Policing the Police

At a time when many civil libertarians are concerned that recent legislation allows the police to learn too much about us, Elena Garella won for her client the right to inform us about the police.

Bill Sheehan, a Mill Creek programmer, recently built a website www.justicefiles.org that compiles publicly-available information about police officers from many departments, including the King County Sheriff’s Office, the Seattle Police, and the Kirkland Police. It includes names, addresses, email addresses, and salaries of law enforcement officials. It also provides links showing which officers have had legal action taken against them. The website says: “. . . keep in mind that the same information we present here, is information that the police themselves have easily at their disposal when they “investigate” the rest of us, often without cause...”

After the City of Kirkland and King County unsuccessfully sued to shut down the website, the Legislature enacted RCW 4.24.680-700, which provided that “a person or organization shall not, with the intent to harm or intimidate,” give out identification information for any law enforcement, corrections, or court employee.

Then Mr. Sheehan’s attorney, Elena Garella, filed suit in U.S. District Court to invalidate the statute, alleging that it was overbroad, did not serve a compelling state interest, and was a prohibited content-based restriction. Judge Coughen-our agreed.

First, he held that the statute was overbroad. He noted that 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.” He ruled: “The statute does not purport to regulate true threats or any other proscribable mode of speech, but purely constitutionally-protected speech.”

Second, he held that the statute punished mere publication of information, and therefore could not be saved because it served no state interest of the highest order. “If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order,” he said. He held that a website is entitled to the same protection.

Third, he held that the statute was a content-based restriction and was presumptively invalid. He noted a recent opinion by the Court of Appeals on this issue that held: “Sheehan’s intended use of the information cannot be a basis for denying disclosure. To conclude otherwise would be to allow agencies to deny access to public records to its most vocal critics, while supplying the same information to its friends.”

Judge Coughenour then stated: “Thought policing is not a compelling state interest recognized by the First Amendment.” He concluded that the statute could be enforced only by discerning the subjective intent of the speaker, and therefore must chill free speech and invite selective enforcement. He granted Ms. Garella’s motion for summary judgment and struck down the statute.