There's a part of me that always views positively a decision by the Ninth Circuit to certify a state law question to the California Supreme Court. I view it as an act of modesty -- a recognition that the state court might have more insight into state law than federal judges. And that rather than guessing at what the California Supreme Court might do, it makes some sense to simply ask them. Plus, I also generally view certification as reflecting a willingness to go along with a potentially adverse decision, one that might be different than the one that the Ninth Circuit would render if forced to "guess" at what the California Supreme Court would do. So, in general, I like certification. (Assuming, of course, that certification doesn't take years and years, as it sometimes does. But that's an issue for a different post; and, in any event, my temporal concerns apply less in civil cases, such as this one, and that don't involve persistent torts.)
That said, I wouldn't have certified this question. The issue is an important one: Can non-media defendants be held liable for invasion of privacy for publishing true information -- here, over the internet -- under California law? Surprisingly, this is a somewhat important, and personal, issue for me, at least since I've been publishing this blog. After all, on occasion, I do precisely what's at issue in this case, and "publish" personal information about attorneys or parties or the like -- generally through hyperlinks -- that I find interesting. And, since I'd be a "non-media" defendant in any resulting suit for invasion of privacy, I have somewhat of a personal stake in the outcome. Plus, even if I didn't, I do have a reasonably strong feeling about the correct result. I'll leave it to you as to what that feeling might entail. (Hint: I care about the First Amendment, particularly as applied to free speech that happens to be entirely true.)
The reason that the "non-media" thing is so important is because the United States Supreme Court, in cases like Cox Broadcasting v. Cohn, has invalidated state laws -- including California's -- that attempt to impose liability upon the press for public disclosure of accurate (but allegedly "unnewsworthy") information. So it's clear that states can't permit an invasion of privacy suit against the media. But what about others? What about, as here, a commercial entity, engaged in commercial speech? What about bloggers? What about people who allegedly might publish the information with malice? Does California state law, which used to (before it was shown to be unconstitutional) impose liability on media defendants, nonetheless attempt to impose liability in such other situations? That's the question that Judge Betty Fletcher certifies to the California Supreme Court.
Here's why I think that certification in this case -- even though totally good-natured, and arising from the very best place in Judge Fletcher's heart -- is wrong. Whether California state law attempts to recognize such a tort revolves, in truth, entirely around the contours of federal law. The only reason that the California Supreme Court overruled its prior "invasion of privacy" precedents is because it thought that they were invalid under the Supreme Court's recent First Amendment jurisprudence. Ditto here. The only reason that the California Supreme Court would likely conclude that there's no invasion of privacy tort would be its conclusion that any such liability would violate the First Amendment; or, by contrast, it would uphold such a tort if it concluded that the First Amendment did not bar such liability. So the entire case really revolves around federal -- not state -- law. And we don't certify questions on such topics, if only because the Ninth Circuit is just as (if not more) capable of adjudicating federal law issues as the California Supreme Court.
There are additional reasons not to certify here as well that I won't discuss at any length; for example, the fact that the California Supreme Court might well come back -- after a potentially lengthy delay -- with an answer like "We do impose liability because we don't believe it would violate the First Amendment" (or, equally, "We would impose liability if we thought it wouldn't violate the First Amendment), which would then permit the Ninth Circuit to say "Well, we do think it would violate the First Amendment, so there!" Other results can also be spun out that are equally untoward; e.g., the California Supreme Court says, "We wouldn't recognize such a tort because we think it'd violate the First Amendment," and the Ninth Circuit responds "But we hold that it doesn't violate the First Amendment, so would you really not like to recognize the tort?", the California Supreme Court then responds Y, etc. etc. But, like many of the things I've written this week, this post is already getting too long, so I'll simply hint as these other things and move on.
My basic point is that I think that the certified question centrally revolves around the contours of federal law, and hence that while it's a doctrinally proper question to certify, certification is not the wise choice. Indeed, I will go so far to say -- and I really don't think you'll ever hear me say this again, since generally I'm pretty pro-certification -- that the California Supreme Court should promptly refuse to answer this certified question, and respond that this is a primarily a question of federal law best left for adjudication by the federal courts.
In short, in my view, the California Supreme Court should be as modest and deferential on this issue as the Ninth Circuit has been. Which, if it happens, would be pretty remarkable. And would also make me smile.
We'll see what actually transpires.
