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EFF Fights to End Prior Restraint Against MuckRock

DEEPLINKS BLOG
June 1, 2016

EFF Fights to End Prior Restraint Against MuckRock

EFF on Wednesday asked a Washington state trial court to lift its order that forced the public records website MuckRock to take down documents one of its users had lawfully obtained.

The motion EFF filed on behalf of MuckRock and its co-founder, Michael Morisy, argues that the court order requiring the site to de-publish these public records was an unconstitutional prior restraint.

“This Court must dissolve the Temporary Restraining Order, which requires the removal of lawfully obtained material that was publicly available to the world for more than a month because it violates MuckRock’s free speech rights under both the Washington and U.S. Constitutions,” EFF wrote.

Prior restraints are court or administrative orders that prevent people from speaking. The Supreme Court has ruled that they are one of the most egregious violations of the First Amendment.

The court order against MuckRock stems from a public records request by one of its users seeking information on Seattle’s smart utility meters. In April, the requester used MuckRock to ask for information about the companies that bid on the city’s smart meter program, including any security audits they performed.

Seattle initially released two documents to the requester. By default, MuckRock automatically publishes all documents its users receive in response to their public records requests.

After the documents had been public for more than a month, a company that won the contract with Seattle filed a lawsuit against MuckRock, the requester, and the city of Seattle.

The suit alleged that the documents contained trade secrets and other sensitive information and sought an emergency order to bar MuckRock from continuing to publish them on its site. The court granted the order last week.

Although MuckRock complied with the order, both it and EFF believe that it is unconstitutional. As our motion argued, because the order is a prior restraint, it is categorically prohibited under Washington’s own constitutional free speech guaranty, and it also violates the First Amendment to the U.S. Constitution.

Even if the documents at issue contain trade secrets, the potential harm from their disclosure cannot prohibit MuckRock from publishing documents that it legally obtained via a public records request, EFF argued.

Independent of the unconstitutional prior restraint, the motion argued that the First Amendment gives publishers like MuckRock a near-absolute right to publish material they lawfully obtain. The “First Amendment does not permit courts to treat information relating to matters of public concern as contraband that cannot be published by anyone.”

Further, the motion argued that MuckRock is immune from suit under Section 230 of the Communications Decency Act, which generally immunizes websites from liability based on user-generated content. The brief also argued that Washington state’s fair reporting privilege, which immunizes reports on official government proceedings, shields MuckRock from liability.

A hearing is scheduled on MuckRock’s motion on Friday morning in Seattle. We hope the court will dissolve the order prohibiting MuckRock from publishing the documents and make clear that the website has a First Amendment right to publish information its users lawfully obtain from their public records requests.

EFF thanks our local counsel, Venkat Balasubramani at FOCAL PLLC, for his help in filing the motion.

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