Free Speech

"Judge Orders LA Times to Alter Story About Glendale Cop"

A brewing First Amendment controversy, triggered by newspaper's publishing information about a plea agreement in the policeman's prosecution -- the agreement was intended to be sealed, but was inadvertently briefly released unsealed on the docket.

|The Volokh Conspiracy |

Cindy Chang (L.A. Times) reports:

A federal judge on Saturday ordered the Los Angeles Times to remove information from an article that described a plea agreement between prosecutors and a Glendale police detective accused of working with the Mexican Mafia, a move the newspaper decried as highly unusual and unconstitutional.

The agreement was supposed to have been filed under seal, but it was mistakenly made available on PACER, a public online database for federal court documents….

The order doesn't explain its reasoning in detail but states, in relevant 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.

The order also provides for a further hearing Wednesday morning, though the Times will likely ask the Ninth Circuit today (Sunday) to lift the order.

The now-partly-redacted article has more details of the underlying crime:

A Glendale police narcotics detective [John Saro Balian] pleaded guilty this week to charges that he lied to federal investigators about his links to organized crime, accepted a bribe and obstructed justice by tipping off a top criminal target about an upcoming federal raid, helping him avoid arrest, court records show….

In one case the informant described, Balian allegedly offered a tip about a gang sweep, allowing a top target — a Frogtown gang member — in a federal racketeering case to flee before agents arrived.

"Tell your boy Bouncer that he's the No. 1 on the list for tomorrow," Balian allegedly warned, according to the affidavit. It took agents another month to arrest the target.

The informant also alleged that Balian gave him locations of marijuana grow and drug stash houses — information he was privy to as an officer — and told him to "hit them" before law enforcement could execute their search warrants, according to the affidavit.

Balian also allegedly gave the informant names of people to extort and instructed him to "slap around" people to persuade them to pay money. He allegedly told the informant, who is Latino, that Armenians would not respect or pay him if they didn't fear him, the affidavit said.

As a general matter, when the government improperly releases information into the public record, recipients are free to publish it (even if they realize or should realize that the document was erroneously released). The Court held that as to a newspaper's publishing the name of a rape victim that it got from a police report (information the police department should have redacted from the report but didn't), see Florida Star v. B.J.F. (1989); see also, on a slightly different but related point, Bartnicki v. Vopper (2001). A federal appellate court has held the same as to secret grand jury information that was disclosed in a court hearing (In re Charlotte Observer (4th Cir. 1990), vacating a similar injunction on First Amendment grounds). Another federal appellate court suggested the same as to secret civil settlement information erroneously disclosed in a district court order (Gambale v. Deutsche Bank AG (2d Cir. 2004)). In Gambale, the court wasn't squarely confronted with whether to try to order news outlets to remove information, but it did seem to suggest that such removals are not an option:

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….

This is generally so when information that is supposed to be confidential — whether it be settlement terms of a discrimination lawsuit or the secret to making the hydrogen bomb — is publicly disclosed. 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."

The Ninth Circuit, the federal appellate court with jurisdiction over the matter, hasn't expressly opined on this, but In re Copley Press, Inc. (9th Cir. 2008), seemed to echo Gambale's position (though in the context of explaining why the court needed to promptly decide whether to unseal certain documents): "Secrecy is a one-way street: Once information is published, it cannot be made secret again." Here is the Ninth Circuit's discussion of the justifications for temporary sealing of certain documents, a discussion that I suspect many federal courts would largely endorse:

Ismael Higuera-Guerrero ran a drug cartel in Mexico along with Javier Arrellano-Felix and Arturo Villareal-Heredia. After U.S. authorities captured the three men, Higuera-Guerrero agreed to plead guilty and to cooperate with the government, but the others, initially, declined. The government and Higuera-Guerrero signed a plea agreement containing a "cooperation addendum" in which Higuera-Guerrero pledged to help the government build its case against the cartel. The government filed the plea agreement with the district court, along with a motion to seal the plea "proceedings." The government argued that publicizing Higuera-Guerrero's plea would endanger him and others. Higuera-Guerrero joined the government's motion to seal.

The district court granted the government's motion to seal while the government took steps to reduce the danger to Higuera-Guerrero and others. After those steps were taken, the district court unsealed a redacted transcript of the plea colloquy and all of the plea agreement except the cooperation addendum. This got the attention of Copley Press, Inc., which intervened and asked that the court unseal all the other documents the government had filed in support of its motion to seal, and the transcripts of the hearings on that motion. The district court ordered everything unsealed except the names, birthdates and addresses of the endangered people, but stayed its order while the government sought review….

The district court did not abuse its discretion in [ordering the unsealing of] those parts of the documents that describe Higuera-Guerrero's cooperation…. The district court found that after the government took steps to ensure these persons' safety, there was no longer a substantial probability that revealing Higuera-Guerrero's cooperation would endanger them. The court didn't clearly err in so finding and, in light of that finding, its decision to unseal these portions of the documents was not an abuse of discretion.

The district court did abuse its discretion, however, in [ordering the unsealing of] those parts of the documents that concern the other people in danger. As we explain in a sealed addendum to this opinion, there remains a substantial probability that unsealing the information contained therein will endanger these people. The district court clearly erred in finding otherwise, and we remand for it to allow the government to redact these documents in accordance with the sealed addendum….

But, again, the Ninth Circuit was evaluating whether something should be sealed -- it wasn't authorizing a restriction on the media once something was improperly unsealed, and its "cannot be made secret again" language suggests that, as in In re Charlotte Observer, such a speech-restrictive injunction would be unconstitutional.

I know of 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. That case stemmed from the Kobe Bryant 2004 rape prosecution, and involved information about the complainant's "sexual conduct before and after her sexual encounter with the Defendant Bryant"; the Colorado Supreme Court concluded that information that the media could be barred from publishing improperly released information that the trial court found to be not relevant enough to the charges in the case, partly because such information about other sexual conduct was so private and potentially embarrassing to the complainant. Still, that strikes me as an outlier, and the "once the cat is out of the bottle, you can't enjoin the fat lady from singing" approach is likely to prevail.

Finally, note that the matter might well be different if the newspaper had been complicit in the original release of the information, for instance if it hacked in to the computer system, or bribed a court employee to reveal the information, or perhaps even if it had just persuaded the employee to reveal the information. The media's rights to publish even improperly released information turns on their not having been complicit in the original improper release.

Thanks to Prof. Daniel Mitchell for the pointer.

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  1. So, what is the argument for sealing the agreement in the first place?

    Presumably to avoid tipping off the gangsters he’s going to testify against?

    1. Pretty much. Copley Press, citerd in the article, was about a similar situation.

    2. I quit working at shoprite and now I make $30h ? $72h?how? I’m working online! My work didn’t exactly make me happy so I decided to take a chance on something new? after 4 years it was so hard to quit my day job but now I couldn’t be happier.Check it out here? >> https://1kdaily.us

  2. I would think the rape victim in Florida Star would have had a far stronger argument than this dirty officer. Hopefully this order will soon be as trashed as his career.

  3. Perhaps, please, we can get that mangled, commingled, atrocious “once the cat is out of the bottle, you can’t enjoin the fat lady from singing” put under permanent double-secret seal.

  4. “Once the cat is out of the bag, the ball game is over.”
    “once the cat is out of the bottle, you can’t enjoin the fat lady from singing”

    The first amendment may as well be scrapped, since it allows horrible mixing of metaphors to become public that threaten children, pets, and readers like myself with mental cruelty.

    1. Jim,
      Well, the ship has sailed, so we just can’t put that horse back in the barn.

      1. When all is said and done, there’s no use crying over spilled milk. That would just be flogging a dead horse.

        1. Mixing SOME metaphors should be a capital offense.

          1. Shouldn’t that be Capital Offense?

        2. That’s like closing the box after the cat is dead.

          1. The cat existed in a superposition of alive and dead; closing the box after making a measurement won’t matter because the waveform has already collapsed.

            1. “The cat is alive when it reminds you it’s hungry, but is to all appearances dead as a doornail when resting in the sun.”

              /Erwin Humdinger

    2. “once the cat is out of the bottle,”

      I miss Bonsai Kitten.

  5. What was the information that was ordered to be removed?

    1. According to the article, ____, ______, and ________.

      And the secret formula for ____.

      1. Plus the Secret Sharer, the Secret Garden, the Secret Life of Bees, The Secret History, Harry Potter and the Chamber of Secrets, the secret of Secret brand deodorant, the Hidden Fortress, Hidden Figures, the Mystery of Edwin Drood, the Mystery of Iniquity. That sort of thing.

    2. The recipe for Coke.

      1. and Bush’s Beans and beans and beans…

  6. LOVE having no power to make the public private again. Like getting one’s virginity back!
    Especially when it’s been published, in print and online. (The leak, not the virginity)
    And Google will still have it, if they purge their web site.
    Was it syndicated? Seems likely. How widely?

    Thanks Eugene.
    Is your life at risk? /sarc

  7. So some small time criminal court thinks it can override the privilege of the press to publish classified documents, withhold information from federal investigators, and any damn thing they please, all I can say is good luck. If the court had any hope at all in surviving an appeal, then every leaker in DC would be in jail by the end of the week.

    1. Well, to be fair, it’s a moderately big-time criminal court.

      1. Although it is still an “inferior” court. 😉

  8. Whereas:
    Article III (Article 3 – Judicial)
    Section 1

    The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

    Whereas:
    This order is made under the authority of the United States District Court Central District of California, which is an inferior Court ordained and established by law by Congress.

    Whereas:
    Article 3 of the original Constitution has been constrained by:
    Article [I] (Amendment 1 – Freedom of expression and religion) 13

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Whereas:
    The order of the court clearly enjoins an institution of the press from publishing information it sees fit to speak about.

    Resolved:
    That the inferior Court could not have been provided the authority to issue such an order by the Congress, which established it, under the Constitution as amended.

    Resolved:
    That the order is void, is unenforceable by agents of the United States, and was unwise.

    1. Is this COBOL meets constitutional law?

      1. Lol. COBOL is probably the small intersection in the Venn diagram where you and me can have a technical communication, which we both understand; so, our agreement or disagreement could be a meaningful conversation. Here we go…

        I don’t comment here often because I am not well informed on case law. But this argument is a slam dunk to a normal Citizen, because in this argument case law is irrelevant. This argument is a tour-de-force using only the plain words of the Constitution as amended. To say that some other document was more relevant is to deny the meaning of our founding documents approved by the States, and lead us on a path to despair.

        This judge made a mistake and then doubled down on stupid by ordering uninvolved Citizens to help her/him to cover it up. Yes, I understand that mistakes happen (even by government), but denying other people’s rights that are specifically enumerated in the Constitution’s FIRST amendment to fix that mistake (even by government) is prohibited and must be opposed.

        Which I do.

  9. It sounds to me like most of those precedents express a practical/pragmatic consideration (= “it’s impossible to put the cat back in the bag even if the constitution allowed it) rather than necessarily a constitutional one.

    1. They do say no man should be the judge in his own case. But that doesn’t stop actual judges from trying to pull if off, and they inevitably end up confirming the wisdom of the saying.

    2. Pragmatic considerations are part of constitutional ones. Censorship laws are subject to strict scrutiny, which means that they must be narrowly tailored to a compelling government interest. If information is already public, then there can’t be a compelling government interest in preventing one particular publication from discussing it.

      1. As always, the terminology is somewhat deceptive here.

        “Rational basis” is really “not gibbering insanity” basis; It doesn’t require that the basis actually be rational, grounded in facts, or the basis that the legislature had actually propounded. Just that the judge be able to imagine some basis for the law that doesn’t involve chewing on the furniture.

        “Strict” scrutiny requires the legislature to actually advance what the judge thinks a good reason for violating the Constitution.

        I wonder what they’d call the level of scrutiny where the government was just required to follow the Constitution regardless of whatever reasons it might advance for not doing so?

        1. How do you define “speedy trial,” “excessive bail,” “unreasonable searches,” etc.?

          1. None of your examples address his point, however. Some rights have built in vagueness or flexibility, which are the examples you have given. Not surprising, given that they are meant to cover wildly variant circumastances. (Excessive bail in a racketeering case where mobsters are on trial has a different application than in a case where someone is accused of duck baiting, to use the recent Idaho example.)

            But other rights are clear — and yet the Court has adopted a “strict scrutiny” standard, whereby of there is a really, really good reason, then you can violate the right. Censoring speech seems clearly forbidden by the First Amendment. And yet current doctrine would allow, in very extenuating circumstances, just that thing. Granted, it is a rare occurrence, but the door remains open a crack.

  10. Waiting for Lathrop to explain how this is all the fault of ? 230 of the CDA in 3… 2… 1…

  11. In my long career in the courtroom (as the uniformed escort of defendants) what really came to bother me was the way judges could redact 9-1-1 tapes or crime scene video to play back only what the judge deemed to be relevant to the case at hand.

    Before presenting such evidence, the judge would tell the jury that the tapes had been edited, but that caution would be stated so casually it sounded like the only material edited out would be complete dead air and non-active scenes, etc.

    This was sometimes far from the truth. Sometimes whole statements, or whole appearances by individuals would be edited right out of an electronic recording and attorneys and other witnesses would not be allowed to mention these omissions. All this would be at the discretion of the judge in a pre-trial ruling based on the judge’s personal conceptions of relevance, prejudice, and where the heavy thumb of the law should come down on certain social and cultural issues.

    It is troubling, because technical editing power is only going to get more sophisticated–like the issue of “enhancing” garbled conversation.

    1. or enhancing foggy facial videos

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