The Volokh Conspiracy - Free Speech Trumps Limits on Disclosing Public Record Information About Sex Offenders:

California version of Megan's Law orders the California Department of Justice to put on the Web information about sex offenders; but Cal. Penal Code § 290.46(j) says that:

A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.

Gerald Moerler, a teamster, is a registered sex offender (having been convicted of "lewd and lascivious acts with child under 14 years"). He claims that various fellow union members and Vons members "posted and mailed fliers in the City of Covina for the purpose of harassing Moerler," and he therefore sued for damages. (The statute provides, that "Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) ... shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney's fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).")

The California Justice Department's Megan's Law FAQ seems to be on Moerler's side, plausibly interpreting the statute as barring people from telling others about what they learned from the Web site, as a form of "use" of the information:

[Q:] I want to share with others the information I found on the Attorney General's Megan's Law Website. Does the law prohibit me in any way from sharing this information?

[A:] A person may use the information disclosed on the Attorney General's Web site only to protect a person at risk. It is a crime to use the information disclosed on the Attorney General's Internet Web site to commit a misdemeanor or felony. Unless the information is used to protect a person at risk, it is also prohibited to use any information that is disclosed pursuant to this Internet Web site for a purpose relating to health insurance, insurance, loans, credit, employment, education, scholarships, fellowships, housing, accommodations, or benefits, privileges, or services provided by any business. Misuse of the information may make the user liable for money damages or an injunction against the misuse. Before using the information disclosed on this Web site, you may want to consult with an attorney or merely suggest to others that they view the Web site for themselves.

So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one's purpose is "only to protect a person at risk." If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people — not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person, or for that matter to provide background on a litigant for a blog post — one risks damages liability or, under another provision of the statute, an injunction.

This has long seemed to me like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it's unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I'd think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record.

And though the California legislature apparently thinks it indeed may restrict speech this way, I'm pleased to report that a California trial court judge has just thrown out Moerler's case on First Amendment grounds. Unfortunately, such trial court decisions don't set a binding precedent, and may not even set a persuasive precedent given that they usually aren't published anywhere, even in Westlaw or Lexis. But if this is appealed, I expect that the California Court of Appeal will affirm, and rightly so.

By the way, to my knowledge this case hasn't been covered in the mainstream media, even though it involves the first First Amendment challenge I know of to the Megan's Law provision.

	[Eugene Volokh, February 13, 2008 at 11:26pm] Trackbacks Free Speech Trumps Limits on Disclosing Public Record Information About Sex Offenders: California version of Megan's Law orders the California Department of Justice to put on the Web information about sex offenders; but Cal. Penal Code § 290.46(j) says that: A person is authorized to use information disclosed pursuant to this section only to protect a person at risk. Gerald Moerler, a teamster, is a registered sex offender (having been convicted of "lewd and lascivious acts with child under 14 years"). He claims that various fellow union members and Vons members "posted and mailed fliers in the City of Covina for the purpose of harassing Moerler," and he therefore sued for damages. (The statute provides, that "Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) ... shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney's fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).") The California Justice Department's Megan's Law FAQ seems to be on Moerler's side, plausibly interpreting the statute as barring people from telling others about what they learned from the Web site, as a form of "use" of the information: [Q:] I want to share with others the information I found on the Attorney General's Megan's Law Website. Does the law prohibit me in any way from sharing this information? [A:] A person may use the information disclosed on the Attorney General's Web site only to protect a person at risk. It is a crime to use the information disclosed on the Attorney General's Internet Web site to commit a misdemeanor or felony. Unless the information is used to protect a person at risk, it is also prohibited to use any information that is disclosed pursuant to this Internet Web site for a purpose relating to health insurance, insurance, loans, credit, employment, education, scholarships, fellowships, housing, accommodations, or benefits, privileges, or services provided by any business. Misuse of the information may make the user liable for money damages or an injunction against the misuse. Before using the information disclosed on this Web site, you may want to consult with an attorney or merely suggest to others that they view the Web site for themselves. So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one's purpose is "only to protect a person at risk." If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people — not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person, or for that matter to provide background on a litigant for a blog post — one risks damages liability or, under another provision of the statute, an injunction. This has long seemed to me like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it's unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I'd think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record. And though the California legislature apparently thinks it indeed may restrict speech this way, I'm pleased to report that a California trial court judge has just thrown out Moerler's case on First Amendment grounds. Unfortunately, such trial court decisions don't set a binding precedent, and may not even set a persuasive precedent given that they usually aren't published anywhere, even in Westlaw or Lexis. But if this is appealed, I expect that the California Court of Appeal will affirm, and rightly so. By the way, to my knowledge this case hasn't been covered in the mainstream media, even though it involves the first First Amendment challenge I know of to the Megan's Law provision.