512 F. App'x 635
7th Cir.2013Background
- Nieman sues Yahoo, Google, Microsoft, and VersusLaw for invasion of privacy and retaliation based on public judicial records linked to his prior lawsuit.
- Nieman alleges employers used online links to his court documents to blacklist him from insurance jobs.
- The district court dismissed, holding all claims premised on publication of public records protected by the First Amendment, and CDA § 230 shielding any defamation/privacy claims related to indexing.
- Nieman discovered in 2009 that legal-search sites linked copies of documents from his prior litigation to his name; the litigation settled in 2011.
- Nieman asked defendants to delink his court cases; defendants declined; Google argued it merely aggregates existing public information, VersusLaw cited First Amendment protection.
- On appeal, the Seventh Circuit affirmed dismissal, holding the First Amendment privilege bars all claims premised on republication of public records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the First Amendment bar Nieman's claims? | Nieman argues not absolute; publication of private facts not at issue. | Defendants contend publication of public records is privileged and immune from claim. | Yes; claims barred by First Amendment privilege. |
| Is Haynes controlling about privacy/publication of private facts? | Haynes limits First Amendment protection for private facts with no legitimate public interest. | Haynes is distinguishable; here records are public judicial records. | No; Haynes not controlling. |
| Are CDA § 230 protections implicated? | CDA shielding hosts from liability for indexing public records could be circumvented by non-republication claims. | CDA protects online publishers for content they index; not necessary to decide after First Amendment bar. | Not reached/unnecessary; First Amendment bars claims. |
Key Cases Cited
- Fla. Star v. B.J.F., 491 U.S. 524 (U.S. Supreme Court 1989) (protected publication of lawfully obtained judicial records)
- Cox Broad. Corp. v. Cohn, 420 U.S. 469 (U.S. Supreme Court 1975) (public records publishing allowed under First Amendment)
- Willan v. Columbia County, 280 F.3d 1160 (7th Cir. 2002) (First Amendment privilege for public-record materials)
- Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993) (limits on publication of private facts without public interest)
- Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010) (First Amendment protection of public-record materials)
- Bowley v. City of Uniontown Police Dep’t, 404 F.3d 783 (3d Cir. 2005) (public records as protected speech)
- Pepsico, Inc. v. Redmond, 46 F.3d 29 (7th Cir. 1995) (public-record materials belong to the public)
- Dex Media W., Inc. v. City of Seattle, 696 F.3d 952 (9th Cir. 2012) (speech protected even when sold for profit)