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RTDNA joins amici letter in unconstitutional prior restraint case

July 17, 2018 12:00

Update 7/17 1pm EDT: Within 24 hours of receiving the amici letter, the same judge has vacated the order, and the Los Angeles Times is now free to publish.

The Radio Television Digital News Association and its Voice of the First Amendment Task Force joined 59 other news media companies and press freedom groups in filing an amici (friend of the court) letter before the U.S. Court of Appeals for the Ninth Circuit.
The case involves an unconstitutional prior restraint order from a lower federal court judge that required the Los Angeles Times to remove from an article information it legally obtained from a federal court database. The information was intended to be filed under seal; however, it was mistakenly filed so it could be accessed by the public. The order also required the Times not to publish any additional information it had obtained from the file.
The case involved a police detective in suburban Glendale, California, who pleaded guilty to lying to federal investigators about having ties to organized crime.
The Times immediately appealed the judge’s ruling, its attorney, Kelli Sager, telling the newspaper, “Typically, courts take into account if information was already published. Where it is no longer secret, the point of the restraining order is mooted. To order a publication to claw it back doesn’t even serve the interest that may be intended.”
“For decades, federal courts – up to and including the U.S. Supreme Court – have held that once a government document is in the public domain it is subject to being shared with the public by a free press. That a lone federal judge would disregard such clear and overwhelming legal precedent is baffling,” said Dan Shelley, RTDNA Executive Director.
“The fact that five dozen media companies and press freedom organizations would join together to oppose such an order is almost unheard of. When companies and associations who occasionally compete against one another show such incredible solidarity on an issue, their statement takes on more potency and significance,” Shelley added.
As stated by RTDNA, the Reporters Committee for Freedom of the Press, which spearheaded the effort, and the 58 other organizations in the amici letter:
It appears that the district court may have entered the temporary restraining order in an attempt to correct the mistaken public filing of the plea agreement, which was meant to be kept under seal. The district court’s desire to correct this administrative error, however, cannot justify the imposition of a prior restraint, which has now created a constitutional harm. Although courts have the power to enter sealing orders when common law and constitutional standards are met, … once information is made public, nearly 90 years of constitutional law stand in the way of using prior restraints to prevent a newspaper from communicating the information to its readers.
The U.S. Supreme Court has consistently held since at least 1931, in Near v. Minnesota, that prior restraint is unconstitutional. Perhaps its most notable ruling on the matter came 40 years later in New York Times Company v. United States, more commonly known as the “Pentagon Papers case.”
“When a rogue judge issues a clearly unconstitutional order designed specifically to prevent the news media from reporting on issues of community or national importance, it is clearly unacceptable and the order must be overturned,” said Shelley,
RTDNA formed the nonpartisan Voice of the First Amendment Task Force to defend against threats to the First Amendment and news media access, and to help the public better understand why responsible journalism is essential to their daily lives. RTDNA is a founding partner of the U.S. Press Freedom Tracker, the archive of record for threats against press freedom in America. Reach out to RTDNA by emailing pressfreedom@rtdna.org.


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