Court overturns Public Records Act law on free speech grounds

In a 38-page opinion, a federal court judge in Fresno ruled against a state law, long opposed by CNPA, that permits a public official to demand a publisher remove personal information it has posted online.

In 1998, the Legislature added Government Code Section 6254.21 to the Public Records Act. The law prohibits a state agency from posting online private information about public officials, including their addresses. The law also gave elected officials the right to demand the removal of address information posted by private citizens if they fear for their safety as a result of the posting of their information. CNPA opposed the bill through the legislative process, arguing that it was unconstitutional.

In this case, a blogger advocating for gun owners’ rights posted the name and addresses of 40 state legislators online, with statements protesting recent gun control bills those legislators voted for, and which were signed into law last year. The state demanded that website’s host, WordPress, remove the information in response to the state’s demand, citing the law, and WordPress complied.

In evaluating the case, the court said, first, that the poster’s speech was core political speech, deserving of the highest First Amendment protections in the face of a content based regulation like Section 6254.21.

The court then concluded that the law was defective and not “narrowly tailored” for numerous reasons: First, the law makes no attempt to prohibit or prevent true threats — the law is only concerned with an official’s subjective fear for their safety, not a credible, objective or well-founded one. The court said the law fails to distinguish between posts for lawful and unlawful reasons. And the attorney’s fees provisions in the law, which permits the state to seek fees against a publisher who fails to remove information, creates per se liability.

Moreover, the law does not differentiate between acts that “make public” previously private information and those that “make public” information that is already publicly available. The court also said the law was underinclusive, because the information at issue could still be lawfully published in a newspaper or aired on television.

The court concluded that the blogger would likely succeed on the claim that the state law violates the First Amendment and the dormant Commerce Clause, and enjoined the state from enforcing the law against the blogger. This grant of a preliminary injunction sends a strong message that Section 6254.21 is a problematic law that is constitutionally suspect. However, the court’s decision to review the case as applied to the blogger, and not more generally as a facial constitutional challenge, indicates that the court may not invalidate the entire law when it hears the case on a permanent injunction.

The judge gave both parties until March 10 to issue a joint statement to inform the court how they wish to proceed.

Find the court’s decision here.