Federal Judge Thinks The Best Fix For An Accidentally Unsealed Court Doc Is Prior Restraint

from the welcome-to-America,-your-honor dept

The Chicago Sun-Times dropped a bombshell on city residents late last month with an article detailing the FBI's secret recordings of an Illinois politician's shady business dealings.

The FBI secretly recorded Illinois House Speaker Michael Madigan trying to get business for his private law firm from a developer brought to him by Ald. Danny Solis, who was weighing the developer’s request to build a hotel in Chinatown, according to a federal court affidavit obtained by the Chicago Sun-Times.

The affidavit makes clear for the first time that the federal investigation that has snared powerful Chicago Ald. Edward M. Burke extends beyond City Hall and into the Illinois statehouse, examining politicians’ longstanding practice of merging personal and political business.

The FBI's affidavit connected the conversational dots for those reading the court documents.

An FBI agent alleges in the 120-page affidavit: “I understand Solis to mean that by hiring Madigan’s private firm, [the developer] would ensure that Solis and Madigan would take official action benefitting [the developer] in their capacity as public officials.”

Normally, there's be no story here (meaning here at Techdirt) since this appears to be nothing more than the corruption we've come to expect from Illinois politicians. It's a fine tradition dating back to the city's founding, but hardly in our wheelhouse.

This would have stayed outside our wheelhouse if not for the judge presiding over this case. No one other than the judge and the involved parties were meant to see the details of these secret recordings. The details are the juiciest parts, though: the FBI got Alderman Solis to wear a wire by leveraging his personal life, which was apparently filled with "massage parlors and Viagra."

The affidavit submitted by the FBI was supposed to be filed under seal. A clerical error left it exposed and unsealed on the PACER docket for an unknown amount of time. That's how the Chicago Sun-Times got its hands on it. Greg Hinz at Chicago Business has more details -- this time coming from the judge himself.

None of that sat well with Magistrate Judge Young Kim, who court records indicate has been presiding over the Solis matter.

According to my sources, Kim re-closed the affidavit and ordered the Sun-Times not to print what was in it, presumably on grounds that premature publicity could undermine what appears to be an extremely wide-ranging federal probe into City Hall that has been underway for four years or longer.

Here's where we come in, along with the First Amendment. Judge Kim likely knows his prior restraint is unconstitutional. It couldn't have escaped him that this is not the proper response to accidentally unsealed court documents. Unfortunately, he's not the only judge who thinks the First Amendment doesn't apply to the end result of court clerical errors. But Kim had advance notice from the prosecution side.

Knowledgeable sources also say that Kim’s order came despite sentiment within the U.S. attorney's office here that a ban on publication, known as prior restraint, would be on shaky legal ground and likely inconsistent with past U.S. Supreme Court decisions in the famed Pentagon Papers case and others.

Kim did it anyway, resulting in the US Press Freedom Tracker taking notice of this unconstitutional blip on its radar. Judge Kim's order blows right past Supreme Court precedent and attempts to do damage to the First Amendment protections the Chicago Sun-Times enjoys.

Not that any of Kim's courtroom bluster matters... at least not at this point. The Chicago Sun-Times published its article anyway using the source document the court system failed to keep sealed. And now Chicagoans know yet another of their politicians engaged in questionable -- if not illegal -- business dealings. Readers are likely unsurprised, but even so, there's a strong public interest in political corruption, which should easily outweigh anything Judge Kim might try to summon in support of his free speech blindside hit. It's apparent the US attorney's office won't be backing him up, so he's going to have to go it alone if he's going to take a run at contempt of court hearings. Good luck with that.

Filed Under: corruption, fbi, free speech, illinois, michael madigan, prior restraint, sealed court documents, young kim
Companies: chicago sun times


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  • identicon
    Anonymous Coward, 13 Feb 2019 @ 12:18pm

    The court is correct. An error needs to be undone.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2019 @ 12:22pm

    The only person liable is the clerk

    The only person the judge could reasonably site is the clerk who made the error. Assuming it was just an error and was not done maliciously, I don't see why he is so upset. It isn't as if everyone who needed to know about the corruption investigation wasn't fully aware of the next steps already. Their corruption is next level once you realize it got to control the Whitehouse for two terms.

    reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 13 Feb 2019 @ 12:28pm

    Contempt

    Interested to see what the shakeout is. Even if it's clearly protected speech that won't stop an angry judge from dragging people into court on contempt charges.

    reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 13 Feb 2019 @ 12:40pm

    Fire-Up the Gutenberg

    Judge Kim's order blows right past Supreme Court precedent and attempts to do damage to the First Amendment protections the Chicago Sun-Times enjoys.

    First Amendment protections apply not only to the Chicago Sun-Times and/or other media outlets/platforms but to individual persons as well.

    When the US Bill of Rights was authored the term "press" referred to a printing press which was/is a machine that could be owned by all persons not solely the media of the era - newspapers.

    Although members of the media in our current era may like to delude themselves into believing it is otherwise the term "press" as used in the US Bill of Rights does not refer to them but to a type set printing press.

    https://owlcation.com/humanities/Johannes-Gutenberg-and-the-Printing-Press-Revolution

    https://en.wi kipedia.org/wiki/Printing_press

    https://www.gutenberg.org/

    reply to this | link to this | view in chronology ]

    • identicon
      TFG, 13 Feb 2019 @ 1:05pm

      Re: Fire-Up the Gutenberg

      While that may be accurate, what matters is case law in the interim years, which have expanded the definition of "press" from the original meaning in the legal interpretation of the First Amendment.

      https://www.aclu.org/issues/free-speech/freedom-press

      The quoted case on that page has a brief summary here, with additional links:

      https://www.oyez.org/cases/1970/1873

      reply to this | link to this | view in chronology ]

    • icon
      Killercool (profile), 13 Feb 2019 @ 2:21pm

      Re: Fire-Up the Gutenberg

      You are exactly right. That is why the cases are so important - they protect the common people from the government just as much as newspapers and other publishers.

      They do not, however, protect ANYONE from getting their flyers put in the trash when they are nailed to private property. If you want to put your poster on a privately owned bulletin board, you have to have the owner's permission, and you have to follow their rules.

      The rules don't change just because things are digital. A privately owned bbs is no different than a corkboard in front of your house. Just because you can read it from the road, and maybe even reach it over the fence, doesn't mean it suddenly belongs to you.

      If you're not our regular troll who cannot distinguish between restrictions on the US gov't's ability to censor the public and the public's ability to exercise their right of association, please forgive me for stating the obvious.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Feb 2019 @ 2:24pm

      Re: Fire-Up the Gutenberg

      When the US Bill of Rights was authored the term "press" referred to a printing press

      Even back then, they used the phrase "freedom of the press", and I don't think they were suggesting that inanimate objects have freedoms. It was always about the freedom of people to gather and disseminate news; whatever the large news companies may think, it's the courts that count and they've long upheld that it applies to everyone.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Feb 2019 @ 5:28am

      Re: Fire-Up the Gutenberg

      Funny that that same literal standard never seems to apply to "arms" isn't it?

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 13 Feb 2019 @ 12:51pm

    Well at least the Judge is on the same level as the politicians, pretending to have absolute power & authority no matter what the law says...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2019 @ 1:48pm

    Sympathy for the prosecution

    I concur that the judge has no legal standing to forbid this publication. However, I can sympathize with the government's desire to keep this quiet until they finish ensnaring all the targets. The government should have sent a nice letter to the Sun-Times informing them that publication endangered the investigation, making clear that there would be no attempt at repercussions for publishing, and politely asking them to sit on the story in the interest of fighting public corruption. Maybe even bribe the Sun-Times with an offer for a first chance exclusive interview about the investigation, to be given and published as soon as the documents are intentionally unsealed.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Feb 2019 @ 4:43pm

      Re: Sympathy for the prosecution

      That was the plot of Deep Impact.

      Thanks for reminding me that some producer actually cast Tea Leoni as a female lead in a film once.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Feb 2019 @ 6:11pm

      Re: Sympathy for the prosecution

      The government should have sent a nice letter to the Sun-Times informing them that publication endangered the investigation

      Ah yes, the perfect accompaniment to "I was afraid for my life." It cannot, by its very nature, be proven or disproven, but it evokes a sufficiently strong emotional response that our (all too human) judges and juries often legitimately believe that it not only can be proven, but that it actually was.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Feb 2019 @ 5:31am

      Re: Sympathy for the prosecution

      Maybe even bribe the Sun-Times with an offer for a first chance exclusive interview about the investigation...

      Absolutely! No way this could backfire. No way that this might even prove the point about corruption. Great suggestion!

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 13 Feb 2019 @ 1:50pm

    The details are the juiciest parts, though: the FBI got Alderman Solis to wear a wire by leveraging his personal life, which was apparently filled with "massage parlors and Viagra."

    Am I the only one bothered by the fact that the FBI blackmailed someone into becoming an informant by threatening their morality?

    reply to this | link to this | view in chronology ]

    • icon
      Mason Wheeler (profile), 13 Feb 2019 @ 2:25pm

      Re:

      Huh? Doesn't sound like the guy in question had much morality to threaten!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Feb 2019 @ 5:32pm

      Re:

      Reading the article, it seems that he was getting that stuff as bribes. So it wasn't just the FBI getting dirt on his personal life; it was a cooperation deal. (It would still, of course, be blackmail if anyone else did it.)

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
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    Explore Logic's Software House

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  • identicon
    Paul, 14 Feb 2019 @ 10:08am

    Corruption and Chicago politicians - can anyone name a more iconic duo?

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 14 Feb 2019 @ 2:23pm

    How can it be contempt of court though?

    The judge does not out-rank the Supreme Court, and his ruling directly contradicts SCOTUS precedent. His order is unconstitutional, and he derives his authority to issue orders from that Constitution.

    So how can it be contempt to disobey an order he actually committed a federal crime when he issued it?

    https://www.justice.gov/crt/deprivation-rights-under-color-law

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 14 Feb 2019 @ 3:08pm

      Re: How can it be contempt of court though?

      The judge does not out-rank the Supreme Court, and his ruling directly contradicts SCOTUS precedent. His order is unconstitutional, and he derives his authority to issue orders from that Constitution.

      This order would certainly be overturned on appeal. However, it has to be appealed first.

      https://www.justice.gov/crt/deprivation-rights-under-color-law

      IANAL but it seems extremely unlikely to me that this qualifies as deprivation of rights under color of law. I don't think it meets the "willful" standard.

      If every order that misinterpreted or ignored Supreme Court precedent were deprivation of rights under color of law, there would be a lot of judges in a lot of trouble.

      reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 9 Mar 2019 @ 11:53am

      Re: How can it be contempt of court though?

      how can it be contempt to disobey an order he actually committed a federal crime when he issued it

      I will ignore for the moment that you have failed to identify any federal crime committed when issuing the unconstitutional order.

      Instead, turning directly to your question: the correct remedy for an unconstitutional prior restraint is to appeal it, not to disobey it. Disobeying even an iunconstitutional court order is punishable. Gompers v. Buck Stove, 221 U.S. 418,450 (US 1911).

      Oddly enough, disobeying an unconstitutional law is not punishable, assuming you raise and preserve the issue. It is only court edicts that have the magic power of punishment despite the constitution.

      reply to this | link to this | view in chronology ]

  • icon
    techwebpk (profile), 17 Feb 2019 @ 9:16am

    Sign To Speech Converter Facilitated Wireless Communication

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    reply to this | link to this | view in chronology ]


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