Court Throws Out Lawsuit Over Journalist’s Publication of Information About Sealed Arrest
From the tentative ruling in Doe v. Substack, Inc. released last week; I’m told it was largely adopted in the hearing at Feb. 4, with a minor modification noted below (for more on the current state of a challenge to Cal. Penal Code § 851.92(c), brought by the Foundation for Individual Rights and Expression on behalf of the First Amendment Coalition and me, see here):
Plaintiff Maury Blackman … was arrested in December 2021 for domestic violence at a time when he was the CEO of Premise Data, a private company. As is customary, police officers prepared a report (“Incident Report”) describing the incident and their encounters with Blackman and another person present. No charges were ultimately pursued against Blackman arising from the incident and the Superior Court entered an order sealing the arrest and related records under Penal Code sections 851.91 and 851.92 on February 15, 2022.
In September 2023, after the sealing order, [Jack] Poulson published a blog post reporting the arrest and relating what was described in the Incident Report. Poulson later reported on his blog that Blackman was terminated in part because of the incident. Poulson had previously published other blog posts about Premise Data, including concerning (according to those posts) its contracts with U.S. Special Operations Forces for intelligence collection, its contracts with the United States Department of Defense, and Blackman’s security clearance.
Poulson’s post about the arrest appeared on his newsletter, published by Substack. He also posted a redacted version of the Incident Report on an eponymous website owned by Tech Inquiry. The Tech Inquiry website is a source of articles and data about surveillance, weapons companies, and public contracts. Poulson is the founder and executive director of Tech Inquiry….
Blackman unsuccessfully attempted to have Poulson’s posts removed based on the sealing order. Blackman has submitted a declaration describing financial and nonfinancial injuries from Poulson’s blog posts. All of the claims asserted in the complaint relate to the blog posts and the effect of their publication on Blackman. The San Francisco Chronicle has covered Blackman’s lawsuit.
Blackman sued, and the defendants moved to have the complaint dismissed under the state “anti-SLAPP” statute. Under that statute, a defendant must show that its speech was “in connection with a public issue” (to oversimplify), and the court concluded the defendants’ speech qualified:
Poulson was reporting on a blog post about Blackman, the CEO of a company with that Poulson had previously covered as part of his Substack newsletter, a public newsletter with at least 3,000 subscribers, concerning companies making surveillance technologies. This was a writing in a public forum. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897 [“the Web, as a whole, can be analogized to a public bulletin board”].) And it concerned the character and conduct of the CEO of a company with government contracts in the security and intelligence arena. The character and trustworthiness of members of the business community have been held to be of public significance where business leaders hold themselves out as trustworthy and advertise their businesses to members of the public; the court cannot see how the character and trustworthiness of the leader of a business with contracts with the U.S. government and a security clearance can be of any less public significance….
Blackman contends that Poulson’s speech is outside the anti-SLAPP statute because it was illegal, regardless of its public significance … citing Flatley v. Mauro (Cal. 2006) …. The speech at issue in
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