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,

v.

SUN-TIMES MEDIA, LLC d/b/a THE

CHICAGO SUN-TIMES and Any

Other Known Corporate Name,

Defendant.

Case No. 12 C 658

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant’s Motion to Dismiss. For the

reasons stated herein, the Motion is denied. 

I. FACTUAL BACKGROUND

On April 25, 2004, an altercation arose between David Koschman

(“Koschman”) and R.J. Vanecko (“Vanecko”), a nephew of then-Mayor

Richard M. Daley. The incident resulted in Koschman’s death, and,

given Vanecko’s political connections, gave rise to a high-profile

investigation by the Chicago Police Department (the “CPD”). In

their investigation, the CPD placed Vanecko in a lineup with

several Chicago Police Officers of similar age, complexion, height,

and build. Eyewitnesses misidentified some of the officers as the

Case: 1:12-cv-00658 Document #: 33 Filed: 11/18/13 Page 1 of 8 PageID #:250
perpetrator, and the CPD concluded that there was no case to pursue

against Vanecko.

Defendant Chicago Sun-Times ran an article on November 21,

2011 that scrutinized the lineup procedure. The article included

each “filler” officer’s name (including middle initial), birth

month and year, height, weight, hair color, and eye color. It

listed the source of that data as the CPD and the Illinois

Secretary of State. See, Compl. Exs. 1 & 2.

Those officers, who take issue with the newspaper’s use of

their personal information, are the Plaintiffs here. They claim

that Defendant violated the Driver Privacy Protection Act (the

“DPPA”), 18 U.S.C. § 2721 et seq., and endangered their well-being

by obtaining personal information from their motor vehicle records

and publishing that information to the public. Plaintiffs seek

damages, a declaratory judgment that Defendant violated the DPPA,

and an injunction directing Defendant to remove their personal

information from its publications (including the online version of

the article on Defendant’s website).

In its Motion to Dismiss, Defendant contends that (1) the

published information is not “personal information” protected by

the DPPA and (2) that enforcing the DPPA against it would violate

the First Amendment. This Court addressed the first argument in

- 2 -

Case: 1:12-cv-00658 Document #: 33 Filed: 11/18/13 Page 2 of 8 PageID #:251
its September 10, 2012 Opinion and concluded that the published

information is “personal information” protected by the DPPA. See,

ECF No. 21. The Government declined to intervene to address the

constitutional question. At the Court’s request, the parties

provided supplemental briefs on the First Amendment issue. This

Court must now address (1) whether the DPPA, as applied to the

Defendant, violates the First Amendment and (2) whether the

requested injunction constitutes an unconstitutional prior

restraint.

II. LEGAL STANDARD

A complaint must contain a “short and plain statement of the

claim showing that the pleader is entitled to relief.” FED. R. CIV.

P. 8(a)(2). It “must contain sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts as

true all well-pleaded facts and draws all inferences in favor of

the non-moving party. Cole v. Milwaukee Area Tech. Coll. Dist.,

634 F.3d 901, 903 (7th Cir. 2011).

III. DISCUSSION

A. The DPPA

The DPPA makes it unlawful “for any person knowingly to obtain

or disclose personal information, from a motor vehicle record, for

- 3 -

Case: 1:12-cv-00658 Document #: 33 Filed: 11/18/13 Page 3 of 8 PageID #:252
any use not permitted under Section 2721(b) of this title.” 18

U.S.C. § 2722(a). Section 2721(b), in turn, specifies fourteen

permissible uses of personal information obtained from a motor

vehicle record. For example, one could use information from a

motor vehicle record to provide notice to an owner that her vehicle

was towed or impounded, § 2721(b)(7), or in connection with the

operation of private toll transportation facilities, § 2721(b)(10). 

Defendant does not contend that its publication of Plaintiffs’

personal information falls within any of these enumerated

circumstances. Instead, Defendant argues that the DPPA violates

the First Amendment by restricting what information the press can

publish.

The Seventh Circuit has held that, on its face, the DPPA does

not violate the First Amendment. Travis v. Reno, 163 F.3d 1000,

1007 (7th Cir. 1998). The Court left open the possibility of an

as-applied challenge, but it was skeptical that one could succeed,

because the DPPA restricts access to information, not speech. Id.

Defendant brings such an as-applied challenge. Defendant

notes correctly that the DPPA must be invalidated in its

application when it invades constitutional guarantees, such as the

freedom of speech protected by the First Amendment. See, e.g.,

Ampersand Pub. v. NLRB, 702 F.3d 51, 56 (D.C. Cir. 2012). However,

- 4 -

Case: 1:12-cv-00658 Document #: 33 Filed: 11/18/13 Page 4 of 8 PageID #:253
the Court is not persuaded that the DPPA, as applied in this case,

limits speech: it does not restrict what the press may publish. 

Rather, it limits access to information in that it narrows the

purposes for which one may use personal information obtained from

a motor vehicle record. 

Defendant protests that the DPPA, as applied, would prevent it

from publishing that a person has brown eyes. Def’s. Supp. Br. 7. 

But that is incorrect: the DPPA does not make it unlawful for the

press to publish truthful information such as a police officer’s

eye color. Rather, the DPPA makes it unlawful to “obtain or

disclose” personal information from a motor vehicle record. 18

U.S.C. § 2722(a). Thus, the press can publish that an officer has

brown eyes without violating the DPPA as long as it did not obtain

that information from the officer’s motor vehicle record. The

Seventh Circuit put it nicely: 

Peering into public records is not part of the “freedom

of speech” that the first amendment protects. There is no

constitutional right to have access to particular

government information. 

Travis, 163 F.3d at 1007 (internal quotation omitted).

Defendant contends that applying the law to it affects its

ability to disseminate information related to alleged governmental

misconduct. It is well established that “generally applicable laws

- 5 -

Case: 1:12-cv-00658 Document #: 33 Filed: 11/18/13 Page 5 of 8 PageID #:254
do not offend the First Amendment simply because their enforcement

against the press has incidental effects on its ability to gather

and report the news.” Cohen v. Cowles Media Co., 501 U.S. 663, 669

(1991). The First Amendment does not allow Defendant to access

information from any source and use it however it pleases. 

Additionally, the cases upon which Defendant relies are

inapplicable because in those cases the published information was

obtained lawfully. See, Smith v. Daily Mail Pub. Co., 443 U.S. 97,

104 (1979) (holding that, absent a substantial state interest, the

state may not punish the press for publishing lawfully obtained

information); The Florida Star v. B.J.F., 491 U.S. 524, 541 (1989)

(explaining that the publication of truthful information, when

obtained lawfully, can be punished by the state only when such

punishment is “narrowly tailored to a state interest of the highest

order”). Unlike the defendants in Smith and Florida Star,

Defendant did not obtain the information lawfully, as its purpose

for obtaining the Plaintiffs’ personal information did not fall

within one of the circumstances listed in § 2721(b). 

B. Prior Restraint

Plaintiffs have requested that this Court enjoin Defendant

from any continued publication of Plaintiffs’ personal information

obtained from their motor vehicle records. They allege that the

- 6 -

Case: 1:12-cv-00658 Document #: 33 Filed: 11/18/13 Page 6 of 8 PageID #:255
harm is ongoing. Defendant contends that Plaintiffs’ requested

injunction constitutes an unconstitutional prior restraint of

speech. 

Prior restraints are “administrative and judicial orders

forbidding certain communications when issued in advance of the

time that such communications are to occur.” Alexander v. United

States, 509 U.S. 544, 550 (1993). It is true enough that an

injunction would forbid Defendant from communicating the

information obtained from the motor vehicle record. But for

several reasons, Defendant’s argument is unconvincing. First, the

speech at issue has already taken place, so there can be no

concerns about the difficulty of knowing in advance what an

individual will say and whether that speech will be legitimate or

illegitimate. See, Southeastern Promotions, Ltd. v. Conrad, 420

U.S. 546, 559 (1975). 

Second, and perhaps more importantly, Defendant’s imprecise

reading of the injunction obscures its true purpose. Plaintiffs

seek to end the continuing publication of information obtained from

their motor vehicle record; that is, they seek to end the ongoing

violation of the DPPA, which, as described above, is constitutional

as applied to Defendant. Of course, as Defendant contends, anyone

who encounters the Plaintiffs can observe their hair, eyes, height,

- 7 -

Case: 1:12-cv-00658 Document #: 33 Filed: 11/18/13 Page 7 of 8 PageID #:256
weight, and approximate age. The issue is not whether other people

can discover this information, but whether Defendant obtained this

information unlawfully and continues to publish it unlawfully. 

Whether Plaintiffs will obtain their injunction is a separate issue

not yet before the Court, but at this stage Plaintiffs have done

all they need to do to claim their entitlement to one.

IV. CONCLUSION

For the reasons stated herein, Defendant’s Motion to Dismiss

[ECF No. 8] is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE:11/18/2013

- 8 -

Case: 1:12-cv-00658 Document #: 33 Filed: 11/18/13 Page 8 of 8 PageID #:257