from the violating-both-due-process-and-the-realm-of-possibility dept
Back in April, a Texas district court judge (well, a "visiting judge") ordered Google to do the following:
The gag order, signed by visiting San Antonio Judge Richard Price in February 2013, forces Google and other search engines to wipe out all record of the allegations from the Internet. It also compels the search engine to find third parties who posted the information to get it back and destroy it.This was to be done on behalf of Calvin C. Jackson, an attorney who was accused of forging signatures on court records. It's unknown whether the judge actually read what he was signing or if he did, whether he recognized how completely ridiculous the request was. Google may index the web and hold a commanding lead in the search engine market, but it certainly doesn't have the ability to demand third parties turn over and/or destroy content.
That the whole thing took place under seal and out of the public eye made it even more ridiculous. The court order demanding the impossible was also placed under seal, presumably to protect Jackson from being further linked to the allegations he was trying to bury. We can all see how well that worked out.
Now, a Texas appeals court has released Google from having to do things it's not capable of. The court decision isn't predicated on Google's inability to carry out Jackson's demands. Instead, it hinges on the fact that Google should never have been part of the whole debacle.
The order identified Google as an entity to whom the order must be sent. The order further required all identified recipients to expunge or destroy all records relating to the action other than certain, specifically identified records….As Eugene Volokh notes, this seems obvious enough. But it wasn't obvious to the lower court which ordered Google to go door-to-door around the internet with a paper shredder in tow.
Constitutional due process requires a party to be served with process and to receive notice of an action to which it is an interested party. A judgment rendered in violation of due process is void…
It is clear from the record that Google was never named as a party to the suit, was never served with process, never waived or accepted process, and never made an appearance in the suit before the expunction order was entered. Nothing in the record establishes that Google stands in privity to the commission or to Jackson. Accordingly, we hold that Google was not a party to the suit and that the trial court lacked jurisdiction to enter orders against Google.
Beyond the normal First Amendment ramifications, there's also the fact that Jackson was effectively asking the court (and Google by extension) to destroy public records. The allegations against Jackson weren't simply blog posts or newspaper articles. These allegations were part of a lawsuit brought against the attorney (the same lawsuit that didn't include Google). Public records can be expunged, but that's limited to what the court itself directly controls. Anything already posted to the internet is out of its reach. Calvin Jackson's quest for an allegation-free existence is futile, and every additional legal effort seems to place it just that much further out of reach.