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 [UPDATE: After a national outcry, the judge has rescinded his order and says that he was not sure that the LA Times had obtained the material legally.]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.
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Meanwhile in Britain… https://www.bbc.co.uk/news/uk-44871799
Judge Walker blinked. https://www.msn.com/en-us/news/us/judge-lifts-controversial-order-requiring-the-la-times-to-alter-article-about-ex-glendale-cop/ar-AAAd3mv
mespo – he shouldn’t have done it to begin with. 😉
Fortunately, the appeals court of public opinion remanded.
It did and thank god for Blepharospasm!
Looks like the decision was rescinded.
https://www.msn.com/en-us/news/us/judge-lifts-controversial-order-requiring-the-la-times-to-alter-article-about-ex-glendale-cop/ar-AAAd3mv
What is the difference between
Criminal complaint
Indictment
?
Although in this case the Order “sealing after the fact” won’t stand on appeal, the section of the peanut gallery which went down the rabbit hole on this matter clearly isn’t aware that in virtually all federal criminal cases, sentencing materials are not available to the public. This included sentencing memoranda, motions for variance or downward departure, support letters, and of course the Presentence Report itself. In that regard, a competently-performed ECF filing of the plea agreement here would have been of no moment.
https://www.naturalnews.com/2018-07-16-emergency-big-techs-plot-to-kill-free-speech-revealed.html
“(Natural News) This is a full reprint of the InfoWars article by Paul Joseph Watson. Original article at this link.”
Infowars, or nutty as squirrel squat crap. Reader beware.
“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.”
That’s the problem right there. Liberal Arts degree.
We need more engineers and scientists in the federal judiciary.
Bad enough we have the secret FISA courts and you can already see what trouble that caused but this is a regular court turning into a secret court on what should be open to the public especially once the court order is issued.
It’s bad enough we have Judges who tell juries we will explain the law to you if needed or even if not needed or asked for and then refuse to do so
I’d even go along with blocking release of a name change when danger to the changee was I guess that’s right is involved or even anonymity on a big lottery win to allow a running head start
but as an objectivist and a constitutional centrist this is a no brainer. The only question is why was the document sealed and is it truly sealed.
For example sealed and so called expunged court actions are regularly breached when it involves an enlistment into the armed forces. The recruiting sergeant is allowed to breach that barrier and by the way expunged doesn’t mean permanently erased.
That holds true even more so when research for granting a security clearance is involved and you can see how that is handled once granted and when it should be automatically rescinded or set aside. I am no longer in the military I have no need for a security clearance for example.
In this case the Judge over reached his authority under the 9th and 10th Amendments for starters in all probability and made it illegal to comment on something that is already public knowledge?
Even most movies get it right when the publishers have a lawyer examine a proposed article prior to printing or airing. Exempting the clockwork NYT who makes as habit of violating first and apologizing second… if at all.
Shouldn’t all of that have been done prior to allowing the media into the courtroom? And then not allowing them in the court room? Which sets the bar fairly high and no you can’t let the media decide either. If their ability to decide supersedes the courts then the strainer used, and I’m stretching metaphor here, would allow spaghetti the width of manicotti.
Who judges the Judges?
Stretched from local LA to national DC who judges the evidence?
Apparently no one including the agency charged with that duty.
If the truth be known then the Mafia will kill what it believes to be bad guys or gals.
There is the First Amendment which does have its limitations, regardless of how sacred it is deemed to be.
Then there is the vehicle of sealing information for the protection of the ‘life, liberty, and the pursuit of happiness’ of people involved in executing the law.
Then there is, ‘You made a mistake and therefore we can do whatever we want; regardless of how it affects the ‘life, liberty, and the pursuit of happiness’ of others.’
Common sense dictates that there are no rules about attempting to mitigate the results of a mistake. The sealing of information to protect the ‘life, liberty, and the pursuit of happiness’ of someone is a legal vehicle and thus under the control of the legal entity, the judge.
“Common sense dictates that there are no rules about attempting to mitigate the results of a mistake.”
************
Well, executing everybody who saw it might be a tad extreme. Categorical statements all die at the hand of one ruthless counter-example pointing up its absurdity. RIP.
The judge decides what is sealed, not the Constitution, and sealed means it’s sealed. If the judge, or anyone else, makes a mistake and the sealed stuff is revealed to whatever extent, the judge then remains in control of the subject and has every right to mitigate or arrest the damage. This has nothing to do with Constitutional rights. The newspaper exploded the potential damage to the individual by making a stupid mess of it all. You go ‘oops’ and hope the purpose of sealing the info remains intact. The flexing of the newspaper’s ego is inappropriate here. All the rest is self gratification, legal rubbing one off.
You finally said something i agree with. Are you feeling ok today Isaac?
Thank God you’re a Canadian so I don’t have to worry about you sitting on a American jury. Maybe judges are kings in Canada (they’re not but I’ll humor him) but here they still pledge fealty to the Constitution.
isaac is canadian? that’s good. build the wall!
I think that’s what he said. If not, he oughta be a foreign alien.
Messypoo
Pretty much every Western Nation is at par with their judicial systems. The US has stuff in writing that it ignores sometimes but most of the time, enforces. The newspapers rarely if ever report when everything is going according to plan. What Turley posts are the rare exceptions; then he sits back and is amused at all the conspiracy and calls to arms rants. So, Canadian judge, American judge, French judge…., it depends on the circumstances-which are rarely if ever completely understood by the peanut gallery. I’ll give ya’ll the benefit of the doubt, that this Canadian routine is just razzing, that ya’ll simply can’t be that obtuse, xenophobic, isolated, ignorant, etc.
Having said that, aside from this tabloid nonsense that seems to take up so much space, let’s debate Trump’s latest dance. Has Trump got his tongue so far up Putin’s derrière that, well you fill in the rest. Or, is this some sort of master stroke that will kind of grow on ya. He does exhibit that great oligarchical trait, not giving a sh*^ what anyone thinks. And, he never gives up on calling what criticizes him fake news, lies, etc and making up stuff. Just about nothing he said following Helsinki was in any way true. Here are some facts: Trump had trouble a few years ago, after stiffing banks and lenders through six bankruptcies, getting financing. Trump has financial ties to Russian banks. Trump will not release his tax returns which would reveal the source(s) of his financing in greater detail. Trump has advocated for Russia’s readmission to the G 7/8. Trump phoned the Russians and warned them that he was going to bomb a Syrian air base, so they could get their guys out, in retaliation for the chemical attacks. The meeting in Helsinki was of next to absolutely no importance other than a photo op, somewhat like the North Korean dance. Trump is traveling round the world puffing himself up at the expense of America.
Trump’s primary concern is to expound how great he is. It’s always because of him, due to him, what he did. Most of the time the accomplishments are total fabrications, blatant lies, or at the very lest gross exaggerations. Trump obtained absolutely no commitments of increased military spending from the NATO countries; yet he brags to the tune of $60bil. The NATO countries simply reiterated their commitment to the promises made in 2014 to reach 2%. The only concession Trump got from NATO was their putting up with his buffoonery so that he would get out. Germany gets less than 20% of their energy from Russia, not 60%. Russia needs Germany money far more than Germany needs Russian gas. LNG from the US and the Middle East is looking for customers around the world. Let’s debate this stuff, or is Shanghaiing this blog wrong? Should we go back to rubbing our legal members and calling people out for being born somewhere other than the US?
Damm Canadian/American
I always enjoy your deflections when proven utterly wrong but I don’t indulge your petty opinions on family business. Hate way on Trump. You are powerless to affect him.
‘when proven utterly wrong’
Which means in Trumpspeak, “When Trump says one thing it’s absolutely correct and when everyone else says the opposite, why, they’re incorrect, fake news, wrong, lying…. Well, he’s your champion and even after he has been bounced down the road and America has come to its senses, begun the enormous job of cleaning up his mess, and the tried and proven washing of it all down the drain-cuz we make no mistakes, you will still be for him as when you back a buffoon you either admit that you were duped or continue your losing argument. Or, you could take a page out of Trump’s playbook and lie like a rug. As for being powerless to affect him; how can anyone affect Trump. Trump doesn’t even affect Trump. Trump will say one thing and then turn around and say the opposite and then blame it all on fake news. When caught using fake statistics-almost all of his statistics are fake-he laughs and boasts about making stuff up.
No Sgt. Preston you were proved “utterly wrong” to suggest the judge’s whim over his order trumps the Constitution. Professor Turley cited three cases totally decimating your unlettered blather and I got to point it out. Now on to your next defection.
Mespo, The poor Canadian has terminal Trump Derangement Syndrome.
there are plenty of lawyers here. are you a lawyer or just a self appointed expert?
how do you think most of us found it.
anyhow i am a native American, by that i mean born on this soil and proud of it
my ancestors were in may wars including our Civil war and the War of Independence
i like this movie, in a funny way, makes me feel warm and fuzzy
Power-mad egomaniac.
Every judge has the power to enjoin. It’s part of the system. if it was an error somebody can appeal. No big deal. Maybe the judge went too far, but I have seen them seal things before and change their minds once they bothered to think a little harder about it.
Common issue for settlements and plea deals, how much to keep off the record and what can be sealed. Not a big story actually.
I disagree. I think the reason for sealing the plea deal is a very big story, and one that should be explored by the press. I can’t see that a police detective who was found to be on the payroll of the mafia has a privacy interest in his illegal activities and breach of his oath of office. And certainly the public has a strong interest in knowing whether his punishment is appropriate, or whether he got a “sweetheart deal,” and if so, why.
you make a good case and police corruption is a serious matter
I am just talking in general, judges have these powers and it’s a quotidian matter what to seal or mark confidential and what not
The professor’s argument proves too much. Under his reasoning, a newspaper would be entitled to view and publish all sealed material, thereby mooting sealing altogether. There is no principled difference between preventing publication through sealing and preventing further publication once a previously (and mistakenly) public document has been retroactively sealed.
Sealing is permitted for a reason, usually because a document will cause harm if it is released to the public. I suspect that the reason this plea agreement was ordered sealed was to protect someone from the bad guys. While the court’s order cannot make “the cat walk backwards”, it can prevent the cat from walking further. The court’s order will reduce the potential for harm and simply puts the newspaper in as close as possible the same position it would have been in had the mistake not been made initially. Had the agreement been properly sealed, the newspaper would not have had access to it and would not have been able to publish its contents. So, the paper actually was able to publish more than it should have. There is no damage to the First Amendment unless one wants to argue that newspapers are entitled to publish anything that is sealed which, in turn, means that sealing will not be permitted.
The issue is not the newspaper viewing sealed material, and then publishing it. The issue is the newspaper viewing public information, publishing it, and then being told, “We didn’t mean to make that public, you need to delete that information.” That is what the First Amendment has been held to mean.
Sealing does not violate the First Amendment. There is no right to publish that which you have no right to see. However, I agree that the deleting part of the order may be problematic, although I am not sure why. There may be a distinction between traditional publications like newspapers and internet publications. It may be internet publication that the deleting part of the order is addressed. Newspapers get read and thrown away the same day. They may be shared but only a little and only by people who are inclined to speak to each other anyway, i.e., family and close friends. The internet is there forever and can be shared around the world in a nano-second. So, (thinking out loud here) in a sense internet publication is like republishing continually. If that is the analogy, then deleting a posting is no different than not publishing in future editions of the paper. Deleting a posting is unlike destroying already printed newspapers. Certainly, the harms intended to be protected by sealing are advanced more by deleting postings than by the destruction of already published newspapers. We will see what the appeals court says.
Vince,
As an example, Turley published this post and now wants to order that no one is allowed to discuss it or share it. He can delete the post but he cannot undue what he made public. Unless this Judge is Yoda in disguise, his Jedi mind trick work,it will not.
I fully surmise that the judge realizes that he cannot undo what has already been done. Methinks he is trying to minimize the damage by preventing further dissemination.
You can’t unring the bell, Vince. The plea deal is out there and all the judge is doing is sealing up the First Amendment. The order won’t stand.
mespo – I thought the Pentagon Papers settled this issue.
It did.
Correct, you can’t unring the bell, but you can prevent the bell from being rung again. The more the sealed document is published, the more people will see it and the more likely one of the bad guys is going to find out about it and take action against someone.