Judge In Broward County Documents Case Decides The First Amendment Doesn't Cover These Public Records
from the 'freedom-of-the-press-is-nice-and-all,-but-shut-the-hell-up' dept
So much for my powers of prediction. After a Florida newspaper was hit with a request for contempt charges for publishing parts of a document a local school board tried (but failed) to redact, I suggested the court would side with the paper and say a few strong words about proper redaction techniques and the First Amendment. I could not be more wrong.
Broward Circuit Judge Elizabeth Scherer said the newspaper flouted her order that portions of a school district report about Cruz should remain shielded from the public. In the future, she declared, she will consider listing exactly what the newspaper can and cannot print.
So much for the vaunted First Amendment. While judges are welcome to deliver instructions about what can or cannot be printed (provided they don't mind violating the First Amendment 90% of the time), there's no reason to hand out these instructions to document recipients in public records lawsuits like this one. That's why redaction exists: so public entities can fulfill their public records obligations while withholding information that qualifies for exemptions or to comply with privacy laws. If the respondent screws up the redaction, there's no legal obligation for new agencies or any other records requester to pretend what wasn't supposed to be accessible isn't accessible. The burden is on the government to perform its job correctly.
No laws were violated by the Sun Sentinel's discussion of parts of the document that were supposed to be withheld. It acquired the document lawfully -- in fact, as a result of this court's order -- and discovered the redaction technique used didn't actually redact anything. Parts of what was withheld by the school shows the Broward County School Board mishandled some of its interactions with the Parkland shooter. This obviously was of great interest to the public, so there's no question that part weighs heavily in the favor of the paper's First Amendment rights.
What's worse is the judge stated in court the Sun Sentinel did something devious to expose the supposedly-redacted information, when it was actually the Broward County School Board that failed to do its job properly.
“You all manipulated that document so that it could be unredacted,” Scherer said. “That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It’s no different.”
Um… OK. What the hell does this even mean? Would she be coming down on a public records recipient who was handed the wrong documents or entire pages that were supposed to be withheld? Would she have harsh words for a recipient who received someone else's requested documents thanks to a bureaucratic screw-up and published those? Here's how Judge Scherer thinks the First Amendment should be applied to public records:
“From now on if I have to specifically write word for word exactly what you are and are not permitted to print – and I have to take the papers myself and redact them with a Sharpie … then I’ll do that,” she said.
Whew. Sounds like prior restraint. The only entity that should be restrained is the government in public records lawsuits, and only what's absolutely necessary to be withheld should be withheld. It's not up to the judge to hand out a line-by-line order on publication to recipients. The restraint should target the government and no one else. If the government screws up, that's on it, not those who've lawfully acquired the documents.
Given this terrible take on the First Amendment, I can offer a much better prediction this time around: the Sun Sentinel's anti-SLAPP motion against the Broward County School most likely will not be entertained by this court. Whatever was said here is the judiciary standard in Judge Scherer's court. And it sets an extremely low bar for government agencies who think others should be yelled at for the government's failures.
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Filed Under: broward county, broward county school board, elizabeth scherer, first amendment, florida, free speech, prior restraint
Companies: sun sentinel
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Break out the map, someone's on a power-trip
Yeah, this positively reeks of the judge taking the redaction screw-up personally and trying to perform a little CYOA(despite the fact that it was the school board that screwed up) by punishing the paper for having working tech skills and a lack of interest in pretending reality was different than what it was.
This ruling strikes me as so blatantly a violation of the first than the Sun should absolutely appeal this higher if need be, as getting two judges in a row with such open contempt for the first would likely have very low odds, with an appeal having much higher odds of success.
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Re: Break out the map, someone's on a power-trip
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Re: Re: Break out the map, someone's on a power-trip
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…fucking what? Everything the Sun Sentinel did was legal, even under the court order. The government failed to do its redaction correctly; why should the newspaper be punished for someone else’s failure?
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Re: Re: Break out the map, someone's on a power-trip
Con admits the District's staff is incompetent.
Why is that anybody else's fault?
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Re: Re: Break out the map, someone's on a power-trip
FYI, while the court may have vented in exasperation at the newspaper, no action was taken other that a strong expression of disapproval of what the newspaper did.
That may be the case currently, but with language like that I'd say it's pretty clear that the pending anti-SLAPP motion has zero to zilch chances of succeeding, as the judge will almost certainly see nothing wrong with the school board trying to sue to punish the paper for the board's screw-up, or at the very least not enough to punish them for attempting to do so.
The paper pulled a fast one by taking advantage of the district’s technical ignorance, and it did so despite having participated in the original court proceeding where the court ordered the district to turn over copies of the documents.
The paper was under no obligation to pretend that a failed redaction was a successful one. There was no 'pulling a fast one', the school board screwed up, and as a result the paper received more information than they originally thought they would get, and as they felt it was newsworthy they used it.
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Re: Re: Break out the map, someone's on a power-trip
You seem to gape with awe and amazement as someone presses not ONE but TWO buttons on a keyboard AT THE SAME TIME.
CTRL+C to copy and CTRL+V to paste
Next you'll be saying they should burn them as witches because you saw someone moving an ARROW across the screen by poking a dead rodent's buttcheeks.
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Re: Break out the map, someone's on a power-trip
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Technically stupid
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Re: Technically stupid
They needed to understand the next-to-most basic aspects of technology, like cut-and-paste.
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Re: Re: Technically stupid
I'm really surprised this keeps happening. I haven't really been paying attention but the last time I heard about this was close to 20 years ago when the USG did it.
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Re: Re: Technically stupid
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Re: Re: Re: Technically stupid
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Re: Technically stupid
I've seen many cases where it appears that the "mistake" was made in the public interest. Every time I revisit the topic, I am freshly amused by the "sexiest man alive" publicity, where a reporter at the China's _People's Daily_ treated an Onion story as a real one. Perhaps the reporter was legitimately fooled. Perhaps the people reviewing the story before publication were also fooled. Perhaps not.
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Re: Re: Technically stupid
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Re: Re: Technically stupid
No, you shouldn't always assume that.
However, given that this is what the judge actually said:
I think it is reasonable to conclude that, based on evidence, in this specific circumstance.
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Re: Re: Re: Technically stupid
Post the document online as is?
LOL ... like no one anywhere would attempt to "manipulate" said doc in a similar fashion to what the paper is accused of.
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Re: Re: Re: Re: Technically stupid
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"Hey, you offered."
Print, not email, can't(well, shouldn't) use a sharpie on a screen and expect it to work, and their prior restraint statement mentioned papers and manual redactions on them.
Tempting I'm sure, but mocking a judge like that, even if it was well deserved would probably not be the smartest/safest thing to do.
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Re: "Hey, you offered."
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JUDGE IS DUMB NOW !!!!!
Supreme court will unhold, guaranteed now !!!!!!!!!
Judges should be held in prison forever now !!!!!!!!!!!!!!!!
chimp chimp.
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Re: JUDGE IS DUMB NOW !!!!!
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Re: JUDGE IS DUMB NOW !!!!!
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what about moonlight?
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Re: what about moonlight?
Now we have both the school boards misbehavior getting a tan, she has added her own involvement in protecting the school board with the effect of adding some tanning oil to the mix. Not sunblock, tanning oil. It remains to be seen where the frying will happen.
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Ostergren case
Court enters order reflecting agreement between AG, Ostergren
Richmond, VA –In an order signed Wednesday, United States District Court Judge Robert E. Payne ruled that privacy advocate B.J. Ostergren may post public records that contain Social Security Numbers on her website, despite a 2008 Virginia law prohibiting the dissemination of such information.
...
has not completed the redaction process...
...
government website accessible to the public.
Other courts, including the U.S. Supreme Court, have held that the government cannot make information available to the public, but then restrict what the public can do with it...
https://acluva.org/en/cases/ostergren-v-mcdonnell
Court Documents
https://acluva.org/sites/default/files/wp-content/uploads/2009/11/Ostergren-4th-cir-opinion.pdf
Publi shed Opinion
'Supreme court' is mentioned 24 times.
'Redact' is mentioned 69 times.
.
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Re: Ostergren case
Richmond, VA –In an order signed Wednesday, United States District Court Judge Robert E. Payne ruled that privacy advocate B.J. Ostergren may post public records that contain Social Security Numbers on her website, despite a 2008 Virginia law prohibiting the dissemination of such information.
On the one hand that seems like something that could have some pretty nasty repercussions for those who's SSN's are made public like that. On the other hand I can think of no better way to draw attention to the fact that that information is publicly available in the first place.
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i have to wonder what she received in return for 'coming to this determination'? i bet it wasn't cheap!!
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Re:
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Well, depending on how the papers were printed, that Sharpie plan is going to work out about as well as the "highlight in black" pdf plan worked.
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Such a Shame
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In other news...
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NO! NO! NO! NO! NO! The school board fucked up, not the newspaper. The order was for the report to remain shielded from the public and the school board failed to do that.
It's really troubling that the USA seems to default to "shoot the messenger" and censorship to hide its own failings.
Any leaks that come out that show illegal behavior on the part of the government (the school is a public school, so I guess it counts as "the government"?) they'll come down hard on the leaker, not on the illegal behavior. When it comes to leakers, it's "shoot first, ask questions...never."
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Logic
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How to..
2 sets of records.. for everything.
Can you see the REDACTED Stock market reports to Stock owners??
So, Public services can redact ANYTHING??
Arnt the public invited to these meetings? Can those Public ask for a copy of the transcripts of the proceedings??
This is as stupid as police recorders being EDITED, after the fact..
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Screw your Constitution!
- THE JUDGE
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Obfuscation vs Redaction
Perhaps the judge could be enlightened on what effective redaction would be (but I wouldn't count on it)
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She wanted to pretend that control-a control-c control-v was some sort of super secret tech only evil hackers used. She also thinks her orders apply to those not a party to the case before her... she needs a reminder of what her job actually is & if she can't follow the law she needs to go.
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Private key wallet + address bitcoin
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Judge's order
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