Obliviate!

From Nieman v. Versuslaw, Inc. (7th Cir. Mar. 19, 2013) (nonprecedential):

Jason Nieman, an insurance-claims professional, … [sued] asserting invasion of privacy and retaliation against Yahoo, Google, Microsoft, and VersusLaw, Inc., a legal-research website that provides the public with access to records of judicial decisions for a fee. Nieman alleged that the search engines operated by these companies have enabled potential employers to find documents related to a lawsuit he brought against a past employer; as a result, he contends, he has been passed over by these employers who might be wary of his litigiousness….

According to his complaint, Nieman discovered in 2009 that certain legal-search websites (such as Lexis/Nexis.com, Justia.com, Leagle.com, andVersusLaw.com) were linking copies of documents from his prior lawsuit to his name. That litigation involved a former employer and was settled in 2011. When Nieman encountered difficulty obtaining another insurance job, he suspected that potential employers had learned of his prior lawsuit online and “blacklisted” him from employment opportunities. Nieman alleged that in late 2011 he wrote to each of the defendants and asked them to delink his court cases from their online search results. The defendants declined. Google pointed out that it simply aggregates information already published on the internet. VersusLaw responded that its publication of public records was protected by the First Amendment and that it would block links to public records only by court order.

Nieman asserted claims for (1) commercial misappropriation of his name; (2) intentional interference with current and prospective economic advantage; (3) unjust enrichment/civil conspiracy; (4) retaliation under the Illinois Human Rights Act and 42 U.S.C. § 1981; (5) violation of the Racketeer Influenced and Corrupt Practices Act; and (6) violation of the Lanham Act….

Nieman maintains that the First Amendment’s protections are not absolute. Citing our decision in Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222,1232 (7th Cir.1993), he argues that the First Amendment does not protect the publication of private facts in which the public has no legitimate interest and that would deeply offend a reasonable person. The defendants’ publication of court documents from his prior lawsuit, he asserts, should not be protected because it facilitates and encourages unlawful retaliation on the part of prospective employers who rely on third-party content and the judicial orders in question do not have any countervailing precedential value.

Haynes does not help Nieman here. That case concerned the publication of personal facts about the plaintiff, not the republication of documents contained in public records. In Haynes we affirmed the grant of summary judgment for the defendant publisher on an invasion-of-privacy claim, noting that the reader had a legitimate interest in the facts discussed in the book, and the facts were no longer private because they were already published in the judicial record of the plaintiff’s divorce and child-support proceedings.

The First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed. [Many citations omitted.-EV] We have explained that judicial “[o]pinions are not the litigants’ property. They belong to the public, which underwrites the judicial system that produces them.” Other legal documents included by the court as part of the public record of the judicial proceedings are also covered by the First Amendment privilege. The for-profit nature of the defendants’ aggregation websites does not change the analysis; speech is protected even when “carried in a form that is ‘sold’ for profit.” All of Nieman’s claims are based on the defendants’ republication of documents contained in the public record, so they fall within and are barred by the First Amendment privilege. Accordingly, we need not address any of Nieman’s remaining arguments.

As I noted last year, when I blogged about the trial court decision in this case, I understand why Nieman is concerned: Many employers would likely be wary of hiring someone who had sued a past employer, because they might view this as a sign of possible litigiousness. (Perhaps an accurate sign, given Nieman’s further litigation in this case.) Even if the earlier lawsuit was eminently well-founded, a prospective employer might not take the time and effort to investigate this, but might just move on to the next candidate, especially if Neiman is one of several comparably well-credentialed candidates for the same spot. And a prospective employer might be especially concerned when an earlier court decision stated,

In closing, the Court admonishes Plaintiff that, going forward, he should carefully evaluate the merits of his motions and pleadings prior to filing them with the Court. The Court understands that Plaintiff is pro se and is entitled to some latitude, but also notes that a continuing onslaught of meritless motions will only result in delaying resolution of this matter; needlessly consuming judicial resources; and imposing unnecessary costs on the parties. If Plaintiff persists, the Court may hold him liable for attorneys’ fees incurred by Defendants in responding to any frivolous motions, or the Court may impose a fine on Plaintiff. Plaintiff should dedicate his efforts to the viable claims still before the Court instead of continuing with his “kitchen sink” approach to prosecuting this case.

But even if plaintiff’s past lawsuits had been entirely well-founded, I don’t think plaintiff’s concern about future employers’ not liking the lawsuits can justify suppressing speech about legal documents that have been released by the courts as a public record.

(Disclosure: I have done paid work in my capacity as a lawyer for Google, though not on this case or these issues.)