San Francisco City Attorney Uses California Law Prohibiting Distribution of Information “Relating” to Sealed Arrest Reports to Protect Tech CEO

The First Amendment protects the right to share lawfully-obtained information the government would prefer kept quiet. But California’s anti-dissemination statute, Penal Code § 851.92(c), flouts that First Amendment freedom. It prohibits any person or entity from publishing a sealed arrest report or sharing any information “relating to” the incident report. The state’s attorney general, district attorneys, and city attorneys can impose $1,500 in penalties on any person who shares that information.

That’s not limited to government employees entrusted with keeping sealed arrest reports confidential — in fact, they’re exempt from that civil penalty.

Instead, the law almost exclusively applies to people who lawfully obtained that information. The journalist who receives the report from a source — even if the source was prohibited from sharing it — violates the statute by reporting what they learn. The activist who retweets the journalist’s report violates the statute. Even the victim or witness who shares their experience violates the statute. 

A line of Supreme Court rulings makes it clear: the First Amendment protects each of these speakers. Yet in the fall of 2024, the City Attorney of San Francisco sent three letters demanding that a journalist and his website host, Substack, remove reporting on an arrest report documenting the arrest of a controversial tech CEO. The journalist, Jack Poulson, had received the report unsolicited from a confidential source, and there was no indication that the report was sealed when Poulson first published it in the fall of 2023 — almost a year before the City of San Francisco first demanded its removal. The tech executive lobbied the City Attorney to send the letters and then, citing the statute, sued Poulson and the companies hosting his website.

The statute and San Francisco’s threats to enforce it chilled the speech of the First Amendment Coalition (FAC), Virginie “Ginnie” LaRoe (FAC’s Director of Advocacy), and Prof. Eugene Volokh. FAC and Volokh frequently comment on censorship threats like those posed by San Francisco and the executive, but the statute prohibited them from discussing anything “relating to” the arrest report — information that was already in the public domain. So in November 2024, FIRE sued California’s Attorney General and the San Francisco City Attorney to prevent them from enforcing the statute.

In December 2024, California’s Attorney General and the San Francisco City Attorney agreed to a court order prohibiting enforcement of the law while the lawsuit is pending, and the federal court entered the order on December 19, 2024.