Gallagly et al v. Sun-Times Media, LLC
Filing
124
MEMORANDUM Opinion and Order. For the reasons stated herein, Plaintiffs' Motion for Reconsideration (ECF No. 112) is granted, and Defendant's Motion for Reconsideration (ECF No. 110) is denied. As such, the Court enters judgment for Plaintiffs on all claims. Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 9/27/2018:Mailed notice(maf)
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 1 of 19 PageID #:1042
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF ILLINOIS
EASTERN DIVISION
SCOTT DAHLSTROM, HUGH GALLAGLY,
PETER KELLY, ROBERT SHEA, and
EMMET WELCH,
Plaintiffs,
Case No. 12 C 658
v.
Judge Harry D. Leinenweber
SUN-TIMES MEDIA, LLC d/b/a THE
CHICAGO SUN-TIMES and any other
Known Corporate Name,
Defendants.
MEMORANDUM OPINION AND ORDER
Both parties seek reconsideration of this Court’s September 29,
2016, Memorandum Opinion and Order (ECF No. 80). For the reasons stated
herein, Defendant’s Motion to Reconsider (ECF No. 110) is denied, and
Plaintiffs’ Motion to Reconsider (ECF No. 112) is granted.
I.
BACKGROUND
Five police officers brought this action against Sun-Times Media,
LLC
(“Sun-Times”),
a
Chicago
newspaper,
for
obtaining
personal
information about them from state motor vehicle records and publishing
that information in its coverage of a politically-charged homicide
investigation.
In April 2004, David Koschman died after an altercation
with R.J. Vanecko, nephew to Richard M. Daley, then-Mayor of Chicago.
The subsequent Chicago Police Department (“CPD”) investigation resulted
in no charges against Vanecko because no eyewitness positively identified
him.
Not relevant to this case, but certainly noteworthy, is that after
the CPD failed to bring charges, a special prosecutor was appointed to
investigate
Koschman’s
death.
The
investigation
led
to
Vanecko’s
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 2 of 19 PageID #:1043
indictment and charge of a single count of involuntary manslaughter.
Vanecko pled guilty in January 2014.
The
Sun-Times
published
a
series
of
investigative
reports
criticizing the CPD’s investigation and failure to bring charges against
Vanecko. One article in the series is at the center of this case.
On
November 21, 2011, the Sun-Times published an article titled, “Daley
Nephew Biggest Guy on Scene, But Not in Lineup,” which described how the
lineup contained only men who closely resembled Vanecko.
The Sun-Times
accused the CPD of manipulating the lineup to lead to misidentification
and thus stop charges from being filed.
The article included two lineup
photos: the first lineup comprising fillers—Plaintiffs—and the second
lineup comprising Vanecko’s friends present at the scene of the crime.
Alongside the photos, the Sun-Times published a graphic that identified
Plaintiffs in the first lineup by name and birthdate, as well as by
height,
weight,
Information”).
hair
color,
Plaintiffs
and
allege
eye
that
color
the
(collectively
Sun-Times
violated
“the
the
Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. § 2721 et seq., by
(1) obtaining personal information from their motor vehicle records and
(2) disclosing that information to the public.
The Sun-Times moved to dismiss that claim, arguing that the DPPA
does not prohibit the type of information disclosed by the Sun-Times and
that even if it did, the DPPA’s prohibitions as applied violated the
First Amendment.
The Court denied the Sun-Times’ Motion to Dismiss but
granted an interlocutory appeal to the Seventh Circuit.
Sun-Times Media, LLC, 39 F. Supp. 3d 998 (N.D. Ill. 2014).
- 2 -
Dahlstrom v.
The Seventh
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 3 of 19 PageID #:1044
Circuit affirmed this Court’s ruling, holding that: (1) the Information
constituted
“personal
information”
under
the
DPPA;
(2)
the
DPPA’s
prohibition on obtaining personal information did not warrant heightened
First Amendment scrutiny, and, as such, was rationally related to the
government’s legitimate interest; and (3) the DPPA’s prohibition on
disclosing personal information was content-neutral, and passed muster
under intermediate scrutiny by furthering important government interests
unrelated to suppression of free expression and not restricting more
speech than was necessary to further those interests.
Times Media, LLC, 777 F.3d 937 (7th Cir. 2015).
Dahlstrom v. Sun-
In other words, the
DPPA, as applied, did not violate the First Amendment in prohibiting the
Sun-Times from either obtaining the officers’ personal information from
motor vehicle records or subsequently disclosing that information.
Id.
After remand, the Sun-Times filed its Answer to the Complaint,
pleading nine affirmative defenses.
Plaintiffs moved for judgment on
the pleadings and to strike the affirmative defenses.
The Court granted
Plaintiffs judgment on the pleadings as to the disclosure claim, but
denied it as to the obtainment claim, reasoning:
The Sun-Times’ best argument is that at the time it obtained
the Plaintiffs’ personal information it did not have the lineup photographs to compare the fillers with Vanecko.
It
appears that the Seventh Circuit may well in fact recognize
a “balancing” test so that under certain circumstances the
press would be allowed to obtain personal information while
investigating a matter of public significance and the
invasion of privacy was not particularly great. Recall that
there are two separate acts here that arguably violate the
DPPA. First, obtaining the information, and, second, its
publication. Although the record is silent as to the date
the Sun-Times obtained the personal information from the
Secretary of State, the implication from the pleadings is
- 3 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 4 of 19 PageID #:1045
that it did not have access to the line-up photos at the time
it obtained the personal information. Thus a balancing could
arguably come out in favor of the Sun-Times for the act of
obtaining the personal information. However, at the time of
its publication, the Sun-Times did have the photographs so
that the personal information at the time of publication was,
as the Seventh Circuit found, “largely cumulative.”
Dahlstrom v. Sun-Times Media, LLC, No. 12-c-658, 2016 WL 5477889, at *3
(N.D. Ill. Sept. 29, 2016).
Correspondingly, the Court struck the First
Amendment affirmative defense as to the disclosure claim.
Now, after further discovery between the parties, both parties move
the Court to reconsider its earlier ruling.
II.
A.
ANALYSIS
Motion to Reconsider Standard
No final judgment has been entered in this case, thus Rule 54(b)
governs the parties’ Motions for Reconsideration. Under Rule 54(b), “any
order . . . that adjudicates fewer than all the claims . . . does not
end the action as to any of the claims or parties and may be revised at
any time before the entry of a judgment.”
FED. R. CIV. P. 54(b); Galvan
v. Norberg, 678 F.3d 581, 587 n.3 (7th Cir. 2012).
Courts may grant
motions for reconsideration “to correct manifest errors of law or fact
or to present newly discovered evidence.”
Caisse Nationale de Credit
Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
“[M]anifest error is not demonstrated by the disappointment of the losing
party,” but rather by the “misapplication or failure to recognize
controlling precedent.”
Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606
(7th Cir. 2000) (internal quotation and citation omitted).
allows
the
court
to
correct
its
own
- 4 -
errors
and
avoid
The rule
unnecessary
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 5 of 19 PageID #:1046
appellate procedures.
Miller v. Safeco Ins. Co. of Am., 683 F.3d 805,
813 (7th Cir. 2012).
B.
The Parties’ Motions to Reconsider
Plaintiffs’ and the Sun-Times’ arguments for their respective
Motions to Reconsider substantially overlap and so will be addressed
together.
As already described, the Court granted Plaintiffs judgment
on their disclosure claim, but not on their obtainment claim. Plaintiffs
argue they are entitled to judgment on both, however, and that this Court
erred by applying a higher scrutiny balancing test—as opposed to a
rational basis test—to the obtainment claim.
Plaintiffs are correct. The Seventh Circuit applied the balancing
test to the disclosure claim because of the First Amendment implications.
See Dahlstrom, 777 F.3d at 949 (citing Bartnicki v. Vopper, 532 U.S.
514,
527
(2001)
(finding
that
“if
the
acts
of
‘disclosing’
and
‘publishing’ information do not constitute speech, it is hard to imagine
what
does
fall
within
that
category”)).
But
the
Seventh
Circuit
distinguished the First Amendment concerns at play with disclosure from
those at play with obtainment stating, “the First Amendment does not
guarantee
the
press
a
constitutional
right
of
information not available to the public generally.”
special
access
to
Id. at 946 (quoting
Pell v. Procunier, 417 U.S. 817, 833 (1974)) (internal quotations
omitted).
Thus, the Seventh Circuit ruled that because Plaintiff’s
obtainment
claim
constituted
“a
limitation
only
on
access
to
information,” it should be judged by the rational basis standard and
does not require a heightened scrutiny balancing test.
- 5 -
Id. at 949.
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 6 of 19 PageID #:1047
This Court’s earlier ruling failed to trace that distinction.
The
Court’s earlier reasoning applied the balancing test applicable to the
disclosure claim to the obtainment claim as well, even though the First
Amendment implications are not present in the latter.
Plaintiffs’ Motion is well taken.
Accordingly, the
Whether the Sun-Times obtained
Plaintiffs’ personal information before or after the Sun-Times received
the photographs is irrelevant to the obtainment claim because heightened
scrutiny does not apply.
The appropriate standard is rational basis,
which requires that the law bear “a rational relationship to a legitimate
government interest.”
Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d
640, 653 (7th Cir. 2013). The obtainment claim withstands rational basis
scrutiny
because
“prevent[ing]
the
stalkers
government
and
has
criminals
a
from
legitimate
utilizing
interest
motor
in
vehicle
records to acquire information about their victims.” Id; see also
Maracich v. Spears, 133 S. Ct. 2191, 2198 (2013) (discussing the 1989
murder of television actress Rebecca Shaeffer by an obsessed fan who
obtained her unlisted home address from a motor vehicle record, which
served as the impetus for the DPPA’s passage).
In other words, the DPPA
reflects the government’s legitimate interest in public safety, and such
interest is rationally related to the DPPA’s prohibition on obtaining
personal information from driving records. By applying the correct level
of
scrutiny,
the
Court
finds
that
its
prior
determination
on
the
obtainment claim was misplaced.
However, the Court’s acknowledgment that it erred on the obtainment
claim analysis does not necessarily get Plaintiffs over the finish line.
- 6 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 7 of 19 PageID #:1048
The Sun-Times raises several arguments against judgment on the pleadings
for Plaintiffs which fall into three categories: (1) the Sun-Times’
reliance
on
the
Illinois
Secretary
of
State’s
(“Secretary”)
authorization to disclose the Information; (2) the Supreme Court’s recent
decisions in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), and
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015); and (3) new evidence
uncovered in discovery.
1.
The Secretary of State’s Authority
Under the first category, the Sun-Times raises several arguments
for
why
the
Court
must
reconsider
its
ruling,
including:
(1)
the
Secretary authorized disclosure of the Information, making the SunTimes’ publication lawful; (2) as such, the Court must defer to the
Secretary’s authorization under Chevron v. Natural Resource Defense
Council, 467 U.S. 837 (1984); (3) in the alternative, the Sun-Times was
entitled to rely on the Secretary’s implied representation of the
lawfulness of disclosing the Information; and (4) the Sun-Times could
not
have
“knowingly”
violated
the
DPPA
because
it
relied
on
the
Secretary’s authorization of the Information.
Turning to the first argument, the Sun-Times offers the declaration
of Donna Leonard, the executive counsel of the Illinois Secretary of
State, which asserts that the Secretary disclosed the Information to the
Sun-Times based on the Secretary’s policy that the Information was not
“personal information” under the DPPA.
The Sun-Times argues that it
cannot be held liable where it relied on the Secretary’s determination
that the Information was not covered under the DPPA.
- 7 -
However, the DPPA
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 8 of 19 PageID #:1049
says otherwise.
The Secretary might have violated Section 2721(a)—which
prohibits
Secretary
the
from
“knowingly
disclos[ing]”
personal
information—but its violation does not immunize the Sun-Times from
liability
under
Section
2722(a)—which
prohibits
any
person
from
knowingly obtaining or disclosing personal information from a motor
vehicle record for any non-permitted use.
Put simply, an initial
violation by one party does not negate subsequent violations by another.
See
Dahlstrom,
777
F.3d
at
952
(finding
that
here,
“there
is
no
intervening illegal actor: [the] Sun-Times itself unlawfully sought and
acquired the Officers’ personal information from the Secretary . . . and
proceeded to publish it”).
The Sun-Times “knowingly” requested and
obtained the Information from a motor vehicle record.
See Pavone v. Law
Offices of Anthony Mancini, Ltd., 205 F. Supp. 3d 961, 967 (N.D. Ill.
2016) (finding that the “knowingly” element “does not require proof that
the defendant knew he was obtaining, using, or disclosing information
illegally” (emphasis added)).
As established by the Seventh Circuit,
the Information here constitutes personal information, id. at 493-97.
Thus, the Sun-Times’ actions fall squarely within Section 2722(a),
regardless of whether the Secretary lawfully or unlawfully disclosed the
Information.
The Sun-Times’ reliance on Chevron deference is also misplaced.
Chevron deference only applies where “an agency is authorized by Congress
to issue regulations and promulgates a regulation interpreting a statute
it enforces.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124
(2016); see Christensen v. Harris Cnty., 529 U.S. 576, 596-97 (2000)
- 8 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 9 of 19 PageID #:1050
(Breyer, J., dissenting) (stating that where it is in doubt that Congress
intended to delegate interpretive authority to an agency, Chevron is
“inapplicable”).
The Sun-Times points to no authority showing that the
Secretary was authorized to issue regulations interpreting the DPPA.
The Sun-Times mentions 18 U.S.C. § 2721(a), but, as provided above, this
provision prohibits the Secretary from “knowingly disclos[ing]” personal
information; it has nothing to do with granting the Secretary the
requisite
interpretive
authority.
The
Illinois
Secretary
is
not
authorized to interpret the DPPA—a federal statute—for the rest of the
country.
While the Secretary—just like all other parallel agencies in
the country—must interpret the statue to comply with it, that is not
tantamount
to
having
delegated
authority
to
interpret
the
statute
authoritatively.
The Court turns next to the Sun-Times’ third argument: the SunTimes was entitled to “rely on the government’s implied representations
of the lawfulness of dissemination.” Fla. Star v. B.J.F., 491 U.S. 524,
536 (1989). At first glance, the argument seems meritorious. In Florida
Star, a rape victim sued a newspaper that published her name after
obtaining it from a publicly-released police report.
Id. at 528.
The
Supreme Court held that imposing damages on the newspaper violated the
First Amendment, reasoning that the paper had lawfully obtained the
information from a police report placed in the press room.
Id. at 541.
“[W]here the government has made certain information publicly available,
it is highly anomalous to sanction persons other than the source of its
release.” Id. at 535.
However, as the Seventh Circuit already observed,
- 9 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 10 of 19 PageID #:1051
Florida Star is distinguishable.
The defendant in Florida Star lawfully
obtained the victim’s name from a publicly-available police report
whereas here, the Sun-Times obtained the Information “by breaking the
law.”
See Dahlstrom, 777 F.3d at 950.
The Seventh Circuit concluded
that the Sun-Times enjoys no First Amendment right to publish the
Information because it broke the law.
Id.
The Sun-Times’ argument fails even when the Sun-Times characterizes
its reliance on the Secretary as a good faith defense.
As one court
recognized, “the express unambiguous language of the DPPA does not create
a good faith defense or bestow immunity upon those who rely upon state
agencies to act in compliance with its terms.” Rios v. Direct Mail
Express, Inc., 435 F. Supp. 2d 1199, 1204 (S.D. Fla. 2006) (citing 18
U.S.C.
§§ 2721–2725).
governmental
actors
and
The
DPPA
private
establishes
entities.
liability
See
18
for
U.S.C.
both
§ 2721
(prohibiting disclosure by a “State department of motor vehicles”); 18
U.S.C. § 2722 (prohibiting disclosure by “any person”).
Accordingly,
the Secretary providing the Information to the Sun-Times does not
immunize Sun-Times from liability.
Finally, the Sun-Times argues that it did not have the requisite
intent—“knowingly”—to violate the DPPA because the Sun-Times relied on
the Secretary’s authorization.
But this argument also misses the mark.
As already mentioned, the “knowingly” element does not require that the
Sun-Times knew that its obtainment, use, and subsequent disclosure of
the Information was unlawful.
See Pavone, 205 F. Supp. 3d at 967.
Rather, “[v]oluntary action, not knowledge of illegality or potential
- 10 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 11 of 19 PageID #:1052
consequences, is sufficient to satisfy the mens rea element of the DPPA.”
Senne v. Vill. of Palantine, 695 F.3d 597, 603 (7th Cir. 2012); see also
Pichler v. UNITE, 542 F.3d 380, 396 (holding that liability under the
DPPA does not require that a defendant knowingly obtain or disclose
personal information for a use the defendant knows is unlawful).
There
is no doubt that the Sun-Times knew it was obtaining and disclosing the
Information.
The
Whether it knew it was doing so unlawfully is irrelevant.
Court
finds
no
basis
for
reconsideration
related
to
the
Secretary and its alleged authorization to disclose the Information to
the Sun-Times.
2.
Appropriate Degree of Scrutiny
Under the second category, the Sun-Times argues that (1) the
Supreme
Court’s
recent
decision
in
Packingham
imposes
at
least
intermediate scrutiny to the obtainment claim, and (2) the Supreme
Court’s recent decision in Reed establishes that the DPPA should be
treated as a content-based statute, thus requiring strict scrutiny of
the disclosure claim.
The Court finds neither case applicable.
The Court turns first to the obtainment claim.
In Packingham, the
Supreme Court considered a law that prohibited sex offenders from
accessing private social networking websites.
137 S. Ct. at 1733.
The
Supreme Court applied intermediate scrutiny under an assumption that the
law was content-neutral. Id. at 1736. To survive intermediate scrutiny,
“a law must be ‘narrowly tailored to serve a significant government
interest.’”
Id. (quoting McCullen v. Coakley, 134 S. Ct. 2518, 2534
(2014)) (internal quotation marks omitted).
- 11 -
Applying such scrutiny, the
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 12 of 19 PageID #:1053
Supreme Court determined that the government has a legitimate interest
in public safety (e.g., protecting children from sexual predators) but
said interest could not justify broad prohibitions, such as barring
access “not only to commonplace social media websites but also to
websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com.”
Id.
Moreover, the Supreme Court was not swayed by the lower court’s
finding that “adequate alternative means of communication” existed for
the offenders.
Id. at 1375.
The Supreme Court thus held the law
unconstitutional because “to foreclose access to social media altogether
is to prevent the user from engaging in the legitimate exercise of First
Amendment rights.”
Id. at 1737.
Here, the Sun-Times argues that Packingham, which came after the
Seventh Circuit’s ruling in this case, requires intermediate scrutiny
on all access restrictions such as the DPPA’s prohibition on obtainment.
The Sun-Times also emphasizes that, like the Supreme Court, this Court
should not be swayed by alternative means to access the Information.
See Id. at 1735.
So, the fact that “much of [the information] can be
gathered from physical observation of the Officers or from other lawful
sources” should not serve as a hurdle for applying such higher scrutiny.
See Dahlstrom, 777 F.3d at 948.
Contrary to the Sun-Times’ beliefs, Packingham is distinguishable
and
intermediate
scrutiny
does
not
apply
here.
Restricting
an
individual’s access to social media is a far cry from restricting access
to personal information from motor vehicle records. “Peering into public
records
is
not
part
of
the
‘freedom
- 12 -
of
speech’
that
the
[F]irst
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 13 of 19 PageID #:1054
[A]mendment protects. ‘There is no constitutional right to have access
to particular government information, or to require openness from the
bureaucracy.’” Dahlstrom, 777 F.3d at 947 (citing Travis v. Reno, 163
F.3d 1000, 1007 (7th Cir. 1998) (quoting Houchins v. KQED, Inc., 438
U.S. 1, 14 (1978) (plurality opinion))).
Moreover, the Seventh Circuit
held that the DPPA’s restriction on obtaining driver motor vehicle
information “is not a restriction on speech at all.” Id. at 949.
As
such,
v.
the
Sun-Times’
reliance
on
Packingham,
along
with
Brown
Phillips, 801 F.3d 849, 853 (7th Cir. 2015) (finding that banning Rrelated movies for sex offenders violated the First Amendment under the
rational basis test), is misplaced. Intermediate scrutiny does not apply
to the obtainment claim and, as established above, the government’s
interest in public safety is rationally related to prohibiting the
obtainment of personal information in motor vehicle records.
The Sun-
Times’ argument thus fails.
As for the disclosure claim, the Sun-Times argues that the Supreme
Court and Seventh Circuit now require heightened scrutiny of certain
content-neutral statutes nevertheless deemed content-based, citing Reed
v. Town of Gilbert, 135 S. Ct. at 2231 (holding that the Sign Code — a
comprehensive code governing the manner in which people may display
outdoor signs — was content-based and thus subject to strict scrutiny)
and Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015) (holding
that the city’s anti-panhandling ordinance was not content-neutral and
thus violated the First Amendment).
The Sun-Times argues that under
Reed, the DPPA falls in the class of content-neutral statutes now
- 13 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 14 of 19 PageID #:1055
considered
content-based,
scrutiny.
The
Sun-Times
thus
demanding
also
points
to
an
application
Norton,
of
strict
specifically,
to
demonstrate that the Seventh Circuit has already reversed its position
on such content-neutral regulations in light of Reed.
The Sun-Times’
application of these cases, however, is mistaken.
In Reed, the Supreme Court emphasized that regardless whether laws
“defin[e] regulated speech by particular subject matter” or “by its
function
or
purpose,”
these
defining
characteristics
are
“[b]oth
distinctions drawn based on the message a speaker conveys, and therefore,
are subject to strict scrutiny.”
135 S. Ct. at 2227.
The Supreme Court
also recognized an additional category of laws, though content neutral,
that must be considered content-based: “laws that cannot be justified
without reference to the content of the regulated speech, or that were
adopted by the government because of disagreement with the message [the
speech] conveys.”
Id. (citing Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989)) (internal quotation marks omitted).
The Supreme Court
ultimately considered the Sign Code content-based because it defined
categories of temporary, political, and ideological signs on the basis
of
their
messages
and
then
subjected
restrictions for sign placement.
Id.
each
category
to
different
Those restrictions applied thus
depended “entirely on the communicative content of the sign.”
Id; see
also Norton, 806 F.3d at 412 (citing Reed, 135 S.Ct. at 2227) (finding
similarly post-Reed that “regulation of speech is content based if a law
applies to particular speech because of the topic discussed or the idea
or message expressed”).
- 14 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 15 of 19 PageID #:1056
The Sun-Times’ reliance on Reed and Norton is unfounded.
The Sun-
Times argues that the DPPA falls within the Reed-defined category of
content-neutral
laws
considered
content-based
because
determining
whether something constitutes personal information requires looking at
the content of the speech, i.e., the information provided in the motor
vehicle records.
must
look
to
the
The Court disagrees.
information
in
Although it is true that one
dispute
to
determine
whether
it
constitutes “personal information” under the DPPA, such information is
not “content” for purposes of the First Amendment, and it is not
something the government has disagreed with because of the “message [it]
conveys.”
See Reed, 135 S. Ct. at 2227 (citation omitted).
The Seventh
Circuit made clear in this case that “the DPPA is content neutral because
its public safety goals are ‘unrelated to the content of [the regulated]
expression.’” Dahlstrom, 77 F.3d at 950.
Finally, the DPPA regulates
source—motor vehicle records—and not subject matter.
Id.
“The Supreme
Court has concluded that disclosures that are prohibited ‘by virtue of
the source, rather than the subject matter’ are easily categorized as
content neutral,” and thus subjected to intermediate scrutiny.
Id.
(citing Bartnicki, 532 U.S. at 526). So, the DPPA does not fall into the
Reed-defined
content-based.
category
of
content-neutral
statutes
now
considered
As discussed, the DPPA is distinguishable from this new
category mentioned in both Reed and Norton.
The Sun-Times’ argument
thus fails, and strict scrutiny of the disclosure claim is unwarranted.
- 15 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 16 of 19 PageID #:1057
The Court finds no basis for reconsideration in light of the Supreme
Court’s rulings in Packingham or Reed, nor in the Seventh Circuit’s
holding in Norton.
3.
Discovery and the Balancing Test
Finally, under the third category, the Sun-Times argues that new
evidence uncovered in discovery—specifically, the depositions of the
Sun-Times’ reporters and Plaintiffs—shifts the balance of interests in
Sun-Times’ favor.
As a content-neutral restriction, Section 2722(a)’s limitation on
disclosure is subject to intermediate scrutiny.
The Section thus passes
muster if it “furthers an important or substantial government interest;
if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that
interest.”
Dahlstrom, 777 F.3d at 952 (citing Turner Broad. Sys., Inc.
v. FCC, 512 U.S. 622 (1994)).
The Sun-Times argues that in light of new evidence uncovered in
discovery,
government’s
the
Court
interest
should
in
reevaluate
privacy
and
the
the
publishing a matter of public significance.
balance
Sun-Times’
between
interest
the
in
First, the Sun-Times offers
the depositions of Tim Novak and Chris Fusco—two of its own reporters—
who assert that the Information was necessary to contrast two lineup
photos: the lineup with fillers and another with Vanecko’s friends
present during the night of Koschman’s death.
The Sun-Times argues that
these depositions demonstrate that publishing the Information was a far
- 16 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 17 of 19 PageID #:1058
greater matter of public significance than the Seventh Circuit concluded.
Second, the Sun-Times asserts that Plaintiffs’ depositions reveal that
none of the officers admit to privacy concerns related to the publication
or disclosure of the Information.
The Sun-Times argues that these
officers’ depositions thus diminish the government’s alleged interests
in the balance.
In sum, the Sun-Times contends that the proffered
discoveries now tip the balance of interests in its favor.
The Court
disagrees.
The Sun-Times fails to proffer any arguments or evidence that
controverts the Seventh Circuit’s balancing of the interests at issue.
As the Seventh Circuit elaborated in detail:
Although the Sun-Times article relates to a matter of public
significance — the allegation that the [CPD] manipulated a
homicide investigation — the specific details at issue are
largely cumulative of lawfully obtained information published
in that very same article, and are therefore of less pressing
public concern than the threats of physical violence in
Bartnicki. While Sun-Times provided details of the Officers’
physical traits to highlight the resemblance between the
“fillers” and Vanecko, most of the article’s editorial force
was achieved through publication of the lineup photographs
that Sun-Times obtained through its FOIA request — the value
added by the inclusion of the Officers’ personal information
was negligible. Each Officers’ height is evidence from the
lineup photographs, while their weights and ages are relevant
only to the extent that they increase the Officers’
resemblance to Vanecko — a resemblance that the photographs
independently convey. And, although identifying the Officers’
hair and eye colors may add some detail to the published
black-and-white photographs, their personal information is
largely redundant of what the public could easily observe
from the photographs themselves. Therefore, Sun-Times’s
publication of the Officers’ personal details both intruded
on their privacy and threatened their safety, while doing
little to advance Sun-Times’s reporting on a story of public
concern.
- 17 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 18 of 19 PageID #:1059
Dahlstrom, 777 F.3d at 953.
The Sun-Times argues that the Seventh
Circuit failed to consider that the Information was published to compare
the first lineup with a second.
On this score, the Court notes that the
second lineup photo with Vanecko’s friends fails to include the type of
information provided with the first lineup and at issue in this case
(i.e.,
birthdate,
height,
weight,
hair
color,
and
eye
color).
Regardless, the Court fails to see how the Sun-Times’ proffered evidence
changes the Seventh Circuit’s analysis. With or without the Information,
the Sun-Times’ readers may infer similar findings from viewing the two
lineup photos side-by-side: (1) that the “fillers” very much resembled
Vanecko in physical appearance in the first lineup photo, and (2) the
second lineup photo, where Vanecko and his friends are sitting down,
conceals physical disparities in height and weight.
The inclusion of
the Information, even after considering the second lineup photo, is
“largely cumulative.” Id.
The fact that the police officers did not admit to any privacy
concerns from the publication of the Information is irrelevant. The
government’s interests in promulgating a law has nothing to do with
whether those interests are maintained or realized by those the law
happens to protect.
Additionally, other interests, such as “removing
an incentive for parties to unlawfully obtain personal information in
the first place” and “minimizing the harm to individuals whose personal
information
of
the
government, regardless of whether the privacy interests are heeded.
Id.
at 952.
has
been
illegally
obtained”
counsel
in
favor
The Court thus concludes that the Seventh Circuit’s analysis
- 18 -
Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 19 of 19 PageID #:1060
controls and the Sun-Times has failed to show that there has been a shift
of balance in its favor.
The Court finds no basis for reconsideration in light of the newlyproduced evidence.
III.
For
the
reasons
CONCLUSION
stated
herein,
Plaintiffs’
Motion
for
Reconsideration (ECF No. 112) is granted, and Defendant’s Motion for
Reconsideration (ECF No. 110) is denied.
As such, the Court enters
judgment for Plaintiffs on all claims.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
9/27/2018
- 19 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?