Gallagly et al v. Sun-Times Media, LLC
Filing
33
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 11/18/2013: Defendant's Motion to Dismiss is denied. Status hearing set for 12/11/2013 at 09:00 AM. Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SCOTT DAHLSTROM, HUGH
GALLAGLY, PETER KELLY, ROBERT
SHEA, and EMMET WELCH,
Plaintiffs,
v.
Case No. 12 C 658
Hon. Harry D. Leinenweber
SUN-TIMES MEDIA, LLC d/b/a THE
CHICAGO SUN-TIMES and Any
Other Known Corporate Name,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss.
For the
reasons stated herein, the Motion is denied.
I.
FACTUAL BACKGROUND
On April 25, 2004, an altercation arose between David Koschman
(“Koschman”) and R.J. Vanecko (“Vanecko”), a nephew of then-Mayor
Richard M. Daley.
The incident resulted in Koschman’s death, and,
given Vanecko’s political connections, gave rise to a high-profile
investigation by the Chicago Police Department (the “CPD”).
In
their investigation, the CPD placed Vanecko in a lineup with
several Chicago Police Officers of similar age, complexion, height,
and build.
Eyewitnesses misidentified some of the officers as the
perpetrator, and the CPD concluded that there was no case to pursue
against Vanecko.
Defendant Chicago Sun-Times ran an article on November 21,
2011 that scrutinized the lineup procedure.
The article included
each “filler” officer’s name (including middle initial), birth
month and year, height, weight, hair color, and eye color.
listed the source of that data as the CPD and the
Secretary of State.
It
Illinois
See, Compl. Exs. 1 & 2.
Those officers, who take issue with the newspaper’s use of
their personal information, are the Plaintiffs here.
They claim
that Defendant violated the Driver Privacy Protection Act (the
“DPPA”), 18 U.S.C. § 2721 et seq., and endangered their well-being
by obtaining personal information from their motor vehicle records
and publishing that information to the public.
Plaintiffs seek
damages, a declaratory judgment that Defendant violated the DPPA,
and an injunction directing Defendant to remove their personal
information from its publications (including the online version of
the article on Defendant’s website).
In its Motion to Dismiss, Defendant contends that (1) the
published information is not “personal information” protected by
the DPPA and (2) that enforcing the DPPA against it would violate
the First Amendment.
This Court addressed the first argument in
- 2 -
its September 10, 2012 Opinion and concluded that the published
information is “personal information” protected by the DPPA.
ECF No. 21.
See,
The Government declined to intervene to address the
constitutional question.
At the Court’s request, the parties
provided supplemental briefs on the First Amendment issue.
This
Court must now address (1) whether the DPPA, as applied to the
Defendant,
violates
requested
injunction
the
First
Amendment
constitutes
an
and
(2)
whether
unconstitutional
the
prior
restraint.
II.
LEGAL STANDARD
A complaint must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” FED. R. CIV.
P. 8(a)(2).
It “must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Court accepts as
true all well-pleaded facts and draws all inferences in favor of
the non-moving party.
Cole v. Milwaukee Area Tech. Coll. Dist.,
634 F.3d 901, 903 (7th Cir. 2011).
III.
A.
DISCUSSION
The DPPA
The DPPA makes it unlawful “for any person knowingly to obtain
or disclose personal information, from a motor vehicle record, for
- 3 -
any use not permitted under Section 2721(b) of this title.”
U.S.C. § 2722(a).
18
Section 2721(b), in turn, specifies fourteen
permissible uses of personal information obtained from a motor
vehicle record.
For example, one could use information from a
motor vehicle record to provide notice to an owner that her vehicle
was towed or impounded, § 2721(b)(7), or in connection with the
operation of private toll transportation facilities, § 2721(b)(10).
Defendant does not contend that its publication of Plaintiffs’
personal
information
circumstances.
falls
within
any
of
these
enumerated
Instead, Defendant argues that the DPPA violates
the First Amendment by restricting what information the press can
publish.
The Seventh Circuit has held that, on its face, the DPPA does
not violate the First Amendment.
1007 (7th Cir. 1998).
Travis v. Reno, 163 F.3d 1000,
The Court left open the possibility of an
as-applied challenge, but it was skeptical that one could succeed,
because the DPPA restricts access to information, not speech.
Defendant brings such an as-applied challenge.
notes
correctly
that
the
DPPA
must
be
Id.
Defendant
invalidated
in
its
application when it invades constitutional guarantees, such as the
freedom of speech protected by the First Amendment.
See, e.g.,
Ampersand Pub. v. NLRB, 702 F.3d 51, 56 (D.C. Cir. 2012).
- 4 -
However,
the Court is not persuaded that the DPPA, as applied in this case,
limits speech:
it does not restrict what the press may publish.
Rather, it limits access to information in that it narrows the
purposes for which one may use personal information obtained from
a motor vehicle record.
Defendant protests that the DPPA, as applied, would prevent it
from publishing that a person has brown eyes.
But that is incorrect:
Def’s. Supp. Br. 7.
the DPPA does not make it unlawful for the
press to publish truthful information such as a police officer’s
eye color.
Rather, the DPPA makes it unlawful to “obtain or
disclose” personal information from a motor vehicle record.
U.S.C. § 2722(a).
18
Thus, the press can publish that an officer has
brown eyes without violating the DPPA as long as it did not obtain
that information from the officer’s motor vehicle record.
The
Seventh Circuit put it nicely:
Peering into public records is not part of the “freedom
of speech” that the first amendment protects. There is no
constitutional right to have access to particular
government information.
Travis, 163 F.3d at 1007 (internal quotation omitted).
Defendant contends that applying the law to it affects its
ability to disseminate information related to alleged governmental
misconduct. It is well established that “generally applicable laws
- 5 -
do not offend the First Amendment simply because their enforcement
against the press has incidental effects on its ability to gather
and report the news.”
(1991).
Cohen v. Cowles Media Co., 501 U.S. 663, 669
The First Amendment does not allow Defendant to access
information from any source and use it however it pleases.
Additionally,
the
cases
upon
which
Defendant
relies
are
inapplicable because in those cases the published information was
obtained lawfully.
See, Smith v. Daily Mail Pub. Co., 443 U.S. 97,
104 (1979) (holding that, absent a substantial state interest, the
state may not punish the press for publishing lawfully obtained
information); The Florida Star v. B.J.F., 491 U.S. 524, 541 (1989)
(explaining that the publication of truthful information, when
obtained lawfully, can be punished by the state only when such
punishment is “narrowly tailored to a state interest of the highest
order”).
Unlike
the
defendants
in
Smith
and
Florida
Star,
Defendant did not obtain the information lawfully, as its purpose
for obtaining the Plaintiffs’ personal information did not fall
within one of the circumstances listed in § 2721(b).
B.
Prior Restraint
Plaintiffs have requested that this Court enjoin Defendant
from any continued publication of Plaintiffs’ personal information
obtained from their motor vehicle records.
- 6 -
They allege that the
harm is ongoing.
injunction
Defendant contends that Plaintiffs’ requested
constitutes
an
unconstitutional
restraints
are
“administrative
prior
restraint
of
speech.
Prior
and
judicial
orders
forbidding certain communications when issued in advance of the
time that such communications are to occur.”
States, 509 U.S. 544, 550 (1993).
injunction
would
forbid
Alexander v. United
It is true enough that an
Defendant
from
communicating
information obtained from the motor vehicle record.
several reasons, Defendant’s argument is unconvincing.
the
But for
First, the
speech at issue has already taken place, so there can be no
concerns about
the
difficulty
of
knowing in
advance
what
an
individual will say and whether that speech will be legitimate or
illegitimate.
See, Southeastern Promotions, Ltd. v. Conrad, 420
U.S. 546, 559 (1975).
Second, and perhaps more importantly, Defendant’s imprecise
reading of the injunction obscures its true purpose.
Plaintiffs
seek to end the continuing publication of information obtained from
their motor vehicle record; that is, they seek to end the ongoing
violation of the DPPA, which, as described above, is constitutional
as applied to Defendant.
Of course, as Defendant contends, anyone
who encounters the Plaintiffs can observe their hair, eyes, height,
- 7 -
weight, and approximate age. The issue is not whether other people
can discover this information, but whether Defendant obtained this
information unlawfully and continues to publish it unlawfully.
Whether Plaintiffs will obtain their injunction is a separate issue
not yet before the Court, but at this stage Plaintiffs have done
all they need to do to claim their entitlement to one.
IV.
CONCLUSION
For the reasons stated herein, Defendant’s Motion to Dismiss
[ECF No. 8] is denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE:11/18/2013
- 8 -
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?