August 2004

How Washington State Failed to Protect Its Police Officers and How It Can Rectify This Failure

by Teresa Sumearll

On July 2002, the Washington Legislature adopted a statute that allowed injunctions for the publication or other distribution of identifying information, such as home address and Social Security number, about law enforcement and court employees.1 The Washington Legislature adopted the statute in direct response to the Internet publication of such information by William Sheehan,2 a Washington citizen who constructed a website that claimed its purpose was to inform the public of police officers' personal information.3 Upon adoption of the Washington statute, Sheehan removed the information from his website and brought an action against the state's attorney general, alleging that the Washington statute was unconstitutional under the First Amendment, both facially and as applied to his website activity.4 Judge Coughenour of the U.S. District Court for the Western District of Washington agreed, and on May 22, 2003, issued an order granting summary judgment to Sheehan.

Several other states have adopted statutes that are similar to the Washington statute, including Arizona,5 California,6 and Florida.7 Like Washington, these statutes proscribe the publication of identifying information concerning law-enforcement officers. Also like Washington, the Florida and California statutes provide that publication coupled with the intent of the publisher determines whether the person is guilty of the offense under the statute. The Arizona statute, on the other hand, provides only that a publication that "poses an imminent and serious threat to the peace officer's or prosecutor's safety" constitutes violation of the statute. The constitutionality of the statutes in Arizona, California, and Florida has not become an issue in their respective states.

This article suggests that the Washington Legislature, by modeling the Arizona statute, could achieve its goal of protecting personal information regarding the state's court and law-enforcement officials from Internet dissemination in a manner that will withstand a First Amendment challenge. The Arizona statute provides an example of a regulation that is more likely constitutional under the First Amendment, because it specifically targets true-threat speech, i.e., speech that is likely to result in violent harm. Regulations of speech that avoid the pitfalls of strict-scrutiny analysis, such as regulations of true-threat speech, are better positioned to withstand constitutional challenges.

Under the First Amendment, content-based regulations of speech are strictly scrutinized. In order to overcome strict scrutiny, the government must establish that it has a compelling interest in regulating speech. The U.S. Supreme Court has consistently held that the government does not have a compelling interest in stopping the publication of truthful information already available in the public domain. However, even when the government can justify regulation of speech on the basis of a compelling state interest, the regulation must be narrowly tailored to achieve that interest. While strict scrutiny imposes formidable barriers to governmental attempts to regulate speech, true-threat speech is properly outside the reaches of strict-scrutiny analysis.

Truthful, Already-Public Information

Over the past three decades, the U.S. Supreme Court has decided cases when allegedly private information that was both truthful and already public was published about individuals.8 Each case illustrates the tug-of-war between free-speech rights and privacy rights. In reliance on statutory regulations, plaintiffs have brought lawsuits against newspaper publishers and broadcast companies for violations of their right to be "let alone." In each instance, the Court has held that the interests of free speech outweigh the privacy interests when public and truthful information is at issue, and found that the state does not have a compelling interest in stopping publication of truthful information that is already available in the public domain. In essence, the Court has acknowledged the governmental interest in protecting the individuals' information, but found that interest not compelling enough to overcome the publication of truthful and already-public information.

Publishers of truthful, public information who are not members of the press may not rely on the rationale of providing a service to the public. However, they may urge that their speech is nonetheless protected as political speech.9 With limited exceptions, the U.S. Supreme Court has consistently protected the publication of truthful information.10 Further, where information has been voluntarily disclosed to someone or has been legally obtained from a third party, courts have often found that the information no longer qualifies for protection as private information. The Court has repeatedly indicated its antipathy toward regulations that impose civil or criminal liability for the publication of truthful and already-public information. When truthful information has been disseminated and a compelling governmental interest promoted, the Court has consistently ruled in favor of the First Amendment rights of freedom of speech and freedom of the press.

Narrowly Tailored

Once the government has adopted a regulation of content speech and the regulation is justified under a compelling state interest, the regulation may nevertheless be struck down because it is not sufficiently narrowly tailored to achieve that state interest.11 A regulation may not be narrowly tailored if it is overbroad or vague.12 Both overbreadth and vagueness can create ambiguities in the way the statute is read.13

When a regulation of speech appears overbroad or vague on its face, it may nevertheless be saved by the adoption of a narrowing construction by a court.14 The U.S. Supreme Court has said that "[f]acial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute."15 Similarly, the Court will read narrowness into a statute challenged as void-for-vagueness, stating that the high court will read the statute "precisely as the highest court in the State has interpreted it."16

True-Threat Speech Regulations

True-threat speech regulations are excepted from the strict scrutiny applied to content-based regulations. In the few cases when the U.S. Supreme Court has ruled on the facial constitutionality of true-threat regulations, the Court has found a compelling governmental interest behind the regulation but has not considered whether the regulation is narrowly tailored to achieve that interest. The Court's failure to apply the narrowly tailored prong indicates that true-threat restrictions are "outside the First Amendment."17

In 2003, the U.S. Supreme Court held that true threats lie outside First Amendment protection. In Virginia v. Black,18 the Court considered whether a Virginia statute that made cross-burning illegal was facially unconstitutional under the First Amendment. At issue were Ku Klux Klan activities that included cross-burning. The Court granted certiorari and reversed the Virginia Supreme Court's holding that the statute was facially unconstitutional under the First Amendment. The Court upheld the statute because it prohibited the unprotected speech of true threats. The Black opinion described at length the history of cross-burning and its use as a form of threatening speech. Echoing the Court's earlier ruling in R.A.V. v. City of St. Paul,19 the Black Court articulated the rationale for the removal of true threats from First Amendment protection. The prohibition on true threats has three bases: (1) to protect individuals from the fear of violence, (2) to protect them from the "disruption that fear engenders," and (3) to protect them from "the possibility that the threatened violence will occur."

The Black Court provided a definition of true-threat speech. "True threats," said the Court, "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."20 The Black Court stated that "[t]he speaker need not actually intend to carry out the threat" in order for the speech to fall outside protection of the First Amendment. The Black Court went on to say that "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat."21

Although true-threat speech regulations are content-based, they are excepted from strict scrutiny. The U.S. Supreme Court has considered whether regulations of true-threat speech are justified by a compelling state interest. However, the Court has not applied the narrow-tailoring requirement to such regulations.

The Publication of Personal Information Regarding Public Officials

Several states, including Washington and Arizona, have enacted legislation to protect the privacy of their public officials. While protecting privacy is laudable, restrictions of speech are strictly scrutinized. The Washington statute, restricting the publication of personal information about public officials "with the intent to harm or intimidate," was found to be unconstitutional under the First Amendment. The Arizona statute, while it has not yet been challenged under the First Amendment, differs in significant ways from the Washington statute.

Washington Statute Held Unconstitutional. The tension between free speech under the First Amendment and privacy was played out in the adoption of the Washington statute.22 Fears about Sheehan's website coupled with police officers' failure to shut it down through court action moved the Legislature to unanimously adopt the Washington statute. In response, Sheehan removed the personal information about the police officers from his website, which he had lawfully obtained through public documents and commercial services, and subsequently filed a complaint in federal district court challenging the Washington statute's constitutionality. The U.S. District Court for the Western District of Washington agreed with Sheehan, holding the Washington statute unconstitutional under the First Amendment to the U.S. Constitution.

The court in Sheehan v. Gregoire noted that the Washington statute failed for being both overbroad and vague, underscoring its failures to proscribe true threats or to serve a compelling state interest. The district court found the Washington statute overbroad for several reasons. Judge Coughenour observed that it was overbroad because it was not limited to a prohibition against true threats, but instead reached "pure speech."23 Judge Coughenour discussed extensively the Washington statute's failure to proscribe true threats within the context of an overbreadth argument. This lengthy treatment indicates that the district court may have found the Washington statute to be not overbroad if the Washington statute had been confined to the proscription of true threats. Additionally, the Washington statute was overbroad because it proscribed information that is both truthful and publicly available. The district court noted that truthful, public information is "pure speech rather than any constitutionally proscribable mode of speech, such a true threats."24

Judge Coughenour also found the Washington statute to be vague for several reasons. Even though its intent was to stop true threats, the plain language of the Washington statute did not address true threats. Additionally, the Washington statute was vague because a prosecuting attorney requesting an injunction of the proscribable speech must "discern the subjective intent of the speaker."25

Arizona Statute Differs. Like the Washington statute, the Arizona statute26 proscribes the publication of identifying information about law-enforcement officers. The Arizona statute differs in several important ways from the Washington statute. First, violation of the Arizona statute is a class 5 felony. Second, the Arizona statute specifically refers to dissemination of the prohibited information by means of publishing on the Internet. Third, it extends protection of information to the official's immediate family. Fourth and most importantly, violation is triggered only if dissemination of the information "poses an imminent and serious threat" to the safety of the people involved.

Washington Should Follow Arizona's Lead

Although the Washington and Arizona statutes are both content-based, the Arizona statute focuses on the imminence of the threat, whereas the Washington statute was focused on the speaker's intent. The district court in Sheehan v. Gregoire noted that the Washington statute did not demonstrate a compelling state interest in restricting already-public information. On the other hand, the Arizona statute is justified by the compelling state interest in stopping true-threat speech. The Washington statute was found to be both overbroad and vague, yet the Arizona statute is neither, because it focuses only on true-threat speech and provides an objective standard as to the intent of the speaker. Finally, the Washington statute fails to restrict true-threat speech, while the Arizona statute is aimed only at true-threat speech.

Rather than focusing on the speaker's motive in publishing the police officer's home address, the Arizona statute focuses on the likelihood of a negative result flowing from such publication. Under the Arizona statute, even if the publication of an officer's home address is laudatory in some respect, if the message "poses an imminent and serious threat" to the person's safety, such publication is proscribed and punishable. Therefore, while the Arizona statute is arguably content-based, it does not suffer from one of the flaws that defeated the Washington statute: that of proscribing the content of the speech based on the speaker's intent.

The district court dismissed the state's argument that the Washington statute asserted a compelling state interest in protecting the personal information of its officials because the government itself had placed much of the personal identifying information into the public domain. If the Arizona statute were challenged, the state could argue that it has a compelling interest in protecting the safety of its public officials. Because the Arizona statute aims only at stopping true threats to their safety, it would likely survive a constitutional challenge.

If challenged, the Arizona statute would survive the overbreadth and vagueness defects of the Washington statute. The Arizona statute cannot be said to be overbroad, because it proscribes only true threats. Further, because its plain language focuses on true threats, it avoids the vagueness trap of interpreting the speaker's intent. Although the Arizona statute provides that the threat be "reasonably apparent to the person" making it, the use of the word "reasonably" moves the standard from a subjective one, as was the case with the Washington statute, to an objective one.

While the Arizona statute succeeds as a true-threat statute, it also succeeds in another way. The legislative history of the Washington statute indicates that it was adopted for the purpose of stopping the Internet dissemination of identifying information about police officers that might be harmful to them or their families. However, the Washington statute did not restrict itself to Internet publication. Rather, it prohibited the action of anyone to "sell, trade, give, publish, distribute, or otherwise release" the identifying information "with the intent to harm or intimidate," casting a net that is arguably too broad to serve its intended purpose. The Arizona statute, by contrast, specifically targets the Internet dissemination of such information.

Conclusion

The Washington Legislature could make another attempt to protect the dissemination of the personal identifying information of its public officials. Both the opinion of the U.S. District Court in Sheehan v. Gregoire and the Arizona statute are instructive in this regard. Although a website like Sheehan's might still be allowed to publish personal information, websites and other publications that seriously threaten public officials could be enjoined under a revised statute.

If the Washington statute were to be revised and resubmitted to the Legislature, it would likely survive constitutional scrutiny by focusing on the imminence of a true threat. A revised Washington statute would do well to include an objective standard by which to judge violative speech, rather than the subjective standard of considering the speaker's intent. A revised Washington statute could provide for the following:

• Language regarding the "intent to harm or intimidate" should be replaced with language regarding the prohibited speech posing a serious and imminent threat to the person's safety.
• The statute should either be confined to Internet dissemination or contain language that includes Internet publication of the identifying information.
• With respect to the speaker, the listener, and the target of the speech, a reasonable standard should be expressed in the statute.
• The statute should be expanded to include the immediate family of the public official.

While the Washington and Arizona statutes are both content-based restrictions on speech, the Washington statute failed because it focused on the speaker's intent rather than focusing, as the Arizona statute does, on the harm that might flow from that speech. Judge Coughenour did not accept the compelling state interest of protecting the officers' privacy when the state itself had already published the same information. Had the Washington statute proscribed only true threats, as does the Arizona statute, the district court suggested that it might have been found to be constitutional.

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Teresa Sumearll graduated from the University of Washington School of Law in June, and will join Preston Gates & Ellis as an associate in October.

NOTES
1 RCW 4.24.680.    
2 Unlawful Release of Court and Law Enforcement Employee Information: Hearing on ESSB 6700 Before The Senate Judiciary Comm., 2002 Leg. (Wash. Feb. 7, 2002) (Statement of Officer Goguen).
3 Justicefiles.org, www.justicefiles.org. Sheehan's website justicefiles.org claimed its purpose was not to harass officers.
4 Sheehan v. Gregoire, 2003 U.S. Dist. LEXIS 11098 (W.D. Wash. May 22, 2003).
5 Ariz. Rev. Stat. § 13-2401.
6 Cal. Penal Code § 146e.
7 Fla. Stat. ch. 843.17.
8 Smith v. Daily Mail Publ. Co., 443 U.S. 97 (1979); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491 U.S. 524 (1989); and Landmark Communications v. Virginia, 435 U.S. 829 (1978).
9 See Boos v. Barry, 485 U.S. 312, 318 (1988); Sheehan v. Gregoire, 2003 U.S. Dist. LEXIS 11098 at *3 (W.D. Wash., May 22, 2003).
10 See Near v. Minnesota, 283 U.S. 697 (1931) (citing the dates of ships' sailings and the locations of troops during wartime as valid restrictions on speech); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (holding that a broadcaster's First Amendment right does not supersede a performer's right to compensation for his act).
11 See Grayned v. City of Rockport, 408 U.S. 104, 116-17 (1972).
12 RODNEY A. SMOLLA, SMOLLA AND NINNER ON FREEDOM OF SPEECH § 3.06[1][b], at 3-121 ("two classic First Amendment doctrines known as 'overbreadth' and 'vagueness' are designed to vindicate the precision principle").
13 N.A.A.C.P. v. Button, 371 U.S. 415, 438 (1963) ("Broad prophylactic rules in the area of free expression are suspect. . . . Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.").
14 See N.Y. v. Ferber, 458 U.S. 747, 769 n.24 (1982) (noting that a court should "construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction").
15 Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
16 Wainwright v. Stone, 414 U.S. 21, 23 (1973).
17 R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).
18 123 S. Ct. 1536 (2003).
19 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
20 123 S. Ct. at 1548.
21 Id. at 1544-47 (quoting R.A.V., 505 U.S. at 388).
22 The first provision of  the Washington statute described the prohibited speech and the intent that must accompany the speech:
 A person or organization shall not, with the intent to harm or intimidate, sell, trade, give, publish, distribute, or otherwise release the residential address, residential telephone number, birthdate, or social security number of any law enforcement-related, corrections officer-related, or court-related employee or volunteer, or someone with a similar name, and categorize them as such, without the express written permission of the employee or volunteer unless specifically exempted by law or court order.
The second provision stated that an injunction could be brought by the prosecuting attorney or any person harmed by an alleged violation whenever it appeared that the conduct described in the first provision had been engaged in or was about to be engaged in. The term "harm," however, was not defined in the Washington statute. Under this provision, a court could issue a temporary restraining order or a permanent injunction, or grant other relief necessary to accomplish the purposes of the injunction. The final provision of the Washington statute provided for monetary damages. It allowed court or law enforcement officers to bring actions to recover actual damages sustained as a result of the dissemination of the prohibited speech. In addition, this provision gave plaintiffs the right to recover attorneys' fees and costs.
23 Sheehan, 2003 U.S. Dist. LEXIS 11098 at *5.
24 Id. at *25.
25 Id. at *33-34.
26 The Arizona statute provides:
 It is unlawful for a person to knowingly make available on the world wide web the personal information of a peace officer, justice, judge, commissioner, public defender or prosecutor if the dissemination of the personal information poses an imminent and serious threat to the peace officer's, justice's, judge's, commissioner's, public defender's or prosecutor's safety or the safety of that person's immediate family and the threat is reasonably apparent to the person making the information available on the world wide web to be serious and imminent.
The Arizona statute defines "personal information" as "home address, home telephone number, pager number, personal photograph, directions to the person's home or photographs of the person's home or vehicle."

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