Gallagly et al v. Sun-Times Media, LLC

Filing 44

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 4/24/2014: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
Defendant Sun-Times Media, LLC (“Sun-Times”) has moved this
Court to certify an Interlocutory Appeal of the Court’s Opinions
dated September 5, 2012 and November 18, 2013.

For the reasons

stated herein, the Motion is granted.
I.

BACKGROUND

This case, brought by several officers of the Chicago Police
Department (the “CPD”), raises questions concerning the scope and
constitutionality of the Driver’s Privacy Protection Act (the
“DPPA”), 18 U.S.C. § 2722.

On April 25, 2004, an altercation arose

between David Koschman (“Koschman”) and R.J. Vanecko (“Vanecko”),
a nephew of Richard M. Daley, then-Mayor of Chicago.

The incident

resulted in
political

Koschman’s

connections,

investigation.
lineup

with

death,

and,

gave

rise

in
to

part
a

due

to

Vanecko’s

high-profile

CPD

In its investigation, the CPD placed Vanecko in a

several

Chicago

complexion, height, and build.

police

officers

of

similar

age,

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 did a bit of probing and published
an article that scrutinized the CPD’s lineup procedure.

The

article included each “filler” officer’s name (including middle
initial), birth month and year, height, weight, hair color, and eye
color; it used this information to argue that the fillers were too
similar to Vanecko for the lineup to be effective.

Apparently,

Defendant obtained the names and photographs through a Freedom of
Information Act (“FOIA”) request, and from there retrieved the
remaining information from the officers’ motor vehicle records.

A

state judge, citing several of Defendant’s articles, reopened the
investigation and appointed a special prosecutor to investigate
Koschman’s death.

ECF No. 35-1 at 33. In early 2014, Vanecko pled

guilty to involuntary manslaughter.

Steve Schmadeke, Daley nephew

Vanecko pleads guilty in Koschman death, Chi. Trib., Feb. 1, 2014,
available at http://articles.chicagotribune.com/2014-02-01/news/
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chi-koschman-vanecko-20140131_1_vanecko-u-s-attorney-dan-webbnanci-koschman.
These
Defendant

filler
violated

information

after

vehicle records.
an

officers

injunction

the

have

DPPA

obtaining

brought

by

the

that

publishing

information

alleging
their

from

that

personal

their

motor

They seek declaratory relief, money damages, and
mandating

that

Defendant

information from its publications.
arguing

suit,

the

published

remove

Plaintiffs’

Defendant moved to dismiss,

information

is

not

“personal

information” within the meaning of the Act and, even if it is,
enforcement

of

the

Act

against

it

would

violate

the

First

Amendment. Defendant also argued that the requested injunction, if
granted, would amount to an impermissible prior restraint on
Defendant’s speech.
In a Memorandum Opinion and Order dated September 5, 2012, the
Court rejected Defendant’s statutory interpretation argument and
held that “the information that Defendant published falls within
the ambit of ‘personal information’ under the DPPA.”
7.

ECF No. 21 at

Although Plaintiffs’ names and photographs are unquestionably

“personal information,” 18 U.S.C. § 2725(3), the Court held that
Plaintiffs in this case cannot state a claim as to the disclosure
of their names and photographs because Defendant obtained that
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information from a FOIA request, not from Plaintiffs’ motor vehicle
records.

ECF No. 21 at 5-6.

opportunity

to

intervene

The Court afforded the Government an

to

defend

the

statute, and

when

it

declined, the Court accepted supplemental briefing from the parties
on the First Amendment issue.

In a second Memorandum Opinion and

Order, dated November 18, 2013, the Court rejected Defendant’s
First Amendment defense on the ground that the DPPA “limits access
to information” but “does not restrict what the press may publish.”
ECF No. 33 at 5.

The Court held further that an injunction

requiring Defendant to remove the internet version of the article
would not constitute a prior restraint.
seeks

permission

to

apply

for

Id. at 6-8.

interlocutory

review

Defendant
of

these

rulings.
II.

LEGAL STANDARD

A District Court may certify an otherwise non-appealable order
for interlocutory appeal if the order “involves a controlling
question of law as to which there is substantial ground for
difference of opinion and . . . an immediate appeal from that order
may materially advance the ultimate termination of the litigation.”
28 U.S.C. § 1292(b). Such appeals are “rarely granted,” Nystrom v.
TREX Co., 339 F.3d 1347, 1351 (Fed. Cir. 2003), and the movant
bears the burden of showing that “exceptional circumstances justify
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a departure from the basic policy of postponing appellate review
until after the entry of a final judgment.”

Coopers & Lybrand v.

Livesay, 437 U.S. 463, 475 (1978). But when the statutory criteria
are met, the District Court has a duty to allow the appeal.
Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674, 677
(7th. Cir. 2000).
III.

DISCUSSION

This case raises two questions that meet the statutory test
and a third that may be of interest to the Court of Appeals if it
decides to hear the appeal.

Before turning to the statutory

criteria, it is worth noting a few other considerations that weigh
in favor of allowing an immediate appeal.

Because First Amendment

litigation chills speech, prompt resolution of this case would
provide the added benefit of minimizing any such chilling effect.
Because this case involves a newspaper and its news gathering
process,

discovery

collateral

could

litigation

spawn

burdensome

concerning

the

motion

practice

newspaper’s

or

sources;

interlocutory review at this stage might eliminate the need for
that

discovery.

Finally,

the

case

may

require

third-party

discovery into the CPD’s handling of the Vanecko investigation so
that

the

parties

can

argue

the

constitutional

importance

of

Defendant’s newsgathering and reporting on that investigation, all
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of which would be unnecessary if this Court is reversed on either
of two issues.
§

1292(b)

but

These concerns do not replace the criteria in
highlight

the

additional

benefits

of

prompt,

definitive resolution of the pure legal questions presented in this
case.
A.
The

first

Statutory Interpretation

question

is

whether

the

phrase

“personal

information” in the DPPA includes a person’s height, weight, hair
color, eye color, and approximate age.
“for

any

person

knowingly

to

The DPPA makes it unlawful

obtain

or

disclose

personal

information, from a motor vehicle record, for any use not permitted
under Section 2721(b) of this title.”

18 U.S.C. § 2722(a).

The

scope of “personal information” is a question of law because it
involves only statutory interpretation.

The issue is controlling

because Plaintiffs will have no cause of action if height, weight,
hair color, eye color, and approximate age are not protected by the
statute.

Resolution of this issue “may materially advance the

ultimate termination of the litigation” because it might end the
case

right

away,

thereby

obviating

the

dispositive motions, and a possible trial.

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need

for

discovery,

As to the last requirement under § 1292(b), that the grounds
for a difference of opinion be substantial, “personal information”
is defined as:
information that identifies an individual,
including an individual's photograph, social
security number, driver identification number,
name, address (but not the 5-digit zip code),
telephone number, and medical or disability
information, but does not include information
on vehicular accidents, driving violations,
and driver's status.
18 U.S.C. § 2725(3).

The Court held that the word “including” in

the statute meant that the items in the list were “illustrative
rather than exhaustive,” and that “personal information” includes
“the information that Defendant published.”

ECF No. 21 at 6-7.

The Court did so in part because dicta in a recent Seventh Circuit
en banc opinion suggested that features such as height and weight
were “personal information” protected by the statute.

Senne v.

Village of Palatine, Ill., 695 F.3d 597, 608 (7th Cir. 2012) (en
banc) (“The otherwise protected information actually disclosed here
included [the plaintiff’s] full name, address, driver's license
number, date of birth, sex, height and weight.”).
But at the same time, all of the items listed in the statute
can be used to identify a person with a very high degree of
particularity, while a person’s height, weight, hair color, eye

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color, and birth month and year are merely descriptive.

The DPPA

was designed to remedy “safety and security concerns associated
with excessive disclosures of personal information,” Id. at 607,
and unlike

with

a

person’s address,

phone

number,

or

social

security number, it is not clear how revealing a person’s height or
hair color threatens that person’s safety.
turn

on

what

the

statute

means

by

The legal question may

“identifies”

–

does

the

information have to refer to that person and that person only (as
with a social security number or driver identification number) or
is it enough for the information to describe a characteristic of
the person that would apply to many other people as well (e.g.,
height, weight, and so on).
does not

protect

There is reason to think that the DPPA

information about

a

person

that

is

readily

observable, such as height and weight, and thus those facts are
descriptive but not “personal.”

These competing interpretations –

both of them defensible and neither of them precluded by binding
precedent – evidence substantial grounds for difference of opinion.
B.

First Amendment

The second question is whether the First Amendment permits an
application of the DPPA that would prevent the news media from
obtaining information from a person’s motor vehicle record and
publishing that information.

This issue is a question of law
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because it concerns the interplay of a statute and a constitutional
provision.

It may not be a “pure” legal question because the

constitutional challenge is to the statute as-applied, so to some
extent the answer depends on the actions that Defendant is alleged
to have taken.

But as with the first issue, this is an appropriate

question for Defendant to pursue in a § 1292(b) appeal because it
is one that “the court of appeals could decide quickly and cleanly
without having to study the record.”

Ahrenholz, 219 F.3d at 677.

As with the statutory interpretation question, this constitutional
issue is controlling because the case must be dismissed if the
First Amendment protects Defendant’s conduct.

And for the same

reason, the appeal may “materially advance the ultimate termination
of the litigation” as it could end this case before the parties
proceed to discovery and beyond.
This issue also provides substantial ground for difference of
opinion. When it denied the Motion to Dismiss, the Court held that
the DPPA does not restrict speech but rather “limits access to
information in that it narrows the purposes for which one may use
personal information obtained from a motor vehicle record.”
No. 33 at 5.

ECF

The Court based its decision on commentary from the

Seventh Circuit that “[p]eering into public records is not part of
the ‘freedom of speech’ that the first amendment protects.” Travis
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v. Reno, 163 F.3d 1000, 1007 (7th Cir. 1998) (rejecting a facial
challenge to the DPPA because “[t]here is no constitutional right
to have access to particular government information, or to require
openness from the bureaucracy”).

Also relevant to the Court’s

decision was the principle that “otherwise valid laws serving
substantial public interests may be enforced against the press as
against others, despite the possible burden that may be imposed.”
Branzburg v. Caldwell, 408 U.S. 665, 682-83 (1972).

Adhering to

this precedent, the Court rejected the First Amendment defense and
denied the Motion to Dismiss.
At the same time, it is possible that Defendant’s as-applied
challenge could succeed on appeal. At the outset, though this case
does not involve a plaintiff suing for access to a specific record,
it appears to provide the proper adversarial context for an asapplied challenge:

it includes both the “particular record” and

“the right defendant” (because the Defendant’s “actions cause[d]
injury”).

Travis, 163 F.3d at 1007.

More importantly, there is at

least a colorable argument that the DPPA restricts speech, just at
a “different point[] in the speech process.”
FEC, 558 U.S. 310, 336 (2010).

Citizens United v.

Defendant argues that the DPPA

restricts speech because it restricts its ability to gather and
report on the news.

In ACLU of Illinois v. Alvarez, the Seventh
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Circuit invalidated a state eavesdropping law that restricted
“nonconsensual audio recording of public officials performing their
official duties in public.”

ACLU of Illinois v. Alvarez, 679 F.3d

583, 597 (7th Cir. 2012).

The court explained that the act of

making an audio recording “is necessarily included within the First
Amendment's guarantee of speech and press rights as a corollary of
the right to disseminate the resulting recording.”

Id. at 595.

Unlike with audio recordings, it is probably a stretch to say
that motor vehicle records “enable speech” – hence this Court’s
finding that the law did not trigger First Amendment scrutiny. But
the Seventh Circuit’s decision in Alvarez reaffirmed that “the
First Amendment provides at least some degree of protection for
gathering news and information, particularly news and information
about the affairs of government.”

Id. at 597.

Defendant in this

case was gathering news and information for subsequent use in its
publication,

and

that

information

misconduct by government officials.

was

related

to

possible

In fact, this seems to be the

rare case where a government official’s height and weight matter,
as they relate to whether the CPD should have used these officials
as fillers alongside Vanecko.
In addition, the Alvarez court was especially skeptical of the
government’s idea that the privacy law in that case should not
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trigger any First Amendment scrutiny. Id. at 594 (the government’s
position was “an extraordinary argument”).

If this Court is

mistaken and the DPPA does burden speech, then the Court will have
to consider the First Amendment interests at stake, which may weigh
in Defendant’s favor given that Defendant’s article reported on
matters of heightened public concern.

Though the Court rejected

Defendant’s argument, the Court recognizes that a relatively minor
change

from

the

Seventh

Circuit

would

require

a

completely

different analysis and could change the result. For these reasons,
the Court is satisfied that there exists substantial ground for a
difference of opinion on the First Amendment issue.
C.

Prior Restraint

Though the prior restraint issue does not meet the standard in
§ 1292(b), the Court provides a brief discussion of this issue so
that it can address Defendant’s arguments and also for the benefit
of the Court of Appeals, should it wish to review this issue along
with either or both of the preceding issues.

It is worth noting

that resolution of the prior restraint issue may materially advance
the litigation:

the damages amount at issue is relatively small,

so if an injunction is not available, the parties may find that
they are in a much better position to settle the case.

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The legal issue presented is whether an order requiring a
newspaper to cease publication of a news article – that is, remove
the article from its website so that it can no longer be accessed
– constitutes a prior restraint on speech.
of

law

because

it

does

not

require

This is a pure question

the

application

underlying facts and there is no record to study.

of

any

However, this

issue is not controlling because Plaintiffs’ request for damages
would stand, even if the injunction is not available.
In addition, this Court does not see substantial grounds for
a difference of opinion.

The Court held that the requested

injunction, if granted, would not amount to a prior restraint
because it would merely “end the ongoing violation of the DPPA.”
ECF No. 33 at 7.

In addition, because the speech at issue has

already taken place, “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.”

Id.

Of course, if Defendant’s conduct is protected by the First
Amendment, then Plaintiffs will not obtain any remedy, including an
injunction.
newsgathering

Defendant’s argument appears to be that even if its
is

not

protected,

the

article

is

nonetheless because it is speech and it is continuing.

protected
In this

Court’s view, that argument is untenable for the reasons mentioned
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above.

Defendant cites Weinberg v. City of Chicago and notes

correctly that the court in that case found that a licensing scheme
was

an

impermissible

prior

restraint

because

it

did

not

“sufficiently curtail the discretion of City officials in granting
licenses to peddle.”

Weinberg v. City of Chicago, 310 F.3d 1029,

1046 (7th Cir. 2002).

But this case does not involve anything

similar, either licensing procedures or a government official’s
unbridled discretion to restrict speech.

Thus, the requested

injunction would not violate the laws of prior restraint.
IV.

CONCLUSION

The case presents two questions that satisfy the statutory
criteria
decisions

and
are

will

resolve

reversed.

this

case

Therefore,

swiftly
pursuant

if
to

the

Court’s

28

U.S.C.

§ 1292(b), the Court hereby certifies the Court’s Opinions dated
September 5, 2012 and November 18, 2013 for Interlocutory Appeal to
the Court of Appeals for the Seventh Circuit.

Defendant shall

serve the Government with Notice of its Application.

Proceedings

in this Court shall be stayed while the appeal is pending.
IT IS SO ORDERED.

Dated: April 24, 2014
Harry D. Leinenweber, Judge
United States District Court
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