In one of the most troubling orders issued by a court in years, U.S. District Judge John F. Walter issued an order on Saturday to the Los Angeles Times to remove information from an article describing a plea agreement between prosecutors and a Glendale police detective. The detective is alleged to have been in the pocket of the blood-soaked Mexican Mafia. The newspaper discovered the details in a posted order on PACER the online court database, which was supposed to be left under seal. I have been in cases when such mistakes have occurred but the court’s actions in this case drive to the heart of press freedom in this country. In my view (which will hardly surprise our regular readers), the order is a direct and dangerous violation of the First Amendment. [UPDATE: After a national outcry, the judge has rescinded his order and says that he was not sure that the LA Times had obtained the material legally.]
Detective Johhn Saro Balian reportedy pleaded guilty to lying to federal investigators about his work for the Mexican Mafia as well as an array of crimes ranging from bribery to obstruction of justice. This included allegedly tippling of a target about an upcoming raid. Balian is quoted as saying “Tell your boy Bouncer that he’s the No. 1 on the list for tomorrow.” He allegedly shared the locations of known safe houses and even names of people to “slap around.”
The order states in part,
[T]he Los Angeles Times … [is] ENJOINED from:
Disclosing the under seal plea agreement in this case, in whole or in part, or publishing any article … that quotes, describes, summarizes, references, relies on, or is derived in any way from the under seal plea agreement in this case and that it return forthwith any and all copies of such plea agreement in its possession ….
To the extent any article is published prior to issuance of this order, it shall be deleted and removed forthwith. hed prior to issuance of this order, it shall be deleted and removed forthwith.
They issued a redacted article.
In my view, there is no constitutional way to get this cat to walk backwards after this type of information has been made public. In Gambale v. Deutsche Bank AG, the Second Circuit dealt with this issue in an analogous case and wrote:
We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again. The genie is out of the bottle, albeit because of what we consider to be the district court’s error. We have not the means to put the genie back . . . Once it is public, it necessarily remains public. As Judge Richard Owen, of the United States District Court for the Southern District of New York, once aptly reminded the author of this opinion while he was acting as counsel for a party at trial: “Once the cat is out of the bag, the ball game is over.”
Eugene Volokh also notes in his excellent piece on this controversy that the Ninth Circuit echoed this position in In re Copley Press, Inc. (9th Cir. 2008): “Secrecy is a one-way street: Once information is published, it cannot be made secret again.” He also notes that “only one appellate case that authorized a similar order, People v. Bryant (Colo. 2004), a 4-3 decision that partly upheld an order requiring the media to not reveal the contents of transcripts that were improperly released to them.”
The order is a dreadful mistake for the court. It is also virtually gratuitous at this point given the fact that the word was out at the time of the posting. The court could have limited references of the lawyers in public filings and simply sealed the document if it believed that there was a lingering benefit to the sealing of the document. However, to reach out and restrain a newspaper is unwarranted and, in my view, unconstitutional.
The FBI’s Eurasian Organized Crime Task Force previously identified Balian as a person of interest with connections to the Mexican Mafia and Armenian organized crime.
The Supreme Court has always relied on post-publication penalties as a deterrent to improper or harmful publications. In Nebraska Press Assn. v. Stuart the Court noted:
The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative. A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.
The L.A. Times is wisely appealing the decision of Judge Walter.
A former prosecutor, Judge Walter was nominated by President George W. Bush and confirmed in 2002. He holds a Bachelor of Arts degree from Loyola University of Los Angeles in 1966 and a Juris Doctor from Loyola University of Los Angeles School of Law in 1969.