Annemarie Catlett v. Robert Lee Teel

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANNEMARIE CATLETT,
DIVISION ONE
Respondent,
No. 80059-1-I
v.
PUBLISHED OPINION
ROBERT LEE TEEL,
Appellant.
DWYER, J. — Robert Teel appeals from the entry of an antiharassment
protection order that restrains his behavior. The protection order was based
solely on Teel’s actions in causing public records to be published—a right that is
protected under both the United States and Washington Constitutions.
Accordingly, the protection order is invalid under chapter 10.14 RCW, which
provides that an antiharassment protection order cannot be based on actions that
qualify as constitutionally protected speech. In addition, the protection order
imposes an unconstitutional content-based restriction and serves as an
unconstitutional prior restraint on Teel’s speech. Given all of this, we reverse.
I
Robert Teel and Annemarie Catlett were involved in a romantic
relationship that ended in March 2017. In April 2017, a deputy from the Island
County Sheriff’s Office telephoned Teel to inform him that Catlett did “not want
him to come around” anymore. Teel subsequently availed himself of a website
No. 80059-1-I/2
entitled MuckRock.com to make a request for public records concerning Catlett
from the Island County Sheriff’s Office.
MuckRock is a third party Internet service through which users can initiate
public records requests. By default, the requests and returned records are made
publicly available on MuckRock’s website. However, users can check a box to
“Embargo” the requests and records, making them private.
In July 2017, MuckRock received and published on its website public
records that were requested by Teel. These public records included (1) an
incident report by Catlett stating that she and Teel broke up and that she did “not
want him to come around,” (2) an incident report regarding a verbal dispute
between Catlett and Teel, (3) an incident report by Catlett stating that Teel had
been stalking her, (4) an incident report stating that Catlett had been taken into
protective custody for a suicide attempt, and (5) an incident report wherein
Catlett stated that Teel had been feeling suicidal.
In August 2017, Teel used MuckRock to make additional public records
requests of sheriff’s offices in Oregon and California. These requests generated
numerous reports, including (1) two arrest reports describing Catlett’s behavior
that led to her arrest for harassment, (2) an arrest report detailing Catlett’s arrest
for domestic assault, (3) an incident report stating that Catlett had allegedly
assaulted her domestic partner, and (4) an application for an emergency
protection order against Catlett. These public records were also made publicly
available on MuckRock’s website.
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In February 2018, Catlett discovered that the public records received by
MuckRock were published online and could be found by searching her name on
an Internet search engine. Catlett contacted MuckRock and asked that it remove
the public records from its website. Teel subsequently received an e-mail from
MuckRock indicating that Catlett had requested that the public records requests
and responses be made private. Teel then clicked the “Embargo” box on
MuckRock’s website and MuckRock confirmed to Teel that the requests and
responses were now private.
Between October 2017 and December 2018, Teel and Catlett exchanged
several messages via text and Facebook. These included a “Happy Birthday”
message from Catlett to Teel, a happy Mother’s Day message from Teel to
Catlett, a happy Father’s Day text from Catlett to Teel, and an exchange of
several text messages between the two on the day that Teel had shoulder and
wrist surgery.
On December 18, 2018, Teel stopped by a store at which Catlett’s
youngest daughter worked to drop off Christmas gifts and a card for her and her
sister. Catlett’s daughter was not at the store so Teel dropped the gifts off at
Catlett’s home, placing them on the front porch. After Teel left Catlett’s home, he
and Catlett drove by each other at an intersection traveling in opposite directions.
Later that day, Catlett sent Teel a text message thanking him for the card and
gifts.
The following day, Catlett contacted a deputy at the Island County
Sheriff’s Office to make an incident report regarding Teel’s conduct on the
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No. 80059-1-I/4
previous day. The deputy subsequently telephoned Teel to inform him of the
report. Teel asked the deputy for a copy of the report, and the deputy informed
Teel how to make a public records request.
On December 26, 2018, Teel initiated another public records request via
MuckRock seeking additional records concerning Catlett and for records
regarding a convicted felon named Terry Martin. Teel later testified that he had
suspected that Catlett and Martin had been engaged in a money laundering
scheme.
In January 2019, MuckRock received Catlett’s December 2018 incident
report, screen shots of text messages between Catlett and Teel, and
photographs of the Christmas card and gifts that Teel had dropped off at Catlett’s
home. The Island County Sheriff’s Office also sent MuckRock a copy of an
incident report from October 2017 regarding Catlett and Martin. This document
stated that Catlett and Martin were romantically involved and that Catlett
telephoned the Island County Sheriff’s Office to report that Martin had been
harassing her.
Upon being notified by MuckRock that these records were available to
view on its website, Teel clicked the “Embargo” box to hide the records from
public view. After 30 days, however, the embargo on the documents expired
automatically, thus making these documents viewable to the public on
MuckRock’s website. One result of Teel’s request for public records concerning
both Catlett and Martin was that court documents regarding Martin’s conviction
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No. 80059-1-I/5
for fraud were imbedded in Internet hyperlinks that contained records about
Catlett.
On February 10, 2019, Catlett’s neighbor, Jack Yang Ng, informed Catlett
that he had seen Teel drive by Catlett’s home very slowly. Several days later,
Catlett filed a petition for a protection order. In the petition, Catlett asserted that
Teel had been stalking and harassing her.
On March 26, 2019, a hearing on the petition took place before a court
commissioner of the Island County Superior Court. The commissioner entered
an order for protection against Teel, which restricted him from being within an
unstated distance of Catlett’s residence, place of employment, and equestrian
facility. Teel subsequently filed a motion for revision. On May 13, 2019, the
superior court heard the motion and upheld the issuance of the protection order.
The superior court’s oral ruling was followed by its entry of findings of fact and
conclusions of law. Therein, the superior court concluded that Teel’s actions in
“making multiple public records requests . . . as to have them appear when Ms.
Catlett’s name was searched on the internet” constituted unlawful harassment.
Additionally, the superior court awarded attorney fees to Catlett.
Teel appeals.
II
As an initial matter, the parties dispute which actions provided the factual
basis for the superior court’s entry of the protection order. 1 Teel contends that
1 “After the superior court has decided [a] motion for revision, any appeal is from the
superior court’s decision, not the commissioner’s.” In re Vulnerable Adult Pet. for Winter, 12 Wn.
App. 2d 815, 829, 460 P.3d 667 (2020).
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No. 80059-1-I/6
the protection order was based solely on his actions in causing public records to
be published online. 2 In response, Catlett asserts that the protection order was
additionally based on Teel’s acts of both dropping gifts off at her home in
December 2018 and driving slowly by her home in February 2019. The record
supports Teel’s contention.
Courts can enter protection orders upon finding that “unlawful harassment”
exists:
At [a] hearing, if the court finds by a preponderance of the evidence
that unlawful harassment exists, a civil anitharassment protection
order shall issue prohibiting such unlawful harassment.
RCW 10.14.080(3).
“Unlawful harassment” is defined, in relevant part, as “a knowing and
willful course of conduct directed at a specific person which seriously alarms,
annoys, harasses, or is detrimental to such person, and which serves no
legitimate or lawful purpose.” RCW 10.14.020(2) (emphasis added). Thus,
“unlawful harassment” requires a finding of a “course of conduct.”
In claiming that the protection order was based on conduct other than
Teel’s actions in causing public records to be published online, Catlett points to
the superior court’s findings of fact 7 and 14.
Finding of fact 7 states:
While there was periodic text communication there was no personal
contact until December of 2018 when Ms. Catlett saw Mr. Teel
drive past her at Bayview on South Whidbey Island. He stopped
2 Throughout this opinion we state that Teel “caused public records to be published”
rather than “published public records.” This is because MuckRock makes the public records
requested through its service publicly viewable on its website. Thus, it was MuckRock, not Teel,
that directly published the public records. But it was Teel’s actions in initiating the requests that
caused them to be published.
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No. 80059-1-I/7
his vehicle and stared at her. Ms. Catlett was startled but
continued with her day. When she got home she was disturbed to
find that Mr. Teel had been to her home and left gifts for her adult
daughters and her dogs. Ms. Catlett initially tried to respond
politely.
Next, finding of fact 14 states:
Ms. Catlett was informed on February 10, 2019 by a friend and
neighbor, Jack Yang Ng, that he had seen Mr. Teel’s vehicle driving
very slowly by Ms. Catlett’s home. Shortly thereafter, Ms. Catlett
filed the Petition.
Although the superior court made these findings of fact, neither of them
served as a basis for the protection order. Instead, Teel’s actions in requesting
public records in a manner that made them appear online was the only “course of
conduct” referenced by the superior court:
Mr. Teel’s action of knowingly and willfully making multiple public
records requests, both in 2017 and late in 2018, in such a way as to
have them appear when Ms. Catlett’s name was searched on the
internet is a course of conduct under RCW 10.14.020.
Conclusion of Law 2.
The subsequent conclusion of law made by the superior court states that
this “course of conduct” served no legitimate or lawful purpose:
Mr. Teel’s actions, including making a public records request
regarding Mr. Terry Martin’s conviction for fraud in such a manner
that it was included in the information available when a person
searched Ms. Catlett’s name on the internet, were directed at Ms.
Catlett and had no lawful or legitimate purpose.
Conclusion of Law 3.
No conclusion of law characterized any other actions taken by Teel as
constituting a course of conduct. Thus, as explained by the superior court’s
conclusions of law, Teel’s actions in causing public records to be published
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No. 80059-1-I/8
online served as the sole basis for the superior court’s entry of the protection
order.
III
Teel contends that the protection order was entered in error because the
publishing of public records is protected speech under both the United States
and Washington Constitutions. Hence, Teel avers, causing public records to be
published cannot serve as the basis for a protection order entered pursuant to
chapter 10.14 RCW. We agree.
A
Before addressing whether the publishing of public records is protected
speech under the United States and Washington Constitutions, we note that the
statutory definition of “course of conduct” expressly excludes from its ambit
constitutionally protected free speech:
“Course of conduct” means a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose. [It] includes, in addition to any other form of
communication, contact, or conduct, the sending of an electronic
communication, but does not include constitutionally protected free
speech.
RCW 10.14.020(1) (emphasis added).
Therefore, a protection order that is based solely on constitutionally
protected free speech is invalid under chapter 10.14 RCW.
B
We review rulings on challenges invoking the right to free speech under
the First Amendment de novo. Resident Action Council v. Seattle Hous. Auth.,
162 Wn.2d 773, 778, 174 P.3d 84 (2008). In determining whether a court’s
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No. 80059-1-I/9
determination violates an individual’s right to free speech, we “‘make an
independent examination of the whole record’ to ensure the judgment does not
constitute a forbidden intrusion on the field of free expression.” Duc Tan v. Le,
177 Wn.2d 649, 669-70, 300 P.3d 356 (2013) (internal quotation marks omitted)
(quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S. Ct. 710, 11 L.
Ed. 2d 686 (1964)).
The First Amendment to the United States Constitution, which applies to
the states through the due process clause of the Fourteenth Amendment,
provides that “Congress shall make no law . . . abridging the freedom of speech.”
U.S. CONST. amend. I. Notably, the First Amendment applies to the publication of
information on the Internet. Reno v. Am. Civil Liberties Union, 521 U.S. 844,
870, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997).
The Supreme Court has explained that the publication of public records is
protected speech under the First Amendment. In Cox Broad. Corp. v. Cohn, 420
U.S. 469, 495, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975), the Court held that “the
First and Fourteenth Amendments command nothing less than that the States
may not impose sanctions on the publication of truthful information contained in
official court records open to public inspection.” Although the Court directed its
holding toward the publication of official court records, its reasoning suggests
that the publication of all public records—regardless of kind—is protected under
the First Amendment. Indeed, “the interests of privacy fade when the information
involved already appears on the public record.” Cox Broad. Corp., 420 U.S. at
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No. 80059-1-I/10
494-95. Thus, the Court reasoned, there is no social value in limiting the
publication of truthful information that is contained in the public record:
The publication of truthful information available on the public record
contains none of the indicia of those limited categories of
expression, such as “fighting” words, which “are no essential part of
any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality.”
Cox Broad. Corp., 420 U.S. at 495 (quoting Chaplinsky v. New Hampshire, 315
U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942)).
A few years later, in Florida Star v. B.J.F., 491 U.S. 524, 109 S. Ct. 2603,
105 L. Ed. 2d 443 (1989), the Court clarified that the First Amendment protects
the publication of information contained in police reports available to the public.
Specifically, the Court held that a statute violated the First Amendment by
imposing damages on a newspaper for publishing a rape victim’s name that it
had obtained from a publicly-released police report. Florida Star, 491 U.S. at
532. The Court reasoned that the punishment was not narrowly tailored to
further a compelling state interest. Florida Star, 491 U.S. at 541. There may be
times, however, when an individual’s right to privacy may prevent another from
publishing truthful information about that individual:
We do not hold that truthful publication is automatically
constitutionally protected, or that there is no zone of personal
privacy within which the State may protect [an] individual from
intrusion . . . . We hold only that where a newspaper publishes
truthful information which it has lawfully obtained, punishment may
lawfully be imposed, if at all, only when narrowly tailored to a state
interest of the highest order.
Florida Star, 491 U.S. at 541.
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No. 80059-1-I/11
By comparison, our Supreme Court has explained that the Washington
Constitution provides broader protection than does the First Amendment to the
publication of public records. Our state constitution provides that “[e]very person
may freely speak, write and publish on all subjects, being responsible for the
abuse of that right.” CONST. art. I, § 5. Thus, in State v. Coe, 101 Wn.2d 364,
385-86, 679 P.2d 353 (1984), the court reversed an order finding a news
broadcaster in contempt of court for publishing tape recordings that had been
presented as evidence during a trial. The court held that “Const. art. 1, § 5
guarantees an absolute right to publish and broadcast accurate, lawfully obtained
information that is a matter of public record by virtue of having been admitted into
evidence and presented in open court.” Coe, 101 Wn.2d at 378 (emphasis
added). In stressing that this right is absolute, the court declined to balance the
defendant’s right to a fair trial against the broadcaster’s right to free
speech. Coe, 101 Wn.2d at 381. The court stated that “such balancing is not
appropriate . . . because the right of the press to broadcast accurate, lawfully
obtained copies of tapes previously played in open court is absolute.” Coe, 101
Wn.2d at 381.
The protection afforded by article I, section 5 is not limited to information
that becomes a matter of public record solely by being admitted into evidence
and presented in open court. When information enters the public record—
regardless of how that occurs—the public generally has access to that
information pursuant to the Public Records Act, chapter 42.56 RCW. It is true
that an individual’s right to privacy may sometimes prevent the initial disclosure
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of certain types of information. 3 However, an individual’s right to privacy cannot
prevent the publication of information that has previously been lawfully disclosed.
Indeed, in discussing public records that were lawfully subject to disclosure, our
Supreme Court has stated that “an individual has no constitutional privacy
interest in a public record.” Nissen v. Pierce County, 183 Wn.2d 863, 883, 357
P.3d 45 (2015). Therefore, article I, section 5 guarantees an individual’s right to
publish accurate, lawfully obtained public records.
C
Here, Teel initiated public records requests concerning Catlett and Martin
and, as a result, MuckRock received the records and published them on its
website. These public records contained numerous police reports and court
documents, including (1) reports detailing Catlett’s behavior that led to her arrest
for harassment and domestic assault, (2) a restraining order against Catlett, (3)
an incident report stating that Catlett should be evaluated by a mental health
professional, (4) an incident report stating that Catlett and Martin were
romantically involved and that Martin harassed her, and (5) court documents
regarding Martin’s fraud conviction.
Because the public records that Teel caused to be published are all police
reports and court records, Teel’s actions enjoy protection under the First
Amendment. See Florida Star, 491 U.S. at 541 (holding that the publication of
3 See RCW 42.56.050 (“A person’s ‘right to privacy[]’ . . . is invaded or violated only if
disclosure of information about the person: (1) Would be highly offensive to a reasonable person,
and (2) is not of legitimate concern to the public.”); see, e.g., Wash. Pub. Emps. Ass’n v. Wash.
State Ctr. for Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 505-09, 450 P.3d 601 (2019)
(applying a rational basis test to several agencies’ disclosure of state employees’ names and
birthdates pursuant to a public records request).
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No. 80059-1-I/13
publicly-available police reports is subject to strict scrutiny under the First
Amendment); Cox Broad. Corp., 420 U.S. at 495 (holding that the First
Amendment “command[s] nothing less than that the States may not impose
sanctions on the publication of truthful information contained in official court
records open to public inspection”). To be valid under the First Amendment,
then, the protection order must be “narrowly tailored to a state interest of the
highest order.” Florida Star, 491 U.S. at 541.
Although we have stated generally that “[p]rotecting citizens from
harassment is a compelling state interest,” State v. Noah, 103 Wn. App. 29, 41, 9
P.3d 858 (2000), the question presented to us is whether the specific protection
order entered against Teel is narrowly tailored to further a compelling state
interest. It is not.
In Florida Star, the Supreme Court suggested that an individual’s privacy
interest might allow the government to restrict the publication of truthful
information. 491 U.S. at 541. As explained above, however, an individual does
not have a privacy interest in public records that are lawfully subject to disclosure
pursuant to Washington law. Because Catlett does not dispute that the
contested public records were lawfully disclosed to Teel, she has no claim to a
privacy interest in these records that would preclude Teel from publishing them. 4
4 Even if the government had unlawfully disclosed the contested public records to Teel—
which it did not—Teel’s right to publish these records might still be protected under the First
Amendment. Indeed, “where the government has made certain information publicly available, it is
highly anomalous to sanction persons other than the source of its release.” Florida Star, 491 U.S.
at 535. In such a circumstance, “it is most appropriate to assume that the government had, but
failed to utilize, far more limited means of guarding against dissemination than the extreme step
of punishing truthful speech.” Florida Star, 491 U.S. at 538.
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No. 80059-1-I/14
Indeed, the protection order entered herein infringes on the state interest
advanced by the Public Records Act. The Public Records Act states that “the
policy of this chapter [is] that free and open examination of public records is in
the public interest, even though such examination may cause inconvenience or
embarrassment to public officials or others.” RCW 42.59.550(3). Undoubtedly,
the publication of public records that are already subject to disclosure
encourages the free and open examination of such records by making them even
more accessible to the public. Thus, by restricting Teel from publishing public
records, the protection order is directly at odds with the policy of the Public
Records Act. The protection order is not narrowly tailored to further a compelling
state interest. Therefore, it is violative of the First Amendment.
Teel’s actions in causing public records to be published is also protected
under the Washington Constitution. As explained above, article I, section 5
guarantees an individual’s right to publish accurate, lawfully obtained information
that is a matter of public record. Although an individual’s right to privacy may
prevent the disclosure of certain information pursuant to a public records request,
the disclosure of public records is not here at issue. Rather, at issue is the
publication of previously disclosed public records. Accordingly, the protection
order violates Teel’s right to speak freely under article I, section 5 of the
Washington Constitution.
Catlett advances two arguments as to why Teel’s speech is not protected
under the state or federal constitutions. First, Catlett asserts, Teel’s actions in
causing public records to be published did not constitute constitutionally
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No. 80059-1-I/15
protected speech because it harassed her. However, “‘[t]here is no categorical
“harassment exception” to the First Amendment’s free speech
clause.’” Rodriguez v. Maricopa County Cmty. Coll. Dist., 605 F.3d 703, 708 (9th
Cir. 2010) (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir.
2001)). In fact, we have previously struck down a section of an unconstitutionally
overbroad statute defining the crime of harassment, which criminalized various
forms of conduct wherein the actor had the intent to harass. City of Everett v.
Moore, 37 Wn. App. 862, 867, 683 P.2d 617 (1984). In doing so, we reasoned
that this section of the statute “d[id] not have the ‘precision of regulation’ required
by the First Amendment.” Moore, 37 Wn. App. at 866 (quoting Nat’l Ass’n for
Advancement of Colored People v. Button, 371 U.S. 415, 438, 83 S. Ct. 328, 9 L.
Ed. 2d 405 (1963)). In any event, the Public Records Act encourages the “free
and open examination of public records . . . even though such examination may
cause inconvenience or embarrassment to public officials or others.” RCW
42.59.550(3). Therefore, speech that harasses does not lose its constitutional
protection by virtue of that fact alone.
Second, Catlett asserts that Teel’s actions in causing the identified public
records to be published is not constitutionally protected speech because it
constitutes libel. Again, Catlett is wrong. “Washington no longer distinguishes
between libel and slander, such that Washington law recognizes a cause of
action only for defamation.” Life Designs Ranch, Inc. v. Sommer, 191 Wn. App.
320, 341, 364 P.3d 129 (2015). Further, the First Amendment generally permits
states to “define for themselves the appropriate standard of liability for a
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No. 80059-1-I/16
publisher . . . of defamatory falsehood injurious to a private individual.” Gertz v.
Robert Welch, Inc., 418 U.S. 323, 347, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).
In Washington, the four elements of defamation are falsity, an unprivileged
communication, fault, and damage. Herron v. KING Broad. Co., 112 Wn.2d 762,
768, 776 P.2d 98 (1989).
Catlett does not contend that the information contained in the identified
public records was false. Instead, she asserts that, because documents
regarding Martin’s criminal proceedings were imbedded in Internet hyperlinks to
records concerning her, an individual visiting these hyperlinks might believe that
Catlett was involved in Martin’s criminal behavior. However, in determining
whether a statement is defamatory, we are “bound to invest words with their
natural and obvious meaning, and may not extend language by innuendo or by
the conclusions of the pleader.” Sims v. Kiro, Inc., 20 Wn. App. 229, 234, 580
P.2d 642 (1978). Thus, “[t]he defamatory character of the language used must
be certain and apparent from the words themselves.” Sims, 20 Wn. App. at 234.
Because Catlett does not contest the veracity of any of the individual public
records, Teel’s actions in causing them to be published does not constitute libel.
In sum, Teel’s actions in causing public records to be published is exempt
from the definition of a “course of conduct” because the actions constitute
“constitutionally protected free speech.” RCW 10.14.020(1). Accordingly, the
protection order is invalid under chapter 10.14 RCW.
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IV
Teel and amici assert that the protection order also imposes an
unconstitutional content-based restriction on Teel’s speech. We agree.
Under the First Amendment, “government has no power to restrict
expression because of its message, its ideas, its subject matter, or its
content.” Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 95, 92 S. Ct.
2286, 33 L. Ed. 2d 212 (1972). Likewise, article I, section 5 protects against
content-based restrictions on speech. Bering v. SHARE, 106 Wn.2d 212, 244-
45, 721 P.2d 918 (1986).
“Government regulation of speech is content based if a law applies to
particular speech because of the topic discussed or the idea or message
expressed.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163, 135 S. Ct. 2218,
192 L. Ed. 2d 236 (2015). Further, “[c]ontent-based restrictions on speech are
presumptively unconstitutional and are thus subject to strict scrutiny.” Collier v.
City of Tacoma, 121 Wn.2d 737, 748-49, 854 P.2d 1046 (1993) (citing City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S. Ct. 925, 89 L. Ed.
2d 29 (1986)); see also Bering, 106 Wn.2d at 244-45 (applying a strict scrutiny
analysis to a content-based restriction challenged under article I, section 5).
The protection order entered against Teel imposes an unconstitutional
content-based restriction on his speech. By design, protection orders entered
pursuant to chapter 10.14 RCW prohibit conduct that is logically connected to the
conduct that serves as the basis for the order. See RCW 10.14.080(3) (“[I]f the
court finds . . . that unlawful harassment exists, a civil antiharassment protection
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No. 80059-1-I/18
order shall issue prohibiting such unlawful harassment.”). Because the
protection order was based solely on Teel’s actions in causing public records
about Catlett and Martin to be published, it prohibits Teel from publishing public
records about Catlett—and to some extent Martin—in the future. 5 In other words,
the protection order imposes a content-based restriction by preventing Teel from
publishing public records on certain topics—namely, those concerning Catlett
and Martin.
This content-based restriction is not narrowly tailored to promote a
compelling governmental interest. As explained above, Catlett has no privacy
interest in the identified public records and the protection order conflicts with the
state interest promoted by the Public Records Act. Moreover, the protection
order inflicts a chilling effect on Teel’s protected speech—a key evil sought to be
avoided by the adopters of the First Amendment. That this is so is illustrated by
the decision in Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 244, 94 S. Ct.
2831, 41 L. Ed. 2d 730 (1974), in which the Supreme Court struck down a statute
that required newspapers to provide equal print space for a political candidate’s
response whenever a newspaper published material critical of a candidate. This
was necessary, the Court explained, because when “[f]aced with the penalties
that would accrue . . . [for] news or commentary arguably within the reach of
the . . . statute, editors might well conclude that the safe course is to avoid
controversy.” Tornillo, 418 U.S. at 257. Similarly, the risk of being subject to the
5 Pursuant to the protection order, Teel may be able to publish some public records
concerning Martin. But if publishing any public records about Martin would also imbed those
records in Internet hyperlinks with records about Catlett, the protection order would then prohibit
Teel from doing so.
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No. 80059-1-I/19
penalties of violating the protection order could coerce Teel to follow the safe
course and avoid publishing certain public records—a constitutionally protected
activity—because such action could lead to government-imposed penalties.
For these reasons, the protection order imposes an unconstitutional
content-based restriction on Teel’s speech in violation of the First Amendment
and article I, section 5.
V
Teel and amici additionally contend that the protection order imposes an
unconstitutional prior restraint on Teel’s future protected speech. We agree.
Because the protection order prohibits Teel from publishing public records
about Catlett and Martin in the future, it imposes a prior restraint. See Bradburn
v. N. Cent. Reg’l Library Dist., 168 Wn.2d 789, 802, 231 P.3d 166 (2010) (“A
prior restraint is an official restriction imposed on speech or another form of
expression in advance of its occurrence.”). Moreover, this prior restraint is plainly
unconstitutional under article I, section 5. “[U]nlike the First Amendment, article I,
section 5 categorically prohibits prior restraints on constitutionally protected
speech.” Bradburn, 168 Wn.2d at 801. Because the publishing of accurate and
lawfully obtained public records is constitutionally protected speech, the prior
restraint imposed by the protection order violates the Washington Constitution.
This prior restraint on Teel’s speech also violates the United States
Constitution. To be valid under the First Amendment, a prior restraint “first, must
fit within one of the narrowly defined exceptions to the prohibition against prior
restraints, and, second, must have been accomplished with procedural
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safeguards that reduce the danger of suppressing constitutionally protected
speech.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S. Ct. 1239, 43
L. Ed. 2d 448 (1975). The exceptional cases permitting prior restraints include
prohibitions against obscenity, incitements to violence, and restrictions during
times of war. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S. Ct. 625,
75 L. Ed. 1357 (1931). No recognized exception applies here.
Accordingly, the protection order imposes an unconstitutional prior
restraint on Teel’s speech.
VI
Catlett requests an award of attorney fees on appeal pursuant to RAP
18.9(a) and RCW 10.14.090(2). We decline Catlett’s request. Moreover,
because the protection order was entered in error, the award of attorney fees to
Catlett in the superior court must be vacated.
Reversed and remanded for further proceedings consistent with this
opinion.
We concur:
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