The Dark Side of Privacy

by Professor Eugene Volokh

The Courier-Journal (Louisville) reports:

http://www.courier-journal.com/article/20120720/NEWS01/307200106?gcheck=1&nclick_check=1

Frustrated by what she felt was a lenient plea bargain for two teens who pleaded guilty to sexually assaulting her and circulating pictures of the incident, a Louisville 17-year-old lashed out on Twitter.

“There you go, lock me up,” Savannah Dietrich tweeted, as she named the boys who she said sexually assaulted her. “I’m not protecting anyone that made my life a living Hell.”

Now, Dietrich is facing a potential jail sentence, as the attorneys for the boys have asked a Jefferson District Court judge to hold her in contempt because they say that in naming her attackers, she violated the confidentiality of a juvenile hearing and the court’s order not to speak of it.

A contempt charge carries a potential sentence of up to 180 days in jail and a $500 fine.

An order barring a victim from revealing the names of her assailants is, I think, clearly unconstitutional, even when the assailants are juveniles. Oklahoma Publishing Co. v. District Court (1977) expressly rejected the notion that courts or legislatures may bar the publication of the names of juvenile offenders; that case involved a newspaper’s publishing the name of the juvenile offender, which it learned from a court hearing, but the rationale applies at least as strongly to a person’s publishing a name that she learned from the attack itself. Likewise, even when it comes to grand jury proceedings — probably the most historically secret part of the criminal justice system — Butterworth v. Smith (1990) held that, while a grand jury witness could be barred from revealing what he learned as part of the grand jury proceedings, the witness could not be generally barred from revealing information that he had learned on his own (even if that was the subject of his testimony).

The same applies here, I think. Dietrich revealed what she knew even before the trial — the names of her attackers — and that they are juveniles cannot strip her of her First Amendment rights on this score. And while she also revealed that they got a plea bargain, something she presumably learned through the court proceedings, that strikes me as the sort of information about the court system and the prosecutor’s office that the state cannot stop people from revealing. (Note that parties who get some confidential information from other parties via discovery may be barred from revealing it, see Seattle Times Co. v. Rhinehart, and the same may be true about much confidential information learned through grand jury proceedings or through closed proceedings, but Butterworth shows that this principle is limited; and it doesn’t apply to what was learned by the speaker independently of the proceedings and, I think, to information about the sentences that the prosecutor urged.)

Dietrich’s problem, I think, is that she seems to have violated the court order, rather than challenging it when it was entered. (All this is based on what I read in the newspaper story, which I realize may not be fully accurate.) Under Walker v. City of Birmingham (1967), a person generally is not allowed to violate even an unconstitutional court order; he must challenge it on appeal (or via a similar procedure, such as mandamus), or abide by it. But even that “collateral bar” rule has an exception for “transparently invalid” court orders, and it seems to me this exception applies here. And in any event, the collateral bar rule can’t justify the judge’s decision in issuing this order.

SOURCE:
http://www.volokh.com/2012/07/22/the-dark-side-of-privacy/

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