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From FIRE (the Foundation for Individual Rights and Expression) today:
In a win for press freedom rights and free expression, the city of San Francisco and state of California have agreed to settle a lawsuit over the public’s ability to discuss sealed arrest records.
The settlement, entered by the court last week, ensures that journalists and advocates who reported on a tech CEO’s sealed arrest records will not face monetary civil penalties. But the law — which is so flimsy that state and city officials did not even try to defend it — remains on the books, and the Foundation for Individual Rights and Expression and the First Amendment Coalition are calling on California’s legislature to rescind it.
“California had no business passing an unconstitutional law that banned the press and public from reporting on matters of public concern,” said FAC Director David Loy. “While the defendants in this case properly declined to defend it, it should be taken off the books to prevent others from weaponizing it in the future.”
In the fall of 2024, the San Francisco City Attorney’s Office sent three letters demanding that journalist Jack Poulson and Substack remove reporting on a sealed report documenting the arrest of a tech CEO, Maury Blackman. When those efforts stalled, Blackman sued Poulson and Substack in a separate lawsuit, which he is now appealing. (FIRE filed a friend-of-the-court brief in that action.)
The city cited California Penal Code § 851.92(c), which prohibits anyone from publishing a sealed arrest report or sharing any information “relating to” the report, under threat of a $1,500 civil penalty. This means that anyone who has a copy of a report or simply knows about an arrest — whether they learned of it from a source or were themselves a victim or witness — is legally banned from sharing what they know if a court seals the report.
But while it’s one thing to prohibit government employees from sharing sealed information, California’s law applies to anyone, including journalists, who lawfully obtains and shares the information. But once someone obtains private or confidential information, it’s not confidential anymore — and the Supreme Court has made clear that the First Amendment protects the right to share lawfully obtained information, even if the government (or others) would prefer it be kept quiet.
Concerned by the implications of the statute, FIRE and FAC sued in Nov. 2024 to prevent officials from also enforcing the statute against FAC, FAC’s Director of Advocacy Ginny LaRoe, and legal commentator Eugene Volokh, who wanted to write about the same report and Blackman’s litigation. The lawsuit led the California’s attorney general and San Francisco city attorney to agree not to enforce the law against FIRE’s clients while the lawsuit was pending.
“Government documents released to members of the public should be able to stay public,” Volokh said. “I’m glad that California authorities now recognize our First Amendment right to publish information that we’ve lawfully obtained.”
The reluctance by city and state officials to enforce this law speaks to its shaky legal standing, said FIRE Senior Attorney Adam Steinbaugh. But the provision remains on the books.
“The First Amendment right to publish lawfully obtained information on matters of public concern is a cornerstone of an informed public, and California’s lawyers looked at the law and recognized it was indefensible under the First Amendment,” Steinbaugh said. “California’s legislature should follow their lead by rescinding this provision.”
Many thanks to FIRE for representing us in this case.
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