California Supreme Court to clarify right to publish damaging public facts in "non-media" context
The Ninth Circuit has certified,Download file, a very interesting question to the California Supreme Court, in Readylink v. Lynch, namely:
"Does the California Supreme Court's decision in Gates v. Discovery Communications, Inc., . . . and finding no invasion of privacy, under the First Amendment, in the publication of facts about past crimes obtained from public records, apply only to publication by media defendants?"
"Can there be liability under an invasion of privacy theory where a non-media defendant, with a commercial interest in or a malicious motive for publishing facts about a plaintiff's past crimes, does so?"
"Under the commercial speech doctrine, is the speech of a non-media defendant with a commercial interest in or malicious motive for publishing facts entitled to less protection under the First Amendment than that of a media defendant?"
The case involves a lawyer who posted information on his web site about the head of a company that he was suing, in order to solicit potential clients. He pointed to the man's alleged felony record. The company claimed that this is an invasion of privacy, because this information was not newsworthy.
The case is interesting because it goes to a very timely topic -- when is it meaningful or appropriate to make a distinction between the traditional "media" and "non-media" in free speech matters? And where would the line be drawn, in terms of blogs, web sites, and other publications by so-called commercial "non-media"?
The Supreme Court has recognized some limitations on free speech in the commercial context, but the current test under Central Hudson is fairly limited. However in 2002, Nike v. Kasky, the California Supreme Court ruled against Nike in a case involving misleading statements on commercial speech grounds. Here is a good summary of the state of the law from the First Amendment Center.
