1st Amendment Allows Re-posting of Public Records

A federal judge has ruled that the First Amendment protects the right of Virginia privacy activist Betty Ostergren to publish the Social Security numbers of public officials on her website. She posted the numbers to protest the Virginia government's policy of posting public real estate records online that included people's Social Security numbers. The decision—and the associated publicity for Ostergren's website—may prompt Virginia politicians to hurry up and fix their own website.

For several years, Virginia has been making the real estate records available for a nominal fee from a commonwealth website. Ostergren, wanting to give public officials a taste of their own medicine, began reproducing the records of legislators and court clerks—Social Security numbers and all—on her website.

Bizarrely, the Virginia legislature reacted to public criticism of the Social Security fiasco in 2007 by mandating that all public real estate records be made available beginning in July 2008. It also mandated that clerks redact Social Security numbers within three years, but only if the legislature provided the funds required to do so—then failed to come up with the necessary funds. Instead, the legislature changed the law to prohibit private parties from distributing individuals' Social Security numbers even if they are simply reposting the very same records available from the government's own website. Ostergren viewed this last clause as censorship, and with the help of the Virginia ACLU, she sued to block its enforcement against her.

In his opinion, U.S. District Court Judge Robert E. Payne wrote that the the Supreme Court has consistently barred governments from limiting re-publication of information already placed into the public record by the government itself. For example, in a 1975 case, the high court held that a journalist could not be prohibited from reporting the name of a rape victim he had obtained via public court documents.