The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.