Ignorant Hysteria Over 3D Printed Guns Leads To Courts Ignoring The First Amendment

from the can-we-somehow-add-in-a-3rd-amendment-issue-here dept

A year and a half ago, we wrote about a troubling ruling by the 5th Circuit siding with the US State Department waving a magic "national security" wand to ignore the First Amendment implications of banning the internet distribution of the CAD files for 3D printing components for guns. As we pointed out over five years ago, the hysteria over these 3D printed gun plans was silly. Attempts to ban them from the internet wouldn't just fail, but would actually draw much more attention to them.

However, in the last few days the hysteria has returned... and much of it is misleading and wrong, and while most people probably want to talk about the 2nd Amendment implications of all of this, it's the 1st Amendment implications that are a bigger deal. First off, most of what you've probably heard about the case is either wrong or misleading. David French has a pretty good post separating fact from fiction. This is not (as some claimed) the Trump administration "legalizing" 3D printed guns. It is already legal to make guns yourself, so long as they are not undetectable. Undetectable guns are already illegal under the Undetectable Firearms Act of 1988 and nothing has changed or is changing on that front.

The issue, again, is whether or not Cody Wilson's Defense Distributed can post the files to the internet specifically because the State Department claims that this would represent an illegal export of a weapon, violating ITAR, the International Traffic in Arms Regulation. Let's be clear about this: throughout all of this no one (not even the US government under Obama) argued that detectable 3D printed firearms are illegal in the US. That's because they're legal. They have been before this and they still are. The specific issue was that the State Department sought to block the files put up by Wilson/Defense Distributed because of export restrictions outside of the US. This is silly for a variety of reasons, as already stated, because the files are already widely available all over the place, and that's not going to change.

The 5th Circuit ruling in early 2017 was problematic, because it effectively pushed aside the prior restraint/First Amendment concerns by just saying "well, national security trumps that issue." But, that's not how the First Amendment works. There is no "balancing test" for the First Amendment. There is a very small and very limited set of exceptions to the First Amendment, as set forth by the Supreme Court. They do not conduct a balancing test. Indeed, in United States v. Stevens, the court explicitly rejected the idea of a balancing test.

The Government's proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment's free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.

So that ruling was already problematic for the 1st Amendment.

What happened here, was that the federal government settled its case with Wilson and Defense Distributed, which would have allowed him to put the files back up on the internet. Once again, to be clear, this did not "legalize" 3D printed guns. 3D printed guns are already legal, so long as they are detectable. If they are undetectable, they've been illegal since the Undetectable Firearms Act of 1988.

The only issues here were whether or not a court could prevent putting files (speech) onto the internet out of a fear that those files might be "exported" and turned into a weapon... and whether or not that would violate regulations against weapons trafficking.

But, never underestimate the amount of hysteria that can come from questions around both the 1st Amendment and the 2nd Amendment -- and when combined things go into overdrive.

So a bunch of states sued to somehow try to stop this whole thing from going forward -- though it's unclear what there is to actually stop. Can states stop the US government from settling a lawsuit? That seems odd. Either way, at least three courts rushed forward to issue injunctions against posting the files, including Washington State, where the judge didn't even seem to consider the First Amendment issues at hand, and issued a ruling that seems to be a classic case of prior restraint. I mean, the ruling literally doesn't even discuss the First Amendment concerns. Instead, it argues that there's a likelihood of success under the Administrative Procedures Act, effectively arguing that because the government is modifying the munitions list, it needs to go through a more thorough administrative process. That... seems weak, especially given the First Amendment issues at play.

Again, no matter how you feel about the 2nd Amendment, guns or gun control... that's not really the issue here, even if it's clouding much of the reporting on it. Nothing in this case is about legalizing 3D printed guns. It is entirely about exporting computer files that might be used by people outside of the US to make guns, but which are already widely available in many places on the internet and aren't going to go away (note that this case only applies specifically to Cody Wilson and his organization, and doesn't directly impact third parties who are already distributing the files elsewhere).

The real concern here should be about the First Amendment. As we mentioned earlier, in suggesting that there's some sort of "balancing test" between national security and free speech -- and that prior restraint is acceptable when balanced against national security -- the courts have opened up a huge Pandora's box of trouble. Even if you hate guns and think the 2nd Amendment should go away, please think carefully about what the world looks like when the government is allowed to censor speech that it claims is a risk to national security.

Filed Under: 1st amendment, 2nd amendment, 3d printed guns, 3d printing, cody wilson, exports, guns, itar, prior restraint, undetectable firearms
Companies: defense distributed

Russian Government Decides To Stamp Out 'Fake News' At Home, Presumably Leaving Export Operations Unaffected

from the censorship-begins-at-home dept

Another nation's government has decided it needs more direct control of the press. It will come as no surprise it's a nation fond of our current president and understandably delighted the leader of the free world spends an inordinate amount of time bashing First Amendment-protected activity.

Russia, which American intelligence agencies said spread its fair share of misinformation during the 2016 United States election, says it will crack down on “fake news” at home, with a proposed law that critics say could limit freedom of speech on the internet.

The bill, submitted by lawmakers from the governing party, United Russia, proposes holding social networks accountable for “inaccurate” comments users post.

It appears the government wishes to monopolize the creation of fake news, cutting out amateur bloggers, podcasters, and Facebook users who can't reliably sway foreign elections. Now it can expand its control of worldwide media past its stake in Sputnik and RT to every medium-to-large social media platform providing service to Russian users.

Much like every other law enacted to govern online speech, the actual perpetrators will be ignored in favor of directly targeting social media platforms. Possible fines of $800,000 await any platform hosting more than 100,000 users for not removing alleged "fake news" within 24 hours of being notified.

This should result in plenty of over-moderation, much like what followed in the wake of Germany's ridiculous speech laws. Those coupled 24-hour takedown demands with hefty fines, resulting in the immediate targeting of satirical posts and comments made by politicians who support government censorship. Unfortunately, the generated irony isn't going to be enough to offset the losses suffered by users who will see their posts vanish into the ether to keep social media platforms one step ahead of the g-men.

This bill targets "inaccurate information," about as vague a term ever applied to online speech. It doesn't even have to be completely wrong or provably false. It just has to contain an error somewhere. Considering the internet is host to a sizable amount of heated opinions and hyperbole, it will unquestionably result in the deletion of posts containing no factual assertions and will drive another nail into the coffin of satire.

But fake news laws aren't really about punishing fake news. What they're intended to do is give those with authoritarian leanings -- usually coupled with a history of corruption -- an easy way to cleanse the web of snooping reporters and complaining citizens. As the New York Times notes, supporters of the bill have made it pretty clear this is more about eliminating domestic dissent than chasing down fictitious posts masquerading as truth.

In ultimate view-from-nowhere phrasing, the Times manages to deliver both an understatement and a "no shit" moment in the space of one sentence.

Activists are skeptical that the authorities have Russians’ best interests at heart.

This sentence could have been written about nearly every action the Russian government has taken under every leader over the past 100 years. Sadly enough, this sentence could be written about nearly every government in the world and applied to almost any piece of grandstanding, hot-button-du-jour legislation.

Filed Under: censorship, fake news, free speech, russia

No Matter What You Think Of Julian Assange, It Would Be Harmful For Press Freedoms For The US To Prosecute For Publishing Leaks

from the the-first-amendment-is-important dept

Let's be clear: I know that many people -- perhaps entirely reasonably -- really, really dislike Julian Assange and Wikileaks. For some people that feeling has been there for years. For others it's related directly to the role that Wikileaks played in helping to release hacked emails designed to impact the 2016 election. There certainly appears to be plenty of evidence that, at the very least, Wikileaks was in contact with Russian operatives and made plans to try to get and release documents at times that would have the maximum impact on the election. As I've said over the years, I don't have much respect for Assange who, among other things, often appears to be a total hypocrite. However, I have also made clear that prosecuting him and Wikileaks for doing nothing more than publishing leaked documents would set a horrible precedent. I feel similarly about the DNC's silly lawsuit as well.

The DOJ has apparently has been trying to indict Assange for more than 8 years now with nothing to show for it yet. In large part, this is because what Wikileaks has done is really no different than what any news publication does when publishing leaked documents. There may be laws against leaking certain documents to the press, but the First Amendment completely bars lawsuits against the recipients of leaks then publishing them.

This is in the news again as reports are brewing that Ecuador is expected to withdraw asylum for Assange, possibly handing him over to British officials, who may in turn hand him over to the US. When I discussed this on Twitter recently, a bunch of people responded angrily that Assange deserves to be in jail because of his role in the 2016 election. But when pressed to explain how what he did was any different than the NY Times or CNN in publishing leaked documents, people go quiet -- or the say something silly like "but those other news orgs are based in fact." But, that's a silly argument. First of all, nothing that Wikileaks has published has been shown to be false or faked (the DNC made some claims to that effect but no one ever presented any evidence or pointed to any faked documents). Second, given the propensity of some -- including the President of the United States -- to argue that the NY Times, CNN, the Washington Post and others are "fake news," do we really want to be setting the precedent that if you publish something false you can get prosecuted for it?

Earlier this year, Avi Ascher-Schapiro published a piece for the Committee to Protect Journalists focusing on the DNC's silly case against Wikileaks, but much of it could apply to a federal prosecution as well:

The case raises a number of important press freedom questions: Where should courts draw the line between source-building and "conspiring"? What activities could implicate a journalist in a source's illegal behavior? Would putting a SecureDrop link soliciting leaks count as illegal conspiracy? And if a reporter asked for documents on an individual while indicating that they think the person deserves to be exposed, would that count as shared motive, or is the only truly protected activity passively receiving leaks, like radio host Vopper?

"There is a spectrum that run on one side from someone dropping a plain manila envelope, to the other extreme where you actually steal the documents yourself," said David McCraw, deputy general counsel for The New York Times. "The line in the middle is still being determined by the courts."

David Bralow, an attorney with The Intercept, added, "It's hard to see many of WikiLeaks' activities as being different than other news organizations' actions when it receives important information, talks to sources and decides what to publish. The First Amendment protects all speakers, not simply a special class of speaker."

Some will argue that Assange should be prosecuted for conspiring with the Russians, but again let's see what actual evidence there is to support such a claim. And, as we see above, what counts as "conspiring" is pretty important here. Tons of news sites now use SecureDrop or similar means to recruit sources and documents. Is that "conspiring"? Because if it is, that's a huge blow to press freedom.

Even if you hate Assange and Wikileaks, please take a moment to consider how a prosecution of him for publishing documents, even if they were taken by nefarious means by a hostile foreign government, would set an absolutely terrible precedent for press freedom in America.

Filed Under: doj, first amendment, free press, free speech, julian assange, leaks, prosecution, publishing leaked documents
Companies: wikileaks

Texas Judges Continue To Turn Expungement Orders Into 'Right To Be Forgotten' Requests

from the careful:-that's-the-Constitution-you're-screwing-with dept

It appears the state of Texas is offering a limited "right to be forgotten" in county courts. A few years back, the state appeals court had to get involved and remind the county no such right exists in the Texas, much less the rest of the states Texas seems to be embarrassed to be associated with. At the center of the case was an expungement order for an attorney accused of forging other attorneys' signatures on court filings.

While his case may have been expunged, expungement only covers the official record. This would remove info from government databases. Texas law also provides for the removal of info from certain sites reliant on public records (mugshot sites, background check services), but the law does not go so far as to demand news sites and search engines purge themselves of articles related to now-expunged criminal acts.

A lower court decided to drag Google into this, demanding it de-index anything covering the expunged crime. Google did not comply and the state appeals court reversed the lower court's order, finding it not so much a violation of the First Amendment (which it is), but that it skirted due process by not allowing Google and the sites being de-indexed to argue against the removal order in court.

Eugene Volokh has again tracked down a similar -- and similarly wrong -- order from a Texas county court.

Until a week ago, Houston's ABC-13 TV station, KTRK, had the following story on its web site (I quote the July 13, 2017 version, which had been updated from its original 2016 story):

An Alief ISD teacher is no longer in the classroom after he was arrested on allegations of domestic violence.

Damon Barone is charged with assault-family violence. According to a statement from Alief ISD, Barone was a teacher at Mahanay Elementary School but has not been on campus since April 4. He's currently on administrative leave and the district says "he will not return at any point."

Alief ISD officials say the incident did not happen on school property or at a school event.

The charges have since been dropped, but Barone remains no longer employed with the school district.

About a week ago, that story disappeared from the site. And that disappearance seems to be linked to a Houston court's June 26 expunction order (signed by Judge Michael Landrum), which purports to cover KTRK.

The order [PDF] is hosted at the Lumen database. This lives on, but KTRK's story does not. KTRK was under no legal obligation to remove the story. State law does not require the deletion of news stories following an expungement order. To put things generously, the judge in this case appears to have misinterpreted the law. KTRK has complied with an order it didn't need to and now has played its small part in erecting a Texas-based "right to be forgotten." Google most likely did not de-index the site in response to this request, but with KTRK deleting its coverage, the de-indexing will occur anyway.

As Volokh points out, this isn't the way the law reads and it certainly isn't the way the law is supposed to work. It could be the judge didn't read the list of potential targets closely and allowed Barone to nuke KTRK's story along with the sealing/removal of criminal records. Whatever the case is, those seeking to abuse a system to erase their criminal history will be encouraged by Texas courts and their inability to restrain expungement requests to government agencies and databases.

What I do know, assuming the order is authentic, is that a Houston court order purports to institute a "right to be forgotten" as to this particular news story. And this is at least the second such case in the last two years: The first case that I know of is the even more troubling Derek Collier Thorworth matter, where an expungement order seemed to require the media to remove a story about a county constable who had pleaded guilty to abusing a prisoner, and where the constable demanded that a TV station indeed do so, based on the order. [...] Some might think that's a sound approach, but it's not authorized by Texas law and not consistent with the First Amendment.

This won't be abused nearly as much as the fake libel lawsuit scam being perpetrated in courts around the country. And it won't scale like regular old DMCA abuse that tends to backfire on those attempting to use Google takedown requests to clean up their vanity searches. But it will let people with expungement orders believe they can eliminate content from the internet at large. And if judges aren't careful, they'll sign off on orders letting them do exactly that.

Filed Under: damon barone, eugene volokh, expungement, free speech, injunctions, right to be forgotten, texas

UK Judge Says Accurate Journalism Is An Invasion Of Privacy In Cliff Richard Case

from the just-wait-for-official-statements-and-become-stenographers,-I-guess dept

Time for another reminder that the UK is not some sort of America analogue -- one that favors pomp and circumstance to opinionated bumper stickers and stabbings to shootings. The UK government may say nice things about free speech, but when it all comes down to it, its citizens might as well be colony residents still seeking to break free from the Kingdom's confines.

Sir Cliff Richard has just won a lawsuit against the BBC, securing a large payout from the journalistic entity for its outrageous act of journalism. Eriq Gardner of The Hollywood Reporter has the details.

"The veracity of the published information in this case is not in issue. What the BBC published was accurate. What is more questionable is the method of obtaining the information."

That quote comes from a lengthy new decision from the High Court in England, which reviewed a privacy case brought by Sir Cliff Richard, one of the U.K.'s most successful singers ever.

So, where does this leave British journalism? That's anyone's guess. Accurate reporting is great. But you'd better obtain your info in a way that please whatever court you might be facing years down the road. And you sure as hell better not "sensationalize" your accurate reporting.

The fact that it was the lead story on the 1 p.m. news; that the story was accompanied by a ticker at the bottom of the screen; how Johnson was broadcasting from outside the property; shots of cars entering the property; helicopter shots; moving pictures of the property; people walking back and forth...

"It may have made for more entertaining and attention-grabbing journalism," says the dour British judge. "It may be justifiable or explicable on the footing that TV is a visual medium and pictures are part of what it does. It did not, however, add any particularly useful information...I still consider that the main purpose of utilizing the helicopter was to add sensationalism and emphasis to the scoop of which the BBC was so proud. The BBC viewed this as a big story, and presented it in a big way. This was also manifested in other aspects of the coverage — the coverage from Portugal, pointless though it turned out to be, lent an urgency to the presentation of the story."

The BBC was tipped off by someone within the police department that Cliff Richards was under investigation and that his house would likely be searched. The BBC did what it could to verify this info and flew its helicopter over Richard's house on the off chance it was being raided. Everything reported was a fact, but the judge in this case simply did not like how it was handled. Suddenly, normal journalism is an "invasion of privacy," worthy of damages being awarded to the person being accurately reported on.

The BBC isn't happy with this decision, rightly noting that it upends the practice of journalism, especially in cases of public interest, like law enforcement investigations for instance. The lengthy decision recounts all the facts -- including emails between the BBC and their police source. What can't be found in the dozens of pages is anything justifying this ruling. This appears to be a personal decision by a judge who didn't like how Sir Cliff Richard was handled by the BBC and decided to punish the press outlet for offending his sensibilities.

In the United States, this would immediately be appealed on First Amendment grounds. In the UK, it's not so clear how one undoes a harmful decision that penalizes accurate reporting judges don't like. I'm sure it will be appealed, but there's no First Amendment protection for journalism, so the basis for an attack isn't clear. The judicial system still has plenty of other reasons to reject the BBC's appeal, even though the basis -- accurate reporting should be legal -- would seemingly be an inarguable point.

Until this is overturned, any number of people who don't like unflattering press coverage will be able to leverage it to pursue journalists for accurate reporting. If the UK government really wants a press that only covers people who want to be covered, it can keep creating exceptions to its very limited speech protections and turn the "right to be forgotten" into a right to never be written about in the first place.

Filed Under: accurate reporting, cliff richard, free speech, injunctions, journalism, privacy, uk

If You're A Journalist Hiring Lawyers To Intimidate Publishers Into Killing Stories About Your Misdeeds, You're A Hypocrite

from the shameful dept

Over the years we've obviously written tons of stories about the rich and powerful hiring shameless lawyers who try to browbeat and intimidate news organizations (both large and small) out of publishing embarrassing stories. That's one of the many reasons why we support strong anti-SLAPP laws across the country, as an essential protection for a free press. Media companies and journalists tend to be some of the biggest supporters of free speech and anti-SLAPP laws as well for this exact reason. But what happens when rich and successful journalists are suddenly the subject of unflattering stories as well? Apparently, they throw out their principled support of free speech and hire a sketchy law firm that celebrates its history of "killing stories."

Lachlan Cartwright, over at the Daily Beast, has a story about the law firm Clare Locke, who not only specializes in killing stories, but appears to brag about why we should chip away at the First Amendment. After opening with a story about how a 60 Minutes producer hired the firm, Cartwright mentions some of the other high profile journalists who have hired the firm:

Clare Locke also did work for former Today show host Matt Lauer and current New York Times reporter Glenn Thrush, three sources say. Both men were accused in news publications of sexually harassing women. The law firm was also recently hired by David Pecker, the CEO and chairman of American Media Inc., parent company of the National Enquirer, to try and shut down a negative story from a newspaper, according to two sources.

The article notes not just a history of litigation against various news orgs (Rolling Stone, The New York Times, Katie Couric, CNN, and Gawker among them), but also how one of the firm's named partners, Elizabeth Locke, has some bizarre views on free speech:

Locke has publicly backed President Trump’s call to “open up” libel laws and attacked shield laws that protect journalists from disclosing their sources in court. “How are you supposed to prove as a defamation plaintiff that the journalist knew what they were writing was false if you don’t have access to the identities of their sources? It’s really problematic,” she said in a speech last year to the Federalist Society, a conservative legal group.

Locke continued, saying she wanted to “talk a little bit about why the pendulum has swung too far in the direction of freedom of the press.”

There are so many things to say in response to this, but let's just start with the big one: free speech is not a pendulum. It doesn't swing back and forth. Free speech either exists or it doesn't.

Second, any journalist hiring a firm with a partner who would say such a thing is a disgrace to the practice of journalism. Obviously, some would (perhaps reasonably) argue that the names listed above are already disgraces to the practice of journalism, and perhaps that's true. But the whole idea of supporting a firm that openly advocates for limiting free speech and freedom of the press, while practicing intimidation tactics against a free press is horrific and shameful.

Third, Locke is being disingenuous in arguing that you need to know someone's sources to prove defamation. That's not even remotely how it works in most cases. Whether Locke knows it or not (and you can speculate on your own whether she does), demanding that journalists hand over sources is a popular and powerful intimidation technique. It serves to accomplish a number of things antithetical to a free press and reporting: it makes it that much more difficult for journalists to get sources to come forward for whistleblowing or other information. It makes it much, much more costly for journalists (even if they have not defamed anyone) to defend against defamation claims. In other words, even in the very, very, very rare instances where it might make legitimate defamation claims easier to make, it would also serve as a huge help in both threatening and filing SLAPP suits designed solely to kill legitimate, but embarrassing stories.

There's a lot more in the Daily Beast article, and the firm itself insists that it is not "making threats" or "chilling speech." You can, of course, make your own judgment on that. Also, it's no surprise that there are law firms that are building up reputations as specializing in going after media organizations, but the fact that journalists themselves are hiring such a firm is an absolute disgrace.

Filed Under: anti-slapp, chilling effects, david pecker, defamation, elizabeth locke, free speech, glenn thrush, intimidation, journalism, matt lauer, shield law, sources, threat letters
Companies: clare locke

Cambodian Government Latest To Stifle Press With 'Fake News' Legislation

from the fake-legislation dept

More "fake news" legislation is on the way. The Cambodian government -- borrowing US presidential rhetoric and bad ideas from neighboring Vietnam (tbf, the Vietnamese government has bad ideas to spare) -- is going to censor local press outlets under the pretense of protecting the public.

The government of Cambodia recently announced a new directive aimed at combating “fake news” that will reportedly, among other restrictions, require all websites to register with Cambodia’s Ministry of Information or face additional scrutiny. The announcement follows a meeting between the prime minister of Vietnam and the prime minister of Cambodia, and comes just ahead of Cambodia’s general election later this month.

This is only the latest move in the Cambodian government's regulation of internet speech. Earlier initiatives created blockades for anything deemed to be a threat to national security and "specialized units" composed of Ministry personnel surfed social media platforms looking for things to prosecute citizens for.

This also follows a couple of incidents seen as contributing to the government's consolidation of power. The sale of the Phnom Pehn Post to a Malaysian businessman whose PR firm does work for the Cambodian prime minister suggested the government wanted to be in the news production business. Another independent press outlet was hit with a large fine and a short deadline, forcing it to close up shop.

One of Cambodia’s most stridently independent newspapers, the Cambodia Daily, published its last edition on Monday with the headline “Descent Into Outright Dictatorship” as it closed amid a crackdown on critics of prime minister Hun Sen.

The English-language paper had been given a deadline of one month to pay $6.3m in years of back taxes, which the publication disputed and described as “astronomical”.

The Daily was a frequent critic of the prime minister and had extensively covered high profile "treason" prosecutions of prominent government critics. This closure followed the government's shutdown of 18 radio stations and the institution of a ban on leasing time to foreign broadcasters like the Voice of America.

Given this backdrop, the new directive appears to have nothing to do with "fake news" as it would have been defined prior to the 2016 election. Instead of combating speculative reporting and outright fabrications, the term -- and the initiative -- will be used to attack anything the ruling class doesn't agree with… just like here in the good old US of A.

Filed Under: cambodia, censorship, fake news, free speech

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.

Filed Under: first amendment, free speech, john balian, journalism, pacer, prior restraint, sealed court document
Companies: la times