when the statute is applied to a Web site's reposting of "unredacted public documents such as land and tax-lien records posted on government Web sites" that contain the numbers. The site operator is apparently using such postings to condemn the government's posting of such information: "As part of a campaign to draw attention to the issue, Ostergren routinely posts the Social Security numbers of high-profile individuals that she claims to have easily obtained from county and state government Web sites. The list includes former Florida Gov. Jeb Bush, former U.S. Secretary of State Colin Powell, former U.S. House Majority Leader Tom DeLay, former Missouri Sen. Jean Carnahan and several county clerks in Virginia."
The decision -- Ostergren v. McDonnell, handed down last Friday -- is quite narrow, focusing chiefly on the fact that the social security numbers were drawn from publicly available records, and were presented in the context of quotes from those records, rather than just as some freestanding list. I've argued before (though tentatively) that bans on publishing social security numbers are a rare example of a constitutionally permissible restriction on crime-facilitating speech. I didn't discuss, however, what happens when the laws are applied to republication of publicly available court records that themselves contain such numbers.
I am always critical of great society first amendment claims :-)
In their zeal to issue profitable, easy to apply for credit to as many people as possible, corporations have resisted implementing proper account controls to prevent fraud. The answer isn't calling publishing SSN's Crime-Facilitating Speech but to make companies liable for the costs that their lax account security costs fraud victims as well as punitive damages. Then, and only then, will companies take proper measures to prevent account fraud--a type of fraud that should not be called "Identity Theft" because it isn't, as this British radio sketch demonstrates.
So you can hammer away on original meaning all you want (though your hammering sounds a bit repetitive at this point). But please keep in mind that many of the rest of us -- including, I expect, many people who might indeed prefer that judges be originalist -- are actually pretty interested in discussing actual modern constitutional law as it now exists.
One can of course say that the original understanding of the First Amendment in 1791 was different from what Madison argued later in the decade; or that the Fourteenth Amendment wasn't originally understood as applying the First Amendment to the states; or that the original meaning of the freedom of speech and the press would not have included the publication of information that might help people commit crimes against political figures (or others). But the quick assertion that Madison "sa[id] the freedom of speech was defined at common law," and that this somehow disposes of the issue, doesn't seem to me to work even if one is focusing solely on original meaning and not on current First Amendment doctrine.
It's also not clear to me what the Great Society (Johnson's 1960s program) has to do with the view that the First Amendment goes beyond freedom from prior restraints -- a view that the Court adopted either in 1919 or 1931, depending on how solid a holding you want on this.
Why do people of the united states have their own bill of rights, constitutions and supreme courts? Why did the framers of the 14th amendment desire not to change that?
If someone finds out my SSN and uses it to, say, get money out of my bank account by pretending to be me, why should that be my worry, rather than the bank's?
The decision in this case seems like a no-brainer. How can it be illegal to take information that is already a matter of public record and disseminate it?
Your post assumes that once something's in the public record, there it must remain for eternity. I'm not saying that's wrong, per se, but there's a bit of question begging in your post.
I don't understand your point. Something being in the public record means it's available to anyone. Now, I guess it could be made unavailable, but anyone who got the information while it was public still has it, and surely can disseminate it while it's public. How would such a person know that the information had somehow been made unpublic?
I think with a fact basis similar to the one here that the website owner would have a responsibility to make themselves aware of the removal of the information from the public record. The state has announced the intent and the power to remove the offending information from the public record, it has merely failed so far to produce the will to do so. Were there a stealth removal from the public record I am not certain what would constitute responsibility to ensure public availability before publication but here the website owner has a responsibility to, in my judgment, at least once a week check to ensure that the information has not be removed from the public record. Again, this is fact specific to this case and what would constitute a responsibility to ensure information once in the public record was still in the public record at time of publication varies with the circumstances.
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