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.