Ninth Circuit asks Supreme Court to decide whether the First Amendment protects what you say on your website: ReadyLink Healthcare v. Lynch

On Tuesday, the Ninth Circuit asked the California Supreme Court to decide whether an attorney can be liable in tort for posting truthful, publicly-available information on his firm website. ReadyLink Healthcare, Inc. v. Lynch, ___ F.3d ___ (Mar. 14, 2006). The order reminds me of the bloggers' rights case, O'Grady v. Apple Computer, No. H028579 (which is still pending before the Sixth District after many months of no activity). The developments to date in both of these cases suggest that bloggers or other people who maintain their own websites should have more limited First Amendment rights than publishers of "traditional" media.

You might recall the UCL injunction decision ReadyLink Healthcare, Inc. v. Cotton, 126 Cal.App.4th 1006 (2005). (My original post on that decision is here.) Well, it seems that the losing party's attorney let his emotions get the better of him. According to the Ninth Circuit's order, he created a page on his website announcing to the world that the owner of ReadyLink Healthcare (his client's opponent) had been criminally convicted twenty years ago of "multiple felonies," complete with links to downloadable copies of court records. (Slip op. at 2633-34.) ReadyLink and its owner sued him for a variety of torts, including invasion of privacy. The attorney moved to dismiss, citing the First Amendment and the fact that the information he posted was truthful and publicly-available. The District Court granted the motion, and ReadyLink appealed. The Ninth Circuit has now asked the Supreme Court to determine whether the tort of invasion of privacy is viable against "non-media" defendants who have "a commercial interest in or a malicious motive for publishing facts about plaintiff's past crimes," suggesting that there is some doubt about this under California law. (Slip op. at 2631.)

The first thing that came to my mind on reading this is how in the world do you distinguish this person's website from a blog or any other form of online media? And don't all media outlets have a commercial interest in what they do? And so long as the information is truthful, why should the person's motive for publishing it be relevant?

At The Volokh Conspiracy, Professor Volokh echoed these concerns, and to bring the point home, he repeated the very information about this person's criminal history that started the lawsuit to begin with:

I expect that the courts will ultimately rule in favor of the speakers -- and I think that’s exactly right. First Amendment principles should apply to all speakers, whether or not they are parts of the institutional media; and this is of course even more clear now that the media / nonmedia line is blurrier than ever. Newspapers can clearly write about Treash’s past. Presumably I can do the same, since it’s hard to see why I should have fewer First Amendment rights than a small-town newspaper that may have no more readers than this blog does. I take it that Lynch [the attorney] could do the same on a blog that Lynch runs. How can the law sensibly distinguish Lynch’s site from his blog, Lynch’s blog from my blog, or my blog from the Siskiyou Daily News (circulation 6000)?

He also provides useful links to archives of the attorney's original web pages. (Remember, nothing can ever be deleted from the internet.) [Hat tip: How Appealing]

The Supreme Court is not required to take this case and decide the issue. There is also a serious question, first raised by Howard Bashman, about whether the Ninth Circuit should be asking a state supreme court to decide what amounts to a question of federal constitutional law. Under Rule of Court 29.8(e)(1), "any person or entity wanting to support or oppose the request" may file a letter brief within 20 days of March 14 (the date of the Ninth Circuit's request). The Supreme Court's docket for the case is here. UPDATE: On May 17, 2006, the Supreme Court denied the request for decision.

Comments

[Cordo]

I had always thought the First Amendent protected speech. Why a man did what he did was not supposed enter into it, unless it demonstrated an element of the offense, such as a specific intent crime. Here, the only thing at issue is the man's intent. As I understand it from your article, the records were public and the information reported was accurate. Nothing should be actionable.

There appear to be limits to that protection, though. We have, for example, so easily incorporated the term "hate crime" into our lexicon that we don't even blink. But isn't tacking prison time on to a crime due to the motivation for the act punishing speech? Isn't that the very thing the First Amendment is supposed to prohibit? If you set a synagogue on fire, that is arson, which is already punishable. Why you set the synagogue on fire is not supposed to enter into it.

What the lawyer did is certainly reprehensible and even childish. I am surprised the Bar isn't looking into this conduct. It does not, however, appear to be a matter for the courts.

[Kimberly]

Thanks for your comments. I believe and hope that the First Amendment protects this lawyer's speech, "childish" and unprofessional as it was.

[David Justin Lynch]

I am the victim in Readylink v. Lynch. I am proud of what I did and would do it again. As an American I have a right to freedom of speech and I intend to use it, whether or not other people like what I say. Simply put, Barry Treash is a convicted felon who served time in Federal Prison. That is an undisputed fact on the public record. Barry, not me, is responsible for the ongoing effects of his actions many years ago. In choosing to commit the acts of which he was convicted, he assumed the risk of arrest, prosecution, incarceration, and the ongoing presence of those facts on the public record. Barry could have avoided having a felony conviction on the public record by not having committed the felony in the first instance. I did nothing wrong, childish, reprehensible, or anything of the kind. All I did was exercise the rights I have as an American.

[socalguy]

Well, with regards to freedom of speech. Barry Treash created two nurse staffing companies--Brighton Staffing and Burlington Staffing, LLC. These were companies "Based" out of Chicago but which operated at the Readylink Healthcare building in Thousand Palms, CA this was a surprise when being hired by Barry on his "expansion" venture on created two new companies. Well, to keep the long story short, when coming into Readylink Healthcare under a different name on day one---red flags came up!! Today, Barry Treash dissolved Brighton Staffing, LLC and Burlington Staffing, LLC because of this unethical, and misconstrued business practice! He did not even had the "balls" to let us go today and dissolve the companies right from under us. And his "patsy" HR Director tell us that "Per Barry, it just didn't work out" and threw us out of the building!! Who else but a cold-hearted demon have two managers in healthcare staffing re-locate sign leases to new dwellings, leave a stable job and then let us go in a drop of a hat!! I do not know how this "dog" sleeps at night screwing up the lives of people!!