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Free Speech

Journalist's Publishing Information About Sealed Arrest Protected by First Amendment

Tech CEO who sued over the publication had to pay about $400K in defendants' attorney fees as a result of the trial court's throwing out the lawsuit, and the Court of Appeal just affirmed the dcision.

Eugene Volokh | 9.30.2026 12:50 PM

From yesterday's Blackman v. Substack, Inc., by California Court of Appeal Justices Tracie Brown and Danny Chou and Marin County Judge Andrew Sweet:

"'[I]f 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.'" (The Florida Star v. B.J.F. (1989).) …

Penal Code sections 851.91 and 851.92 provide for the sealing of arrest records in certain situations when the arrest did not result in a conviction, and the latter statute prohibits dissemination of sealed documents. Plaintiff Maury Blackman's 2021 arrest was sealed pursuant to these statutes, but the San Francisco Police Department (SFPD) publicly released the investigative police report for the arrest to a third party without restriction, and an anonymous source subsequently sent that report to defendant Jack Poulson. Poulson wrote about Blackman's arrest online, and Blackman sued Poulson and the entities that provided online platforms for Poulson's postings.

The Court of Appeal held that Poulson's posts were constitutionally protected:

First, the evidence in this case establishes that Poulson lawfully obtained the incident report. Blackman contends that The Florida Star and Bartnicki v. Vopper (2001) are distinguishable because those cases did not involve a law that criminalized the receipt of the information at issue, whereas Penal Code sections 11134 or 13304 and Labor Code section 432.7, subdivision (g)(3) allegedly criminalize the knowingly unauthorized receipt and possession of the incident report in certain circumstances. It is undisputed, however, that Poulson did not know that the incident report was sealed when he received it. And, in any event, we agree with the trial court that Poulson was exempt from any illegality created pursuant to these statutes. (See Pen. Code, §§........

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