Ostergren v. Cuccinelli

*266Affirmed in part, reversed in part, and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge DAVIS and Judge GOODWIN concurred. Judge DAVIS -wrote a separate concurring opinion.

OPINION

This appeal arises from a First Amendment challenge to Virginia’s Personal Information Privacy Act, Va.Code §§ 59.1-442 to -444. Section 59.1-443.2 prohibits “[intentionally communicating] another individual’s social security number to the general public.” The district court found this section unconstitutional as applied to an advocacy website that criticized Virginia’s release of private information and showed publicly available Virginia land records containing unredacted Social Security numbers (“SSNs”). Ostergren v. McDonnell, No. 08-362, 2008 WL 3895593, at *14 (E.D.Va. Aug. 22, 2008). Later, the court entered a permanent injunction barring Virginia from punishing the republication of “publicly obtainable documents containing unredacted SSNs of Virginia legislators, Virginia Executive Officers or Clerks of Court as part as [sic] an effort to reform Virginia law and practice respecting the publication of SSNs online.” Ostergren v. McDonnell, 643 F.Supp.2d 758, 770 (E.D.Va.2009). Both decisions are challenged on appeal. For the reasons that follow, we affirm in part and reverse in part.

I.

Betty Ostergren resides in Hanover County, Virginia, and advocates for information privacy across the country. Calling attention to Virginia’s practice of placing land records on the Internet without first redacting SSNs, she displayed copies of Virginia land records containing unredacted SSNs on her website. After section 59.1-443.2 was amended to prohibit this practice, but before the amendment took effect in July 2008, Ostergren brought this constitutional challenge.1

A.

The clerk of court for each county in Virginia maintains documents affecting real property within the county. These “land records” reflect the ownership, conveyance, encumbrance, or financing of real property.2 They include deeds, contracts, liens, divorce decrees, and various other documents. See Va.Code § 17.1-227. Virginia law requires that clerks make land records available for public inspection. See Va.Code § 17.1-208. Any person can review and copy land records by visiting the courthouse and requesting them.

During the 1990s, many clerks of court began placing land records on the Internet. According to counsel for the Attorney General, the impetus came mainly *267from the real estate industry because online access to land records facilitated numerous real estate transactions. The Virginia General Assembly encouraged this practice by allowing clerks to charge a fee for online access. See Va.Code § 17.1-276. The General Assembly later established a “Technology Trust Fund Fee” assessed for every document recorded, and set aside the revenue for improving access to public records through information technology. See Va.Code § 17.1-279. The General Assembly also declared “the intent ... that all circuit court clerks provide secure remote access to land records on or before July 1,2006.” 2004 Va. Acts 980. Finally, in 2007, the General Assembly imposed guidelines for posting land records online, see Va.Code § 17.1-294, and required that “[e]very circuit court clerk shall provide secure remote access to land records ... on or before July 1, 2008,” Va.Code § 17.1-279(D)(3).

The parties stipulated that “[u]nder Virginia’s ‘secure remote access’ system, any person may, for a nominal fee, obtain online access to all of the land records for a given locality.” J.A. 86. Guidelines require that an individual must register and obtain a username and password before using the system. See Information Technology Resource Management Standard, SEC503-02 §§ 1.4(3), 2.1 (Va. Info. Techs. Agency Mar. 28, 2005). This involves signing an agreement, paying a fee (possibly several hundred dollars per year), and providing certain personal infoxmation (first and last names, business name, mailing address, telephone number, email address, and citizenship status). Id. § 2.1.1. “Registration must be in person or by means of a notarized or otherwise sworn application that establishes the prospective Subscriber’s identity, business or residence address, and citizenship status.” Id. § 2.1.2.

By July 2008, every county in Virginia had made its land records available on the Internet through secure remote access. This included over 200 million Virginia land records.

B.

Virginia’s decision to place land records online raised certain concerns about information privacy. For many decades, attorneys included SSNs on real estate documents submitted for recording. Initially assigned for the purpose of administering Social Security laws, nine-digit SSNs have become widely used for identification and account authentication by government agencies and private organizations because no two people have the same number. They are thus highly susceptible to misuse. An unscrupulous individual who knows another’s SSN could, for example, obtain fraudulent credit cards or order new checks on that person’s account.

When clerks of court began placing land records online, they did nothing to redact SSNs. At that time, Virginia law neither required such redaction nor prevented attorneys from submitting documents for recording that contained unredacted SSNs. In 2003 and 2004, however, the General Assembly provided that “clerk[s] may refuse to accept any instrument submitted for recordation that includes a grantor’s, grantee’s or trustee’s social security number,” and clarified that “the attorney or party who prepares or submits the instrument has responsibility for ensuring that the social security number is removed from the instrument prior to the instrument being submitted for recordation.” Va.Code § 17.1-227. Virginia law also provides that clerks “shall be immune from suit arising from any acts or omissions relating to providing secure remote access to land records pursuant to this section unless the clerk was grossly negligent or *268engaged in willful misconduct.” Va.Code § 17.1-294(D).

The General Assembly finally addressed redaction in the 2007 legislation mandating that clerks provide secure remote access by July 1, 2008. See Va.Code § 17.1-279(D)(3). The General Assembly noted clerks’ authority to redact SSNs from digital land records available through secure remote access, authorized hiring private vendors to run redaction software, and authorized using Technology Trust Fund money for this purpose. See Va.Code § 17.1-279. The legislation would have also required clerks to complete the redaction process by July 1, 2010, but this provision never went into effect because the General Assembly failed to appropriate the necessary funds. See 2007 Va. Acts 872; 2007 Va. Acts 748. These efforts focused solely on digital land records available online. Virginia does not redact SSNs from original land records maintained at local courthouses even though Virginia law requires that such records remain publicly accessible.

The redaction process involves two steps — one electronic, the other manual. First, computer software checks digital land records and, in essence, labels each document “SSN found,” “SSN probably found,” “SSN possibly found,” and “SSN not found.” Individuals then manually review all but the last category, which they randomly sample. According to stipulation,

The accuracy of the redaction methods used by the circuit court clerks with regard to images that actually have social security numbers is between 95% and 99%. After redaction, a social security number that remains un-redacted in the online land records will be redacted if the Clerk is informed of the inaccuracy. If not brought to the Clerk’s attention, it will remain accessible in the online land records.

J.A. 230. One company, Computing System Innovations (“CSI”), handled redaction for 67 counties. In processing about 50 million images, CSI manually reviewed about 5 million and discovered that 1,575,-422 (about 3.21%) contained SSNs.3

By July 2008, 105 of Virginia’s 120 counties reported that they had completed the redaction process. Among the 15 that remained, two planned to finish by July 2010 and the rest planned to finish by December 2009. Despite the incomplete redaction, these 15 counties nonetheless continued to make their land records available online through secure remote access.

C.

When Virginia clerks of court started placing land records containing unredacted SSNs online, Ostergren began lobbying the General Assembly in opposition and contacting individuals whose SSNs were compromised. She has engaged in similar advocacy across the country, but such advocacy alone met with little success. Ostergren created her website www.The VirginiaWatchdog.com in 2003 and, two years later, began posting copies of public records containing unredacted SSNs obtained from government websites. Since then, Ostergren has posted numerous Virginia land records showing SSNs that she herself obtained through Virginia’s secure remote access website. For example, she explained that searching for the term “Internal Revenue Service,” “Department of Justice,” or “United States” produces *269thousands of federal tax liens, and all those filed before 2006 contain SSNs.

In posting records online, Ostergren seeks to publicize her message that governments are mishandling SSNs and generate pressure for reform.4 She explained that “seeing a document containing an SSN posted on my website makes a viewer understand instantly, at a gut level, why it is so important to prevent the government from making this information available on line [sic].” J.A. 89. She added that merely explaining the problem lacks even “one-tenth the emotional impact that is conveyed by the document itself, posted on the website.” J.A. 89. Perhaps for this reason, Ostergren received considerable media attention when she began posting records online. Furthermore, many government agencies outside Virginia responded by removing public records from the Internet or redacting private information.

Despite this success, Ostergren’s website has also contributed to the underlying social concern that motivates her advocacy. Because one can visit her website and find public records showing SSNs without needing to register or input search terms, Ostergren makes Virginia land records showing SSNs more accessible to the public than they are through Virginia’s secure remote access system. Potential wrongdoers not experienced or motivated enough to register for secure remote access might nonetheless stumble upon Ostergren’s website and obtain SSNs. Indeed, one person has pleaded guilty to using Ostergren’s website to obtain fraudulent credit cards.

D.

The controversy that spurred this case arose from Ostergren’s disclosure of others’ SSNs printed in Virginia land records that she posted online. Section 59.1^443.2 of the Code of Virginia provides that “a person shall not ... [intentionally communicate another individual’s social security number to the general public.” Va.Code § 59.1-443.2(A)(1). In Spring 2008, the General Assembly removed a statutory exception for “records required by law to be open to the public.”5 2008 Va. Acts 837. The Attorney General of Virginia later indicated that, after this change took effect on July 1, 2008, Ostergren would be prosecuted under section 59.1-443.2 for publicly disseminating Virginia land records containing unredacted SSNs.6

On June 11, 2008, Ostergren brought this action in the Eastern District of Virginia under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, and attorney’s fees and costs. She contended that enforcing section 59.1^443.2 against her for publishing copies of public records lawfully obtained from a government website violates the First Amendment. During a *270hearing on Ostergren’s motion for preliminary injunctive relief, Virginia’s Attorney General agreed not to enforce the statute against Ostergren while this action remains pending.

On August 22, 2008, the district court concluded, based upon stipulated facts, that “Virginia Code § 59.1-448.2 is unconstitutional as applied to Ostegren’s [sic] website as it presently exists.” Ostergren, 2008 WL 3895593, at *14. On June 2, 2009, after further briefing and argument about injunctive relief, the court entered

a permanent injunction ... against enforcement of Va.Code § 59.1^143.2 against any iteration of Ostergren’s website, now or in the future, that simply republishes publicly obtainable documents containing unredacted SSNs of Virginia legislators, Virginia Executive Officers or Clerks of Court as part as [sic] an effort to reform Virginia law and practice respecting the publication of SSNs online.

Ostergren, 643 F.Supp.2d at 770. The Attorney General appealed, challenging the district court’s August 22, 2008, constitutional determination. Ostergren cross-appealed, arguing that the June 2, 2009, award of injunctive relief was too narrow. We consider the appeal and cross-appeal below.

II.

First we review the district court’s August 22, 2008, constitutional determination. “We review de novo a properly preserved constitutional claim.” United States v. Hall, 551 F.3d 257, 266 (4th Cir.2009). Virginia argues that SSNs are categorically unprotected speech that may be prohibited entirely. Alternatively, Virginia argues that the state interest in preserving citizens’ privacy by limiting SSNs’ public disclosure justifies barring Ostergren’s speech. In other words, Virginia maintains that the First Amendment does not apply here and that, even if it does, enforcing section 59.1-443.2 against Ostergren should survive First Amendment scrutiny. We address each argument in turn.7

A.

The First Amendment’s protection of “freedom of speech, or of the press,” was designed to allow individuals to criticize their government without fear. U.S. Const, amend. I; see Gentile v. State Bar *271of Nev., 501 U.S. 1030, 1034, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”); New York Times Co. v. Sullivan, 376 U.S. 254, 273, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (calling liberty to criticize government conduct “the central meaning of the First Amendment”). This protection also precludes the government from silencing the expression of unpopular ideas. See Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (“[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”). Accordingly, laws restricting the content of expression normally are invalid under the First Amendment unless narrowly tailored to promote a compelling state interest. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (“If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest.”); see also R.A. V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (“Content-based regulations are presumptively invalid.”).

The Supreme Court has nevertheless identified certain categories of “unprotected” speech that may be circumscribed entirely. Fighting words, obscenity, incitement of illegal activity, and child pornography are examples. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Brandenburg v. Ohio, 395 U.S. 444, 447-48, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); see also Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919) (“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”). The Court has said that these categories of unprotected speech “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766.

Virginia argues that the unredacted SSNs on Ostergren’s website should not be protected under the First Amendment because they facilitate identity theft and are no essential part of any exposition of ideas. See Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L.Rev. 1095, 1146-47 (2005) (arguing that SSNs and computer passwords are “categories of speech that are likely to have virtually no noncriminal uses” and that “[rjestricting the publication of full social security numbers or passwords ... will not materially interfere with valuable speech”). Although these observations might be true under certain circumstances, we cannot agree with Virginia’s argument here. The unredacted SSNs on Virginia land records that Ostergren has posted online are integral to her message. Indeed, they are her message. Displaying them proves Virginia’s failure to safeguard private information and powerfully demonstrates why Virginia citizens should be concerned.8 Cf. *272United States v. Hubbell, 530 U.S. 27, 36-37, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) (noting that “the act of producing documents in response to a subpoena ... may implicitly communicate statements of fact” because “[b]y producing documents ... the witness would admit that the papers existed, were in his possession or control, and were authentic” (internal quotations omitted)).

We find particularly significant just how Ostergren communicates SSNs. She does not simply list them beside people’s names but rather provides copies of entire documents maintained by government officials. Given her criticism about how public records are managed, we cannot see how drawing attention to the problem by displaying those very documents could be considered unprotected speech. Indeed, the Supreme Court has deemed such speech particularly valuable within our society:

Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business.

Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). Thus, although we do not foreclose the possibility that communicating SSNs might be found unprotected in other situations, we conclude, on these facts, that the First Amendment does reach Ostergren’s publication of Virginia land records containing unredacted SSNs.9

*273B.

We next consider whether enforcing section 59.1-443.2 against Ostergren for posting online Virginia land records containing unredacted SSNs survives First Amendment scrutiny. Although Ostergren’s political speech criticizing Virginia “lies at the very center of the First Amendment,” Gentile, 501 U.S. at 1034, 111 S.Ct. 2720, publishing SSNs online undermines individual privacy. Freedom of speech must therefore be weighed against the “right of privacy” which the Supreme Court has also recognized. See Cox Broad., 420 U.S. at 488, 95 S.Ct. 1029 (recognizing “the so-called right of privacy”). The Court tried to strike that balance in Cox Broadcasting and subsequent cases involving restrictions on truthful publication of private information. Because we must decide where this case fits within that balance, we begin our analysis by reviewing those decisions.

In Cox Broadcasting, the Supreme Court ruled that the First Amendment prohibits a lawsuit against a television station for broadcasting a rape victim’s name when the station learned her identity from a publicly available court record. The issue arose in the context of six youths being indicted for rape and murder. Although their case garnered substantial press attention, the victim’s identity was not disclosed because Georgia law prohibited “publishing] or broadcasting] the name or identity of a rape victim.” Id. at 472, 95 S.Ct. 1029. During trial, the clerk of court showed a reporter the indictments even though they clearly stated the victim’s full name. The reporter later explained, “[N]o attempt was made by the clerk or anyone else to withhold the name and identity of the victim from me or from anyone else and the said indictments apparently were available for public inspection upon request.” Id. at 472 n. 3, 95 S.Ct. 1029. When the television station employing the reporter later broadcast the victim’s name, her father sued for money damages. The Georgia Supreme Court held that his “complaint stated a cause of action ‘for the invasion of the ... right of privacy, or for the tort of public disclosure,’ ” and rejected the station’s First Amendment defense. Id. at 474, 95 S.Ct. 1029 (quoting Cox Broad. Corp. v. Cohn, 231 Ga. 60, 200 S.E.2d 127, 130 (1973)).

The Supreme Court reversed. Although recognizing “a strong tide running in favor of the so-called right of privacy,” id. at 488, 95 S.Ct. 1029, the Court reasoned that “the interests in privacy fade when the information involved already appears on the public record,” id. at 494-95, 95 S.Ct. 1029. The Court observed that “[b]y placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served.” Id. at 495, 95 S.Ct. 1029. The Court also discussed the importance of truthful reporting' about public records and expressed reluctance to create a doctrine that “would invite timidity and self-censorship and very likely'lead to the suppression of many items that ... should be made available to the public.” Id. at 496, 95 S.Ct. 1029. The Court concluded:

At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records.... Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.

*274Id. The Court explained that “[i]f there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information.” Id.

Although Cox Broadcasting avoided deciding whether truthful publication may ever be punished, subsequent cases helped to clarify the relevant inquiry. In Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977), the Supreme Court held that a trial court could not bar newspapers from publishing a juvenile offender’s name learned during a court proceeding open to the public. The Court explained, “ ‘Once a public hearing ha[s] been held, what transpired there [canjnot be subject to prior restraint.’ ” Id. at 311, 97 S.Ct. 1045 (quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 568, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)). In Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), the Court held that Virginia could not punish a newspaper for publishing correct information that had been leaked about confidential proceedings by the Virginia Judicial Inquiry and Review Commission. The Court reasoned that Virginia’s interests in preserving respect for courts and protecting individual judges’ reputations did not justify prohibiting speech that “clearly served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect.” Id. at 839, 98 S.Ct. 1535.

The Supreme Court later articulated a constitutional standard based upon these decisions. In Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979), the Court observed that Cox Broadcasting, Oklahoma Publishing, and Landmark Communications “all suggest strongly that if 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.” Daily Mail, 443 U.S. at 103, 99 S.Ct. 2667. This case involved two newspapers convicted under a West Virginia statute that barred publishing the names of juvenile offenders without court approval. Reporters had learned certain juvenile offenders’ names by questioning witnesses, police officers, and the prosecutor. The Supreme Court invalidated the convictions because West Virginia’s interest in protecting juvenile offenders’ anonymity was insufficiently important and “there [was] no evidence to demonstrate that the imposition of criminal penalties [was] necessary to protect the confidentiality of juvenile proceedings.” Id. at 105, 99 S.Ct. 2667.

After this flurry of decisions, the Supreme Court applied the Daily Mail standard roughly a decade later in another case about a rape victim. In The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989), the appellee B.J.F. reported to local police that she had been robbed and sexually assaulted. Despite its internal policy against revealing names of rape victims, the police department inadvertently placed a police report containing BJ.F.’s name in its press room. The department did not restrict access to the press room or to reports made available therein. After a reporter copied the police report verbatim, an area newspaper published an article containing B.J.F.’s full name. She sued for money damages, claiming the newspaper had been per se negligent because Florida law prohibited printing, publishing, or broadcasting names of rape victims in any instrument of mass communication. During trial, B.J.F. testified that publicity of her rape made her suffer extreme embarrassment, re*275ceive additional threats of rape, change her phone number and residence, seek police protection, and obtain medical health counseling. The jury awarded damages and a Florida appellate court affirmed, rejecting the newspaper’s First Amendment defense.

The Supreme Court reversed. Before applying the Daily Mail standard regarding truthful publication of lawfully obtained information, the Court noted three underlying considerations that justified this analytical approach. First, that the standard covers only lawfully obtained information means that the government retains ample means of protecting interests that might be threatened by publication. This consideration has additional implications when the government itself initially holds the information:

To the extent sensitive information is in the government’s custody, it has even greater power to forestall or mitigate the injury caused by its release. The government may classify certain information, establish and enforce procedures ensuring its redacted release, and extend a damages remedy against the government or its officials where the government’s mishandling of sensitive information leads to its dissemination. Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts.

Id. at 584, 109 S.Ct. 2603. Second, “punishing the press for its dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act.” Id. at 535, 109 S.Ct. 2603. The Court added that “where the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release.” Id. Third, “‘timidity and self-censorship’ ... may result from allowing the media to be punished for publishing certain truthful information.” Id. (quoting Cox Broad., 420 U.S. at 496, 95 S.Ct. 1029). The Court explained that, where the government discloses private information, not protecting its publication “would force upon the media the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication ... even where the newspaper’s sole object was to reproduce, with no substantial change, the government’s rendition of the event in question.” Id. at 536, 109 S.Ct. 2603. Having reiterated these considerations, the Court endorsed the Daily Mail standard: “We hold ... that where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.” Id. at 541, 109 S.Ct. 2603.

Applying this standard, the Supreme Court found that the newspaper article about B.J.F. truthfully published lawfully obtained information about a matter of public significance. The Court also found that punishing the newspaper was not narrowly tailored to Florida’s interest in preserving rape victims’ privacy because the police department itself could have initially withheld the sensitive information.10 That *276the department’s disclosure was actually inadvertent was immaterial. See id.