VICTORY: FIRE lawsuit leads California to halt law penalizing reporters, advocates, and victims who discuss publicly known information about sealed arrest records

SAN FRANCISCO, Dec. 19, 2024 — A federal court, acting on a stipulation agreed to by the California attorney general and San Francisco city attorney, today halted enforcement of a California law that officials deployed to suppress journalism about a controversial tech CEO's sealed arrest records. 

Under the law, any person — including journalists, advocates, witnesses, and victims of crimes — faced a civil penalty of up to $2,500 for sharing public information. The court order results from a First Amendment lawsuit filed by the Foundation for Individual Rights and Expression in November, which led the California attorney general and San Francisco city attorney to agree not to enforce the law while the lawsuit is pending.

“The press and public have a constitutional right to discuss what’s publicly known,” said FIRE attorney Adam Steinbaugh. “Government officials can’t punish the press and public when officials fail to safeguard information. That responsibility starts and ends with the government.”

In October 2023, journalist Jack Poulson published articles about a controversial tech CEO’s arrest, sharing a copy of the arrest report sent to him by an unidentified source. The San Francisco Police Department had previously made that report public, even though the executive had successfully petitioned a state court to seal the record. 

Almost a year after Poulson published the report, the city attorney of San Francisco — working with the tech executive — sent three letters to Poulson and his webhost, Substack, demanding they remove articles and the sealed report. Those letters threatened enforcement of California’s anti-dissemination statute, Penal Code § 851.92(c). The law imposes a civil penalty of up to $2,500 on any person (except the government officials charged with maintaining the secrecy of sealed records) who shares a sealed arrest report or any information “relating to” the report — even if the information is already publicly available.

Concerned by the implications of the statute, FIRE sued the San Francisco city attorney and the California attorney general on behalf of the Bay Area-based First Amendment Coalition, its Director of Advocacy Ginny LaRoe, and legal commentator Eugene Volokh. Each regularly comments on censorship campaigns precisely like the one the tech CEO and city attorney launched against Paulson and Substack. But the anti-dissemination statute prohibited them from covering the CEO story, even though the information has been publicly available for over a year.

Today, the court entered a preliminary injunction agreed to by both California and the city attorney that prohibits them from enforcing the law with respect to publicly available information. 

The preliminary injunction protects not only FAC and Volokh, but anyone — including journalists like Poulson — who publishes information made available to the public. 

“Discussing and sharing lawfully obtained information about arrests is not a crime — it’s a core First Amendment right,” said FIRE Staff Attorney Zach Silver. “The rich and powerful shouldn’t have the luxury of deploying the government to put their skeletons back in the closet. By standing up for their own rights, the First Amendment Coalition and Eugene Volokh have helped to protect others from facing legal action under California’s anti-dissemination law.”

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

CONTACT:

Jack Whitten, Communications Campaign Specialist, FIRE: 215-717-3473; media@thefire.org