Victoria Schrader v. District Attorney of York County

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 22-2037
_______________
VICTORIA SCHRADER
v.
DISTRICT ATTORNEY OF YORK COUNTY;
ATTORNEY GENERAL OF PENNSYLVANIA
DISTRICT ATTORNEY OF YORK COUNTY,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1:21-cv-01559)
District Judge: Honorable Jennifer P. Wilson
_______________
Argued January 23, 2023
Before: SHWARTZ, BIBAS, and FUENTES, Circuit Judges
(Filed: July 19, 2023)
_______________

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Sean E. Summers [ARGUED]
SUMMERS NAGY LAW OFFICES
35 South Duke St.
York, PA 17401
Counsel for Appellant
Aaron D. Martin [ARGUED]
METTE EVANS & WOODSIDE
3401 North Front St.
P.O. Box 5950
Harrisburg, PA 17110
Counsel for Appellee
Sean A. Kirkpatrick [ARGUED]
OFFICE OF ATTORNEY GENERAL OF PENNSYLVANIA
Strawberry Square 15th Floor
Harrisburg, PA 17120
Counsel for Attorney General of Pennsylvania
_______________
OPINION OF THE COURT
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BIBAS, Circuit Judge.
Child-abuse information matters to both victims and the
public. The government encourages victims to report abuse by
keeping their information private. But the public has a strong
interest in holding the government accountable for how it
confronts this serious crime. So once this information enters
the public domain, the government can rarely claw it back.

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Victoria Schrader wants to use documents released by the
government to criticize it for how it handled her grandson’s life
and untimely death. Yet she worries that Pennsylvania officials
will use Pennsylvania law to punish her for doing so. Because
the First Amendment protects her criticism, the District Court
properly enjoined the officials from prosecuting her. But
because one of her alleged injuries is too speculative, we will
vacate the injunction with instructions to narrow it.
I. INVESTIGATING A TODDLER’S DEATH
Dante Mullinix died when he was only two. (Because the
District Court used Dante’s full name throughout its opinion
and order, and Dante is no longer with us, we will too.) Before
he died, his aunt, Sarah Mercado, thought he had been in
danger. So she filed a report with the York County Office of
Children and Youth Services, imploring them to protect him.
Her report led Youth Services to investigate Dante’s welfare.
But that investigation would not save him.
Tyree Bowie, who was dating Dante’s mother, was charged
with murdering him. In criminal discovery, Bowie got
documents from the Youth Services investigation that were
stored in a statewide database. He passed them along to
Mercado, who believed he was innocent. Mercado wanted to
advocate Bowie’s innocence and blame Youth Services for
failing to protect her nephew. So she started a Facebook group
called “Justice for Dante” and posted some of the documents
to the group. Bowie was eventually acquitted.
In the meantime, those posts caught the eye of York County
District Attorney David Sunday. The DA charged Mercado
with violating Pennsylvania’s Child Protective Services Law.

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The Law makes it a crime to “willfully release[ ] or permit[ ]
the release of any information contained in the Statewide
[child-abuse] database … to persons or agencies not permitted
… to receive that information.” 23 Pa. Cons. Stat. § 6349(b).
The DA later dismissed the charge without prejudice.
Victoria Schrader, Dante’s grandmother and Mercado’s
mother, shares Mercado’s views. She wants to publish
“documents that had been generated in the course of [Youth
Services’ investigation],” including the documents that
Mercado has already posted on Facebook, to “further publicize
[Youth Services’] failures and … [to] advoca[te] … Bowie’s
innocence.” Compl. ¶¶ 12, 22, Schrader v. Sunday, 603 F.
Supp. 3d 124 (M.D. Pa. 2022) (No. 1-21-cv-01559). But she
fears that she too will be prosecuted if she does so.
So Schrader sued to enjoin the DA and Pennsylvania’s
Attorney General from prosecuting her. Invoking the First
Amendment, she claims that the Law is unconstitutional both
on its face and as applied to her.
The District Court agreed with the as-applied challenge, so
it did not reach the facial one. Schrader, 603 F. Supp. 3d at 139
& n.9. After briefing, but without a hearing, it preliminarily
enjoined the DA and Attorney General. Id. at 141. The
injunction barred them from prosecuting Schrader for sharing
any child-abuse documents “whether now in her possession or
otherwise coming into her possession, concerning Dante.”
App. 34. The DA, but not the Attorney General, now appeals.

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II. WE LACK JURISDICTION OVER PART OF THIS APPEAL
We start with subject-matter jurisdiction, which we review
de novo. Great W. Mining & Min. Co. v. Fox Rothschild LLP,
615 F.3d 159, 163 (3d Cir. 2010). The District Court had
statutory jurisdiction to hear Schrader’s federal question under
28 U.S.C. § 1331, and we have interlocutory jurisdiction to
review preliminary-injunction appeals under § 1292(a)(1). But
we lack appellate jurisdiction to consider the Attorney
General’s claims, and the District Court lacked Article III
jurisdiction to hear part of Schrader’s case.
A. We lack appellate jurisdiction over the Attorney
General’s challenge
The Attorney General did not appeal the injunction. Yet she
has filed a brief as an appellee, challenging the District Court’s
subject-matter jurisdiction to enjoin her. But our jurisdiction is
limited to “appeals from … [i]nterlocutory orders … granting
… injunctions.” 28 U.S.C. § 1292(a) & (a)(1) (emphasis
added). Because there is no appeal by the Attorney General,
we lack jurisdiction over her challenge to the District Court’s
jurisdiction. Petroleos Mexicanos Refinacion v. M/T King A
(Ex-Tbilisi), 377 F.3d 329, 333 n.4 (3d Cir. 2004). She can
press those claims below. See Fed. R. Civ. P. 12(h)(3).
B. Schrader has standing for some (not all) of her
claims
The DA did appeal. So we have appellate jurisdiction over
his challenge to the injunction. But we still must confirm
subject-matter jurisdiction. Nesbit v. Gears Unltd., Inc., 347
F.3d 72, 76–77 (3d Cir. 2003). For that, the plaintiff must have

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standing. City of Los Angeles v. Lyons, 461 U.S. 95, 102–03,
105–07 (1983). And though Schrader has standing to seek to
enjoin prosecution for sharing documents “now in her
possession,” she lacks standing to block prosecution for
sharing documents “otherwise coming into her possession.”
App. 34.
For standing, a plaintiff must show that she has suffered “an
injury in fact” that is caused by “the conduct complained of”
and could be “redressed by a favorable decision.” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 157–58 (2014)
(internal quotation marks omitted). Schrader claims that the
DA is threatening to enforce the Law against her. To show an
injury in fact in such a case, she must allege that (1) she intends
to do something that is (2) arguably protected by the
Constitution but (3) arguably barred by the Law, and that
(4) the DA is credibly threatening to prosecute her under that
Law. Id. at 158–59.
For the documents now in her possession, Schrader satisfies
these four requirements. First, her intent to publish the
Facebook documents is “specific” and not “conjectural or
hypothetical.” Id. at 158, 161 (internal quotation marks
omitted). She wants to do almost exactly what Mercado has
already done with them.
Second, by sharing the Facebook documents, Schrader
intends to criticize the government. She certainly has a
constitutional interest in doing that. Id. at 162; Rosenblatt v.
Baer, 383 U.S. 75, 85 (1966).
Third, the Law might bar her from sharing the Facebook
documents. Pennsylvania’s Superior Court, in dictum, has

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described the Law as “extend[ing] the duty of confidentiality
to all persons who come into possession of protected
information.” V.B.T. v. Fam. Servs. of W. Pa., 705 A.2d 1325,
1333 n.13 (Pa. Super. Ct. 1998) (emphasis added). The
Facebook documents contain “information … in the Statewide
[child-abuse] database.” 23 Pa. Cons. Stat. § 6349(b). So by
reposting them, Schrader would arguably “release[ ]” that
information. Id. One definition of “release” is to “make
available for publication or public showing; to publish.”
Release (def. II.7), Oxford English Dictionary (2d ed. 1989).
The Law’s arguable ban on doing that suffices for standing.
Finally, Schrader faces a credible threat of prosecution.
“[P]ast enforcement against the same conduct is good evidence
that the threat of enforcement is not ‘chimerical.’ ” Driehaus,
573 U.S. at 164 (quoting Steffel v. Thompson, 415 U.S. 452,
459 (1974)). Mercado has already been prosecuted for posting
the same documents to Facebook. That “prosecution … is
ample demonstration” that Schrader’s concern is credible.
Steffel, 415 U.S. at 459. And though the DA has suggested that
he would not prosecute Schrader for just sharing the Facebook
documents, he has not disavowed that possibility. Thus,
Schrader has “alleged a credible threat of enforcement.”
Driehaus, 573 U.S. at 165–67.
But for documents “otherwise coming into her possession,”
Schrader’s alleged injury is hypothetical. She does not yet
know about these other documents and their contents. She may
never get them and may never share them. So the prospect of a
prosecution is at best “speculative.” Younger v. Harris, 401
U.S. 37, 42 (1971). Such speculative allegations are not enough
to give federal courts jurisdiction to enjoin prosecution. Lyons,

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461 U.S. at 105–07. Indeed, at oral argument, Schrader’s
counsel conceded that she now seeks to share only the
Facebook documents. So we will vacate the District Court’s
injunction covering the other-documents claim.
In fearing prosecution if she shares the Facebook
documents, Schrader is suffering an injury in fact. And she
easily meets the other two requirements for standing. Her
“credible threat of prosecution is traceable to the [DA’s]
enforcement of” the Law, and enjoining enforcement would
redress that injury. N.J. Bankers Ass’n v. Att’y Gen. N.J., 49
F.4th 849, 856 (3d Cir. 2022). So she has standing to seek to
enjoin enforcing the Law against her posting the Facebook
documents. We thus have jurisdiction to consider the DA’s
challenge to the preliminary injunction against him.
III. NO HEARING WAS NEEDED
The DA starts with a procedural attack. He says the District
Court should have held a hearing on the preliminary-injunction
motion. True, a court can issue a preliminary injunction “only
on notice to the [enjoined] party.” Fed. R. Civ. P. 65(a)(1). But
“notice” is different from a hearing. And we have “long …
recognized that a preliminary injunction may issue … without
a hearing, if the evidence submitted by both sides does not
leave unresolved any relevant factual issue.” Williams v.
Curtiss-Wright Corp., 681 F.2d 161, 163 (3d Cir. 1982) (per
curiam). The DA points to no relevant factual issue left
unresolved. Though he says he wanted to explain the stakes
and why he needs the Law to investigate and prosecute child
abuse, he filed briefs making those very points. He got the

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notice he needed, and the court properly exercised its
discretion to enjoin him without a hearing.
IV. BECAUSE SCHRADER’S CONSTITUTIONAL CHALLENGE
IS LIKELY TO SUCCEED, THE DISTRICT COURT
RIGHTLY ENJOINED PROSECUTING HER
With those threshold arguments out of the way, we reach
the merits. We review the court’s factual findings for clear
error, its legal conclusions de novo, and its ultimate grant of
the injunction for abuse of discretion. Osorio-Martinez v. Att’y
Gen., 893 F.3d 153, 161 (3d Cir. 2018).
To get a preliminary injunction, Schrader must satisfy four
factors: (1) she will likely succeed on the merits, (2) she will
likely suffer irreparable injury without an injunction, (3) the
balance of equities favors her, and (4) an injunction serves the
public interest. Winter v. NRDC, 555 U.S. 7, 20 (2008).
Because the government is the opposing party, the latter two
factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009).
The battle here is over the merits. “In First Amendment
cases the initial burden [of proof] is flipped.” Greater Phila.
Chamber of Com. v. City of Phila., 949 F.3d 116, 133 (3d Cir.
2020). For a preliminary injunction, as at trial, the government
must prove constitutionality under whatever level of scrutiny
applies to the speech restriction. Id.
Here, picking the right level of scrutiny is tricky. Two lines
of precedent apply. Under one, we focus on whether the Law’s
restriction on speech is content-based. If it is, we apply strict
scrutiny; if not, then intermediate scrutiny. City of Austin v.
Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471–

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74 (2022). Under the other, we ask instead whether the Law
punishes publishing lawfully obtained, truthful information of
public concern. See Bartnicki v. Vopper, 532 U.S. 514, 526–28
(2001). If it does, the Law is invalid unless it serves “a need to
further a state interest of the highest order.” Smith v. Daily Mail
Publ’g Co., 443 U.S. 97, 103 (1979). We need not reconcile
these two lines of precedent here because both point the same
way: under either, Schrader is likely to win.
A. Under the content-focused test, the Law is likely
unconstitutional as applied here
Content-based laws are “those that target speech based on
its communicative content.” Reed v. Town of Gilbert, 576 U.S.
155, 163 (2015). Some laws do that on their face by
“regulat[ing] speech [based on its] particular subject matter.”
Id. Others “regulate[ ] speech by its function or purpose” as a
“proxy” for its subject matter. Id.; City of Austin, 142 S. Ct. at
1474. But that “subtler” strategy cannot evade content-based
scrutiny. Id. (both sources).
The Law is one such function-or-purpose statute. Though
the Law regulates the information by its source, the source
itself is defined by its subject matter. Recall that it punishes a
“person who willfully releases … any information contained in
the Statewide [child-abuse] database” to unauthorized persons.
23 Pa. Cons. Stat. § 6349(b). By law, the Statewide database
has twenty-three types of information about “child abuse.”
§§ 6331, 6336. So the Law “single[s] out [a] topic or subject
matter for differential treatment”: child abuse. City of Austin,
142 S. Ct. at 1472. Because the database is a “proxy” for
subject matter, the Law is content-based. See id. at 1474.

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Thus, the DA must satisfy strict scrutiny. A content-based
law like this one is “presumptively unconstitutional and may
be justified only if the government proves that [it is] narrowly
tailored to serve compelling state interests.” Reed, 576 U.S. at
163.
The DA fails to meet this daunting burden. True, the state
generally has a “compelling interest in protecting its child-
abuse information.” Pennsylvania v. Ritchie, 480 U.S 39, 60
(1987). But the strength of those “privacy interests fade[s] once
information already appears on the public record.” Fla. Star v.
B.J.F., 491 U.S. 524, 532 n.7 (1989); accord Cox Broad. Corp.
v. Cohn, 420 U.S. 469, 494–95 (1975). Mercado has already
posted on Facebook the child-abuse documents that Schrader
wants to share.
Even if the state still has a compelling interest, prosecuting
Schrader for republishing Mercado’s documents is not
narrowly tailored to serve that interest. To narrowly tailor, the
state must choose “the least restrictive means among available,
effective alternatives.” Ashcroft v. ACLU, 542 U.S. 656, 666
(2004). But there are “available, effective alternatives” to
prosecuting Schrader. Take these two:
First, there are protective orders. The DA could have gotten
a protective order stopping Bowie from sharing the discovery
documents before he did so. See Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 31–37 (1984). Instead, the DA got a
protective order only after Bowie had shared them. When “the
government has failed to police itself in disseminating
information,” prosecuting someone who later publishes that

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information “can hardly be said to be a narrowly tailored means
of safeguarding” confidentiality. Fla. Star, 491 U.S. at 538.
Second, there are civil penalties. The Law could, for
instance, authorize fines. Here, the DA “has offered little more
than assertion and conjecture to support [his] claim that
without criminal sanctions the objectives of [the Law] would
be seriously undermined.” Landmark Commc’ns, Inc. v.
Virginia, 435 U.S. 829, 841 (1978).
The DA has not met his burden to explain away these two
alternatives. Because the law is not narrowly tailored, the state
may not apply it to stop or punish Schrader for publishing the
Facebook documents. See FEC v. Wis. Right to Life, Inc., 551
U.S. 449, 464, 476 (2007).
B. Under the Daily Mail test, the Law is also likely
unconstitutional as applied here
Another strand of First Amendment law also protects
Schrader’s intended speech: the Daily Mail test. If one
“lawfully obtains truthful information about a matter of public
significance[,] then state officials may not constitutionally
punish publication of the information, absent a need to further
a state interest of the highest order.” 443 U.S. at 103. The Daily
Mail test applies even when a content-neutral state law seeks
to punish a publisher who is not part of the press. Bartnicki,
532 U.S. at 525–28 & n.8.
(Though the Daily Mail test fits oddly with our modern
focus on content-based restrictions, its principle seems to date
to the Founding. See Pa. Const. of 1790, art. IX, § VII (making
truth a defense to “prosecutions for the publication of papers,

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investigating the official conduct of officers, or men in a public
capacity, or where the matter published is proper for public
information”); Sedition Act, ch. 74, §§ 2, 3, 1 Stat. 596, 596–
97 (1798) (making truth a defense to prosecutions for
publishing “any false, scandalous and malicious writing or
writings against the government of the United States”). And
the Court has explained that true “speech concerning public
affairs is more than self-expression; it is the essence of self-
government.” Garrison v. Louisiana, 379 U.S. 64, 74–75
(1964). So the test understandably stands apart from the
content-focused analysis.)
Daily Mail’s test supports Schrader’s right to speak. First,
she got the Facebook documents lawfully: “Even assuming the
Constitution permitted a State to proscribe receipt of
information, [Pennsylvania] has not taken this step.” Fla. Star,
491 U.S. at 536. Instead, the Law bans only releasing
confidential child-abuse information. Second, the Facebook
documents are undisputedly authentic. Id. And third, they are
significant to the public: the government’s investigation of
child abuse, especially involving a child who ultimately died,
is “a matter of paramount public import.” Id. at 536–37; see
also Bowley v. City of Uniontown Police Dep’t, 404 F.3d 783,
787–88 & n.6 (3d Cir. 2005).
Because Schrader meets the Daily Mail criteria,
“punishment may lawfully be imposed, if at all, only when
narrowly tailored to a state interest of the highest order.” Fla.
Star, 491 U.S. at 541. And as explained earlier, the Law is not
narrowly tailored as applied to Schrader. So under the Daily
Mail test, the state cannot constitutionally use it to punish her.

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C. The other preliminary-injunction factors support
relief too
The DA concedes that if the Law abridges the First
Amendment, enforcing it against Schrader would irreparably
injure her. “The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
And though the public has a strong interest in protecting
reports of child abuse, “privacy concerns give way when
balanced against the [First Amendment] interest in publishing
matters of public importance.” Bartnicki, 532 U.S. at 533–34.
The state could have prevented this information from entering
the public domain, but it failed to do so. It cannot now use
prosecution to fix its mistake. And “the enforcement of an
unconstitutional law vindicates no public interest.” K.A. ex rel.
Ayers v. Pocono Mt. Sch. Dist., 710 F.3d 99, 114 (3d Cir.
2013). So irreparable injury, the equities, and the public
interest all favor relief.
The District Court properly balanced all the factors and
tailored its relief to the party before it. It did not abuse its
discretion by granting the preliminary injunction as far as it lets
Schrader publish the Facebook documents.
D. By enjoining the DA, we are not definitively
interpreting the Law
We end with a note on statutory construction. As a federal
court, we cannot “authoritatively … construe state legislation.”
United States v. Thirty-Seven (37) Photographs, 402 U.S. 363,
369 (1971). And we look at the Law through the lens of the
preliminary-injunction factors. We hold only that if the Law

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applies to Schrader’s speech (which is arguable), that
application would likely be unconstitutional. And “when
confronting a constitutional flaw in a statute, we try to limit the
solution to the problem.” Ayotte v. Planned Parenthood of N.
New Eng., 546 U.S. 320, 328 (2006). So we will tell the District
Court to limit its injunction to protect Schrader’s right to
publish the Facebook documents.
The Second Circuit recently did something similar. It
upheld an injunction barring a state from prosecuting a plaintiff
for speaking in ways that would violate one reasonable reading
of a state statute. Picard v. Magliano, 42 F.4th 89, 98–99, 102,
106–07 (2d Cir. 2022). That as-applied injunction would
ensure that “[the plaintiff’s] constitutionally-protected conduct
is not chilled by his reasonable fear of future arrest and
prosecution.” Id. at 102. So too here. Enjoining the DA from
prosecuting Schrader resolves her as-applied challenge, avoids
authoritatively construing the law, and limits the solution to the
problem.
* * * * *
Victoria Schrader wants answers for her grandson’s death.
In search of the truth, she seeks to criticize those in power by
publishing the very information that they had before his death.
Though Pennsylvania’s Child Protective Services Law serves
weighty interests, it cannot be used to punish her for doing so.
We will vacate and remand to let the District Court enter a
narrower injunction, which should still protect her on her
search.

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