The First Amendment Versus the Second Amendment
Why a New York paper had every right to publish the names and addresses of local gun owners.
Courtesy of Google Maps.
Worrying over the Newtown shooting, a friend of mine mentioned a piece of advice she’d gotten from a school official: Before your kid goes to another child’s house, ask the parents whether they own a gun, and whether it’s locked up. She’d been counseled to ask the question years ago, but never had. It just seemed too invasive and awkward.
I’ve been thinking about that unasked question in the wake of the decision by the Journal News, a New York suburban paper, to publish a map showing every handgun permit holder, by name and address, across the two counties of Westchester and Rockland. The story sparked outrage from readers, conservatives, and a local state senator; they called the newspaper feature a “violation of privacy,” a “scarlet letter,” and “intimidation.” Poynter’s Al Tompkins also objected: “Just because information is public does not make it newsworthy,” he wrote. People own guns for a wide range of law-abiding reasons. If you are not breaking the law, there is no compelling reason to publish the data.”
Why is it legal to publish these kinds of gun records, and should it be? There’s no real question that New York law allowed the Journal News to publish these records. The state has an open records act that says the name and address of handgun permit holders “shall be a public record.” That “shall” doesn’t leave room for government officials to refuse to hand this information over, as Putnam, a third county covered by the Journal News, is doing. The paper also has a First Amendment right to publish the gun data. The Putnam county clerk says he’s refusing to put gun owners “in harm’s way,” but if he is challenged in court, he will surely lose.
States can choose otherwise. On the Gannett blog, commenter Jim Hopkins says that he published a story in the Gannett paper in Boise, Idaho, in the mid 1990s, based on gun data he got through the state’s open-records law, and that in response, Idaho lawmakers changed the law to allow people with concealed carry permits to keep their records secret. On Poynter, Julie Moos has a good roundup of other examples of news organizations taking this step. For the newspapers, the justification is that readers “are understandably interested to know about guns in their neighborhoods,” as the Journal News said in a statement. But of course, people are interested in knowing all kinds of things. So is the only line to draw here based on what’s legal, plus a news organization’s editorial judgment?
I called William Newman of the ACLU of Western Massachusetts, who represented Slate and me in a successful open records act challenge, to puzzle this through. Why should certain personal information, like food stamp or unemployment insurance applications, or tax returns, remain private—as federal law and some state laws mostly provide—while gun permit records are public? Newman said the law reflects a societal consensus about when privacy outweighs the public’s interest in transparency, and when it’s the other way around. "Gun permits are like property appraisals, or construction permits, or parade permits. People could object to making these records available on privacy grounds, too," Newman said. "But because guns are what they are, there is a greater need to know."
Property sale prices aren’t necessarily shaming, the way criminal records are, or the addresses of sex offenders, though they can be embarrassing. To me, that makes the property records more analogous to gun permits than food stamps, where the stigma, however unfortunate, is more obvious. As someone who doesn’t own a gun, I don’t entirely get why making this information public is a scarlet letter. If you own a gun for self-defense, isn’t there some benefit in telling would-be home invaders that you have one? You could see this like a Beware of Dog sign: as a form of deterrence. In fact, maybe it’s those who don’t own guns who have the most to lose from the publication of this kind of data. If gun-free zones around schools make them a target for gunmen like the Newtown shooter, as the National Rifle Association has argued, then the Journal News map could be a guide for thieves looking for homes that are easier to enter. In this version, handguns are like burglar alarms or LoJacks, and we’re all a bit safer when the thieves don’t know which homeowner has one.
I still think, though, that it’s the legislature’s decision that most closely tracks the societal value that’s expressed in making a certain piece of information public. You could argue that New York’s law was written before the age of the Internet, when a map like the one in the Journal News was at everyone’s fingertips. But the Internet wasn’t born yesterday, so lawmakers have had time to choose to leave the open records act as is.
You could also argue, as Tompkins did, that the Journal News didn’t do enough with this information—that the journalistic value of the map, matched with no additional data or analysis, isn’t high enough to justify the privacy concerns and the prospect that irritated handgun owners, feeling embattled, will be even less likely to support gun control reform. Just look at the backlash the paper has generated—it has hired armed guards, and a blogger published the names and addresses of many of the papers’ reporters. That’s its own expression of public sentiment. Fair enough. Still, I’d like to believe that the threats of violence against the paper, in particular, don’t reflect a consensus.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. She is also the Truman Capote Fellow at Yale Law School and a contributing writer for the New York Times Magazine. Her new book is Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at firstname.lastname@example.org or on Facebook or Twitter.