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Record No. 09-1723
____________________
In the United States Court of Appeals
for the Fourth Circuit
_________________
BETTY J. OSTERGREN,
Plaintiff-Appellee/Cross-Appellant,
v.
ROBERT F. McDONNELL,
in his official capacity as
Attorney General of Virginia,
Defendant-Appellant/Cross-Appellee.
______________________
On Appeal from the United States District Court
For the Eastern District of Virginia
____________________
RESPONSE/OPENING BRIEF OF
APPELLEE/CROSS-APPELLANT BETTY J. OSTERGREN
Rebecca K. Glenberg (VSB No. 44099)
American Civil Liberties Union of
Virginia Foundation, Inc.
530 E. Main Street, Suite 310
Richmond, Virginia 23219
(804) 644-8080
(804) 649-2733 (FAX)
rglenberg@acluva.org
Counsel for Appellee/Cross-Appellant
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Frank M. Feibelman (VSB No. 13877)
Cooperating Attorney for the
ACLU of Virginia
5206 Markel Rd., Suite 102
Richmond, Virginia 23230
(804) 355-1300
FAX: (804) 355-4684
frank@feibelman.com
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TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
I.
THE DISTRICT COURT CORRECTLY HELD THAT
THE CHALLENGED STATUTE IS UNCONSTITUIONAL
AS APPLIED TO OSTERGREN’S WEBSITE. . . . . . . . . . . . . . . . .10
A. The Supreme Court has Consistently Held that the First
Amendment Protects the Publication of Information
from Government Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
B. This Case Presents No Reason to Depart from the
Supreme Court’s Established Jurisprudence Protecting the
Republication of Information from Public Records. . . . . . . . . . . .15
II.
THE DISTRICT COURT ERRED IN LIMITING THE
INJUNCTION TO PROTECT THE PUBLICATION ONLY
OF VIRGINIA PUBLIC RECORDS. . . . . . . . . . . . . . . . . . . . . . . . . 19
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
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TABLE OF AUTHORITIES
Cases
Bartnicki v. Vopper, 532 U.S. 514 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Coalition for Responsible Regional Development v. Brinegar,
518 F.2d 522 (4th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Cohen v. California, 403 U.S. 15 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) . . . . . . . . . . . . . . . . . passim
Gardner v. Bishop, 983 F.2d 1056 (4th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Kirby v. City of Elizabeth, 388 F.3d 440 (4th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 9
Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) . . . . . . . . . 11,14
Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) . . . . . . . . . . . . . . . . . . . . . . 11
New York Times Co. v. U.S., 403 U.S. 713 (1971) . . . . . . . . . . . . . . . . . . . . . . . . .11
Oklahoma Publ’g Co. v. District Court in and for Oklahoma County,
430 U.S. 308 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Rohrbough v. Wyeth Laboratories, Inc., 916 F.2d 970 (4th Cir. 1990) . . . . . . . . . .7
Smith v. Daily Mail, 443 U.S. 97 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10,11
Sternberg v. Carhart, 530 U.S. 914 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Summers v. Earth Island Inst., 129 S.C.t. 1142 (2009) . . . . . . . . . . . . . . . . . . . . . . 6
Virginia Carolina Tools, Inc. v. Int’l Tool Supply, Inc.,
984 F.2d 113 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
The Florida Star v. B.J.F., 491 U.S. 524 (1989) . . . . . . . . . . . . . . . . . . . . . . .passim
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Statutes
28 U.S.C. §1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1,2
Va. Code § 17.1-279(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Va. Code § 17.1-294. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3,4
Va. Code § 59.1-443.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7,8,16,20
Va. Code 59.1-196, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7-8
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JURISDICTIONAL STATEMENT
The district court had jurisdiction over this action under 28 U.S.C. §1331,
because the case arises from the United States Constitution and 42 U.S.C. § 1983.
This Court has jurisdiction under 28 U.S.C. § 1291.
The district court entered the final order on June 2, 2009. The defendant’s
notice of appeal was timely filed on June 30, 2009. The plaintiff filed a timely
notice of cross-appeal on July 8, 2009.
ISSUES PRESENTED FOR REVIEW
1.
Whether the district court correctly held that Virginia Code § 59.1-
443.2, prohibiting the dissemination of Social Security Numbers, is
unconstitutional as applied to plaintiff’s website, which republishes public records
available on government websites.
2.
Whether the district court erred in limiting injunctive relief to
documents posted on plaintiff’s website that contain the Social Security Numbers
of Virginia officials, even though the website also includes records containing
Social Security Numbers of public officials from other states, and the plain
language of the statute applies to such records.
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STATEMENT OF THE CASE
This is an as-applied, First Amendment challenge under 42 U.S.C. 1983 to
Virginia Code § 59.1-443.2, which prohibits the publication of Social Security
Numbers (SSNs) even when those SSNs are contained in records made public by
the government. The plaintiff is Betty J. Ostergren (“Ostergren”), who, as part of
her advocacy against government disclosure of personal information, posts copies
of public records containing SSNs to her website. The defendant is the Attorney
General of Virginia (“the Attorney General,” “the Commonwealth” or “the state”),
who is authorized to enforce the statute.
The complaint was filed on June 11, 2008, along with a motion for
preliminary injunction. (J.A. 7, 16.) At a hearing on the preliminary injunction,
the Commonwealth agreed not to enforce the statute against the plaintiff during the
pendency of the lawsuit. (J.A. 80.) On August 22, 2008, based on stipulated facts,
the district court ruled that “Virginia Code § 59.1-443.2 is unconstitutional as
applied to Ostergren’s website as it presently exists,” and ordered further briefing
on the scope of injunctive relief. (J.A. 227-28.) Following an evidentiary hearing,
on June 2, 2009, the district court enjoined the defendant “from enforcement of Va.
Code § 59.1-443.2 against any iteration of the Plaintiff’s website, now or in the
future, that simply republishes publicly obtainable documents containing
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unredacted SSNs of Virginia legislators, Virginia Executive Officers or Clerks of
Court as part of an effort to reform Virginia law and practice respecting the
publication of SSNs online.” (J.A. 407.)
STATEMENT OF FACTS
On-Line Availability of SSNs in Virginia and Elsewhere
Virginia law requires that circuit court clerks make all “land records”
available on the Internet by a “secure remote access” system. Va. Code §§ 17.1279(D), 17.1-294. Such land records, which include among other things, deeds,
mortgages, UCC financing statements, and divorce decrees, often include SSNs.
Under the “secure remote access” system, any person may, for a nominal fee,
obtain online access to all of the land records for a given locality. Using the
secure remote access system, it is a simple matter to obtain thousands of social
security numbers in a matter of minutes. For example, using search terms such as
“IRS,” “Internal Revenue Service,” “Department of Justice,” or “United States”
can yield thousands of tax liens, each one of which filed before 2006 contains
SSNs. (J.A. 90.)
Virginia law does not require clerks to redact SSNs or other personal
information from land records prior to making them available by secure remote
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access. (The legislature did pass such a requirement in 2007, but the provision did
not go into effect because funding was not appropriated. See Va. Code Ann. 17.1294, Historical and Statutory notes; Acts 2007, ch. 548.)
Most Virginia clerks of court have voluntarily contracted with various
redaction services to remove SSNs from on-line documents. Even so, vast
numbers of SSNs remain available through the clerks’ websites. First, two of
Virginia’s largest jurisdictions, Fairfax County and Arlington County (which have
approximately 37 million and 3 million land record images available on line,
respectively), have not yet done undertaken the redaction process. (J.A. 245, 25253.) Second, the redaction process has only a 95%-99% success rate. (J.A. 230.)
Thus, even after all jurisdictions have completed redaction, approximately 60,000
SSNs will remain available on line. (J.A. 398.) These records are readily located
by someone with experience with the “secure remote access” system. For
example, even after the Hanover County Circuit Court had completed its redaction
(JA. 253-54), Ostergren was able to cull four UCC financing statements containing
SSNs from the website in just a few minutes. (J.A. 233-36, 306.)
The problem is not limited to Virginia. Hundreds of government websites,
as well as some private websites, are open to the general public and provide access
to records containing SSNs. (J.A. 230, 314-25.)
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Ms. Ostergren’s Advocacy Work
Betty J. Ostergren is an advocate for privacy rights in Virginia and
nationwide. Of particular concern to her is the availability of personal information
on government websites. (J.A. 8, 85, 87) In furtherance of her advocacy,
Ostergren lobbies legislators, writes letters and makes telephone calls to public
officials, and has made numerous media appearances. She has also contacted
thousands of individuals across the country whose personal identifying information
is available on line through government websites. (J.A. 8, 85-87)
In 2003, Ostergren established a website, TheVirginiaWatchdog.com, to
alert the public about government websites that allow access to personal
information. (J.A. 8, 86, 87) To illustrate of the problem, she has posted
examples of online public records containing SSNs. (J.A. 8, 87-88) For the most
part, the records posted to her site belong to legislators, clerks of court, and other
government officials who have the power to address the issue of personal
information on government websites. (J.A. 9, 86, 89) Many of the thirty or so
records posted on the site were obtained from Virginia circuit court clerks using
the “secure remote access system.” Others come from various government
websites outside of Virginia. (J.A. 86.)
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This tactic proved effective in prodding government officials to address the issue
of personal information on government websites. Before Ostergren began posting
public records on her website, both the general public and government officials
seemed indifferent to her cause. Although she wrote letters and made telephone
calls to public officials, few people seemed to understand or care that governments
endangered the public welfare by making the personal information of millions of
Americans on line. (J.A. 88.) After Ostergren began posting the records, the
media began to pay attention to the problem, giving Ostergren the opportunity to
explain her position in newspaper articles and television and radio interviews
nationwide. Additionally, many state and local websites outside of Virginia began
to redact SSNs from public records available on line, or remove such records
altogether, after Ostergren posted records from those websites on
TheVirginiaWatchdog.com. (J.A. 88-89.)1
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The Government claims that an individual apprehended in Ghana has used Ostergren’s website
for fraudulent purposes. (Appellant’s Br. at 16.) Ostergren objects to the Government’s
inclusion of this allegation in its brief, as it is not in the record below. No evidence of this
alleged fraud was presented to the district court, and this Court therefore ought not consider it.
See, e.g., Summers v. Earth Island Inst., 129 S.C.t. 1142, 1153 (2009) (supplementation of the
record on appeal is not permitted “after the trial is over, judgment has been entered, and a notice
of appeal has been filed”); Gardner v. Bishop, 983 F.2d 1056 (4th Cir. 1993) (“we should not
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The Challenged Statute
Virginia’s Personal Information Privacy Act (PIPA) provides, inter alia, that
no person shall “[i]ntentionally communicate an individual’s social security
number to the general public.” Va. Code 59.1-443.2(A)(1). Until 2008, however,
the statute contained an exception for “records required by law to be open to the
public.” 59.1-443.2(D) (prior law). Under this exception, Ostergren’s posting of
public land records with SSNs for advocacy purposes was lawful. In its 2008
session, the General Assembly eliminated the public records exemption from 59.1443.2, making it unlawful for individuals to disseminate even public records
containing SSNs. Acts 2008, ch. 562.
A violation of 59.1-443.2 constitutes a prohibited practice under the
Virginia Consumer Protection Act (VCPA), Va. Code 59.1-196, et seq. The
Attorney General has the authority to enforce the statute though civil investigative
demands, under which he may subpoena records and witnesses. Va. Code §§ 59.1!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!!!!
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consider the more specific facts because they were not before the district court.”); Rohrbough v.
Wyeth Laboratories, Inc., 916 F.2d 970, 973 n.8 (4th Cir. 1990) (“we decline to consider . . .
documents not considered by the district court.”); Coalition for Responsible Regional
Development v. Brinegar, 518 F.2d 522, 527 (4th Cir. 1975) (“as an appellate court we decline to
consider and to weigh after-discovered evidence.”).
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201; 59.1-201.1.; 59.1-9.10. He may also initiate a civil court action, and may
recover from the violator $2,500 per violation, plus costs of up to $1,000 per
violation, and attorney’s fees. Va. Code §§ 59.1-203; 59.1-206.
SUMMARY OF ARGUMENT
The central fact of this case is that the Commonwealth has made tens of
thousands of public records containing Social Security Numbers (SSNs) available
for viewing by the general public, both on line and physically, and seeks to
prohibit Ostergren from republishing a couple dozen of those records on her own
website. The Supreme Court has repeatedly made clear that this kind of double
standard is impermissible. “At the very least, the First and Fourteenth
Amendments will not allow exposing the press to liability for truthfully publishing
information released to the public in official court records.” Cox Broadcasting
Corp., 420 U.S. 469, 496 (1975). The basis for this principle is that the
government has custody of this information, and it has many means at its disposal
to keep it private, means that are more effective, and less offensive to the
Constitution, than censoring private speech. Given the government’s failure to
avail itself of these means, Va. Code 59.1-443.2(A)(1) is not narrowly tailored to
serve a state interest of the highest order.
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Accordingly, the district court properly enjoined the Attorney General from
enforcing the statute against Ostergren for the posting of public records containing
the SSNs of Virginia public officials. However, Ostergren’s advocacy efforts
extend well beyond Virginia. The injunction should have also protected her
posting public records of officials from other states, as such records are also
constitutionally protected and are barred by the statute.
STANDARD OF REVIEW
The issue of whether the district court correctly found the challenged statute
to be unconstitutional as applied is one of law to be reviewed de novo. Kirby v.
City of Elizabeth, 388 F.3d 440 (4th Cir. 2004).
“While decisions pertaining to injunctive relief normally are reviewed solely
for abuse of discretion in applying the injunction standard, we review such a
decision de novo where it ‘rests solely on a premise as to the applicable rule of law,
and the facts are established or of no controlling relevance.’” Virginia Carolina
Tools, Inc. v. Int’l Tool Supply, Inc., 984 F.2d 113, 116 (1993). In the present case,
the disputed portion of the injunction was apparently based solely on the Attorney
General’s interpretation of the applicable statute, a question of law.
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ARGUMENT
I.
THE DISTRICT COURT CORRECTLY HELD THAT THE
CHALLENGED STATUTE IS UNCONSTITUIONAL AS APPLIED TO
OSTERGREN’S WEBSITE
A. The Supreme Court has Consistently Held that the First Amendment
Protects the Publication of Information from Government Records.
“Where a newspaper publishes truthful information which it has lawfully
obtained, punishment may lawfully be imposed, if at all, only when narrowly
tailored to a state interest of the highest order.” The Florida Star v. B.J.F., 491
U.S. 524, 541 (1989). This is an exceedingly difficult standard to meet. “[S]tate
action to punish the publication of truthful information seldom can satisfy
constitutional standards.” Smith v. Daily Mail, 443 U.S. 97, 102 (1979). Indeed,
in every case to address the issue, the Supreme Court has refused to allow
government to sanction the publication of truthful information lawfully obtained,
on matters of public concern. See, e.g., Bartnicki v. Vopper, 532 U.S. 514 (2001)
(overruling damage award against radio commentator who broadcast contents of a
private telephone call on a matter of public concern that had been unlawfully
intercepted, where the tape was lawfully obtained by commentator); The Florida
Star v. B.J.F., 491 U.S. 524 (1989) (striking down damage award against
newspaper that published the name of a rape victim obtained from police record);
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Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979) (overturning newspaper’s
indictment for publishing the name of a juvenile offender); Landmark
Communications, Inc. v. Virginia, 435 U.S. 829 (1978) (overturning newspaper’s
conviction for publishing information about judicial disciplinary inquiry);
Oklahoma Publ’g Co. v. District Court in and for Oklahoma County, 430 U.S. 308
(1977) (overturning injunction against publication of juvenile delinquency
proceedings, when the press had been allowed to be present); Nebraska Press Ass'n
v. Stuart, 427 U.S. 539 (1976) (overturning injunction against publication of
information prejudicial to criminal defendant); Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) (striking down damages award against reporter who broadcast
the name of a rape victim); New York Times Co. v. U.S., 403 U.S. 713 (1971)
(reversing injunction against publication of a classified study of the Vietnam War).
In particular, the Court has been clear that government may not prohibit the
republication of information from public records. In no case has the Court ever
upheld such a restriction. Instead, in a trio of cases, the Supreme Court has held
that the government may not simultaneously make information open to the public,
and punish private parties for publishing the same information. In Cox
Broadcasting Corp., a reporter, in violation of state statute, broadcast the name of a
deceased rape victim he had obtained from public court documents. The Court
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held that the victim’s father could not sustain a suit for invasion of privacy. “At
the very least, the First and Fourteenth Amendments will not allow exposing the
press to liability for truthfully publishing information released to the public in
official court records.” 420 U.S. at 496. In Oklahoma Publ’g Co., the Court held
that a judge who had allowed the press to attend a juvenile delinquency hearing
could not prohibit the press from publishing information about the case. Finally, in
The Florida Star, the Court held that a newspaper could not be prohibited from
publishing the name of a rape victim obtained from police records mistakenly
provided to a reporter.
The Court has articulated three basic rationales for its repeated conclusion
that the government must not punish the republication of information from public
records. First, “punishing the press for its dissemination of information which is
already publicly available is relatively unlikely to advance the interests in the
service of which the State seeks to act.” The Florida Star, 491 U.S. at 535. That
is, whatever harm is feared from making the information public already occurred
when the state made the information public. The Court observed that “where the
government has made certain information publicly available, it is highly
anomalous to sanction persons other than the source of its release.” Id. Thus,
“once the truthful information was ‘publicly revealed’ or ‘in the public domain’ the
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[government may] not constitutionally restrain its dissemination.” Id. (quoting
Daily Mail, 443 U.S. at 103) (alteration added). See also Cox Broadcasting, 420
U.S. at 494-95. (“[E]ven the prevailing law of invasion of privacy generally
recognizes that the interests in privacy fade when the information involved already
appears on the public record.”)
Second, “[b]y placing the information in the public domain on official court
records, the State must be presumed to have concluded that the public interest was
thereby being served.” Id. at 495:
Public records by their very nature are of interest to those concerned with the
administration of government, and a public benefit is performed by the
reporting of the true contents of the records by the media. The freedom of
the press to publish that information appears to us to be of critical
importance to our type of government in which the citizenry is the final
judge of the proper conduct of public business
Id.
Third, “the government retains ample means of safeguarding significant
interests upon which publication may impinge,” especially when the information is
in the government’s own custody:
The government may classify certain information, establish and enforce
procedures ensuring its redacted release, and extend a damages remedy
against the government or its officials where the government's mishandling
of sensitive information leads to its dissemination. Where information is
entrusted to the government, a less drastic means than punishing truthful
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publication almost always exists for guarding against the dissemination of
private facts.
491 U.S. at 534. See also Landmark Communications, supra, 435 U.S. at 845
(“[M]uch of the risk can be eliminated through careful internal procedures to
protect the confidentiality of Commission proceedings”); Oklahoma Publ’g, 430
U.S. at 311 (noting trial judge's failure to close juvenile hearing to the public,
including members of the press, who later broadcast juvenile defendant's name);
Cox Broadcasting, supra, 420 U.S. at 496 (“If there are privacy interests to be
protected in judicial proceedings, the States must respond by means which avoid
public documentation or other exposure of private information. . . . Once true
information is disclosed in public court documents open to public inspection, the
press cannot be sanctioned for publishing it.”).
Together, Cox Broadcasting Corp., Oklahoma Publ’g, and The Florida Star
articulate a bright-line rule: “At the very least, the First and Fourteenth
Amendments will not allow exposing the press to liability for truthfully publishing
information released to the public in official court records.” Cox Broadcasting
Corp., 420 U.S. at 496. Prohibiting the publication of such information is never
“narrowly tailored to serve a state interest of the highest order” because the
government itself has made a judgment that the records should be public, and
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because the government has the means to keep that information private, if it
chooses, without censoring private individuals.
B. This Case Presents No Reason to Depart from the Supreme
Court’s Established Jurisprudence Protecting the Republication of
Information from Public Records.
The present case falls squarely within the line of cases described above, and
the same reasoning applies. The Government deliberately provides access to
millions of records containing SSNs. Anyone can walk into any clerk’s office and
walk away with sheaths of mortgages, UCC financing statements, tax liens, and
divorce decrees with names, addresses, and SSNs. Moreover, tens of thousands of
these records can be accessed from the comfort of a home computer. The on-line
records include all of the land records in Fairfax and Arlington Counties, as well as
1% to 5% of the records in jurisdictions that have “completed” redaction of SSNs
from their land records.
As in Oklahoma Publ’g, Cox Broadcasting, and The Florida Star, the
Commonwealth has ample means at its disposal to keep the personal information
in these records private. For example, the state need not make any land records
available on line. The sole purpose of the “secure remote access” system is the
convenience title searchers and others involved in the real estate business. (J.A.
221.) By its actions, the state places a higher value on this convenience that on the
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security of tens of thousands of citizens. At least, the state could delay putting
these records on line until a more thorough process of redaction is available, one
that does not overlook 60,000 SSNs. Or, at the very least, the state could prevent
jurisdictions like Fairfax and Arlington from making records available on line until
they have undergone the existing redaction process, rather than leaving tens of
thousands of SSNs readily available on line in those jurisdictions alone.
Aside from its profligate dissemination of SSNs online, the Commonwealth
acknowledges that it has taken no steps to protect the information on paper records
housed in clerks’ offices. The state could, for example, require that SSNs be
redacted from any copies of records before they are provided to a member of the
public.
The district court characterized the state’s willful exposure of vast amounts
of personal information as evidence that the Government does not treat the privacy
of this information as an “interest of the highest order.” Alternatively, one might
view it as evidence that the Virginia Code § 59.1-443.2 is not narrowly tailored to
serve the Commonwealth’s interest in keeping this information private. As the
district court observed, “the most narrowly tailored solution to the problem of
dissemination of SSNs over which the State has custody is not to release those
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SSNs into the public domain.” But whether the statute fails on the “state interest”
prong or the “narrowly tailored prong,” it fails.
The Commonwealth suggests that this case should be treated differently
from the Supreme Court cases addressing public records because the dissemination
of SSNs poses a unique harm. The publication of information in those cases, it
suggests, did not “expose[] any of these individuals to a highly damaging criminal
attack.” That is not true, however. In dissent, Justice White observed that the rape
victim whose name was published in The Florida Star “received harassing phone
calls, required mental health counseling, was forced to move from her home, and
was even threatened with being raped again.” 491 U.S. at 542-43 (emphasis
added).
More importantly, the responsibility for the dissemination of SSNs on public
records rests squarely with the state itself. It has made this information easily
available, and on a scale that dwarfs Ostergren’s website.
The state’s suggestion that forcing Ostergren to remove the SSNs from her
website would not greatly affect her free speech rights is incorrect. First, as the
district court observed, courts are not “to parse political speech in assessing
whether it is constitutionally permissible to regulate that speech.” (J.A. 222-223.)
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It is for the speaker, not the government or the court, to decide what elements are
essential to her communication.
Second, the SSNs are in fact an integral part of Ostergren’s speech. The
point of the website is to demonstrate exactly how the Government is endangering
the public welfare by making public records containing SSNs available on line.
Without the SSNs themselves, the message is considerably muted. The presence
of the SSNs is intended to shock viewers out of their complacency, to give them a
visceral sense of the Government’s wrongdoing in this area. (See Cohen v.
California, 403 U.S. 15 (1971) (“[W]ords are often chosen as much for their
emotive as their cognitive force. We cannot sanction the view that the Constitution,
while solicitous of the cognitive content of individual speech has little or no regard
for that emotive function which practically speaking, may often be the more
important element of the overall message sought to be communicated”).
Finally, the inclusion of SSNs is what grabs the attention of a significant
portion of Ostergren’s intended audience, the legislators, clerks, and other officials
who are in a position to prevent the reckless disclosure of personal information.
The district court correctly followed Cox, Oklahoma Publ’g, and The
Florida Star to hold that the government cannot prohibit Ostergren’s reproduction
of public records for the purpose of political advocacy. As in those cases, “where
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the government has made certain information publicly available, it is highly
anomalous to sanction persons other than the source of its release.” The Florida
Star, 491 U.S. at 535.
II.
THE DISTRICT COURT ERRED IN LIMITING THE INJUCNTION TO
PROTECT THE PUBLICATION ONLY OF VIRGINIA PUBLIC
RECORDS.
Although it found that the challenged statute was unconstitutional as applied
to Ms. Ostergren’s website, the district court limited its injunction to prohibit
enforcement of the statute only against plaintiff’s republication of “publicly
obtainable documents containing unredacted SSNs of Virginia legislators, Virginia
Executive Officers or Clerks of Court . . . .” (J.A. 406.) The injunction was
limited to records belonging to public officials because Ostergren herself testified
that those records were most essential to her advocacy effort (J.A. 404, citing J.A.
327-28), and Ostergren does not appeal that aspect of the injunction. However,
Ostergren does object to the limitation to Virginia public officials.
The record is clear that Ms. Ostergren’s website includes public records
pertaining to clerks, legislators, and other officials in many states across the
country, and that her publication of those records has sometimes been effective in
changing the practices in those jurisdictions. (J.A. 86 , 88-89, 303.) The First
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Amendment protects Ms. Ostergren’s right to post those records just as it protects
her right to post the records of Virginia officials, and the challenged statute makes
no distinction between SSNs obtained from Virginia and SSNs obtained elsewhere.
Va. Code 59.1-443.2(A)(1) (unlawful to “[i]ntentionally communicate an
individual’s social security number to the general public.”)
The reason for the injunction’s lack of protection for out-of-state public
records is apparently the Attorney General’s representation that he had no interest
in enforcing the statute as to such records. (J.A. 295-301, 328-29.) This is of cold
comfort to Ms. Ostergren, however. The Attorney General’s interpretation of the
statute does not bind future Attorneys General, nor does it bind local
commonwealth’s attorneys, who also have authority to enforce the statute. Va.
Code §§ 59.1-210, et seq. See Sternberg v. Carhart, 530 U.S. 914, 945 (2000)
(declining to accept state Attorney General’s narrowing construction of abortion
statute when “some present prosecutors and future Attorneys General may choose
to” prosecute individuals under a broader interpretation of the statute.)
The injunction should cover all of Ostergren’s constitutionally protected
speech for which she may be subjected to liability under the statute. It should
include her posting of public records containing SSNs of public officials anywhere
in the country.
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CONCLUSION
For the foregoing reasons, the judgment of the district court should be
affirmed, except for the injunction’s limitation to Virginia officials, which should
be extended to include out-of-state officials.
REQUEST FOR ORAL ARGUMENT
Appellee/Cross-Appellant respectfully requests oral argument.
Respectfully submitted,
__/s/________________________________
Rebecca K. Glenberg (VSB No. 44099)
American Civil Liberties Union of Virginia
Foundation, Inc.
530 E. Main Street, Suite 310
Richmond, Virginia 23219
(804) 644-8080
(804) 649-2733 (FAX)
rglenberg@acluva.org
Frank M. Feibelman VSB #13877
Cooperating Attorney for the ACLU of Virginia
5206 Markel Rd., Suite 102
Richmond, Virginia 23230
(804) 355-1300
FAX: (804) 355-4684
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CERTIFICATE OF SERVICE
I hereby certify that on this 13th day of October, I electronically filed the
foregoing Opening/Response Brief with the Clerk of Court using the CM/ECF
system, which will send a notification of such filing to the following registered
users, to whom I also mailed 2 (two) paper copies:
Stephen R. McCullough
Office of the Attorney General
900 E. Main Street
Richmond, Virginia 23219
smmcullough@oag.state.va.us
/s/
_____
Rebecca K. Glenberg (VSB No. 44099)
American Civil Liberties Union of Virginia
Foundation, Inc.
530 E. Main Street, Suite 310
Richmond, Virginia 23219
(804) 644-8080
(804) 649-2733 (FAX)
rglenberg@acluva.org
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