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Paul Trummel recently emerged from 111 days in jail where he was sent for what he wrote on his Web site. He had posted the names, addresses, phone numbers and Social Security numbers of his neighbors. Trummel, aged 67, is not your everyday First Amendment freedom fighter. He is a retired professor of journalism and a holder of a press card from the International Federation of Journalists. Until recently evicted, he had lived in a home for the elderly in Seattle, Wash. He didn’t get along with his landlord and neighbors. He published a newsletter detailing his complaints. He included private information, i.e., names and phone numbers. His neighbors went to court to stop his “harassment” and to evict him. The court agreed and enjoined him from going near them or talking to them. ( Trummel v. Mitchell) Undaunted, he posted the same material on his Web site. The court ordered him to take it off. He took it off but then created an off-shore site carrying the same material. Again he was ordered to remove the material. He refused. He went to jail where he stayed for 111 days until he finally removed the material. His stay in jail was not pleasant. He was in maximum security for 67 days — 25 days in solitary confinement just two cells away from Gary Leon Ridgway, the notorious Green River serial murderer. DIFFERENT THAN STREET-CORNER SPEAKERS? Nazi Germany? Sounds like it. But with the unprecedented volume of words spewing from the Internet, perhaps it is surprising this has not happened before. There is no reason, however, for treating Trummel any differently than other speakers on the street corner or on TV or even writers for newspapers. Judge James Doerty, the Washington judge who incarcerated Trummel, was put off by Trummel’s behavior. He called Trummel a “mean, old man who becomes vicious and threatening when he doesn’t get his own way in the chronic disputes he has with employers, landlords, building managers, and neighbors.” Of course, if Paul Trummel was exercising his First Amendment rights, it makes no difference what his motivation was. But was he? An order not to speak on the Internet is clearly unconstitutional. It is what lawyers call a “prior restraint,” i.e., censorship. Censorship is what the Pentagon Paperscase was all about. In that case, the government tried to restrain The New York Timesfrom publishing classified material. The Supreme Court held that it was unconstitutional to impose such a restraint except in the most extraordinary circumstances. Just as in the Pentagon Paperscase, Judge Doerty has stopped Trummel from speaking. He can no longer post information about his neighbors. His speech has been restrained before he can get it out — hence “prior restraint.” One can hardly applaud Trummel for publishing Social Security numbers and other allegedly private information. But the solution, if any, is to sue him after publication, not to stop him before he speaks. Several years ago the Providence Journalpublished private information about Raymond Patriarca, a Mafia figure. The Journalhad come into possession of FBI files that detailed Patriarca’s Mafia role and published information from them. A federal court in Providence ordered the Journalto stop publication. The Journalrefused and was held in contempt. When the Journalappealed the case the appeals court gave short shrift to Patriarca’s claim. The court noted that Raymond Patriarca’s only claim was that his privacy had been violated, but said that merely because the matter was “embarrassing” to Patriarca or infringed an alleged “privacy right” was “an insufficient basis for issuing a prior restraint.” Patriarca could always sue after publication, but the court noted: “this was an alternative that he did not pursue.” ( In re Providence Journal) And so, if Trummel’s neighbors want to sue him after he has posted information about them they can. What they cannot do is ask a court to stop him before he has posted that information. If, in fact, such a suit for invasion of privacy would be successful is another matter. While the phrase “right of privacy” is loosely used in popular culture, it has an uncertain legal provenance. The ability to keep private matters secret implies the ability to punish someone else’s speech about those private matters. Put another way, in order to protect someone’s right of privacy one must curb another’s First Amendment right to speak. The Supreme Court has never had occasion to decide whether someone can be sued successfully for disclosing private information. Last year, however, the Court did imply that private conversations about private matters might trump the First Amendment rights of others to speak about them. PRIVATE CONVERSATIONS, PRIVATE FACTS A case like Trummel’s or even Patriarca’s does not involve private conversations, however — rather, private facts. Generally the rule set out by lower courts is that unless the publication of the private facts is highly offensive to the reasonable person, they can be published. Nonetheless, whatever possibilities there may be for a suit against Trummel after publication, and they seem few and far between, censorship before publication is simply not permitted. OUTRAGEOUS ACTIONS Internet chatter about this case has been intense, asserting Judge Doerty’s actions were outrageous. They are right. His injunction against Trummel still stands. Trummel cannot say what he wants to say about his neighbors. He cannot even mention their names. The injunction will, without doubt, be dissolved by an appellate court. This will be small consolation to Trummel who, as of this date, has been gagged eight months and spent 111 days in jail — some kind of record. Perhaps it is the season to send journalists and writers off to jail. Earlier this year Vanessa Leggett was in jail for 168 days because she would not obey a court order to disclose her sources. With all that courts have to do, one wonders whether it would be a better use of their time to consider incarcerating terrorists and other criminals, rather than writers and ordinary users of the Net. James C. Goodale, a Debevoise & Plimpton, www.debevoise.com, lawyer, is the former vice chairman ofThe New York Times.

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