In what could prove to be a consequential decision, the US Court of Appeals for the Seventh Circuit ruled Friday that the Chicago Sun-Times improperly obtained and disclosed “personal information” from motor vehicle records, and that the paper’s actions were not protected by the First Amendment. The decision by a three-judge panel allows a lawsuit against the paper, brought by five Chicago police officers who claim their privacy rights were violated, to proceed.
With its ruling, the court tackled a question that US courts have rarely if ever addressed: whether the First Amendment protects the publication of material that the press itself has unlawfully acquired. In this case, the judges ruled, it does not—partly because, in the court’s view, the material in question was of marginal public value.
The case’s underlying facts are colorful and tragic. In 2004, R.J. Vanecko, a nephew of Richard M. Daley, then the mayor of Chicago, had been drinking for eight hours before he punched a 21-year-old man, David Koschman, outside a Division Street bar. Koschman fell and hit his head, and died days later of a brain injury.
The Chicago Police Department investigated the incident, and at one point placed Vanecko in an eyewitness lineup, with five officers acting as fillers. Eyewitnesses failed to identify Vanecko as the perpetrator, so no charges were filed and the department closed the investigation in March 2011.
But suspicions lingered that the department had manipulated its investigation to protect Vanecko because of his family connections. The Sun-Times dug into the case and published a series of reports criticizing the investigation, including a Nov. 21, 2011, story about the Vanecko lineup. Under the headline “Daley Nephew Biggest Guy on Scene, But Not in Lineup,” the story suggested that several of the officers too closely resembled Vanecko for the lineup to be reliable.
The Sun-Times published lineup photos and the fillers’ names, along with their birth months and years, their heights and weights, and their hair and eye colors. The paper obtained the photos and names from the police department through a public records request. But apparently—and crucially, for the legal analysis—the paper obtained the officers’ physical information from motor vehicle records maintained by the Illinois Secretary of State.
Eventually, a special prosecutor investigated Koschman’s death, and in December 2012, eight years after the fatal incident, Vanecko was indicted and charged with one count of involuntary manslaughter—to which he pleaded guilty in January 2014.
Along the way, the case took a bizarre turn: The officers sued the Sun-Times, claiming the paper had violated the federal Driver’s Privacy Protection Act (DPPA) by publishing their physical information.
The DPPA and ‘personal information’
The case came to the Seventh Circuit by interlocutory appeal, and at issue were two questions: (1) whether the DPPA covered the physical information that the Sun-Times published, and (2) whether the First Amendment entitled the Sun-Times to obtain and publish that information.
A little background here: The DPPA, enacted by Congress in 1994, says that generally “[i]t shall be unlawful for any person knowingly to obtain or disclose personal information … from a motor vehicle record.” It defines “personal information” as:
information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.
The statute allows people to sue if they believe someone obtained their personal information in violation of its provisions—hence the lawsuit filed by the officers.
Ultimately, the Seventh Circuit found that the DPPA covers the physical information the newspaper published. That seems to me a dubious finding, but I’ll leave that for others to analyze.
More notable, I think, is the panel’s conclusion that the “Sun-Times possesses no constitutional right either to obtain the officers’ personal information from government records or to subsequently publish that unlawfully obtained information.”
‘Breaking the law’
First, regarding the constitutionality of the DPPA’s prohibition on obtaining information from state driving records, the panel said essentially that the First Amendment does not guarantee the press a right of access to government information beyond that of the public, and the public does not have a First Amendment right of access to the information in driving records.
The panel acknowledged that there is a right of access to government information in limited circumstances, e.g., access to criminal trial records. However, the panel said that was irrelevant because that kind of access enables the public to monitor judicial power, an “essential” democratic function—and there’s no such “need for public participation in the maintenance of driving records, which can hardly be described as an ‘essential component’ of self-government.”
Second, regarding the constitutionality of the DPPA’s prohibition on disclosing information, the panel considered several Supreme Court precedents that have come to stand for the principle that if a news outlet lawfully obtains truthful information about a matter of public concern, the government may not punish the outlet for publishing that information, absent “a state interest of the highest order.”
The key word there is lawfully. The panel found that the Sun-Times had obtained the officers’ physical information by invading their “established rights under the DPPA”—thus, the newspaper had “acquired that truthful information unlawfully.” And, the panel added, the Sun-Times cited “no authority for the proposition that an entity that acquires information by breaking the law enjoys a First Amendment right to disseminate that information.”
The panel suggested that if the Sun-Times had obtained the officers’ information from some other source—“if a third party had obtained [the] information in violation of the DPPA and transmitted that information to Sun-Times, [which] subsequently published it”—the paper could have invoked the First Amendment, because the third party rather than the paper would have violated the DPPA to obtain the information.
(It’s worth mentioning here that the panel is not certain how the Sun-Times obtained the physical information for its Nov. 21 story. As the opinion says, the paper “credited the Chicago Police Department and the Illinois Secretary of State as sources. The Officers contend—and Sun-Times has not disputed—that Sun-Times knowingly obtained [the physical] information from motor vehicle records maintained by the Secretary of State.”)
Finally, concluding that the DPPA’s disclosure provision did little harm to the First Amendment, the panel explored whether the Sun-Times reporting related to a matter of public concern. The judges said it did, because the coverage addressed claims that the police department had manipulated a homicide investigation—but they also said the officers’ physical information was immaterial:
While [the] Sun-Times provided details of the Officers’ physical traits to highlight the resemblance between the “fillers” and Vanecko, most of the article’s editorial force was achieved through publication of the lineup photographs that [the paper] obtained through its FOIA request—the value added by the inclusion of the Officers’ personal information was negligible.
In other words, you don’t get constitutional protection for little grace notes in your investigative reporting.
The only bright spot, from a publisher’s perspective, is that the panel underscored that this case was an as-applied challenge, so the holding is limited to the facts and circumstances of the Sun-Times case. “We do not opine,” the judges said, “as to whether, given a scenario involving lesser privacy concerns or information of greater public significance, the delicate balance might tip in favor of disclosure.”
But, for a future case with similar facts and circumstances, this ruling would be damning—and media lawyers would be foolish not to pay heed and perhaps to advise clients to take a more conservative posture in its wake.
The police officers are now free to pursue their lawsuit against the Sun-Times, which has not said whether it plans to appeal the decision to the whole Seventh Circuit or to the US Supreme Court.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.