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The case is Catlett v. Teel, a precedential decision handed down today by the Washington Court of Appeals (written by Justice Stephen Dwyer, joined by Judge John Chun and Chief Judge David Mann). The Pennsylvania Center for the First Amendment and I filed an amicus brief in this case—many thanks to our superb local counsel, Hyland Hunt; to my students Tanner Laiche, Rachel Levin, and Caleb Mathena, who worked on the brief; and to Scott & Cyan Banister for their generous support of our First Amendment Amicus Brief Clinic.

From the court’s opinion:

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….

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 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.

Teel used MuckRock to submit [various] public record requests about Catlett, and also one “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.” The request about Martin produced some information that also mentioned Catlett: “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.” The posted “court documents regarding Martin’s conviction for fraud were imbedded in Internet hyperlinks that contained records about Catlett.”

Catlett [eventually] filed a petition for a protection order. In the petition, Catlett asserted that Teel had been stalking and harassing her. [Details of other, limited interactions between Teel and Catlett omitted, because the harassment order wasn’t based on them. -EV] … [T]he 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 [and entered a protection order as a result]. Additionally, the superior court awarded attorney fees to Catlett….

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 antiharassment protection order shall issue prohibiting such unlawful harassment.”

“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.” Thus, “unlawful harassment” requires a finding of a “course of conduct.” …

[T]he 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….

The Court of Appeals held that the order was unjustified:

The [U.S.] Supreme Court has explained that the publication of public records is protected speech under the First Amendment…. [T]he Washington Constitution provides [even] broader protection than does the First Amendment to the publication of public records…. “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.” …

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. It is true that an individual’s right to privacy may sometimes prevent the initial disclosure of certain types of information. However, an individual’s right to privacy cannot prevent the publication of information that has previously been lawfully disclosed….

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.  To be valid under the First Amendment, then, the protection order must be “narrowly tailored to a state interest of the highest order.” Although we have stated generally that “[p]rotecting citizens from harassment is a compelling state interest,” 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…. [A]n individual does not have a privacy interest in public records that are lawfully subject to disclosure pursuant to Washington law….

{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 v. B.J.F. (1989). 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.”}

Indeed, … [t]he 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.” 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 [and of the Washington Constitution]….

Catlett asserts[ that] Teel’s actions in causing public records to be published did not constitute constitutionally protected speech because it harassed her. However, “‘[t]here is no categorical “harassment exception” to the First Amendment’s free speech clause.'” … [S]peech that harasses does not lose its constitutional protection by virtue of that fact alone….

Catlett [also] asserts that Teel’s actions in causing the identified public records to be published is not constitutionally protected speech because it constitutes libel…. 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.” … 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.

The court also held that the protection order implicitly restricted future similar speech by Teel, and therefore “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. RCW 10.14.080(3) (“[I]f the court finds … that unlawful harassment exists, a civil antiharassment protection 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 [to the extent they mention Catlett]—in the future. 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 [for reasons largely mirroring those given above -EV] ….

And the court held it was an unconstitutional prior restraint:

[T]his prior restraint is plainly unconstitutional under article I, section 5 [of the Washington Constitution]. “[U]nlike the First Amendment, article I, section 5 categorically prohibits prior restraints on constitutionally protected speech.” …

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 safeguards that reduce the danger of suppressing constitutionally protected speech.” The exceptional cases permitting prior restraints include prohibitions against obscenity, incitements to violence, and restrictions during times of war. Near v. Minnesota (1931). No recognized exception applies here.

Sounds quite right to me.

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Since the beginning of the pandemic, businesses able to shift their employees to remote work have done so with varying degrees of eagerness. Telecommuting became a lifeline for operations that were resistant to work-from-anywhere arrangements in the past but found them to be the only way to continue operating amidst lockdown orders and public fear of infection. But will the changes stick for the long term? Or will workplaces revert to their pre-pandemic forms?

It’s looking more and more like there’s no reason for some of us to change out of pajamas; the evidence suggests that remote work has been a boon for many people and is here to stay. That has big implications for expanding people’s choices about where they live and why. But it may also widen the divide between those can work where they live and those who must live where they work.

“More than 20 percent of the workforce could work remotely three to five days a week as effectively as they could if working from an office,” the U.S.-based consulting firm McKinsey & Company reported in November of an analysis of the workforces in nine countries (China, France, Germany, India, Japan, Mexico, Spain, the United Kingdom, and the United States). “If remote work took hold at that level, that would mean three to four times as many people working from home than before the pandemic and would have a profound impact on urban economies, transportation, and consumer spending, among other things.”

Researchers at the University of Chicago’s Becker Friedman Institute (BFI) agree that remote work has gained a larger permanent presence in our lives.

“Our survey evidence says that 22 percent of all full work days will be supplied from home after the pandemic ends, compared with just 5 percent before,” Jose Maria Barrero, Nicholas Bloom, and Steven J. Davis report in a working paper based on data drawn from 15,000 Americans.

Part of the stickiness of remote work arrangements may be that their time has come. The technological capability has existed for many years for desk-based jobs to be performed from anywhere, yet managers were often hesitant about allowing employees out of their sight. COVID-19 overcame that hurdle for many businesses.

“The pandemic has helped workers and organizations overcome inertia related to the costs of experimentation, as well as inertia stemming from biased expectations about working from home,” BFI notes.

Importantly, too, the experience has proven positive for workers and employees alike.

“One striking finding is how greatly workers benefit from these arrangements,” Harvard Business Administration Professor Prithwiraj (Raj) Choudhury wrote last month in Harvard Business Review. “Many told me that they regard the freedom to live anywhere in the world as an important plus. For those in dual-career situations, it eases the pain of looking for two jobs in a single location.”

“My research also uncovered ample organizational benefits from [work from anywhere] programs. For example, they increase employee engagement—an important metric of success for any company,” Choudhury added. He also cited increased productivity among workers and reduced real estate costs for employers who no longer needed big workplaces as major pluses.

“Many workers report being more productive at home than on business premises, so post-pandemic work from home plans offer the potential to raise productivity as much as 2.4 percent,” agree BFI researchers.

Like the others, McKinsey emphasizes that “companies will need less office space, and several are already planning to reduce real estate expenses.” The company’s report points to outdoor retailer REI’s sale of its new corporate campus in favor of a distributed model for office staff.

That suggests that the normalization of remote work offers the prospect of lower costs and increased productivity. Those are attractive prospects at any time, and even more so as people struggle to recover from pandemic-and lockdown-caused economic doldrums.

All of the researchers looking at the growth of remote work suggest that some of the result will be “hybrid” arrangements with people working at home some days and in the office others. But reduced commercial real estate commitments, improved efficiency, and happier workers telecommuting from where they please are expected to have a big enough impact to change the nature of many cities.

“The impact of that will reverberate through the restaurants and bars, shops, and services businesses that cater to office workers and will put a dent in some state and local tax revenues,” McKinsey suggests.

“We estimate that the post-pandemic shift to working from home (relative to the pre-pandemic situation) will lower post-COVID worker expenditures on meals, entertainment, and shopping in central business districts by 5 to 10 percent of taxable sales,” BFI agrees.

Population already appears to be shifting in response to increased acceptance of remote work. New York City and San Francisco, in particular, are losing people to smaller cities, suburbs, and exurbs  as many Americans follow their preferences to less dense, lower-cost communities.

That may also mean an even bigger hit for the service-sector types who are among the part of the workforce for whom remote work isn’t an option. Already slammed by lockdown orders that sidelined them while white collar workers shifted their commutes from the highway to the hallway, waiters, delivery people, factory employees, dentists, shop owners, and others who must be physically present to do their jobs won’t benefit from the growth of telework and may suffer from the loss of business.

Some of those workers will follow customers to new locales as old business districts become less important. Others, however, will have harder adjustments. It would be wonderful if expanded choices became evenly available to everybody at the same time, but that’s not the way the world works.

For those who do benefit from increased acceptance of remote work, life should become a bit easier. People will enjoy increased opportunities to live where they want while working jobs that appeal to them. Couples won’t have to prioritize one partner’s employment over another’s. Able to do our jobs from where we please, life for many of us will, happily, reflect a bit more of what we want rather than what we have to do to get by.

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President-elect Joe Biden has selected a California big-government authoritarian nanny state fan to run the Department of Health and Human Services, a warning sign for anybody who wishes to manage his own medical affairs and life choices.

On Sunday, multiple outlets reported that California Attorney General Xavier Becerra was being tapped to lead the agency. The Washington Post diplomatically described Becerra as an “unorthodox” choice. He was a member of Congress before becoming attorney general. He does not have a background in health management. He has degrees in economics and law.

Becerra, though, does have a lengthy history of believing that the power of government is the solution to all that ails you, whether you like it or not. He’s a big believer in “Medicare for All,” a complete government takeover of medical coverage via single-payer health care. Biden differentiated himself from other presidential candidates by resisting the call to nationalize health insurance. Becerra’s nomination will most likely give fuel to anybody arguing that the Democratic Party is being pulled leftward, but he has said that he would support preserving and bolstering the Affordable Care Act, which is Biden’s plan.

Becerra is probably best known to anybody outside of California for the state’s many, many lawsuits against President Donald Trump’s administration—more than 100 of them—for everything from changes in policy on immigration, to environmental issues, to, yes, the administration’s attacks on the Affordable Care Act.

Certainly, a number of those lawsuits are about protecting the rights of people in California, but others were actually to stop the Trump administration from deregulating and reducing the power and scope of the federal government. Becerra fought to protect net neutrality rules that were overturned by the Federal Communications Commission. He fought the State Department when it loosened rules to allow for 3D-printed guns.

His record within the state of California shows that Becerra is very happy to use the nanny state power of government to control what you do with your body and property. In November, his office filed a brief in support of a California bill banning the sales of flavored tobacco. Even though California has legalized marijuana farming and consumption, his office still brags about crackdowns on illegal grow operations against those who try to bypass the state’s extremely oppressive and expensive regulations. He supported and fought to force companies like Uber and Lyft to classify their freelance drivers as employees, even against the workers’ own desires, and even if it resulted in the loss of thousands of jobs. He was thwarted by the passage of Proposition 22 by voters in November. And he shares his predecessor Kamala Harris’s fondness of conflating prostitution busts with fighting alleged nonconsensual “sex trafficking.“

But one of Becerra’s dumbest brags provides the best insight into how he might run America’s largest health agency. In 2017, Becerra’s office won a $300,000 legal settlement from Gatorade because of a mobile game that he argued slandered the good name of water. Gatorade had distributed a free mobile game featuring sprinter Usain Bolt. As part of the game, players were encouraged to run through Gatorade logos and avoid patches of water. Becerra actually accused the company of engaging in “false advertising” and trying to convince impressionable children and teens that water is bad for them. This is how stupid Becerra thinks people are.

It seems like such a little and petty thing, and it is. That’s the problem. It is an indication of a person who has very little respect for people’s individual health choices, other than for abortion. He’s very pro-choice and his office has consistently taken legal actions to defend abortion access, even supporting challenges against anti-abortion regulations in other states. Beyond abortion, though, Becerra’s record is one with very little respect for individual life choices when government nannies think they know better. And worse, he sees the courts as a proper mechanism for controlling those choices with arrests or fines and penalties.

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A federal judge in Michigan today rejected former Trump attorney Sidney Powell’s attempt to decertify that state’s presidential election results, finding that her claims failed in almost every possible way. “This lawsuit seems to be less about achieving the relief Plaintiffs seek—as much of that relief is beyond the power of this Court—and more about the impact of their allegations on People’s faith in the democratic process and their trust in our government,” U.S. District Judge Linda V. Parker writes in her 36-page opinion. “Plaintiffs ask this Court to ignore the orderly statutory scheme established to challenge elections and to ignore the will of millions of voters. This, the Court cannot, and will not, do.”

Powell alleged “a massive election fraud” aimed at “illegally and fraudulently manipulating the vote count to manufacture an election of Joe Biden as President of the United States.” This scheme purportedly included “the unlawful counting, or manufacturing, of hundreds of thousands of illegal, ineligible, duplicate or purely fictitious ballots in the State of Michigan,” representing “a multiple of Biden’s purported lead in the State.”

The Michigan lawsuit was part of what Powell had described as a “Kraken” of overwhelming evidence that, once released, would lay waste to any remaining skepticism about the president’s claim that he actually won the election. Parker was not exactly awestruck at the sight of Powell’s hideous creature, which upon close examination she found to be composed of “nothing but speculation and conjecture.”

Powell claims that election machines in Michigan (and around the country) were rigged to give Biden a lead. But “the closest Plaintiffs get to alleging that election machines and software changed votes for President Trump to Vice President Biden in Wayne County,” Parker says, “is an amalgamation of theories, conjecture, and speculation that such alterations were possible.”

Powell maintains that Democrats resorted to paper ballot fraud after their original, machine-based scheme failed to work as anticipated. Yet “the closest Plaintiffs get to alleging that physical ballots were altered” to favor Biden, Parker says, “is the following statement in an election challenger’s sworn affidavit: ‘I believe some of these workers were changing votes that had been cast for Donald Trump and other Republican candidates.’ But of course, ‘[a] belief is not evidence’ and falls far short of what is required to obtain any relief, much less the extraordinary relief Plaintiffs request.”

What about Powell’s reiteration of the complaint that Detroit election workers treated Republican poll challengers rudely and inappropriately? “Plaintiffs do not at
all explain how the question of whether the treatment of election challengers
complied with state law bears on the validity of votes, or otherwise establishes an
equal protection claim,” Parker writes.

In addition to highlighting the paucity of Powell’s evidence, Parker concludes that her claims are barred by the 11th Amendment, which generally keeps federal courts from getting involved when citizens sue states. Deference to state courts would be appropriate in any event, she says, because when Powell filed her complaint “there already were multiple lawsuits pending in Michigan state courts raising the same or similar claims.”

Parker also ruled that the six presidential elector nominees who were listed as plaintiffs did not have standing to sue for alleged violations of the constitutional provisions governing federal elections. Neither did they have standing as voters to pursue their equal protection claims, Parker says, because the injury they asserted (dilution of their votes) would not be addressed by the remedy they sought (tossing out millions of other people’s votes).

Even if the plaintiffs had standing, Parker says, their lawsuit would be moot because Powell did not file it until November 25, after Michigan had certified its election results and submitted its slate of presidential electors. “Plaintiffs did not avail themselves of the remedies established by the Michigan legislature,” Parker writes. “The deadline for them to do so has passed. Any avenue for this Court to provide meaningful relief has been foreclosed.”

Powell’s tardiness also figures in Parker’s determination that the lawsuit is barred by the doctrine of laches, which applies when a defendant is harmed by a plaintiff’s unreasonable delay in pursuing a claim. Parker’s criticism of Powell on that score is withering:

Plaintiffs showed no diligence in asserting the claims at bar….If Plaintiffs had legitimate claims regarding whether the treatment of election challengers complied with state law, they could have brought their claims well in advance of or on Election Day—but they did not….If Plaintiffs had legitimate claims regarding the manner by which ballots were processed and tabulated on or after Election Day, they could have brought the instant action on Election Day or during the weeks of canvassing that followed—yet they did not….If Plaintiffs had legitimate concerns about the election machines and software, they could have filed this lawsuit well before the 2020 General Election—yet they sat back and did nothing….Plaintiffs could have lodged their constitutional challenges much sooner than they did, and certainly not three weeks after Election Day and one week after certification of almost three million votes [for Biden].

According to Parker’s ruling, in short, Powell filed the wrong claims in the wrong court on behalf of the wrong plaintiffs at the wrong time. Even if she had not erred in all of those ways, her evidence of election fraud was too meager to provide the basis for the injunction she sought. Still, it’s fair to say that Powell’s Kraken is just as formidable as ever.

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In September, Louisiana’s Jefferson Parish Public Schools suspended a 4th grader—Ka’Mauri Harrison—for six days because he allowed a BB gun to briefly appear on his screen during virtual Zoom school. On Friday, the school board declined to remove the suspension from his permanent record, according to local news.

They did change the six-day suspension to a three-day suspension plus three unexcused absences, which was entirely unacceptable to Harrison’s father, who stormed out at the end of the lengthy meeting:

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