It all started in April, 2001, when the city of Kirkland, Washington, filed a lawsuit against the creators of a justicefiles.org. The site listed personal information of the city's police officers. The site's creator, Bill Sheehan, lives in a suburb of Seattle, and posted information he found through the state of Washington's Open Records, private information firms and cross-matching all the information on the site. Among other reasons, he tries to expose fraud and police who are convicted felons.
The city of Kirkland claimed that listing policemen's addresses and social security and home phone numbers would lead to harassment of the officers and possibly to identity theft.
The judicial and legislative branches are beginning to comprehend many aspects of the Internet and learning that what occurs on-line is not inherently different from the physical world in many ways, albeit slowly.
Actually, it all started in April, 2000, when Sheehan filed many requests for information under Washington State's Open Records Act, which requires that public agencies release public information within 5 working days. Both the King County Sheriff's Office and Jail refused. Instead, they filed suit in May and didn't serve him notice until July.
In November, King County Court Judge Michael J. Fox ordered the county to turn over the names. The county refused and filed an appeal, but they didn't file for a stay of judgement and became liable for $100/day penalty for withholding the information.
In March, 2001, justicefiles.org went live. Cracking and DoS attempts started immediately. Sheehan and his partner, Aaron Rosenstein, both network engineers, dealt with it and provided the FBI with evidence of the attacks coming from the King County computer system. Someone in the Department of Corrections illegally obtained legally private information about Sheehan and started spreading it, using free hosts, which Sheehan got shut down for display of illegally obtained information. The FBI is investigating this, too. His employer was pressured to fire him. His ISP was threatened but stood firm, unlike his domain registrar DomainDiscover. However, through domainbank.com, he was back up the same day.
In King County Superior Court in May, Sheehan's attorney Elena Garella pointed out that when the First Amendment was adopted, information was spread by newspapers and handbills, and that when radio and television started, the First Amendment protections didn't change just because of the speed and scope of the technology. Sheehan was claiming to have attempted to increase police accountability. The judge agreed, but nixed Social Security numbers, stating there was a reasonable expectation of privacy for them.
Things only got more interesting from there. In June, Sheehan added Yahoo! and Infospace as defendants in his case, claiming that the same personal information on his site was available on theirs. This would force the Superior Court judge to make a distinction between those firms and Sheehan's site.
The city of Kirkland threatened others, including former Wired writer and libertarian champion Declan McCullagh for his coverage of the public events.
Things were looking pretty bleak for the county, so the Washington state senate got in on the action and in March, 2002, passed a bill banning the publishing of information on "law enforcement-related,
corrections officer-related, or court-related employee or volunteer, or
someone with a similar name" [my emphasis] without their express written permission.
Being involved in appeals with Sheehan didn't stop the city from using the law against Paul Trummel, a former resident of a HUD-funded housing project for the elderly in Seattle. He discovered what he believed to be fraud and abuse in the management of the home. After management got an order of protection preventing him from approaching his neighbors, he posted the names, addresses, phone numbers and email addresses of the Officers and Board of Directors. The King County Superior Court issued a restraining order which Trummel ignored. The 68-year-old arthritic man was jailed in solitary confinement for contempt, kept in a cell next to the "Green River Killer".
Whether Trummel was a kook or a civil champion, the fact is that the Court made a content-based restriction, stating there was only a "slight infringement on his free speech" and "no prior restraint," which flies in the face of almost every First Amendment decision handed down.
Back to Bill: In July, 2002, Kirkland dropped its $609,000 lawsuit against justicefiles.org. However, there was the matter of the law still on the books of Washington. On May 22, 2003, this law was declared unconstitutional in the District Court of the Western District of Washington.
Here, some excerpts from the decision:
The First Amendment does not protect certain modes of speech or expression, including true threats, fighting words, incitements to imminent lawless action, and classes of lewd and obscene speech. However, the First Amendment protects speech that advocate violence, so long as that speech is not directed to inciting or producing imminent lawless action and is not likely to incite or produce such action.
That was the end of the King County argument that the publication of the information on the site could lead to threats against police and others covered by the law. King county argued that "The release of personal identifying information regarding individuals, together with the intent to harm or intimidate, constitutes a threat." The court found differently:
Whether a particular statement may properly be considered to be a threat [for purposes of the First Amendment] is governed by an objective standard -- whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." (from Planned Parenthood v. American Coalition of Life Activists, 290 F 3d at 1074)
Judge John Coughenour goes on to write:
... the statute hints at no objective standard whatsoever. Therefore, the statute, on its face, simply does not regulate true threats as defined by the First Amendment jurisprudence. The statute's flaw is further demonstrated by the fact that even if an individual revealed the personal identifying information of a law enforcement-related employee to issue a true threat, that individual would be immune from the statute so long as he or she could demonstrate that he or she lacked the subjective intent to harm or intimidate.
The judge noted that the County asserted that the motivation behind the statement is not prohibited, but that the motivation is the only [judge's emphasis] thing prohibited by the statute.
He clearly explained every flaw in the State's argument and reaffirmed some basic rights:
...because the statute regulates pure speech rather than any constitutionally proscribable mode of speech, such as true threats, it does not constitute a content-neutral prohibition of proscribable speech directed at certain individuals... It would grant the government a dangerous tool to proscribe any speech based solely on the government's speculation as to what harms might result from its utterance... [the county/State] can demonstrate no compelling interest because the statute hinges solely on the subjective intent of the speaker.
Judge Coughenour concludes that the First and Fourteenth (life, liberty, property; due process; equal protection under law) Amendments "preclude the State of Washington from proscribing pure speech based solely on the speaker's subjective intent.
Thought-policing is not a compelling state interest recognized by the First Amendment.
... a statute that demands self-censorship .. that one police one's own thoughts and subjective intent -- impermissibly sacrifices the public interest in the free exchange of ideas. This chills free speech.
His concluding words beg the broadest audience:
...we live in a democratic society founded on fundamental constitutional principles. In this society, we do not quash fear by increasing government power, proscribing those constitutional principles, and silencing those speakers of whom the majority disapproves. Rather, as Justice Harlan eloquently explained, the First Amendment demands that we confront those speakers with superior ideas...
The First Amendment protection of Free Speech has been one of the most cherished and strongly protected American rights. As in the past, from Blue Laws (Sunday Closing laws) to the manufacture and dissemination of pornography, the logical arguments stemming from the protection of the exercise of Free Speech will inevitably spread to other areas and, in the long term, give opponents of bad legislation such as the DMCA and copyright extension acts the arguments they need to remove them from the books.
Or it may be that Judge Coughenour, the Harley-riding "maverick" appointed by Reagan in 1981 and chief judge since 1988, is an out-of-touch idealist waiting for a higher court smack-down and early retirement, by "accident" if necessary.