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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SCOTT DAHLSTROM, HUGH GALLAGLY, 

PETER KELLY, ROBERT SHEA, and EMMET 

WELCH,

Plaintiffs,

vs.

SUN-TIMES MEDIA, LLC dba THE CHICAGO 

SUN-TIMES and any other known corporate name.

Defendant.

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Case No. 12 CV 00658

Judge Leinenweber

Magistrate Judge Brown

SUN-TIMES MEDIA LLC’S REPLY IN SUPPORT OF ITS MOTION TO FILE AN 

APPLICATION FOR IMMEDIATE APPEAL PURSUANT TO 28 U.S.C. 1292(b) AND

FOR A STAY OF PROCEEDINGS

NOW COMES Defendant Sun-Times Media, LLC (“Sun-Times”), by its undersigned 

attorneys, and for its Reply in Support of its Motion to File an Application for Immediate Appeal 

Pursuant to 28 U.S.C. 1292(b) and for a Stay of Proceedings, states as follows:

BACKGROUND

After failing to obtain a state court injunction, Plaintiffs sued Sun-Times under the Driver 

Privacy Protection Act, 18 U.S.C. 2711 (“DPPA”) for reporting that Chicago Police Department 

(“CPD”) officers in a homicide line-up shared physical traits with the suspect, a nephew of the 

then Mayor. Plaintiffs characterize the reporting as “sensationalized” even after the Circuit 

Court appointed a Special Prosecutor to investigate the CPD’s role in the investigation.

The Sun-Times’ 28 U.S.C. 1292(b) Motion seeks immediate appeal of three questions 

with respect to its motion to dismiss. Motion, ¶ 13. First, whether the physical characteristics

the Sun-Times is alleged to have obtained from driver records were included within the DPPA’s 

definition of “personal information,” a question that was not decided in Senne v. Vill. of Palatine, 

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Ill., 695 F.3d 597, 599 (7th Cir. 2012). Order dated Sep. 5, 2012 (“DPPA Order”), p. 6-7. Cf. In 

re Text Messaging Antitrust Litig., 630 F.3d 622, 627 (7th Cir. 2010) (approving interlocutory 

appeal to interpret “a recent decision . . . its scope unsettled” on a novel issue the Seventh Circuit 

discussed “only in passing”). Second, whether the DPPA unlawfully impinges on the First 

Amendment by restricting newsgathering. Compare Order dated November 18, 2013 

(“Constitutional Order”) p. 5 with Am. Civil Liberties Union of Illinois v. Alvarez (“ACLU”), 

679 F.3d 583, 597 (7th Cir. 2012) cert. denied, 133 S. Ct. 651 (2012) (eavesdropping statute may

not penalize filming police officers because “the State could effectively control or suppress 

speech by the simple expedient of restricting an early step in the speech process rather than the 

end result. We have no trouble rejecting that premise.”). 1 Third, whether Plaintiffs’ injunctive

remedy constitutes a “prior restraint” on publication in violation of the First Amendment. 

Weinberg v. City of Chicago, 310 F.3d 1029, 1045-46 (7th Cir. 2002) (license requirement was 

unconstitutional prior restraint on continued sale of books). 

ARGUMENT

This Court has already found “there is a good argument under the statutory cannons of 

association that ‘personal information’ only includes information that identifies a person with 

greater particularity than does height, weight, or even birth month.” DPPA Order, p. 6. 

Accordingly, the Motion raised “controlling questions of law” as to which there are “substantial 

grounds for difference of opinion.” 28 U.S.C.A. § 1292(b). Immediate appeal would determine

whether the Senne court intended to expand the DPPA to reach categories of information that are 

not listed in the statute and which do not relate to the statue’s objectives. It would also 

 

1 Although the Court addressed only access, Plaintiffs also allege disclosure of information from motor vehicle 

records (18 U.S.C. §§ 2722(a); 2724(a); Complaint, ¶¶ 1, 29-30) and their purported damages arise not from the 

newsgathering, but from publication of the information. Compl. ¶¶ 16-19.

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determine whether here, as with the eavesdropping statute, the First Amendment “goes beyond 

protection of the press and the self-expression of individuals to prohibit government from 

limiting the stock of information from which members of the public may draw.” ACLU, 679 

F.3d at 597 (quoting First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978)). 

With respect to the First Amendment, the United States Supreme Court has held – on an 

interlocutory appeal – that it is a “still-open question” whether the First Amendment permits 

statutes of general application to penalize a newspaper for unlawful acquisition of information.

Bartnicki v. Vopper, 532 U.S. 514, 528 (2001). Just recently, the Seventh Circuit struck down an 

analogous statute that interfered “with the gathering and dissemination of information about 

government officials performing their duties in public”. ACLU, 679 F.3d at 601.

2

Finally, the Seventh Circuit has held that restrictions on continued dissemination of 

newsworthy information represent an invalid prior restraint. Weinberg, 310 F.3d at 1045-46.

I. Controlling Questions Of Law Unresolved By Senne Support Immediate Appeal

Plaintiffs’ Response misstates the Seventh Circuit’s standard for immediate appeals

pursuant to 28 U.S.C. 1292(b) by arguing that the Sun-Times “must show that there are 

substantial conflicting decisions regarding the claimed controlling issue.” To the contrary, a

“case of first impression in this circuit” is particularly suitable for an interlocutory appeal. 

Resolution Trust Corp. v. Gallagher, 10 F.3d 416, 418 (7th Cir. 1993); Text Messaging, 630 F.3d 

at 627 (immediate appeal regarding scope of recent authority). “As these are questions of first 

impression, the application of these statutes to the facts alleged here is certainly contestable, and 

 

2 The proposition that the Sun-Times acted “unlawfully” if the DMV voluntarily provided information is dubious. 

In Oklahoma Pub. Co. v. Dist. Court In & For Oklahoma Cnty., 430 U.S. 308, 311(1977), for example, the press

attended a juvenile hearing in violation of a state statute closing proceedings. The court held that, by allowing the 

media to attend, the judge and prosecutor implicitly consented so that attendance and reporting information 

disclosed at the hearing was lawful. 

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the resolution of these issues will facilitate the conclusion of the litigation”. Boim v. Quranic 

Literacy Inst. & Holy Land Found. For Relief And Dev., 291 F.3d 1000, 1007-08 (7th Cir. 2002). 

There are only four requirements to certify an order for immediate appeal: “First, there 

must be a question of law; second, it must be controlling; third, it must be contestable; and 

fourth, its resolution must promise to speed up the litigation.” Brewton v. City of Harvey, 319 F. 

Supp. 2d 890, 892 (N.D. Ill. 2004). Thus, district courts have more recently acknowledged that 

Section 1292(b) allows immediate appeal where there is “substantial ground for difference of 

opinion” regardless of whether the question has been extensively litigated. Van Straaten v. Shell 

Oil Products Co., LLC, 813 F. Supp. 2d 1005, 1020 (N.D. Ill. 2011) (“the novelty of an issue 

may demonstrate that an issue is contestable”); City of Joliet v. Mid-City Nat. Bank, 05 C 6746, 

2008 WL 4889038 (N.D. Ill. June 13, 2008) (issue was contestable because “neither the Seventh 

Circuit nor any other Circuit Court of Appeals has specifically addressed the preemption 

arguments raised in this case.”). This case presents an obvious candidate because the Court has 

acknowledged that extrapolating from Senne contradicts cannons of statutory interpretation. 

DPPA Order pp. 6-7; see also 140 Cong. Rec. H2518, 01, H2527 (1994) (statement of Rep. 

Goss) (“[T]he intent of this bill is simple and straightforward: We want to stop stalkers from 

obtaining the name and address of their prey before another tragedy occurs”).

In truth, Senne does not even offer dicta on the question presented because the Village

admitted that its parking citation included statutory “personal information,” such as the owner’s 

address and license number. Like every other case cited in Plaintiffs’ Response, Senne merely 

repeated the complaint’s allegations listing all information disclosed.

3

Therefore, the parties 

 

3 None of the cases cited in the Response’s second footnote address, let alone decide, the question posed here 

because they all included “personal information” expressly listed in the DPPA’s definition. Johnston v. West Publ. 

Corp., 801 F.Supp.2d 862 (W.D. Mo. 2011) (defendant also disclosed driver’s license and social security numbers); 

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never litigated and the court never decided whether hair and eye color also constituted statutory 

“personal information.” Cf. Senne v. Vill. of Palatine, Ill., 645 F.3d 919, 922 (7th Cir. 2011)

(finding “no dispute” on appeal that citation contained personal information, limiting question 

presented to whether “disclosure” was actionable). Tellingly, the only case cited by either party 

that actually considered whether shared characteristics (e.g., birth dates) constitute “personal 

information” held that the doctrine of expressio unius est exclusio alterius precludes this

particular expansion of the DPPA. Camara v. Metro-N. R. Co., 596 F. Supp. 2d 517, 523, n. 9

(D. Conn. 2009). 

The Seventh Circuit should have the opportunity to clarify whether a criminal antistalking statute can restrict access to information no stalker conceivably could use to track a 

victim. Text Messaging, 630 F.3d 622 at 627 (interlocutory appeal proper to clarify scope of 

recent authorities). There is ample reason to doubt Judge Ripple intended any such implication

“[b]ecause construction of a criminal statute must be guided by the need for fair warning, it is 

rare that legislative history or statutory policies will support a construction of a statute broader 

than that clearly warranted by the text.” Crandon v. U.S., 494 U.S. 152, 160 (1990).

Moreover, “[t]he general test of vagueness applies with particular force in review of laws 

dealing with speech.” Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 620

(1976). See also Gentile v. State Bar of Nev. 501 U.S. 1030, 1048 (1991) (Nevada rule 

governing attorney speech void for vagueness because attorneys “must guess at its contours”). 

 

Manso v. Santamarina & Assocs, No. 04 Civ. 10276. 2005 WL 975854 (SDNY April 26, 2005) (driver’s license 

numbers); Gordon v. Softech Intern, Inc., No. 10 Civ. 5162(RMB), 2011 WL 1795300 (SDNY April 28, 2011)

(addresses and phone numbers). The opinions merely recited the plaintiffs’ unlitigated allegations describing all the 

information disclosed, regardless of whether actionable or not.

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Thus, the Court’s initial skepticism regarding Plaintiff’s “stretching” the DPPA’s definition of

“personal information” was well-founded, and the Seventh Circuit is particularly unlikely to 

have obscured the contours of a criminal statute, especially in this context. City of Chicago v. 

Morales, 177 Ill. 2d 440, 448, 687 N.E.2d 53, 59 (1997) aff’d, 527 U.S. 41 (1999) (“a criminal 

statute must be sufficiently definite so that it gives persons of ordinary intelligence a reasonable 

opportunity to distinguish between lawful and unlawful conduct.”).

II. Recent Seventh Circuit Authority Upholds the Right to Access Information On

Matters of Public Import Over Laws of General Application

“Truth may not be the subject of either civil or criminal sanctions where discussion of 

public affairs is concerned.” Garrison v. Louisiana, 379 U.S. 64, 74 (1964). That grounds exist

for differing opinions on the First Amendment question is obvious at the highest levels of the 

federal judiciary. The Supreme Court, in reviewing a Section 1292(b) appeal, characterized the

allegations confronting this Court – seeking to penalize the press for newsgathering in 

contravention of a generally applicable privacy statute – as presenting a “still-open question.” 

Bartnicki v. Vopper, 532 U.S. 514, 528 (2001).

4

 While this case was pending, the Seventh 

Circuit in ACLU held that the First Amendment protects “gathering news and information” 

regardless of whether the information is published. ACLU, 679 F.3d at 583.

Contrary to Plaintiffs’ suggestion, the First Amendment often invalidates statutory 

burdens on speech unrelated to publication. “[R]estrictions that have been attempted at different 

stages of the speech process . . . all [have been found] invalid.” Citizens United v. Fed. Election 

 

4 The Response acknowledges Bartnicki held that the press cannot be punished when a source acts unlawfully to 

provide information (as is alleged here). The “still-open question” is whether the press can be sanctioned when it 

participates in ostensibly unlawful conduct in the course of legitimate newsgathering. Cf. Russell v. American 

Broadcasting Co., 1995 WL 330920 (N.D.Ill. May 31, 1995) (undercover reporter secretly recorded conversation in 

grocery store to investigate food sanitation practices).

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Comm'n, 558 U.S. 310, 336 (2010). See, e.g. ACLU, supra; Fed. Election Comm’n., 551 U.S. at

469 (2007) (Bipartisan Campaign Reform Act unconstitutional as applied because prohibition on 

corporate funding of electioneering communications violated free speech rights); Simon & 

Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 116 (1991) (law 

requiring criminals to deposit income from literary works into victim escrow accounts was 

unconstitutional “disincentive” to speech); Minneapolis Star & Tribune Co. v. Minn. Comm'r of 

Revenue, 460 U.S. 575, 582 (1983) (tax on ink and paper “burdens rights protected by the First 

Amendment”); Weinberg v City of Chicago, 310 F.3d 1029, 1046 (7th Cir. 2002) (ordinance 

unconstitutionally restricted book sale); Ampersand Pub., LLC v. N.L.R.B., 702 F.3d 51, 56 (D.C. 

Cir. 2012) (NLRA unconstitutionally burdened newspaper’s editorial decisions). 

The Response implausibly distinguishes ACLU by claiming that the statute restricted the 

public, as opposed to the press, from recording officers. Restrictions on the press are subject to 

additional scrutiny because freedom of the “press” is expressly enshrined in the First 

Amendment. United States Const., Amend. I (“Congress shall make no law respecting an 

establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of 

speech, or of the press”) (emphasis added); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 

555, 573 (1980) (media serves as “surrogates for the public”). Thus, the First Amendment 

protects journalists even when they employ “surreptitious, confrontational, unscrupulous and 

ungentlemanly” investigatory tactics. Desnick v. Am. Broad. Companies, Inc., 44 F.3d 1345, 

1355 (7th Cir. 1995). See also Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136 (S.D. 

Cal. 2005) (“motive to gather news can negate” privacy tort); Medical Laboratory Management 

Consultants v American Broadcasting Cos., 30 F. Supp. 2d 1182 (D. Ariz. 1998), aff’d 306 F.2d 

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806, 1190 (9th Cir. 2002) (invasion of privacy “by a member of the print and broadcast press in 

pursuit of news material” not actionable). 

The ACLU eavesdropping statute, like the DPPA, was a privacy statute of general 

applicability that inadvertently operated to restrict the gathering of information on police officers 

performing official duties. The ACLU court invalidated the eavesdropping statute both because it 

restricted a common medium of expression and because it restricted newsgathering. 679 F.3d at 

601. Protections for newsgathering are not limited to “commonly used” methods. Desnick, 44 

F.3d at 1355; Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir. 1993) (First Amendment protected 

secretly recording conversation regarding illegal perks offered to students by university).

As in ACLU, penalizing the press for investigating and reporting that public officials in a 

homicide lineup shared certain physical characteristics will not advance the statute’s objective

but will chill a “core” First Amendment freedom. 679 F. 3d at 597 (citing “practically universal 

agreement that a major purpose of the First Amendment was to protect the free discussion of 

governmental affairs”). Plaintiffs cannot even explain how police are endangered by reporting 

readily observable physical characteristics shared by millions of Americans. New York Times 

Co. v. United States, 403 U.S. 713, 714 (1971) (Black, J. concurring) (refusing to enjoin 

publication of Pentagon Papers because “[t]he word ‘security’ is a broad, vague generality whose 

contours should not be invoked to abrogate the fundamental law embodied in the First

Amendment”).

5

 Instead, the Court can take judicial notice of the history and nature of this 

 

5 The Response’s contention that whether the application of the DPPA that their Complaint urges is Constitutional is 

not a “controlling question” strains reason. Obviously, a determination that their relief is not available under the 

First Amendment would terminate this case. Even the case cited by Plaintiffs, NMHG Fin. Servs., Inc. v. Wickes 

Inc., 07 C 02962, 2007 WL 3087146 at *2 (N.D. Ill. Oct. 17, 2007), states that questions regarding the “meaning of 

a statutory or constitutional provision” are controlling questions of law. 

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litigation, suggesting that the Fraternal Order of Police is behind a campaign of quasi-official 

harassment aimed at chilling reports of a “cover-up” that ultimately prompted appointment of a 

special prosecutor. Cf. People v. Palacio, 240 Ill. App. 3d 1078, 1101-02 (4th Dist. 1993) 

(judiciary has a duty to prevent “implicit threat that if the reporter speaks or writes something 

about the attorney’s client or case, the attorney will find ‘some ground’ to subpoena the 

reporter”).

Plaintiffs also cannot credibly distinguish their privacy interests from the officers’ 

interests in ACLU. See Nat. Assoc. of Criminal Defense Lawyers v. Chicago Police Department, 

399 Ill.App.3d 1, 13 (1st Dist. 2010) (with respect to lineup photos featuring police officers, “the 

degree of invasion of personal privacy is insignificant”). Indeed, these Plaintiffs’ privacy claims 

were already rejected and abandoned in state court. Fraternal Order of Police Chicago Lodge 

No. 7, et al., v. Sun-Times Media, LLC, et al., 11 CH 40181 (Cook Cty. 2011). Plaintiffs’ Fourth 

Amendment arguments are even less persuasive because “there is no constitutional right to 

privacy with respect to the type of information found in motor vehicle records.” Nelson v. 

Jesson, CIV. 13-340 RHK/JJK, 2013 WL 5888235 (D. Minn. Nov. 1, 2013) (“Indeed, this is the 

very sort of information to which individuals do not have a reasonable expectation of privacy.”).

Finally, Travis v. Reno, 163 F.3d 1000, 1007 (7th Cir. 1998), which observed that 

“[p]eering into public records is not part of the ‘freedom of speech’ that the first amendment 

protects,” is only a standing case, which reserved the issue of DPPA’s constitutionality.

6

 

 

6 ACLU subsequently limited the standing analysis in Travis by allowing a pre-enforcement challenge when the 

statute restricts access to information. Even when Travis ruled that a records request must be denied as a 

precondition to filing a lawsuit to challenge the constitutionality of the DPPA, the court did not “exclude the 

possibility that some particular record in a drivers-license system may in the future be deemed constitutionally 

exempt from the Act” and merely declined to decide the DPPA’s constitutionality without a “particular record that 

would put the constitutional issue in context.” Travis, 163 F.3d at 1007. Standing is evident here so the 

constitutional question is clearly presented by this case.

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Standing to sue for access has no bearing on whether one can be penalized for newsgathering.

Florida Star v. B.J.F. 491 U.S. 524, 535 (1989) (First Amendment prevented court from 

penalizing press for publishing victim’s name in violation of statute). 

In sum, interlocutory appeal is particularly appropriate in First Amendment cases because

courts should determine early and as a matter of law whether the relief sought would “constitute 

a forbidden intrusion on the field of free expression.” Greenbelt Corp. Publ’g Ass’n v. Bresler, 

398 U.S. 6, 11 (1970). The precedents finding that statutes of general application impermissibly 

burden free speech are legion. Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103-04 (1979) 

(newspaper could not be penalized for investigating and publishing name of rape victim because 

“when a state attempts to punish publication after the event it must nevertheless demonstrate that 

its punitive action was necessary to further the state interests asserted.”); United States v. 

Alvarez, 132 S. Ct. 2537, 2548 (2012) (federal statute penalizing “false” claims of military 

honors conflicted with First Amendment); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 

803 (2000) (Telecommunications Act provision violated First Amendment); Edward J. 

DeBartolo Corp. v. Florida Gulf Coast Bldg., 485 U.S. 568, 575 (1988) (application of NLRA to 

restrict speech held unconstitutional). If Congress wishes to combat stalking, “it must do so by 

narrowly drawn regulations designed to serve those interests without unnecessarily interfering 

with First Amendment freedoms.” Sable Commc’ns of California, Inc. v. F.C.C., 492 U.S. 115, 

126 (1989).

III. Plaintiffs’ Injunctive Remedy Constitutes a Prior Restraint

The Response argues that Plaintiffs do not seek a prior restraint because “the DPPA 

simply provides Plaintiffs a remedy following publication.” Response, p. 11. Yet Plaintiffs’ 

seek censorship in the form of an injunction prohibiting further publication. Compl., ¶ 32, , 37.

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At least in the Seventh Circuit, remedies that restrict access to information on matters of public 

importance violate the First Amendment regardless of when they are imposed. Weinberg, 310 

F.3d at 1046 (ordinance was unconstitutional prior restraint as applied to restrict sale of books

critical of the owner of the Chicago Blackhawks near the United Center). Weinberg demonstrates 

that censorship constitutes a “prior restraint” regardless of whether it restricts initial or ongoing

publication. See also Oklahoma Pub. Co. v. Dist. Court In & For Oklahoma Cnty., 430 U.S. 

308, 311(1977) (court’s order prohibiting further publication of juvenile’s name or photograph 

after several stories including his name and picture had already run constituted prior restraint). 

IV. Immediate Appeal would Advance this Litigation

Plaintiffs’ concession that this case turns on questions of law, rather than fact, pinpoints 

why immediate appeal is appropriate. Text Messaging, 630 F.3d at 624 (upon resolution of 

controlling issues of law in favor of defendants, the case “is likely . . . to be over.”). Plaintiffs 

merely suggest that an appeal “will only serve to further harm them” even though they have yet 

to identify any “harm” actually suffered since publication. Response, p. 12. 

As Bartnicki demonstrates, interlocutory appeals are especially favored in First 

Amendment cases because they inherently “chill[] speech.” Wisconsin Right To Life, 551 U.S. at 

469. “The kind of discovery requested here not only burdens the news organizations but burdens 

the public interest in a robust press.” Patterson v. Burge, 33 Med. L. Rptr. 1200, 2005 WL 

43240 at *3 (N.D. Ill. Jan. 6, 2005). Although Plaintiffs assert that “discovery in this case will 

not be overly broad or extensive” they do not deny that they will seek to depose reporters and

sources, a discovery tactic that can generate collateral interlocutory appeals in and of itself. See, 

e.g., Price v. Time, Inc., 416 F.3d 1327, 1334 as modified on denial of reh’g, 425 F.3d 1292 

(11th Cir. 2005) (interlocutory appeal to quash compelled discovery of news sources). Cf. 

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Gulliver’s Periodicals, Ltd. v. Charles Levy Circulating Co., Inc., 455 F. Supp. 1197, 1202 (N.D. 

Ill. 1978) (“Disclosure of a news source should not be ordered absent some strong and 

compelling reason in favor of disclosure.”).

Should the case proceed, the Sun-Times would be forced to defend itself by deposing

plaintiffs and third parties, including other CPD officers and public officials involved in the 

homicide investigations, on topics ranging from damages to the claim that the reporting was so 

inaccurate that it forfeited First Amendment protection or did not relate to matters of public 

concern. There is no reason to proceed with burdensome and expensive discovery, particularly 

with the Special Prosecutor’s criminal case pending, when the controlling questions of law can 

be promptly resolved by the Appellate Court. 

CONCLUSION

Both of the Court’s Orders raise controlling and contestable questions of law, the 

resolution of which would materially advance the termination of this litigation. Accordingly, for 

the reasons stated herein and in the Motion, the Sun-Times respectfully requests that this Court 

allow the Sun-Times to apply to the Seventh Circuit to appeal the Orders and specifically the 

questions listed in Paragraph 13 of the Motion, pursuant to Section 1292(b). In the alternative, 

the Court should reconsider its Orders in light of the points and authorities raised in the Motion 

and herein.

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Respectfully submitted,

SUN-TIMES MEDIA, LLC

By: /s/ Damon E. Dunn

One of its attorneys

Damon E. Dunn, Esq (#06180629)

Seth A. Stern, Esq. (#6300954)

FUNKHOUSER VEGOSEN

LIEBMAN & DUNN LTD.

55 West Monroe Street, Suite 2300

Chicago, Illinois 60603

Tel. (312) 701-6800

Fax: (312) 701-6801

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