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The First Amendment and a New York State Newspaper’s Reportage of the Names of All Area Individuals Holding Pistol Permits

The First Amendment Center recently reported and commented on a controversy arising from the decision by the suburban New York newspaper The Journal News to publish the names of area pistol-permit holders.  Because those names are deemed, under state law, to be public records, the Center noted that their release to the newspaper was completely legal.  Moreover, under the First Amendment, as the Center added, The Journal News was clearly well within its rights in releasing the names.

But was it prudent for The Journal News to do so?  In this column, I’ll consider that question, and point out why the answer may be “No.”

Surely, when The Journal News made its decision to publish the names of the pistol-permit holders, it must have had the nearby Newtown, Connecticut massacre in mind.  But, to what end, and in what context?  If the paper had simply wanted to emphasize the sheer number of pistol-permit holders in the area, and thus to raise the specter of the possibility of another Jordan Lanza and another massacre, then there was no need for the paper to name any particular person; the sheer number of permits that had been granted in the area should itself have been enough to suggest the area’s gun risk. But does that mean, then, that the use of permit-holders’ names was mere sensationalism on the paper’s part?  Not necessarily, for the permit-holders’ neighbors and other contacts might, in some circumstances, legitimately want to know of the permits, as I’ll explain below.

In this column, I’ll explain how one might defend the paper’s naming the pistol-permit holders, but I will also suggest that the disclosure of the pistol-permit holders’ names carried with it its own serious risks for the town’s inhabitants, and put the newspaper in an unusual position of itself creating news.

A Possible Defense of the Newspaper’s Naming the Pistol-Permit Holders

One possible defense of the newspaper’s naming the pistol-permit holders is that its doing so might effectively warn the pistol-permit holders’ neighbors, relatives, colleagues, friends acquaintances, and other contacts of the fact that someone they knew had such a permit. And, in turn, that warning might be lifesaving for the hopefully very small, but also very vulnerable subset of persons who are stuck living next to, or interacting with, an unstable or dangerously mentally-ill person who has a gun, lives with someone who has a gun, or otherwise has access to a gun.  In other words, the fact of a gun permit, along with some knowledge about the permit-holder, might inspire someone to take steps to prevent a Jordan Lanza-type scenario.

It is one thing to live next to someone who is mentally ill and possibly dangerous, and quite another thing to keep living there when you learn that such a person, or that person’s family member, has a pistol (or other gun) permit.  Sometimes, as unfair as it is, the safest thing to do is to move away from danger, and the knowledge of an unstable or otherwise volatile neighbor’s pistol permit may be the straw that breaks the proverbial camel’s back, and leads to just such a move.

Alternatively, neighbors or other contacts of such dangerous individuals may opt to stay put and get their own firearms, in order to protect themselves if necessary. Still, such a decision can’t obviate all the risks of the situation, and may even worsen it, if the dangerous party gets wind of what’s going on.

Why Both Pistol-Permit Holders and Non-Pistol-Permit Holders Were Put at Risk by the Newspaper’s Disclosures

This is an especially interesting First Amendment situation, in that the newspaper’s decision to publish the names of pistol-permit holders both outed those persons as gun holders, and also, by implication, outed all those who lacked such permits as being unarmed (excepting, of course, any persons who held unpermitted pistols, but it seems likely the number of such persons is small.)

Moreover, the information that was released by the newspaper put everyone in the community in jeopardy:  The pistol-permit owners, after having been publicly identified as such, may now be more likely to be victims of burglaries by those seeking to steal their weapons.  In addition, the non-pistol-permit-holders may feel that they are much likelier to be victims of crime than they had been before the newspaper’s reportage.  And if so, then, ironically—not wanting to be easy marks—such people may feel that they now need to purchase pistols (or other guns) for the first time in their lives, despite their previously having felt no need to do so.

It is this kind of jeopardy—to pistol owners and non-pistol owners alike—that can be cited as a rationale for a bill like the one that has been introduced in Maryland—which would, if enacted into law, bar newspapers and other publications from printing personal or private information about firearm owners. Such a bill—though it raises obvious First Amendment issues, that may doom it in the courts—would prevent the dynamic described above, where non-gun-owners, revealed as such, may feel that they must now become gun owners, and entire towns may arm themselves.

Should the Fact That a Person Has a Pistol (or Other Gun) Permit Be Public, or Should It Remain Private?

Usually, when we object to the release of information relating to ourselves, our objection stems from privacy concerns. For instance, we might be outraged to hear that our sexual or medical information had been made public, formally or informally, without our permission.  Or, we might also be chagrined to learn that an agreement we had made to keep information secret had been breached. (One example might be, say, a college’s promise not to publicize grades widely, but rather to issue transcripts only upon a student or alumnus’s request.)   And seeing any of these kinds of information on the front page of a local newspaper is unthinkable.

None of these typical rationales for protecting informational privacy applies here, in the case of gun permits, but an additional rationale does apply. In this unusual case, the newspaper’s revealing who has gun permits and thus, presumably, also who has a gun also entails revealing who doesn’t have such permits.

That’s disturbing, for several reasons. First, newspapers are generally supposed to report the news, not create it, and those citizens who are indirectly revealed as permitless, and thus very likely gunless, by the newspaper, aren’t just reading the paper; they’re being driven by it to act in a particular way—driven, to be more specific, to buy a gun.

And, second, if enough people do go buy guns—after realizing from the newspaper’s coverage that they are defenseless among a neighborhood of weapon owners, and now, everyone knows it—then the newspaper’s coverage may profoundly change the tenor of life in the town, blurring even more deeply the line between the paper’s reporting news and its creating it.

In sum, though The Journal News was within its First Amendment rights in printing the pistol-permit-owners’ names, it should have thought deeply about the repercussions of doing so, and should have seriously considered reporting the numbers of guns, rather than the names of their owners.  Just as the newspaper would have hesitated to send reporters around town to see whose door locks were most secure and report the results to the public, so too should the newspaper have though twice before reporting the names of gun-permit owners.

Julie HildenJulie Hilden, a Justia columnist, graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for over a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read... a work of art." Her website’s address is www.juliehilden.com.
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  • PerryM9

    Excellent observation Ms. Hilden. By naming those whose doors are locked [gun permit owners] the names of those who have unlocked doors is made public. While it may be a public information I do not think those same reporters or others would want their children’s names and school schedules made public by others. There is a degree of Freedom which may infringe upon another’s Freedoms. Just because one can does not mean one should.

  • 1L Student

    While I have not researched the freedom of the press provision for numerous years,. if I recall correctly, that provision was intended to prevent the government from censuring the newspapers’ reports about government activity and editorials challenging such activity. If my memory serves me accurately, freedom of the press, then, does not give free license to media to print whatever it feels like printing about the citizenry.

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  • Marie

    Hi Julie – Police identified Adam Lanza as the shooter in Newtown, not Jordan.

  • http://www.facebook.com/tmfdmike Michael Ross

    I have a Westchester county pistol permit; my name and address are on the map. So I have some skin in the game.

    I wouldn’t disagree much with your analysis except to note the following; they didn’t simply publish a list of names. Rather, they presented the data in map format, so anyone can pick any neighborhood or street, zoom in, and ‘drill down’ to see *exactly* who has a pistol permit and which house they live in; you see a little red dot for every pistol owner, right on top of their house, and clicking the dot brings up their name and street address.

    Although not articulated in words, the map very clearly expressed that their intention WAS to create the news, and to create a public facility to allow such research to be done by anyone; there really wasn’t any news story at all, and they didn’t report it as news. It was journalistic activism.

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