymously and has requested that Publius file a motion to continue proceeding in that manner. Publius has agreed to file such motion by March 29, 2017.
Plaintiffs and Defendant engaged in a preliminary discussion and written meet-and-confer on what discovery Defendant contends is necessary or appropriate in light of the preliminary injunction ruling and Plaintiffs’ desire to promptly position the case for resolution at summary judgment. If the parties are unable to reach agreement, Plaintiffs anticipate filing a request that the June 8, 2017 mid-discovery status conference be advanced, as the magistrate’s calendar permits.
This is a thoughtful, careful and well-constructed opinion that made me proud to be an American, so I’m going to give the Technology & Marketing Law Blog’s Judge-of-the-Day award to Judge Lawrence J. O’Neill.