via FACSIMILE
May 16, 2001
Stephen A. Smith
Preston Gates Ellis LLP
701 Fifth Avenue, Suite 5000
Seattle, WA 98104-7078
I represent Declan McCullagh and am responding to your letter of May 14, 2001 to Mr. Charles H. Townsend of Wired News. Mr. McCullagh is the Washington bureau chief for Wired News, and in that capacity, he reports on an array of matters related to politics, law and technology. He also moderates and hosts Politech, an Internet mailing list that broadly addresses issues related to politics, law and technology. Prior to coming to Wired News, Mr. McCullagh wrote for Time Digital Daily, Time Magazine, George Magazine, and Hot Wired. He has also contributed to Slate, The New Republic, Playboy, and other publications, and has appeared as a commentator on CNN, CNN-fn, Court TV, NPR’s All Things Considered, ABC News’ Good Morning America, CNBC, CBC, CSPAN, Reuters TV and Fox News. Mr. McCullagh is credentialed by the U.S. Congress’ Press Gallery and was the first Internet journalis t to join the National Press Club in Washington, D.C. In short, Mr. McCullagh is a news reporter and commentator.
In the course of reporting on City of Kirkland v. Sheehan, an important case that raises significant legal questions regarding the role of the First Amendment in cyberspace, Mr. McCullagh reported to Politech readers that Judge Alsdorf had issued an injunction against the defendants requiring that they remove the police officers’ Social Security numbers from the defendants’ web site. Mr. McCullagh disagreed with the court’s decision to issue an injunction and expressed this view in his report. In order to give his readers a sense of the nature of the information that the judge decided was not protected by the First Amendment, Mr. McCullagh described that information and listed, as examples, the names of three police officers, along with their Social Security numbers, birth months, job titles and, for two of the three officers, what appears to be their monthly salaries.
Your letter of May 14, 2001 threatens legal action based on that publication. There is no basis for any such legal action.
Social Security Numbers. Mr. McCullagh may publish the Social Security numbers of a few police officers in the context of his reporting and commentary on the City of Kirkland v. Sheehan case. First, the court’s preliminary injunction in the case has no application to Mr. McCullagh, who is neither a party to the case nor in "active concert" with any of the defendants. He is a journalist who commented on the case, not a party to the litigation. In fact, to the best of his recollection, Mr. McCullagh has had no contact with Mr. Sheehan whatsoever and certainly none related to this case. Because Mr. McCullagh is not subject to the injunction, he cannot violate it and cannot be subject to any sanctions based on it.
Second, even if the Court’s order could apply to a nonparty, it would not apply to Mr. McCullagh’s publication. As you know, the Court’s opinion specifically provided that "[t]here may be situations involving specific individuals where the publication of a Social Security number could relate to a public issue and therefore constitute substantive speech." Given the significant and newsworthy First Amendment issues raised by the Court’s decision, it is clear that the case itself is a significant "public issue." Reporting and commenting on the case, as Mr. McCullagh did, is therefore fully protected by the very terms of the Court’s opinion.
Finally, even if the Court’s injunction could be interpreted to apply to a nonparty journalist like Mr. McCullagh reporting on a case of constitutional significance involving a government plaintiff attempting to suppress the publication of truthful, lawfully obtained information about public servants, the First Amendment and Article I, section 5 of the Washington Constitution would preclude such an application. As the Supreme Court and other courts have repeatedly made clear, "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." Florida Star v. B.J.F., 491 U.S. 524, 533 (1989) (quoting Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979)); see also Oklahoma Publ’g Co. v. Oklahoma County Dist. Ct., 430 U.S. 308 (1977); Cox Broad. Corp. v. Cohn, 420 U. S. 469 (1975); State v. Coe, 101 Wn.2d 364 (1984). In his role as a journalist, Mr. McCullagh "lawfully obtain[ed] truthful information" about an important judicial decision relating to the role of the First Amendment in cyberspace. The First Amendment would thus prohibit a court from sanctioning Mr. McCullagh absent "a state interest of the highest order." The City has no such interest.
Other Information: You also threaten legal action as a result of the publication of "other private information of City employees, including their home addresses and telephone numbers." Putting aside your erroneous assumption that home addresses and telephone numbers are "private," I am at a loss as to why you even mention this at all. Mr. McCullagh did not publish any addresses or telephone numbers. Other than the three Social Security numbers, the only information Mr. McCullagh published was the officers’ names, birth months, job titles and, for two of the three, what appears to be their monthly salary. That information, legally acquired from publicly available sources, does not constitute protected "private information." In any event, even if Mr. McCullagh had published home addresses and telephone numbers, the Court has already rejected the City’s efforts to block the publication of such information.
Lest there be any ambiguity from my letter, Mr. McCullagh intends to exercise his First Amendment rights notwithstanding your letter. If you have any further questions regarding this matter, please contact me and not Mr. McCullagh.
Very truly yours,
Davis Wright Tremaine LLP
Bruce E.H. Johnson
BEHJ:mnb
cc: Declan McCullagh