Sometimes the First Amendment guarantees access to public records (generally limited to court records). Often Freedom of Information Acts and Public Records Acts are seen as fulfilling broader First Amendment values, by facilitating speech about how the government operates. But in Thursdays Roe v. Anderson (W.D. Wash. Oct. 23, 2014), a federal district judge relied on the First Amendment to block a state public records request.
Washington law requires erotic dancers to get licenses, and the Washington Public Records Act apparently mandates the release of licenses generally, including these licenses. But the dancers, the district judge held, have raised serious questions regarding whether this violates their First Amendment rights, because revealing their names and other personal information can expose them to harassment and threats to their physical safety. (Compare Doe v. Reed (2010), which applied First Amendment scrutiny to disclosure of the names of petition signers, though held that, given the government interests supporting such disclosure, the disclosure was indeed constitutional.) According to the Steve Maynard (Tacoma News Tribune), the man who requested the names said he was curious and he wants to pray for the strippers. I would pray for those dancers by name, David Van Vleet said after the hearing. Im a Christian. We have a right to pray for people.
I should note that this case might be relied on by analogy in Second Amendment cases, in situations where people try to use public records laws to get the names of registered gun owners, or of registered holders of gun carry licenses. (The Supreme Court said, in D.C. v. Heller (2008), that there is no constitutional right to concealed carry, but some courts the Seventh and Ninth Circuit and the Illinois Supreme Court have held that there is a constitutional right to some form of carry, and in some states a license is required for any sort of carrying.) Its always uncertain, of course, how much courts will accept such analogies.
In any event, here are some excerpts from the opinion:
I. FINDINGS OF FACT
10. Under PCC 5.14.100 and 5.14.110, managers and dancers at an erotic dance studio are required to apply for and maintain managers and dancers licenses that are issued by the Auditor. Under PCC 5.14.080 and 5.14.090, these licenses expire and are renewed on an annual basis.
11. Dancers at Dreamgirls at Foxs identify themselves to patrons by a pseudonym commonly known as a stage name. The purpose of the stage name is to maintain the dancers privacy and to protect them from stalking, harassment, discrimination, public embarrassment, and violence when they are outside the club.
15. Defendants Anderson and Pierce County are subject to the requirements of the Washington Public Records Act, (hereinafter PRA) .
16. The manager and dancer licenses issued and maintained by Defendant Anderson are public records as defined RCW 42.17.020, subsections (36) and (42).
17. Agencies such as the Auditors Office and Defendant Pierce County are required by the PRA to disclose public records upon request to anyone making the request and disclosure of the records is mandatory. The only public records protected from disclosure are those specifically mentioned in a statutory exemption.
Read the rest here:
Volokh Conspiracy: First Amendment vs. freedom of information law