Judge Shrugs At 1st Amendment, Orders News Site To Take Down Info It Got From A Publicly-Available Court Filing [UPDATED]
from the defendant-asks-that-cats-to-be-reinserted-into-bag dept
A federal judge has decided unconstitutional prior restraint is the best way to handle a clerical screwup. An injunction request, filed under seal, has been granted, resulting in the LA Times deleting information it obtained legally from a US federal court's website.
A plea agreement the government reached with Glendale police detective John S. Balian was accidentally made public on PACER, where it was scooped up by the LA Times. Information from that plea agreement appeared in its July 14th article on Balian. That information has now been removed from its website and replaced with this note:
5:15 p.m.: This story has been updated to remove references from the filed plea agreement, which was ordered sealed by a judge but publicly available Friday on the federal court’s online document database. The changes were made to comply with an order issued Saturday by a U.S. federal judge. The Times plans to challenge the order.
The information Balian's lawyer wanted removed lives on at the Internet Archive, where an unedited version of the post still resides. The effectiveness of this order may have blunted by the internet's ability to remember things people want forgotten, but the order is still an abuse of judicial power. This is the bulk of the information targeted by the court order.
John Saro Balian, 45, pleaded guilty to one count each of soliciting a bribe, obstruction of justice and making false statements to federal investigators as part of a plea agreement he reached with prosecutors. The document was ordered to be filed under seal but appeared on PACER, a public online database for court documents.
According to the agreement, filed in U.S. District Court, Balian agreed to cooperate with federal authorities by responding truthfully and completely in interviews and court proceedings. He is scheduled to be sentenced in September, when prosecutors are expected to recommend a reduced sentence.
As Ken White points out in his post on the subject, the granted injunction [PDF] appears to have been approved in whole by the presiding judge, who only added a couple of things to the proposed order before signing off on this violation of the First Amendment.
[B]ased on an emergency request from the defendant, with no prior opportunity to be heard, a federal judge ordered a major newspaper (1) not to write about the details of a federal plea agreement it had obtained lawfully, (2) not to write anything that "relies on, or is derived in any way" from the plea agreement, an incredibly broad and vague term that is extraordinarily chilling to speech about the case, (3) to take down any story it's already published, and (4) told the paper they can see the order, but not the application stating the legal and factual grounds for the order.
The LA Times is challenging the order, but it has to do it without access to all the facts. The application for the order was filed under seal, so it's likely the first time the paper will see what it's arguing against will be when it shows up in court to argue against the injunction.
Beyond the obvious First Amendment implications of granting such a broad order over information legally obtained by the LA Times, there's the question about the purpose it's supposed to serve. What's been "deleted" reveals little that probably couldn't be inferred by astute readers. Certainly the Times' article does provide more details than it would have without a copy of the plea agreement, but its other coverage -- along with the docket's publicly-available documents -- already strongly hinted that Balian had entered a plea agreement with the government.
The plea agreement isn't necessary to show his cooperation; reasonable observers can infer it as a strong likelihood. The plea agreement may also have included factual details about what Balian admitted to doing — prosecutors typically get cooperators to agree to a detailed set of facts to "lock them in" to a story. But that's the government's concern, not Balian's.
This sloppy decision by a federal judge now requires the LA Times to spend time and money overturning a clearly unconstitutional gag order. It's not a party to this case but has been put in the position of having to interject. Sure, it doesn't have to challenge this injunction, but if you don't stick up for your rights -- especially in an industry heavily-reliant on the First Amendment -- you're just ceding ground and signalling to others you're willing to delete information anytime an article's subject gets angry. The Times' appeal of the injunction should be successful but the greater point remains that it never should have had to do this in the first place.
UPDATE: Ken White reports (from the courthouse) that the judge has vacated the restraining order but still decided to say bad things about the LA Times choosing to publish information left exposed by a clerical error. This Twitter thread details the swift movements of Judge John F. Walter to reverse his horrendous decision before the 9th Circuit Court of Appeals had a chance to lambaste him for forgetting the First Amendment exists.
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Filed Under: first amendment, free speech, john balian, journalism, pacer, prior restraint, sealed court document
Companies: la times
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When they clearly ignore the Constitution, perhaps its time we give them a timeout. This isn't just a slight case of misspeaking, this is prior restraint which is very settled law.
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Re:
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But apparently his settlement payout was too small to keep him from selling information about Glendale Police tactical plans to both the Armenian Mafia and Mexican Mafia, who no doubt would have paid handsomely for tips on upcoming police raids.
It's quite a dilemma. If police departments maintain a completely "colorblind" policy of employing officers who are of the same ethnicity as the local mafia, common sense should tell anyone that those officers are more likely to be recruited by the mafia to moonlight as paid moles, which was the case here. But if they don't, then they're risking a discrimination lawsuit, which was also the case here.
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The point of informants isn't that you can trust them unquestioningly. The point of informants is that you can use leverage against them to get information, which you can use to gather corroborating evidence.
The reason you can believe what an informant says isn't that he's a trustworthy individual. It's that a useful informant directs you to concrete evidence that backs up what he's saying.
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This police officer, a Public Servant, lying, being bribed, etc, the Judge is allowing it all to be covered up so the Public doesn't have a right to know. That's just completely wrong.
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Re: Requirements
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Remedy [was Re: ]
Write, call, contact your United States Representative. Prior restraints are the most serious and least tolerable infringement of the First Amendment. The Constitution provides a remedy for misfeasance and malfeasance in office.
Write, call, contact your United States Representative.
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More from Popehat
Ken now has a new post up at Popehat, “Federal Court Vacates Prior Restraint Order Against LA Times, But Blasts Press In Attempt To Justify It” (July 17, 2018).
My immediate reaction?: “Judge Walter, you can tell your story to the Senate.”
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Deep sigh.
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Re: More from Popehat
Quoting from Ken's webpage:
"But he [Judge John F Walter] didn't leave it without harsh criticism of the Times. He suggested that the reporter should have waited for an order from him rather than running the story once she heard the defense protest that the plea agreement should have been under seal. He suggested the Times was wrong to run information about a document that it knew was intended to be under seal — he described it as "exploiting an honest mistake by a docketing clerk."
Seriously... This judge seems to have attitude/ego issues.
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In this particular case the judge in question really couldn't bend the law enough to justify what felt right, so once it was clear he was going to be called on it he walked it back.
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Starting Points [was Re: ]
Start with the firm presumption that prior restraints are contrary to our constitution.
Ken White's post relays Judge Walter's excuse that “at the time [Judge Walter] issued the order it wasn't clear how the Los Angeles Times reporter got the plea agreement.”
From another viewpoint, Victoria Kim's LA Times story yesterday, “Judge lifts controversial order requiring the L.A. Times to alter article about an ex-Glendale cop” (July 17, 2018), relates this as—
(Emphasis added.)
Compare that carefully against the order Judge Walter signed on July 14th, in which he wrote—
Reconciling the the finding from the 14th with the excuse offered on the 17th, it's plain that Judge Walter wrongly allocated the burdens in the face of uncertainty. He doesn't aver that he had evidence before him that seemed clear and convincing at the time. No, he offers that he was unsure.
Prior restraints ought to come to court bearing a heavy burden against their constitutional validity. That's clear. It ought to be excruciatingly clear. When Judge Walter explains that he was “initially unsure”, then it's certain the order should never have issued.
If the House of Representatives won't call Judge Walter to answer before the bar of the Senate, then where shall he be held to account for this? Will he simply resign? He's no good.
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Redacted Document
C.D.Cal. Docket: United States v Balian (2:18-cr-00345)
From inspection of the docket, document 60 filed today is apparently a redacted version of docket entry 41 (sealed document filed: Jul 14, 2018).
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