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Dahlstrom v. Sun-Times Media, LLC

United States Court of Appeals, Seventh Circuit

February 6, 2015

SUN-TIMES MEDIA, LLC, Defendant-Appellant

Argued November 14, 2014.

Page 938

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:12-cv-00658 -- Harry D. Leinenweber, Judge.

For Hugh Gallagly, Scott Dahlstrom, Peter Kelly, Robert Shea, Emmet Welch, Plaintiffs - Appellees: Ronald C. Dahms III, Attorney, Law Offices of Ronald C. Dahms, Chicago, IL; Sean C. Starr, Law Offices of Sean C. Starr, Chicago, IL.

For Sun-Times Media, LLC, Defendant - Appellant: Damon E. Dunn, Seth Aaron Stern, Attorney, Funkhouser Vegosen Liebman & Dunn, Chicago, IL.

For United States of America, Intervenor - Appellee: Daniel Tenny, Attorney, Department of Justice, Civil Division, Appellate Staff, Washington, DC.

For Better Government Association, Chicago Tribune Company, Hoosier State Press Association Foundation, Gannett Company, Incorporated, Illinois Press Association, Amisi Curiae: Natalie Spears, Attorney, Dentons U.S. Llp, Chicago, IL.

Before BAUER, FLAUM, and TINDER, Circuit Judges.


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Flaum, Circuit Judge.

The Driver's Privacy Protection Act (" DPPA" ), 18 U.S.C. § 2721 et seq., prohibits individuals from knowingly obtaining or disclosing " personal information" from a motor vehicle record. In this interlocutory appeal, five Chicago police officers brought suit against Sun-Times Media, alleging that the publishing company violated the DPPA by obtaining each officer's birth date, height, weight, hair color, and eye color from the Illinois Secretary of State's motor vehicle records, and publishing that information in a newspaper article that criticized a homicide investigation lineup in which the officers participated. Sun-Times moved to dismiss the officers' complaint, arguing that the published information does not constitute " personal information" within the meaning of the DPPA, or, in the alternative, that the statute's prohibition on acquiring and disclosing personal information from driving records violates the First Amendment's guarantees of free speech and freedom of the press.

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As to the question of statutory interpretation, we conclude that the DPPA's definition of " personal information" extends to the details Sun-Times published here. With respect to the First Amendment challenge, we conclude that Sun-Times possesses no constitutional right either to obtain the officers' personal information from government records or to subsequently publish that unlawfully obtained information. We therefore affirm the district court's denial of Sun-Times's motion to dismiss.

I. Background

Twenty-one-year-old David Koschman died after an April 25, 2004 altercation with R.J. Vanecko, a nephew of Richard M. Daley, then-Mayor of Chicago. Given Vanecko's political connections, the subsequent Chicago Police Department investigation was highly publicized. Several weeks after the incident, the Department placed Vanecko in an eyewitness lineup, in which five Chicago police officers participated as " fillers." These officers--plaintiffs Scott Dahl-strom, Hugh Gallagly, Peter Kelly, Robert Shea, and Emmet Welch (" the Officers" )--closely resembled Vanecko in age, height, build, and complexion. When eyewitnesses failed to positively identify Vanecko as the perpetrator, the Department declined to charge him. The Department closed the Koschman investigation in March 2011.[1]

Suspicious that the Department may have manipulated the homicide investigation because of Vanecko's high-profile Chicago connections, defendant Sun-Times Media published a series of investigative reports criticizing the Department's handling of the case. One such report, a November 21, 2011 article featured in the Chicago Sun-Times (and on the newspaper's website), questioned the legitimacy of the Vanecko lineup. The article, " Daley Nephew Biggest Guy on Scene, But Not in Lineup," highlights the physical resemblance between Vanecko and the lineup " fillers" in an effort to demonstrate that the Officers resembled Vanecko too closely for the lineup to be reliable. To support this accusation, Sun-Times published photographs of the lineup, as well as the names of each of the five officer " fillers." Sun-Times obtained these names and photographs from the Chicago Police Department pursuant to a request under the Illinois Freedom of Information Act (" FOIA" ), 5 Ill. Comp. Stat. 140/1. However, the Sun-Times article featured not only the lineup photographs and the Officers' full names,[2] but also the months and years of their birth, their heights, weights, hair colors, and eye colors. Sun-Times credited the Chicago Police Department and the Illinois Secretary of State as

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sources. The Officers contend--and Sun-Times has not disputed--that Sun-Times knowingly obtained this additional identifying information from motor vehicle records maintained by the Secretary of State.

The Driver's Privacy Protection Act (" DPPA" ), 18 U.S.C. § 2721 et seq., enacted by Congress in 1994, states that, subject to certain limited exceptions not relevant here,[3] " [i]t shall be unlawful for any person knowingly to obtain or disclose personal information[] from a motor vehicle record." 18 U.S.C. § 2722(a). A separate provision of the Act specifically proscribes officers, employees, and contractors of state departments of motor vehicles from knowingly disclosing that same information. § 2721(a). The DPPA defines " personal information" as

information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status.

§ 2725(3). The DPPA provides a private right of action for any individual whose personal information has been obtained or disclosed in violation of the Act. § 2724(a).

The Officers sued Sun-Times in the United States District Court for the Northern District of Illinois, claiming that by acquiring and publishing each Officer's approximate birth date, height, weight, hair color, and eye color, Sun-Times violated their rights under § 2722(a). They seek a declaratory judgment that Sun-Times violated the DPPA, an injunction requiring Sun-Times to permanently remove their information from its publications, actual and statutory damages, and punitive damages. The Officers do not challenge Sun-Times's publication of their photographs or names, as they concede that Sun-Times lawfully obtained that information pursuant to its FOIA request.

Sun-Times moved to dismiss the Officers' complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Sun-Times contends that the published information does not fall within the DPPA's definition of " personal information," or, alternatively, that if the DPPA bars Sun-Times from publishing this truthful information of public concern, the statute violates the First Amendment's guarantees of freedom of speech and freedom

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of the press. Sun-Times also argues that the Officers' requested injunction, if issued, would amount to an unconstitutional prior restraint on speech.

In September 2012, the district court determined that the challenged information does fall within the scope of " personal information" under the DPPA, and that Sun-Times's acquisition and publication of the Officers' information therefore violated the Act. Because this conclusion required the court to reach Sun-Times's First Amendment challenge to an act of Congress, the court temporarily continued the motion in order to permit the United States to intervene to defend the constitutionality of the Act. After the government declined to participate, the district court ruled in November 2013 that the DPPA's prohibition on Sun-Times's obtainment and publication of the Officers' personal information does not violate the First Amendment. Although noting that the Officers had yet to demonstrate the necessity of an injunction against Sun-Times, the court also ruled that the requested injunction would not amount to an unconstitutional prior restraint.

Sun-Times then requested that the district court certify its orders for interlocutory appeal. Concluding that both the statutory interpretation issue and the constitutional challenge to the DPPA's prohibitions present " controlling question[s] of law as to which there is substantial ground for difference of opinion and that an immediate appeal ... may materially advance the ultimate termination of the litigation," the district court granted Sun-Times's motion pursuant to 28 U.S.C. § 1292(b) in April 2014.[4] We granted Sun-Times's petition for interlocutory appeal, and further granted the United States' motion to intervene to defend the ...

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