Judge Bypasses The First Amendment, Conjures Up A Right To Be Forgotten For The Complainant

from the not-just-the-1st-Amendment...-also-Sec.-230,-fair-use,-etc. dept

Eugene Volokh has tracked down another questionable defamation court order targeting Google with a delisting demand. The plaintiff doesn’t appear to be abusing the legal process — he may not understand the request the judge granted is unconstitutional — but the whole thing seems more than a little weird.

The court papers make clear that the order is targeted largely at a Chicago Tribune blog post by columnist Eric Zorn about a police assault on [Greg] Malandrucco and his friend Matthew Clark; the column contains photos of the two men with injuries to their faces. (The order was issued July 6, but I found it, with the help of the invaluable Lumen Database, only a few days ago, and just got the court documents; the order has apparently not been written about anywhere else.) Google has apparently not complied, and Malandrucco has asked Judge Jablonski to hold Google in contempt of court; the hearing on that will be held Aug. 17. Indeed, the request for the contempt sanctions, filed July 25, seems to have been accelerated by a remark by the judge at a hearing on July 24: “The concern that the court has is that there is not compliance with the [July 6] order.”

So, this doesn’t necessarily seem like the normal courtroom runaround where someone’s trying to slide an unconstitutional order past a judge. The targeted content isn’t the normal “disparaging” content people tend to want vanished, but rather an article about an altercation with cops in which the cops come out looking the worst.

But Greg Malandrucco wants it gone… or at least delisted. This follows a string of DMCA takedown notices issued by Malandrucco claiming the selfie he took is his intellectual property and can’t be used without permission. (Matthew Clark appears to make the same claim in the single DMCA notice he sent out.) Malandrucco appears to have applied pressure elsewhere, resulting in this weird bit of redaction in the Chicago Maroon’s coverage which removes Malandrucco’s name from the post. (Matthew Clark’s name remains.)

Google, understandably, has not delisted this blog post. First off, the use of the photo is clearly fair use and is used in an article discussing a topic (alleged police brutality) of significant public interest. Malandrucco may have a personal interest in seeing this post delisted (he claims it has harmed his reputation and affected his income), but that doesn’t mean his personal interests override the rights of others. (As is noted by Volokh, any attempt to drag copyright into this is doomed to fail since this isn’t a federal court case.)

But even under the specifics of the state laws invoked, the order is doomed to fail.

To start with the substantive law, there was no evidence that the material is defamatory — the picture is apparently accurate. It is not actionable under the “disclosure of private facts” tort, since that tort does not apply to newsworthy material, and the picture of a victim of police brutality that illustrates a post about the brutality is newsworthy.

Malandrucco’s complaints in the cases argue that the picture is causing emotional distress, but speech on matters of public concern (which would certainly include pictures of police brutality) cannot lead to liability for intentional infliction of emotional distress (see Snyder v. Phelps).

As for the damages claimed by Malandrucco, they’re still unproven. And from what’s been seen of the case so far, there’s no reason to believe Malandrucco’s case is so close to winnable that an injunction is warranted because of the odds of “substantially prevailing” are high. The injunction was issued without any input from Google or the Chicago Tribune — both of which received nearly identical orders (but with a key error in the Tribune order, which fails to actually order the Tribune to remove that URL).

What makes this all that much weirder is Malandrucco sued the Chicago PD for police brutality and won. He openly discussed this case on newscasts and multiple websites. For a few years, he was an activist engaged in fighting excessive police force. Now, he simply wants it all to go away. The problem is he can’t just erase his past because he’s no longer engaged in the same activities. What happened to him was newsworthy and he was instrumental in ensuring he and his lawsuit victory stayed visible. Volokh’s post contains links to several sites where he appeared, noting with dismay they’ve all decided to voluntarily strip his name from these posts at his request.

So, it may be Malandrucco doesn’t know the law or realize the Constitutional implications of his request. Or maybe he knows and just doesn’t care. But the judge sure as hell should know and it appears he’s more than willing to tapdance all over the First Amendment to assist in Malandrucco’s vanishing act.

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Comments on “Judge Bypasses The First Amendment, Conjures Up A Right To Be Forgotten For The Complainant”

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Eugene Volokh (user link) says:

Re: Malandrucco v. Google / Chicago Tribune

I wanted to note that I’ve seen no evidence that this lawsuit is indirectly being promoted or coerced by the police; as best I can tell, it does seem to be Prof. Malandrucco’s own project.

Among other things, it would seem odd that the Chicago Police Department would care about trying to suppress a picture from this particular nearly decade-old incident (and a Chicago Tribune post about that incident). Nor does the Tribune post mention any particular police officers, who might have therefore wanted to focus on this particular post. The claim that the lawsuit stems from “pressure from the Chicago cops” is at this point just speculation (and was indeed framed as such), not a fact about what “the police have” done.

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