Sheehan v. Gregoire

• Citation: 272 F.Supp.2d 1135
• Decision Date: 22 May 2003
• Docket Number: No. C02-1112C.,C02-1112C.
• Parties: William SHEEHAN, Plaintiff, v. Christine GREGOIRE, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

272 F.Supp.2d 1135

William SHEEHAN, Plaintiff, v. Christine GREGOIRE, et al., Defendants.

No. C02-1112C.

United States District Court, W.D. Washington, at Seattle.

May 22, 2003.

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Elena Garella, Attorney at Law, Seattle, WA, for Plaintiff William Sheehan.

Janine Joly, Oma L. LaMothe, King County Prosecuting Attorney, Civil Div., Seattle, Seattle, WA, for Defendant Norm Maleng, King County Prosecutor.

James K. Pharris, Carol A. Murphy, Attorney General of Washington, Olympia, WA, for Defendant Christine Gregoire, Attorney General of Washington.

ORDER

COUGHENOUR, Chief Judge.

This matter comes before the Court on plaintiff's motion for summary judgment (Dkt. No. 14) and defendants' cross-motion for summary judgment (Dkt. No. 18). The Court has considered the papers submitted by the parties and determined that oral argument is not necessary. For the following reasons, plaintiff's motion for summary judgment is hereby GRANTED and defendants' cross-motion for summary judgment is hereby DENIED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On April 3, 2002, Governor Gary Locke signed ESSB 6700, enacting it into law. On June 13, 2002, Wash. Rev.Code §§ 4 24 680-.700 ("the statute") became effective. Section 4 24 680 dictates:

A person or organization shall not, with the intent to harm or intimidate, sell, trade, give, publish, distribute, or otherwise release the residential address, residential telephone number, birthdate, or social security number of any law enforcement-related, corrections officer-related, or court-related employee or volunteer, or someone with a similar name, and categorize them as such, without the express written permission of the employee or volunteer unless specifically exempted by law or court order.

In response to the statute,¹ plaintiff, who operates the website www.justicefiles.org.>, removed the residential addresses, residential telephone numbers, birthdates, and social security numbers ("personal identifying information") of all law enforcement-related, corrections officer-related, or court-related employees or volunteers from his website. Plaintiff also filed this action challenging the constitutionality of the statute under the First and Fourteenth Amendments of the United States Constitution. Plaintiff asserts that the statute unconstitutionally proscribes his freedom of speech.²

It is undisputed that neither the prosecuting attorney nor any other individual has initiated an action against plaintiff pursuant to the statute. Therefore, because the statute has never actually been applied to plaintiff's speech, he mounts a strictly facial challenge to the statute's constitutionality. The parties now cross-move for summary judgment with respect to the facial constitutionality of Wash. Rev.Code §§ 4 24 680-700. Summary judgment is appropriate if the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c) (2003), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For purposes of plaintiff's facial challenge, the parties stipulate to the absence of any genuine issues of material fact. Therefore, the challenge is appropriately resolved as a matter of law.

II. PLAINTIFF'S OVERBREADTH CHALLENGE

The First Amendment to the United States Constitution, applied to the State of Washington via the Fourteenth Amendment, provides that "Congress shall make no law abridging the freedom of speech." Any statute proscribing a form of pure speech must be interpreted in light of the commands of the First Amendment. Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). A statute may be facially unconstitutional if it seeks to prohibit such a broad range of protected speech that it is unconstitutionally overbroad. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). The Supreme Court has repeatedly held that such statutes are subject to facial challenge because they may inhibit and deter free expression and constitutionally protected speech, regardless of whether the speech of the party challenging the statute might be constitutionally proscribed by a more narrow statute. See, e.g., Id. at 798-99, 104 S.Ct. 2118 (quotations and citations omitted), Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).³ An overbreadth challenge of this sort represents an exception to general standing requirements, the litigant's own free speech rights need not be violated. Broadrick, 413 U.S. at 612, 93 S.Ct. 2908, Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998).

However, the overbreadth of a statute must not only be real, but also substantial in relation to the statute's plainly legitimate sweep. Taxpayers for Vincent, 466 U.S. at 799-800, 104 S.Ct. 2118 (citations omitted), Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. That is, there must be a realistic danger that the statute will significantly compromise recognized First Amendment protections. Taxpayers for Vincent, 466 U.S. at 800-01, 104 S.Ct. 2118 (citations omitted). "[W]here the statute unquestionably attaches sanctions to protected conduct, the likelihood that the statute will deter that conduct is ordinarily sufficiently great to justify an overbreadth attack." Id. at 800 n. 19, 104 S.Ct. 2118 (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 217, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)). Likewise, a statute that purports, by its own language, to proscribe constitutionally protected political speech is unconstitutional. Brandenburg v. Ohio, 395 U.S. 444, 449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).⁴ A successful challenge to the facial constitutionality of a statute invalidates the statute itself. Foti, 146 F.3d at 635.

A. The Statute Does Not Proscribe True Threats or Any Other Proscribable Mode of Speech

Defendants first argue that the statute is not substantially overbroad because it proscribes an unprotected mode of speech true threats. The First Amendment does not protect certain modes of speech or expression, including true threats, fighting words, incitements to imminent lawless action, and classes of lewd and obscene speech. Cohen v. California, 403 U.S. 15, 19-20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), Watts, 394 U.S. at 708, 89 S.Ct. 1399, Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), Planned Parenthood v. Am. Coalition of Life Activists, 290 F.3d 1058, 1070 (9th Cir.2002). However, the First Amendment protects speech that advocates violence, so long as that speech is not directed to inciting or producing imminent lawless action and is not likely to incite or produce such action. Brandenburg, 395 U.S. at 447, 89 S.Ct. 1827, Planned Parenthood, 290 F.3d at 1072. "A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments." Brandenburg, 395 U.S. at 448, 89 S.Ct. 1827.

Defendants argument is premised on the following statement. "The release of personal identifying information regarding individuals, together with the intent to harm or intimidate, constitutes a threat." Because this statement, as a matter of law, is fundamentally incorrect, defendants argument must fail. "Whether a particular statement may properly be considered to be a threat [for purposes of the First Amendment] is governed by an objective standard — whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." Planned Parenthood, 290 F.3d at 1074 (citations omitted). In determining whether a true threat exists, one may consider the context and circumstances surrounding the statement. Id. at 1077. However, a true threat does not turn on the subjective intent of the speaker. Virginia v. Black, ___ U.S. ___, *11, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); Planned Parenthood, 290 F.3d at 1075-76 ("It is not necessary that the defendant intend to, or be able to carry out his threat, the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.").

Defendants assert that the instant case is highly analogous to Planned Parenthood. This assertion is flawed on several levels. There, the statute at issue, the Freedom of Access to Clinics Entrances Act (FACE), regulated "threat[s] of force." Id. at 1062 (citing 18 U.S.C. § 248). In sharp contrast, the word "threat" appears nowhere in the statute at issue here, rather, the statute regulates the mere release of personal identifying information. Compare Wash. Rev.Code § 9A 46.020 (2003) (criminal harassment statute requires person "knowingly threatens" another), State v. Williams, 144 Wash.2d 197, 207-10, 26 P.3d 890 (2001) (criminal harassment statute constitutional to extent it proscribes true threats and fighting words consistent with First Amendment jurisprudence). That is, on its face, the statute does not purport to regulate true threats or any other proscribable mode of speech,⁵ but pure constitutionally-protected speech. Defendants cite no authority for the proposition that truthful lawfully-obtained, publicly-available personal identifying information constitutes a mode of constitutionally proscribable speech. Rather, disclosing and publishing information obtained elsewhere is precisely the kind of speech that the First Amendment protects. Bartnicki v. Vopper, 532 U.S. 514, 527, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001).

In Planned Parenthood, the issues were whether the Ninth Circuit could define "threat of force" consistent with the First Amendment and whether defendants' speech...