Judge Orders Los Angeles Times to Delete Part of Published Article

https://www.nytimes.com/2018/07/15/us/judge-los-angeles-times-delete-article.html

218 153 8 years ago

Bizarro• 8 years ago

Stifling the first amendment is serious business. When are judges going to be held accountable for their wrong actions?

danso• 8 years ago

IIRC, federal judges can be removed by impeachment. Very unlikely that this judge or any other would be impeached just for a controversial ruling, though: https://en.m.wikipedia.org/wiki/United_States_federal_judge#...

throw_away2• 8 years ago

Not a federal judge and not an impeachment, but a judge has been removed for a controversial ruling recently: https://www.usatoday.com/story/news/2018/06/06/judge-aaron-p...

forapurpose3• 8 years ago

Approximately 8 federal judges have been impeached in the last century:

https://www.fjc.gov/history/judges/impeachments-federal-judg...

That doesn't include how many resigned facing likely impeachment.

HelloNurse• 8 years ago

It isn't merely a controversial ruling, it might be easily construed as a favor to friends (police and/or the clerks who published the document by mistake).

ajross• 8 years ago

When the filing is made before the appelate court. That's the way the system works.

gpm• 8 years ago

That doesn't hold them accountable. Just stops their action from causing further harm.

AnimalMuppet• 8 years ago

I'm not sure that trying to prevent publication of something that was filed under seal is a "wrong action" by a judge...

hedora3• 8 years ago

It is an incorrect ruling, since it directly contradicts precedent.

This sort of thing often slows down promotions into higher courts (as it should — lower courts should not routinely waste everyone’s time and money with rulings that will surely be overturned on appeal).

astura4• 8 years ago

It's incorrect from a legal perspective. Judges are required to act within the legal framework.

GavinMcG• 8 years ago

Their wrong actions? What wrong actions? The judge did their job: they considered the facts and the law, and applied their legal reasoning, and reached a conclusion.

The fact that you don't like the conclusion doesn't mean the judge acted wrongly. There's nothing to be held accountable for.

The reasoning or decision itself, on the other hand, will go through the processes of review that almost all judicial decisions go through.

1996• 8 years ago

Regardless of their reasons, it feels very wrong to think a judge or an elected official could even think about regulating free speach. Double wrong for doing to the press.

I hope the judge get removed from office. I don't want people like that in charge of justice.

pvg• 8 years ago

Regardless of their reasons

It's their actual job.

Waterluvian• 8 years ago

I was thinking it would turn out to be one of those bizarre elected judges that the US has. But I think federal judges are all appointed through some resemblance of a sensible process, so I'm at a loss as well.

nickthemagicman• 8 years ago

This judge was nominated by G W Bush. Conservatives seem to be staunchly against the press except their version of it.

latch• 8 years ago

I know this isn't related to hate speech, it was done to protect someone's family, but in much of the world, various forms of speech are regulated (by judges or elected officials).

To me, anyways, there's overwhelming anecdotal proof that having some limits on speech correlates (and more than likely contributes) to a safer and more just society without any virulent side effect. This is not a slippery slope.

I think it's good to be vigilant about these things and scrutinize judges and officials though.

Nasrudith• 8 years ago

Personally I am highly suspicious of the 'for the subject's family' motivation as it seems very selectively applied and often comes up only when 'their people' are at risk from their own wrongdoing.

I'm of the view that it should be for everybody or nobody and not to discretion because their discretion always leads to selfish behavior that holds the people who most need to be held accountable to be the least so.

mr_spothawk2• 8 years ago

To me, anyways, there's overwhelming anecdotal proof that having some limits on speech correlates (and more than likely contributes) to a safer and more just society without any virulent side effect.

no serious person would suggest that this is a situation which requires limits on speech. you're using it as a platform for suggesting that it is, which I think is insane.

This is not a slippery slope.

this is the very definition of a slippery slope.

Aloha• 8 years ago

In politics, there is an adage I like, never give yourself more power than you want your opponent to have.

Free speech is one of those things that fits into this category, regulating speech that makes people uncomfortable does have a very provable slippery slope effect.

https://theintercept.com/2017/08/29/in-europe-hate-speech-la...

We've experimented with aggressively limiting free speech before, and it went very very bad, very fast, I'd rather not try the experiment again.

Another point I'd like to make, is that I'd rather know what peoples 'real' views are, so I can either avoid them or help change their mind, pushing objectionable opinion underground, does not stop people from holding those opinions, it just hides them where it cannot been seen, and actioned upon.

AmericanChopper7• 8 years ago

It’s the slipperiest slope of all. Thousands of people have been arrested for causing offence in the UK after they introduced their absurd laws. Police have recently been threatening to arrest people for mocking them online. In the US we’re very lucky to have the first amendment to protect our speech no matter who deems it hateful or offensive.

njharman• 8 years ago

Judges and elected officials routinely regulate free speech. Every court sealed record, every copyright performance enforcement, every liable/slander ruling, every pornograpy lewd speech law/FCC regulation, hate crime and bullying laws that limit what anyone can say, tons of national security arms export that restrict wide gamut of things like CPUs and maths algorithms.

Some of those I agree with. Some I don't. Point is Supreme Court has rightly ruled Free Speech is not a absolute right. It does not trump all other rights. Nor all the duties/responsibilities we put onto governments.

FireBeyond2• 8 years ago

every copyright performance enforcement

Apropos of anything else, if I go somewhere and broadcast Queen's Bohemian Rhapsody, or whatever, that is in no way my speech, and regulating the ability to do so without commission or royalty in no way restricts my ability to speak.

wcunning2• 8 years ago

Can you provide citations to some of the hate crime and bullying laws you mention? I want to know what I should be writing my elected officials about because free speech is so very very close to an absolute, and I like it that way. The few restrictions I'm aware of in currently valid (not overturned) Supreme Court precedent are exceedingly tiny.

JumpCrisscross2• 8 years ago

Not to mention anti-fraud statutes.

mr_spothawk2• 8 years ago

Double wrong

I think you mean "double-plus wrong".

kabdib• 8 years ago

Doubleplusungood is the official term, comrade.

alexandercrohde2• 8 years ago

I just want to point out that this type of all-or-nothing thinking may be the most effective way to alienate people from your perspective. I'd consider myself a free-speech nut, but comments like this make me want to distance myself from that label.

pietroglyph• 8 years ago

Removal from office is the last thing that should happen in this situation. The judge made a questionable decision, which will be appealed, but the judge should not be fired (that is an action reserved for actual misconduct). If we do the latter to judges with whom we do not agree, we jeopardize the independence of our judiciary.

maxpupmax• 8 years ago

Disagree with the overall sentiment. If judges make decisions which don't represent the mandate of their constituents, they can/should be removed. See the Brock Turner judge in the SF bay area. Glad he's gone!

That said, you may be right about this particular situation.

kuon• 8 years ago

This kind of things often ends up in a Streisand effect, seems very clumsy.

anothergoogler• 8 years ago

Here's the article before it was edited: https://web.archive.org/web/20180714180330/http://www.latime...

jessaustin3• 8 years ago

John Saro Balian, 45, pleaded guilty to one count each of soliciting a bribe, obstruction of justice and making false statements to federal investigators as part of a plea agreement he reached with prosecutors. The document was ordered to be filed under seal but appeared on PACER, a public online database for court documents.

I'd say that last part is the part that got LAT in trouble... I rarely support the whole "under seal" thing, especially when it's in order to protect a corrupt dirtbag cop, but this "ask for forgiveness not permission" stuff won't fly with many judges...

But yeah, this guy is scum. Not only has he gleefully profited from both sides of the ruinous Drug War, but his police status has allowed him to escape the draconian punishments that normal people suffer.

forapurpose3• 8 years ago

"ask for forgiveness not permission" stuff won't fly with many judges...

According to the article, the courts have steadfastly protected this behavior for 90 years.

alexandercrohde2• 8 years ago

So, I imagine what's happening here is that this guy played both sides, and was caught and was being used as a mole by the US law enforcement. By releasing these charges publicly, the concern is that the cartel will now know he was disloyal and may attempt revenge.

This is entirely speculative, but it seems much more probably than the judicial branch going out of its way to help the executive.

garmaine2• 8 years ago

especially when it's in order to protect a corrupt dirtbag cop

It was an order to protect his family from retribution from violent psychopaths that have in the past murdered not just informants / plea deal recipients, but their entire family in the most bloody way imaginable. I would not be surprised if the headline in a few days is about his wife and children dying in ways unfit to print. And it would be irresponsible journalism of the LA Times that made it happen.

I’m one of the most pro free speech person I know, but I’m squarely with the judge and the right to seal court proceedings here. And with a now gone age of journalism where this crap didn’t happen in the first place.

astura4• 8 years ago

this "ask for forgiveness not permission" stuff won't fly with many judges...

TFA makes it extremely clear that the First Amendment gives newspapers and others the right to publish information obtained from documents that end up available to public in error. All case law indicates that the LA Times waa acting fully within the boundaries of the law and did not need to "ask for forgiveness" or whatever.

This ruling is extremely unusual and clearly unconstitutional.

Heres is the full redacted part:

The document was ordered to be filed under seal but appeared on PACER, a public online database for court documents.
According to the agreement, filed in U.S. District Court, Balian agreed to cooperate with federal authorities by responding truthfully and completely in interviews and court proceedings. He is scheduled to be sentenced in September, when prosecutors are expected to recommend a reduced sentence.
The charges to which he pleaded guilty carry a maximum sentence of 35 years in prison.

king_nothing3• 8 years ago

If the death penalty were ever plausibly-beneficial, this sort of low-life would deserve it.

promopacket• 8 years ago

And an archive.is link of that one, for good measure:

https://archive.is/g8jV7

mirimir3• 8 years ago

Interesting. I just tried to do that, and got pointed to https://archive.is/g8jV7 :) Smart site!

astura4• 8 years ago

That's the redacted version.

wyldfire• 8 years ago

Oh wow! How long until the Internet Archive is added to the order?

mirimir3• 8 years ago

That's why https://archive.is/g8jV7

And if that goes too, I have a local copy :)

pasbesoin• 8 years ago

Perhaps the judge should look instead to the court's and clerk's own record management. Something that is obviously in error, and the original cause of the risk.

Of course, they may well seek to quash such publicity. After all, who's going to make a deal with a system so incompetent it can't keep a sealed record safe from its own negligent mis-handling?

pseingatl• 8 years ago

Wikileaks gets raked over the coals for (allegedly) printing similar information and the LA Times gets a pass.

I believe it was in the Noriega case where the first order to CNN not to publish was made. It was overturned by the 11th Circuit.

ars2• 8 years ago

and the LA Times gets a pass

Hu? The LA Times took it down. How is that "gets a pass"?

The LA Times also acquired the information lawfully, Wikileaks did not.

hedora3• 8 years ago

The people at the LA times that published the information haven’t been forced to choose between exile in an embassy, and facing a kangaroo court, and also well-documented persecution via probably illegal psy-ops, falsified slanderous/libelous communications “from” trusted colleagues, etc, etc.

Compared to wikileaks, they “got a pass”. It doesn’t make the mistreatment of the LA Times any better though.

wcunning2• 8 years ago

Eugene Volokh discussed this case earlier today on his blog [0]. His rough conclusion, with appropriate caselaw citations, was that the 9th circuit will almost certainly overturn the injunction on the article.

http://reason.com/volokh/2018/07/15/judge-orders-la-times-to...

yadaeno• 8 years ago

The times wrote about a confidential document that was mistakenly released to the pulblic. The judge who sealed the document in the first ordered the times to redact their article which goes against decades of case law and arguably the first amendment. Not only this but the Streisand effect seems to suggest that the court order will have the opposite than intended effect

hkai• 8 years ago

I agree that rare, isolated incidents like this one will have the Streisand effect.

However, once this practice becomes routine, it will no longer be the case.

king_nothing3• 8 years ago

Yes and arbitrary state censorship via prior restraint is knocking on our doors right now. If this isn’t throughly thrown out with prejudice, things will only get much, much worse.

djsumdog• 8 years ago

There is a lot of crossover here and the Right to be Forgotten. The EFF opposed EU right to be forgotten laws because they could often be used in censorship (like in this very matter).

In the US, there are fewer people who expunge criminal records because there are companies that will produced expunged records in background checks so long as they were public at any time. Banning this gets into 1st amendment grounds.

And that's the flip side: labeling theory. In places like Australia, certain crimes do get removed from your record so long as you've stayed out of the system for five years. Even their sex offender registry has limited use (certain jobs, housing restrictions etc.); it's not public like ours. Then again, they don't have freedom of speech (except in Victoria; sorta).

Could we have laws that restrict companies from considering criminal records past x number of years in the US? I'm not sure if that'd be possible in our currently legal system.

In America, you can't really restrict information, once it's published, except in certain limited cases (like when a case involves a minor).

omeid22• 8 years ago

they don't have freedom of speech

I think the issue of freedom of speech is much more nuanced than that.

For example, even in places with "absolute freedom of speech", which I suspect is what you're implying, there is defamation laws that forbids certain kind of speech. There is also laws around hate speech and so forth.

dgellow2• 8 years ago

There is also laws around hate speech and so forth.

Not in the US (as far as I understand). See the Wikipedia article: https://en.wikipedia.org/wiki/Hate_speech_in_the_United_Stat...

In June 2017, the Supreme Court affirmed in a unanimous decision on Matal v. Tam that the disparagement clause of the Lanham Act violates the First Amendment's free speech clause. The issue was about government prohibiting the registration of trademarks that are "racially disparaging". Justice Samuel Alito writes:
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate". United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).”

PinkMilkshake• 8 years ago

I think what your parent meant was Australia doesn't have any explicit freedom of speech protection laws, unlike the US and some other countries. Which is true.

"The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensible part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals." - https://www.humanrights.gov.au/freedom-information-opinion-a...

bryanrasmussen• 8 years ago

do defamation laws forbid you from defaming someone, and force the removal of all defamatory material from the public record? Or do they fine you if you defame them and enjoin you to publically state you were wrong?

dsfyu404ed• 8 years ago

there is defamation laws that forbids certain kind of speech. There is also laws around hate speech and so forth.

You can't be criminally prosecuted for hate speech (unless the prosecutor stretches other laws to cover your "hate speech") or most instances of defamation (except in certain cases on a state by state basis[1]). You can be sued but that's a civil matter.

[1] https://en.wikipedia.org/wiki/Defamation#Criminal_defamation...

sschueller• 8 years ago

I think it is abhorrent that data of expunged criminal records are kept by private firms. Why can't this be made illegal if yelling "fire" in a theater is?

onetimemanytime• 8 years ago

should be illegal for anyone to seek such info for prospective employers, renters etc. Free speech? OK, but the company cannot seek it or else...

chrisseaton• 8 years ago

I can’t see how you can prevent someone making a truthful record of history. What are you going to do? Hold a gun to people’s heads and tell them to forget that things have happened?

swebs2• 8 years ago

It's archival of public information. If this is a concern, then maybe that information shouldn't be made public in the first place.

icebraining4• 8 years ago

Falsely yelling fire in a theater. Plus that was only a rhetorical point used to justify a ban on pacifically protesting the draft, by emotionally appealing to recent (at the time) tragedies.

jessriedel• 8 years ago

Can't tell if your question is rhetorical or not, but: Falsely yelling "fire" in a crowded theatre is different because it (1) is actually false, (2) leads to an immediate and unambiguous risk of life, and (3) is not potentially of political importance.

The first is the most important in the US for free-speech issues. For instance, "it's true" is considered an absolute defense in cases of slander/libel, no matter how mean spirited or damaging.

vorpalhex• 8 years ago

Side note - "yelling fire in a crowded theater" is not persay illegal, and was actually used in a free speech trial against a man who wrote anti-draft pamphlets.

dragonwriter3• 8 years ago

Why can't this be made illegal if yelling "fire" in a theater is?

Yelling “fire” in a theater is not illegal. It was asserted to be the kind of thing the government might permissible prohibit in dicta (which are not themselves authoritative) illustrating the decision rule, without any citation to supporting precedent, in a later-overturned case in which the court allowed what is now recognized as an imperssible restriction on core political speech.

eli2• 8 years ago

Could we have laws that restrict companies from considering criminal records past x number of years in the US? I'm not sure if that'd be possible in our currently legal system.

Yes, these laws exist in many places in the US often under the name "ban the box"

Here in DC, it is illegal for me to obtain an applicant's criminal record until after I've made an offer and I cannot withdraw an offer simply because the applicant has a record.

I think SF and NYC have some version of this as well.

chii4• 8 years ago

I cannot withdraw an offer simply because the applicant has a record.

how is this proven? If you fired an employee after a "while", may be siting business reasons, how does the employee prove that you checked the criminal record, and then that information is what led to the termination?

consp• 8 years ago

Just as an example:

We have that here (Netherlands). You are under no circumstances allowed to not hire someone because of past failures if the statue if limitation has expired or the sentence has been served. There might be restrictions on what you can do after you have served, but it is not up to the company to judge on this. This is one of the reasons the "right to be forgotten" exists.

You can however request a "VOG" (translation something like: "Confirmation of good behavior") in which a company (or volunteer organisation for instance) asks for very specific cases like "Allowed to work with children" or "Can have access to privileged data like personal data or medical". The request is handled by the government. You get a response like "No comment" if there is no problem or "Not granted" if you fail. This avoids the problem of having people judge your exact misdemeanors/behavior in the past and leaves it out of a private companies hands and allows the right to be forgotten to exist.

You can also request it and let the person reject the request on legal grounds, but this usually gets you into more problems than you would like.

There is one "but". For higher security clearances (like for working for the state department equivalent) they are allowed to look further back and are allowed to view data from further back and do proper background checks forcing specific issues to come to the light of day. But that check is way more complex than a simple "VOG".

tomjen34• 8 years ago

What is to stop me from not hiring someone based on his criminal background and just come up with a bogus excuse?

Because frankly I wouldn't ever want to work with somebody who had raped a child.

JumpCrisscross2• 8 years ago

Anyone have copies of the decision?

king_nothing3• 8 years ago

There’s already manufactured consent and corruption of civilizational-implosion proportions, but this is a shot across the bow that the day of the fourth estate independent press maybe numbered.

billpg• 8 years ago

I look forward to hearing how blockchain technology could have prevented this.

thinkmassive• 8 years ago

Well the info could be hosted on IPFS, which eventually could be monetized by something like Filecoin. I suspect you’re trolling, but decentralized technologies certainly will play a part in publicly disseminating information in the future.

sangnoir• 8 years ago

Due to high transaction volumes (50 articles/day), the offending article would still be waiting to be published / mined. Thus obviating the need to be redacted.

M_Bakhtiari• 8 years ago

LA Times

Zero sympathy for them having been rangebanned from their site.

newswriter99• 8 years ago

It sounds like the reporter found it on PACER.

https://www.pacer.gov/

It's an extremely useful resource for information gathering.

Judge Orders Los Angeles Times to Delete Part of Published Article

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