Appeals court says First Amendment shields reporting drawn from a sealed arrest report

The California Court of Appeal, First Appellate District, ruled Tuesday, Sept. 29, that the First Amendment protects an independent journalist’s reporting on a sealed arrest after San Francisco police released the investigative report without restriction, affirming the dismissal of a lawsuit brought by Maury Blackman against journalist Jack Poulson, Substack, Inc. and Tech Inquiry, Inc.

According to the opinion, Blackman was arrested in December 2021 when he was the CEO of Premise Data, a private company; no charges were pursued, and the San Francisco Superior Court sealed the arrest and related records on Feb. 15, 2022. The court said the San Francisco Police Department publicly released the investigative police report to a third party without restriction, and an anonymous source later sent that report to Poulson, who wrote about the arrest in his newsletter, All-Source Intelligence, which he publishes through Substack.

The trial court granted the defendants’ special motions to strike Blackman’s 15-count complaint under the anti-SLAPP statute, concluding his claims were barred by the First Amendment and the federal Communications Decency Act. The appeals court affirmed that order and a related order granting the defendants attorney fees.

The court found that Premise Data’s work for the United States government was a matter of public interest and that Blackman’s arrest was as well, pointing to federal regulations under which allegations of criminal conduct can be considered in granting and retaining security clearance, regardless of whether a person was formally charged.

“From these authorities, we conclude that speech can implicate an issue of public interest even though statutory protections exist to keep that information confidential,” the court wrote. It added that “although the state interest in protecting Blackman’s privacy interests is significant, it does not survive strict scrutiny.”

Penal Code sections 851.91 and 851.92 provide for sealing arrest records in certain situations when an arrest did not result in a conviction, and the latter prohibits dissemination of sealed documents, the court noted. Presiding Justice Brown wrote the opinion, joined by Justice Chou and Judge Sweet of the Marin County Superior Court, sitting by assignment; the opinion was certified for publication.

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