Judge Callahan (CA9) Corrects Press Report That Failed To Note Her Dissent

The reporter made a good-faith mistake based on an incomplete PACER download. Judge Callahan should apologize.

|The Volokh Conspiracy |

Yesterday, the Ninth Circuit decided People Not Politicians Oregon v. Clarno. The opinion gave Oregon organizers more time to collect signatures for a ballot initiative. Rick Hasen flagged a footnote from Judge Callahan's dissent. She wrote:

I again dissent from the Court's denial of a motion to stay a preliminary injunction altering state election laws on the eve of an election.FN1

FN1: I similarly dissented from the denial of a stay motion in Reclaim Idaho v. Little, 20-35584. See Reclaim Idaho v. Little, 20-35584, CM/ECF Docket Entry No. 14 (July 9, 2020). Local press incorrectly reported that the Court's denial in that case was unanimous. See Nathan Brown, Reclaim Idaho to resume signature gathering on school funding initiative, POST REGISTER (July 9, 2020), https://www.postregister.com/news/education/reclaim-idaho-to-resume-signature-gathering-on-school-funding-initiative/article_b548b864-aaf5-5702-a5ea-f6769621fd17.html.

Huh? I can't recall any judicial opinion in which a judge corrects a press report about her decision. (Please email me if you are aware of any). Why would a judge publicly criticize a reporter? Who cares if the reporter got it wrong. I do know that some judges contact reporters, off the record, to talk about press coverage. Sometimes they contact me to complain. But Judge Callahan's public rebuke was a new one for me.

Nathan Brown wrote the cited article for the Post Register, an Idaho newspaper. He wrote:

Advocates for a ballot initiative to boost education funding in Idaho by raising income taxes on corporations and the rich plan to start gathering signatures again early next week.

On Wednesday, three judges for the federal Ninth Circuit Court of Appeals denied the state of Idaho's motion for an emergency stay that would have prevented Reclaim Idaho from starting to gather signatures online.

To his credit, Brown actually included a link to the PDF of the opinion. Bless him. More reporters need to include links to primary sources.

If you click that link, you will find a two-page PDF. That document includes a per curiam order that does not reference a dissent. Based on the documents he had, he reported that the panel was unanimous.

The document Brown posted is labelled DktEntry 14-1.

As PACER experts may know, if there is a DktEntry 14-1, there is almost certainly a DktEntry 14-2. PACER allows a document to have multiple entries; for example, separate exhibits. In this case, the Ninth Circuit placed the majority opinion at 14-1, and Judge Callahan's dissent was at DktEntry 14-2.

If you download the full entry from PACER, you will get a four-page document: 14-1 is a two-page majority opinion and 14-2 is a two-page dissent.  I've uploaded the full entry here.

Brown obtained part of the docket entry, and reported accurately based on what he had. Maybe he downloaded it from PACER and paid the fee charged by the federal courts. Or maybe someone sent him part of the PDF. I think it is unreasonable to expect reporters to know the fine nuances of PACER. And it is unfair to criticize Brown by name for failing to know those details. Indeed, I'm sure this reporter will have to talk to his editor about this public castigation from a federal appellate judge. I hope he is not disciplined for this good faith mistake.

Judge Callahan should have held back her criticism here. She should apologize to Brown–and send a nice note to Brown's editor.

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  1. When a reporter reports something that is wrong, I don’t think it’s unfair critic a to point out—even by name—that the reporter was wrong. I would agree that it would be inappropriate for the reporter to suffer more than de minimis professional repercussions here, but I see little reason to conclude either that he Is likely to, or that Judge Callahan wants him to.

    Justice Scalia’s memorandum denying recusal in the Cheney hunting trip case extensively criticized individual newspaper articles (and reporters) for inaccuracy.

    1. That’s of course a quite different situation.

  2. This is one of the rare situations in which apologizing would make things worse. The judge ought not have been commenting on press accounts, period, and she should stop, even if that leave an apology unmade.

  3. I also disagree with you, Prof. Blackman, that, it is “unreasonable to expect reporters to know the fine nuances of PACER.” If the reporter is covering decisions made by courts, he or she needs to learn how to deal competently and reliably with the federal courts’ exclusive — and not all that complicated (especially compared to its state-court analogs!) — system for making those decisions available to bench, bar, and public. As you correctly write, “[m]ore reporters need to include links to primary sources” — if by “more” one means “all” — and to do their jobs competently, they need to learn how to use PACER and how to read and interpret a docket sheet. The sub-parts are going to be listed on that docket sheet, and no reporter should be posting anything about a case without consulting its docket sheet.

    In short: The judge shouldn’t be talking about press coverage (nor to the press, nor, frankly, to law professors!), and the reporter shouldn’t have made this error.

    1. Yeah, I had a quick look at the reporter’s Twitter and it looks like he does a fair bit of court reporting. Nor, from his photo, does he look as if he’s fresh out of High School.

  4. This seems a little precious. Presumably it has something to do with “the dignity of the court” and judges not descending into the muck to argue with the reptiles of the press. Perhaps there’s something in that. The illusion – for illusion it is – that the judiciary is staffed by paragons of virtue may have some value. But that illusion regularly takes such a terrible beating from the antics of judges in court, and in the legal bits of their opinions, that this little correction seems extraordinarily mild by comparison.

    Moreover, there is a disturbing flavor here of “the poor wee journo is just a tiny furry creature, constantly hiding in the shadows, shivering with fear, beset by predators in a hard cruel world.”

    Neither the fieldmouse model nor the velociraptor model of the American journalist is entirely accurate, but the latter is surely much closer to the truth than the former.

    Note this is not a judge bringing down the awesome power of the state on a journalist, there’s no jail, no fine, no armed men in the night. It’s just a short correction, in print.

  5. It’s not a “nuance” of PACER, it’s a defect. But we’re supposed to adjust to it.

  6. A light drizzle in a teapot.

      1. Thanks.

        You are hereby licensed to use it freely.

  7. Most reporters don’t understand how the courts work. I’ve talked to journalists that don’t understand the difference between a federal court and state court. They also get confused easily about the appeals process. I ran into one reporter, who did important regional stories, who thought there were two courts of appeal in the federal system (the panels and then en banc) before you get to the Supreme Court. He was working on a story where en banc review was denied to a recent appeal and was telling me things like “did you know it is harder to have the ‘en banc court of appeals’ take your case than the Supreme Court?” Not a completely inaccurate statement in some circuits, but he thoughts that was a revolutionary observation followed by “I don’t even know why we keep these ‘en banc appeals courts’ in the system if all they do is pass on appeals…”

    Also people are legitimately frustrated by the shoddy reporting. The quality of journalism has been on the decline since, well probably Watergate, and our new “activist” “reporter” who constantly has to ding Trump to get the story past the editor is really wearing on the public. I’m sure this level of frustration is high enough that it even irks a judge from time to time.

  8. There are a couple of separate issues here, I think.

    The first is whether or not there’s any good reason for the judge to be commenting on press reports, accurate or otherwise. It seems to me that no legal purpose is served by bringing up the previous reporting error, and the error in reporting doesn’t change the fact of her earlier dissent nor the substance of her present ruling. She probably, from a purely legal perspective, could have let it go.

    But the second issue is where I part company with Blackman. Since when is it inappropriate to correct a reporter who gets the facts wrong? And since when is it unreasonable to argue that a reporter who makes a living reporting on court cases should have some idea of how PACER works? I’m not a lawyer, and nor am I a reporter, but I use PACER quite a bit to satisfy my interest in legal matters and I have, over the years, come to a pretty decent understanding of how it works. You can be damn sure that if my paycheck and my professional integrity depended on reporting court cases in the press, I’d make an effort to get it right.

    Does all of this mean that the reporter is going to get severely disciplined? It shouldn’t, and I doubt that it will. Even the best reporters make mistakes once in a while. and good-faith mistakes should not be punished unless they become too common. But Blackman’s whining about this is rather unseemly. To be honest, if the reporter were disciplined for this one minor error, the main criticism should be directed at his editor for over-reacting, and not at the judge for pointing out the reporting error.

    Blackman’s complaining about this issue will probably give the reporter’s good-faith mistake far more publicity than the judge’s footnote ever would have.

  9. Only an arrogant federal judge would think anyone cares if she dissented in a prior case nobody cares about.

    1. Isn’t that Thomas’s entire schtick?

  10. Perhaps Judge Callahan is just trying to correct a press error but do it in a way to carefully follows the rules. In particular, she might have decided that it would have been inappropriate to call the newspaper or reporter and directly ask for a correction, but she still wanted to call attention to the error and therefore chose to do so in a public way by mentioning it in a footnote. This would be the prudent thing to do given the fact that if she were to have called the reporter or newspaper management, there is a substantial chance that whoever she spoke with might have misunderstood her request and then published further inaccuracies either intentionally or inadvertently. It’s also unfair to say that she criticized the reporter by name. All she did was give a citation to the incorrect story in Blue Book style, which, of course, requires disclosing the author by name.

  11. There is no conceivable way that could be read as a criticism, neither in context nor as a stand-alone comment. That’s not to say that is proper since I don’t know anything the rules for such things.

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