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

Mon, Aug 20th 2018 6:32am — Tim Cushing

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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: broward county, broward county school board, elizabeth scherer, first amendment, florida, free speech, prior restraint
Companies: sun sentinel

46 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 20 Aug 2018 @ 4:47am

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.
[ link to this | view in thread ]
hij (profile), 20 Aug 2018 @ 4:55am

Technically stupid
People who do not understand the most basic aspects of technology have no business being part of the system that is supposed to insure that laws are applied equitably and correctly.
[ link to this | view in thread ]
Nathan F (profile), 20 Aug 2018 @ 6:39am

The Sun should email Judge Scherer an advanced copy of the paper every night asking her to do her line edits and censoring before they send it to press.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

APPEAL NOW !!!!!!!, 20 Aug 2018 @ 6:47am

JUDGE IS DUMB NOW !!!!!
APPEAL APPEAL APPEAL NOW NOW NOW !!!!!!!!!!!!!!!!!!!!!!!

Supreme court will unhold, guaranteed now !!!!!!!!!

Judges should be held in prison forever now !!!!!!!!!!!!!!!!

chimp chimp.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 6:49am

Re: JUDGE IS DUMB NOW !!!!!
I'm not certain what your message is, but I take issue with your method of delivery. Go shout elsewhere, please.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 6:56am

what about moonlight?
ultraviolet? florescent? incandescent? infrared?
[ link to this | view in thread ]
That One Guy (profile), 20 Aug 2018 @ 7:13am

"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.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 20 Aug 2018 @ 7:14am

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. 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.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 7:17am

Re: Re: Break out the map, someone's on a power-trip
Exposing a cover up is considered a fast one?
[ link to this | view in thread ]
Anonymous Anonymous Coward (profile), 20 Aug 2018 @ 7:17am

Re: what about moonlight?
Of course, anything but sunlight. Being tweaked about her orders failing to achieve the desired result doesn't remove the result of the cover-up being incomplete. Sunshine falling on government misbehavior doesn't go down well.

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.
[ link to this | view in thread ]
Stephen T. Stone (profile), 20 Aug 2018 @ 7:28am

The paper pulled a fast one by taking advantage of the district’s technical ignorance

…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?
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 7:44am

Ostergren case
http://acluva.org/7457/state-may-not-stop-privacy-advocate-from-publishing-most-records-found-on-gov ernment-websites/

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.
.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 7:45am

Re: Re: Break out the map, someone's on a power-trip
"The paper pulled a fast one by taking advantage of the district’s technical ignorance,..."

Con admits the District's staff is incompetent.
Why is that anybody else's fault?
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 7:47am

Re: JUDGE IS DUMB NOW !!!!!
Con's cute when she's desperate to deflect!
[ link to this | view in thread ]
That One Guy (profile), 20 Aug 2018 @ 7:50am

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.
[ link to this | view in thread ]
That One Guy (profile), 20 Aug 2018 @ 7:55am

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.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 7:59am

hope the paper appeals, as high as is needed to ensure the !st Amendment continues as it should, in the way it should and why it exists anyway! also, the Judge deserves and should damn well get a severe reprimand at the very least!!

i have to wonder what she received in return for 'coming to this determination'? i bet it wasn't cheap!!
[ link to this | view in thread ]
Michael, 20 Aug 2018 @ 8:03am

"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"

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.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 8:14am

Such a Shame
That no one cares about the Constitution, well except when their politics matter.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 8:15am

Re: Break out the map, someone's on a power-trip
Sun's lawyers are probably frothing at the bit to take this one higher. They love cases like these.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 8:16am

Re: Technically stupid
Nope. They did indeed understand the most basic aspects of technology. They sent a PDF via email.

They needed to understand the next-to-most basic aspects of technology, like cut-and-paste.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 8:19am

In other news...
Broward Circuit Judge Elizabeth Scherer lambasts the FBI for 4th amendment search violations by holding an apparently blank piece of paper near a fire to reveal lemon-juice invisible writings.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 8:24am

Re: Re: Technically stupid
The best thing they should have done is redact then print to image and send that. No one in their right mind should send 'redacted' PDF's from the original.

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.
[ link to this | view in thread ]
Anonymous Hero, 20 Aug 2018 @ 8:53am

> 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.

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."
[ link to this | view in thread ]
Gary (profile), 20 Aug 2018 @ 9:02am

Logic
By this logic, shouldn't the Judge be holding *The School* responsible for releasing protected information? They are the only ones at fault here. (Triple fault: Failed to handle troublesome student by proper procedures, failed to redact records in accordance with state law, tried to sue the messenger for uncovering their wrongdoing.)
[ link to this | view in thread ]
DB (profile), 20 Aug 2018 @ 9:04am

Re: Technically stupid
You shouldn't always assume that the people involved are incompetent.

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.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 9:05am

Re: Re: Technically stupid
That will not necessarily provide the results you thought you were getting. Many word processing applications have a track changes option that can be enabled/disabled however, the document metadata remains.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 9:06am

Re: Re: Technically stupid
Perhaps that was the Troll Of The Year.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 9:10am

I don't know how newspapers run but to speed up the the process of lots of different formats, I would have all documents run through and OCR system and converted to unformatted text. If the document only used a black highlighter, no one would have even seen that the document was improperly redacted.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 9:22am

Re:
Much better off using an application that can handle the format, and use cut and paste to move the text into whatever they are writing. That way they do not introduce errors due to the OCR getting it wrong.
[ link to this | view in thread ]
Rich, 20 Aug 2018 @ 9:26am

Re:
Um, what? Why do you think a newspaper in the modern age would need to OCR documents to get text? You're right. You don't know how newspapers are run.
[ link to this | view in thread ]
Thad (profile), 20 Aug 2018 @ 9:58am

Re: Re: Technically stupid

You shouldn't always assume that the people involved are incompetent.

No, you shouldn't always assume that.

However, given that this is what the judge actually said:

“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.”

I think it is reasonable to conclude that, based on evidence, in this specific circumstance.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 10:03am

Re: Re: Re: Technically stupid
What was the paper supposed to do?
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.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 10:06am

Re:
LOL - OCR is marginally better than facial recognition and we know how good that is.
[ link to this | view in thread ]
Anonymous Anonymous Coward (profile), 20 Aug 2018 @ 10:20am

Re: Re: Re: Re: Technically stupid
They could have just posted a link to where the document existed along with instructions on how to view the redacted information. All that would have been perfectly legal. Come to think of it, all they did was take a couple of steps out of that process. Still perfectly legal.
[ link to this | view in thread ]
ECA (profile), 20 Aug 2018 @ 12:36pm

How to..
Force everyone to have 2 sets of books..
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..
[ link to this | view in thread ]
JoeCool (profile), 20 Aug 2018 @ 12:44pm

Re:
Probably just friends with someone in the school district. That's the problem with these 1st level courts - you often run into a "judge" who merely won a popularity contest rather than actually having the skills and wisdom needed to judge cases fairly.
[ link to this | view in thread ]
CypherDragon (profile), 20 Aug 2018 @ 1:52pm

Re: Re: Re: Technically stupid
So even easier method. Print it out, black out the redacted portions, scan to PDF, send 2nd PDF. No chance of metadata leakage, and no chance of the redacted data being "unredacted." Job done.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 2:40pm

Re: Re: Break out the map, someone's on a power-trip
Wow your technical knowledge must be sorely lacking.

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.
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 3:17pm

Screw your Constitution!
I'm a judge! It has no power over me!

- THE JUDGE
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2018 @ 3:18pm

Obfuscation vs Redaction
I would say that using a sharpie would be obfuscation rather than redaction... as the judge points out, you could find "some type of a light" to see the difference between the print and sharpie.

Perhaps the judge could be enlightened on what effective redaction would be (but I wouldn't count on it)
[ link to this | view in thread ]
the_wanderer, 20 Aug 2018 @ 5:36pm

Are the unredacted documents available in full? *Were* they available in full for any period of time on a public-facing server? If so, someone fire up a torrent client and *seed* that son of a bitch! Let's see Judge Midol censor the entire goddamned internet!
[ link to this | view in thread ]
That Anonymous Coward (profile), 20 Aug 2018 @ 7:47pm

Prior restraint orders should trigger the Judge being removed from the case & forced to answer to the Judaical Tenure Commission about they should be allowed to retain their position when they made it clear they are ruling about how their fiefdom will be run & ignoring settled law.

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.
[ link to this | view in thread ]
Ngo Quang Thong, 21 Aug 2018 @ 8:07am

Private key wallet + address bitcoin
[ link to this | view in thread ]
Carroll, 21 Aug 2018 @ 8:19pm

Judge's order
Pretty sure if appealed the Judge's order would be overturned.
[ link to this | view in thread ]
Bergman (profile), 26 Aug 2018 @ 7:40pm

Re: "Hey, you offered."
It's not mocking to comply with what the judge said she would do.
[ link to this | view in thread ]