Brief Challenging California Law Banning Publication of Information About Sealed Arrests

Key Takeaways

• California anti‑dissemination statute targets sealed arrest information
• Courts ruled publishing lawfully obtained reports is protected speech
• Injunction blocks enforcement of the statute against journalists
• Case reinforces strict‑scrutiny test for content‑based restrictions
• Potential chilling effect on investigative reporting mitigated

Summary

The amicus brief challenges California’s anti‑dissemination statute that criminalizes publishing sealed arrest records, arguing it violates the First Amendment. The court granted a special motion to strike, finding the plaintiff’s claims were protected by anti‑SLAPP law and lacked merit. An injunction was issued preventing enforcement of the statute against journalists and advocacy groups. The brief cites Supreme Court precedents to show that truthful, lawfully obtained information about public matters cannot be punished.

Pulse Analysis

California’s Penal Code §§851.91‑92 was enacted to shield individuals from the reputational fallout of sealed arrests, aiming to curb employment and housing discrimination. Critics argue the law overreaches by criminalizing the mere act of publishing factual, lawfully obtained records, even when the information concerns matters of public interest. By targeting the content of speech rather than the manner of its dissemination, the statute triggers the Supreme Court’s strict‑scrutiny analysis, demanding a compelling state interest narrowly tailored to achieve that goal.

In Blackman v. Substack, the trial court applied anti‑SLAPP protections and found the plaintiff’s claims unlikely to succeed, echoing decisions such as *Florida Star v. B.J.F.* and *Bartnicki v. Vopper*. Those cases established that the First Amendment shields truthful reporting of information obtained from lawful sources, even if the original source acted improperly. The court’s preliminary injunction mirrors the federal district court’s order in *FAC v. Chiu*, effectively halting any civil penalties against journalists who publish sealed arrest details, and reinforcing that reputational concerns alone do not satisfy the “highest order” interest required for content‑based regulation.

The broader impact extends beyond California. Media outlets nationwide now have clearer guidance that publishing verified, lawfully obtained arrest information is protected speech, reducing the chilling effect of potential civil suits. Lawmakers considering similar privacy‑focused statutes must craft narrowly tailored measures that address specific harms without infringing on press freedoms. For journalists, the decision underscores the importance of rigorous sourcing and documentation, while advocacy groups can cite this precedent when confronting state attempts to suppress truthful reporting.