Dahlstrom v. Sun-Times Media, LLC
Dahlstrom v. Sun-Times Media, LLC
Opinion of the Court
Both parties seek reconsideration of this Court's September 29, 2016, Memorandum Opinion and Order (ECF No. 80). For the reasons stated herein, Defendant's Motion to Reconsider (ECF No. 110) is denied, and Plaintiffs' Motion to Reconsider (ECF No. 112) is granted.
I. BACKGROUND
Five police officers brought this action against Sun-Times Media, LLC ("Sun-Times"), a Chicago newspaper, for obtaining personal information about them from state motor vehicle records and publishing that information in its coverage of a politically-charged homicide investigation. In April 2004, David Koschman died after an altercation with R.J. Vanecko, nephew to Richard M. Daley, then-Mayor of Chicago. The subsequent Chicago Police Department ("CPD") investigation resulted in no charges against Vanecko because no eyewitness positively identified him. Not relevant to this case, but certainly noteworthy, is that after the CPD failed to bring charges, a special prosecutor was appointed to investigate Koschman's death. The investigation led to Vanecko's indictment and charge of a single count of involuntary manslaughter. Vanecko pled guilty in January 2014.
The Sun-Times published a series of investigative reports criticizing the CPD's investigation and failure to bring charges against Vanecko. One article in the series is at the center of this case. On November 21, 2011, the Sun-Times published an article titled, "Daley Nephew Biggest Guy on Scene, But Not in Lineup," which described how the lineup contained only men who closely resembled Vanecko. The Sun-Times accused the CPD of manipulating *1166the lineup to lead to misidentification and thus stop charges from being filed. The article included two lineup photos: the first lineup comprising fillers-Plaintiffs-and the second lineup comprising Vanecko's friends present at the scene of the crime. Alongside the photos, the Sun-Times published a graphic that identified Plaintiffs in the first lineup by name and birthdate, as well as by height, weight, hair color, and eye color (collectively "the Information"). Plaintiffs allege that the Sun-Times violated the Driver's Privacy Protection Act ("DPPA"),
The Sun-Times moved to dismiss that claim, arguing that the DPPA does not prohibit the type of information disclosed by the Sun-Times and that even if it did, the DPPA's prohibitions as applied violated the First Amendment. The Court denied the Sun-Times' Motion to Dismiss but granted an interlocutory appeal to the Seventh Circuit. Dahlstrom v. Sun-Times Media, LLC ,
After remand, the Sun-Times filed its Answer to the Complaint, pleading nine affirmative defenses. Plaintiffs moved for judgment on the pleadings and to strike the affirmative defenses. The Court granted Plaintiffs judgment on the pleadings as to the disclosure claim, but denied it as to the obtainment claim, reasoning:
The Sun-Times' best argument is that at the time it obtained the Plaintiffs' personal information it did not have the line-up photographs to compare the fillers with Vanecko. It appears that the Seventh Circuit may well in fact recognize a "balancing" test so that under certain circumstances the press would be allowed to obtain personal information while investigating a matter of public significance and the invasion of privacy was not particularly great. Recall that there are two separate acts here that arguably violate the DPPA. First, obtaining the information, and, second, its publication. Although the record is silent as to the date the Sun-Times obtained the personal information from the Secretary of State, the implication from the pleadings is that it did not have access to the line-up photos at the time it obtained the personal information. Thus a balancing could arguably come out in favor of the Sun-Times for the act of obtaining the personal information. However, at the time of its publication, the Sun-Times did have the photographs so that the personal information at the time of publication was, as the Seventh Circuit found, "largely cumulative."
Dahlstrom v. Sun-Times Media, LLC , No. 12-c-658,
Now, after further discovery between the parties, both parties move the Court to reconsider its earlier ruling.
II. ANALYSIS
A. Motion to Reconsider Standard
No final judgment has been entered in this case, thus Rule 54(b) governs the parties' Motions for Reconsideration. Under Rule 54(b), "any order ... that adjudicates fewer than all the claims ... does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment." FED. R. CIV. P. 54(b) ; Galvan v. Norberg ,
B. The Parties' Motions to Reconsider
Plaintiffs' and the Sun-Times' arguments for their respective Motions to Reconsider substantially overlap and so will be addressed together. As already described, the Court granted Plaintiffs judgment on their disclosure claim, but not on their obtainment claim. Plaintiffs argue they are entitled to judgment on both, however, and that this Court erred by applying a higher scrutiny balancing test-as opposed to a rational basis test-to the obtainment claim.
Plaintiffs are correct. The Seventh Circuit applied the balancing test to the disclosure claim because of the First Amendment implications. See Dahlstrom ,
This Court's earlier ruling failed to trace that distinction. The Court's earlier reasoning applied the balancing test applicable to the disclosure claim to the obtainment claim as well, even though the First Amendment implications are not present in the latter. Accordingly, the Plaintiffs' Motion is well taken. Whether the Sun-Times obtained Plaintiffs' personal information before or after the Sun-Times received the photographs is irrelevant to the obtainment claim because heightened scrutiny does not apply. The appropriate standard is rational basis, which requires that the law bear "a rational relationship to a legitimate government interest."
*1168Wisconsin Educ. Ass'n Council v. Walker ,
However, the Court's acknowledgment that it erred on the obtainment claim analysis does not necessarily get Plaintiffs over the finish line. The Sun-Times raises several arguments against judgment on the pleadings for Plaintiffs which fall into three categories: (1) the Sun-Times' reliance on the Illinois Secretary of State's ("Secretary") authorization to disclose the Information; (2) the Supreme Court's recent decisions in Packingham v. North Carolina , --- U.S. ----,
1. The Secretary of State's Authority
Under the first category, the Sun-Times raises several arguments for why the Court must reconsider its ruling, including: (1) the Secretary authorized disclosure of the Information, making the Sun-Times' publication lawful; (2) as such, the Court must defer to the Secretary's authorization under Chevron v. Natural Resources Defense Council ,
Turning to the first argument, the Sun-Times offers the declaration of Donna Leonard, the executive counsel of the Illinois Secretary of State, which asserts that the Secretary disclosed the Information to the Sun-Times based on the Secretary's policy that the Information was not "personal information" under the DPPA. The Sun-Times argues that it cannot be held liable where it relied on the Secretary's determination that the Information was not covered under the DPPA. However, the DPPA says otherwise. The Secretary might have violated Section 2721(a) -which prohibits the Secretary from "knowingly disclos[ing]" personal information-but its violation does not immunize the Sun-Times from liability under Section 2722(a)-which prohibits any person from knowingly obtaining or disclosing personal information from a motor vehicle record for any non-permitted use. Put simply, an initial violation by one party does not negate subsequent violations by another. See Dahlstrom ,
The Sun-Times' reliance on Chevron deference is also misplaced. Chevron deference only applies where "an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting a statute it enforces." Encino Motorcars, LLC v. Navarro , --- U.S. ----,
The Court turns next to the Sun-Times' third argument: the Sun-Times was entitled to "rely on the government's implied representations of the lawfulness of dissemination." Fla. Star v. B.J.F. ,
The Sun-Times' argument fails even when the Sun-Times characterizes its reliance on the Secretary as a good faith defense. As one court recognized, "the express unambiguous language of the DPPA does not create a good faith defense or bestow immunity upon those who rely upon state agencies to act in compliance with its terms." Rios v. Direct Mail Express, Inc. ,
Finally, the Sun-Times argues that it did not have the requisite intent-"knowingly"-to *1170violate the DPPA because the Sun-Times relied on the Secretary's authorization. But this argument also misses the mark. As already mentioned, the "knowingly" element does not require that the Sun-Times knew that its obtainment, use, and subsequent disclosure of the Information was unlawful. See Pavone ,
The Court finds no basis for reconsideration related to the Secretary and its alleged authorization to disclose the Information to the Sun-Times.
2. Appropriate Degree of Scrutiny
Under the second category, the Sun-Times argues that (1) the Supreme Court's recent decision in Packingham imposes at least intermediate scrutiny to the obtainment claim, and (2) the Supreme Court's recent decision in Reed establishes that the DPPA should be treated as a content-based statute, thus requiring strict scrutiny of the disclosure claim. The Court finds neither case applicable.
The Court turns first to the obtainment claim. In Packingham, the Supreme Court considered a law that prohibited sex offenders from accessing private social networking websites.
Here, the Sun-Times argues that Packingham , which came after the Seventh Circuit's ruling in this case, requires intermediate scrutiny on all access restrictions such as the DPPA's prohibition on obtainment. The Sun-Times also emphasizes that, like the Supreme Court, this Court should not be swayed by alternative means to access the Information. See Id. at 1735. So, the fact that "much of [the information] can be gathered from physical observation of the Officers or from other lawful sources" should not serve as a hurdle for applying such higher scrutiny. See Dahlstrom ,
Contrary to the Sun-Times' beliefs, Packingham is distinguishable and intermediate scrutiny does not apply here. Restricting an individual's access to social media is a far cry from restricting access to personal information from motor vehicle records. "Peering into public records is not *1171part of the 'freedom of speech' that the [F]irst [A]mendment protects. 'There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy.' " Dahlstrom ,
As for the disclosure claim, the Sun-Times argues that the Supreme Court and Seventh Circuit now require heightened scrutiny of certain content-neutral statutes nevertheless deemed content-based, citing Reed v. Town of Gilbert ,
In Reed , the Supreme Court emphasized that regardless whether laws "defin[e] regulated speech by particular subject matter" or "by its function or purpose," these defining characteristics are "[b]oth distinctions drawn based on the message a speaker conveys, and therefore, are subject to strict scrutiny."
The Sun-Times' reliance on Reed and Norton is unfounded. The Sun-Times argues that the DPPA falls within the Reed -defined category of content-neutral laws considered content-based because determining whether something constitutes personal information requires looking at the content of the speech, i.e. , the *1172information provided in the motor vehicle records. The Court disagrees. Although it is true that one must look to the information in dispute to determine whether it constitutes "personal information" under the DPPA, such information is not "content" for purposes of the First Amendment, and it is not something the government has disagreed with because of the "message [it] conveys." See Reed ,
The Court finds no basis for reconsideration in light of the Supreme Court's rulings in Packingham or Reed , nor in the Seventh Circuit's holding in Norton .
3. Discovery and the Balancing Test
Finally, under the third category, the Sun-Times argues that new evidence uncovered in discovery-specifically, the depositions of the Sun-Times' reporters and Plaintiffs-shifts the balance of interests in Sun-Times' favor.
As a content-neutral restriction, Section 2722(a)'s limitation on disclosure is subject to intermediate scrutiny. The Section thus passes muster if it "furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Dahlstrom ,
The Sun-Times argues that in light of new evidence uncovered in discovery, the Court should reevaluate the balance between the government's interest in privacy and the Sun-Times' interest in publishing a matter of public significance. First, the Sun-Times offers the depositions of Tim Novak and Chris Fusco-two of its own reporters-who assert that the Information was necessary to contrast two lineup photos: the lineup with fillers and another with Vanecko's friends present during the night of Koschman's death. The Sun-Times argues that these depositions demonstrate that publishing the Information was a far greater matter of public significance than the Seventh Circuit concluded. Second, the Sun-Times asserts that Plaintiffs' depositions reveal that none of the officers admit to privacy concerns related to the publication or disclosure of the Information. The Sun-Times argues that these officers' depositions thus diminish the government's alleged interests in the balance. In sum, the Sun-Times contends that the proffered discoveries now tip the balance of interests in its favor. The Court disagrees.
The Sun-Times fails to proffer any arguments or evidence that controverts the Seventh Circuit's balancing of the interests at issue. As the Seventh Circuit elaborated in detail:
Although the Sun-Times article relates to a matter of public significance - the allegation that the [CPD] manipulated a homicide investigation - the specific details *1173at issue are largely cumulative of lawfully obtained information published in that very same article, and are therefore of less pressing public concern than the threats of physical violence in Bartnicki . While Sun-Times provided details of the Officers' physical traits to highlight the resemblance between the "fillers" and Vanecko, most of the article's editorial force was achieved through publication of the lineup photographs that Sun-Times obtained through its FOIA request - the value added by the inclusion of the Officers' personal information was negligible. Each Officers' height is evidence from the lineup photographs, while their weights and ages are relevant only to the extent that they increase the Officers' resemblance to Vanecko - a resemblance that the photographs independently convey. And, although identifying the Officers' hair and eye colors may add some detail to the published black-and-white photographs, their personal information is largely redundant of what the public could easily observe from the photographs themselves. Therefore, Sun-Times's publication of the Officers' personal details both intruded on their privacy and threatened their safety, while doing little to advance Sun-Times's reporting on a story of public concern.
Dahlstrom ,
The fact that the police officers did not admit to any privacy concerns from the publication of the Information is irrelevant. The government's interests in promulgating a law has nothing to do with whether those interests are maintained or realized by those the law happens to protect. Additionally, other interests, such as "removing an incentive for parties to unlawfully obtain personal information in the first place" and "minimizing the harm to individuals whose personal information has been illegally obtained" counsel in favor of the government, regardless of whether the privacy interests are heeded.
The Court finds no basis for reconsideration in light of the newly-produced evidence.
III. CONCLUSION
For the reasons stated herein, Plaintiffs' Motion for Reconsideration (ECF No. 112) is granted, and Defendant's Motion for Reconsideration (ECF No. 110) is denied. As such, the Court enters judgment for Plaintiffs on all claims.
IT IS SO ORDERED.
Reference
- Full Case Name
- Scott DAHLSTROM, Hugh Gallagly, Peter Kelly, Robert Shea, and Emmet Welch v. SUN-TIMES MEDIA, LLC d/b/a the Chicago Sun-Times and Any Other Known Corporate Name
- Cited By
- 4 cases
- Status
- Published