Florida Legislator Files Bill That Would Keep Killer Cops From Being Named And Shamed

Free Speech

from the always-looking-out-for-the-most-powerful-people dept

Prior restraint but it’s a law.

Everyone saw this coming. “Marsy’s Laws” began popping up all over the nation, written to prevent the naming of crime victims, especially when the victims were minors. It was perceived as a way to protect victims’ privacy and, hopefully, head off harassment from the not-inconsequential portion of humanity that seems to enjoy making suffering people feel even worse.

But most of the press generated by Marsy’s laws has been generated by cops. Not because these cops helped ensure the laws were followed to protect crime victims but to keep their own names out of the papers after killing or maiming people.

As long as a cop could claim they were a victim of crime during the beating/killing of someone else, they could avail themselves of this law to avoid seeing their names in print. And, since nearly any action can be called “assault” when it involves being in the vicinity of police officer, cops pulled the Marsy’s card wherever it was applicable, preventing journalists, public records requesters, or the victims of crimes perpetrated by these cops from publishing their names.

Late last year, one of these laws was neutralized by Florida’s Supreme Court. Florida law enforcement officers insisted the victims’ rights law covered them, even if they were the ones doing the most crime. The court ruled the law could not grant a categorical right to withhold any crime victim’s name from disclosure, not without violating other parts of the state constitution.

The court specifically cited two rights found in the state constitution: the right of the criminally accused to confront their accuser, and the guaranteed right to access public records. That ruling was the end of the state’s Marsy’s law.

Rather than recognize the law was bad and that cops shouldn’t attempt to avoid accountability and scrutiny by misusing it, the Florida legislature — which hasn’t met a bad law it can’t write — has offered up a pair of bills that would allow the state’s law enforcement officers to, once again, kill or beat residents without worrying about their names being made public.

C.J. Ciarmella has the details at Reason.

State Rep. Chuck Brannan (R–Macclenny) filed House Bill 1605 and House Bill 1607 earlier this month. The former would expand the definition of “crime victims” to include “law enforcement officers, correctional officers, or correctional probation officers who use deadly force in the course and scope of their employment or official duties.” 

The latter would exempt records that could be used to identify and harass crime victims from the state’s public records law unless the victim opts to have it disclosed. “The Legislature finds that the release of any such information or records that could be used to locate or harass a crime victim or the victim’s family could subject such victims or their families to further trauma,” the bill says.

Tellingly, the bill only expands the definition to cover government employees “who use deadly force.” This makes it clear Rep. Brannan would prefer killer cops to have a bit more impunity to go with the massive amount of power they already have.

The wording also makes it clear Rep. Brannan either didn’t read or didn’t understand the state Supreme Court’s decision. The ruling made it clear no law that kept any crime victim’s name secret would be constitutional under the state’s constitution. The state legislature would need to amend the constitution to make this happen, not just write new bills that are just as unconstitutional as the law the court struck down.

Even supporters of Marsy’s laws (which have their own constitutional problems) are irritated cops keep hijacking laws meant to protect people who aren’t public servants being paid in tax dollars.

“When reviewing the conduct of an on-duty law enforcement officer who has used physical force, the right to privacy of their name must quickly yield to the public’s right to know,” Marsy’s Law for Florida told the Tallahassee Democrat in October.

If this bill becomes law (and it’s Florida, so it probably will), it will immediately be ruled unconstitutional. Neither of these proposals make any sense given this recent ruling. The legislators backing these bills are either willfully ignorant or pitiably stupid. Neither option bodes well for the people subjected daily to the daily tyranny of Florida’s elected dipshits.

Filed Under: 1st amendment, chuck brannan, crime victims, florida, free speech, marsy's law, police, prior restraint, victims rights

Fifth Circuit: Upon Further Review, Fuck The First Amendment

Free Speech

from the Peoples-Republic-of-Texas dept

I’m not a religious man, but Jesus Fucking Christ.

Yet another insane decision that allows the government to ignore constitutional rights has been handed down by the Fifth Circuit Court of Appeals — the one nationally known as the most cop-friendly circuit in the nation.

The long journey to this horrible ending begins in 2018. That’s when Laredo, Texas police officers arrested independent journalist Priscilla Villarreal — known as “Lagordiloca” by fans of Facebook live streams.

Villarreal committed no crime. She simply asked questions about a Border Patrol agent who had committed suicide. Her cop source gave her the name and confirmed the cause of death. If any violation of law occurred, it happened when the journalist’s law enforcement source gave Villarreal this information. Her subsequent publication of this information was not actually a crime, although the Laredo PD felt otherwise.

Villarreal learned there was a warrant out for her arrest, for the supposed crime of illegally soliciting information from a public servant. The “intent to benefit” aspect of the crime (the only thing making this act a crime, btw) was supposedly fulfilled by the fact that Villarreal intended to increase viewership/readership by publishing this information. For the clicks, in other words. That was the assertion made by prosecutors.

Villarreal immediately challenged her arrest and the law used to make it, claiming the law was unconstitutionally vague. The government apparently agreed, because it did not challenge her assertions in court, allowing her to be freed of criminal charges.

She sued the officers who arrested her, alleging both First and Fourth Amendment violations. The first pass by the Fifth Circuit Appeals Court got it exactly right:

If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well.

[…]

If freedom of the press guarantees the right to publish information from the government, then it surely guarantees the right to ask the government for that information in the first place.

[…]

Put simply: If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them? See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

[…]

So it should be patently obvious to any reasonable police officer that the conduct alleged in the complaint constitutes a blatant violation of Villarreal’s constitutional rights. And that should be enough to defeat qualified immunity.

The Fifth Circuit then reaffirmed its November 2021 decision with a published decision in August 2022. Nothing changed with the majority. The only new addition was a mouthy and incoherent dissent penned by Chief Judge Priscilla Richman. Richman’s history at the court has been… shall we say… controversial.

Richman’s opposition aside, this should have been the end of it. The Fifth Circuit had opined twice, both times pointing out that arresting someone for engaging in acts of journalism was a clear violation of the First Amendment. Villarreal should have been able to continue suing the Laredo PD officers for violating her constitutional rights. But that’s not what happened.

Instead of allowing an obviously correct opinion to set the standard, a few Fifth Circuit judges apparently felt the decision didn’t give cops enough leeway to violate rights without fear of reprisal. One of those was most likely Chief Justice Richman — the judge who forced the appeals court to issue a second opinion solely for the purpose of airing her particular anti-constitutional grievances.

The other judge asking for a rehearing was Judge Edith Jones. Behold her handiwork:

In her opinions, she has questioned the legal reasoning which legalized abortion, advocated streamlining death penalty cases, invalidated a federal ban on possession of machine guns and advocated toughening bankruptcy laws. In 2006, Chief Judge Jones found that a death row inmate who had filed a pro se motion to drop his appeal while his attorney was abroad could not later reinstate his appeal.^[7] In June 2017, Jones dissented when the court found that a university did not violate the Due Process Clause or Title IX when it expelled a student for committing a campus sexual assault as well as his girlfriend, who had recorded the assault and shared the video on social media.^[8][9] In May 2018, Jones wrote for the court when it found that Texas Senate Bill 4, which prohibits local governments or public employees from criticizing federal immigration enforcement or from praising sanctuary cities, did not violate the First Amendment.^[10][11]

Six months later, the new official opinion from the Fifth Circuit has arrived. And the shittiest judges on the court have won. It’s apparently just fine to arrest people for engaging in journalism in this circuit. The Fifth has rolled back its original decision to give the sued Laredo cops a free pass on their obvious constitutional violations. (h/t Short Circuit)

The new ruling [PDF] was written by Judge Edith Jones. Her middle finger to the First Amendment runs 33 pages. It is followed by three dissents, running an additional 47 pages. Judge Jones and her majority compatriots are clearly wrong. But there were just enough judges willing to elevate cops over the people they serve to ensure law enforcement officers in this circuit will feel far more comfortable engaging in retaliation against supposedly protected speech in the future.

Judge Jones makes it clear she simply does not like Priscilla Villarreal or others who might make public information law enforcement wishes to release on its own schedule.

Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source.

The Texas law was clearly meant to fight corruption, preventing people from personally benefiting from still-secret information, such as votes on laws or regulatory changes. It was never meant to punish journalists from publishing still-secret information obtained from government sources. If it was meant to do that, it was clearly unconstitutional. But, of course, Judge Jones doesn’t see it that way:

We do not reach the ultimate question of this facially valid statute’s constitutionality as applied to this citizen-journalist.

“Facially-constitutional,” perhaps. “As applied,” definitely not. But that doesn’t matter to Judge Jones and her like-minded judges. The law is the law, even if it’s being unconstitutionally applied to silence a journalist local law enforcement just doesn’t care for.

This is not a case about a “citizen journalist just asking questions.” That clever but misleading phrase cannot relieve this court of our obligation to evaluate Villarreal’s conduct against the standards of Texas law. Villarreal was arrested on the defendants’ reasonable belief, confirmed by a neutral magistrate, that probable cause existed based on her conduct in violation of a Texas criminal statute that had not been declared unconstitutional. We need not speculate whether section 39.06(c) allegedly violates the First Amendment as applied to citizen journalists who solicit and receive nonpublic information through unofficial channels. No controlling precedent gave the defendants fair notice that their conduct, or this statute, violates the Constitution facially or as applied to Villarreal.

And then the judge goes back to directly criticizing Villarreal’s journalistic methods, as though those were enough to justify setting precedent that ignores a ton of jurisprudence, including that issued by the US Supreme Court.

Scorning to await an official LPD report, and ignoring other TPIA open records procedures, Villarreal secretly solicited information from Officer Goodman to bolster her first-to-report reputation.

Apparently, Judge Jones thinks journalists should never utilize inside sources but rather wait for their public records requests to be denied and/or reprint official statements once they become available.

This is an extremely antagonistic opinion, loaded with language that clearly demonstrates this court has elevated law enforcement officers above the people they serve, and feels journalism is an evil, perhaps not even a necessary one.

Villarreal characterizes her First Amendment claims as invoking her rights “to peaceably ask officials questions and to engage in routine newsgathering and reporting.” These rights, she asserts, are “obvious to every reasonable official.” If probable cause turned on a defendant’s self-serving rationales for her conduct, very little law enforcement could take place. But under existing caselaw, officers are almost always entitled to qualified immunity when enforcing even an unconstitutional law, so long as they have probable cause.

Villarreall’s arguments weren’t “self-serving.” They were based on long-established law that specifically protects journalists, their sources, and their right to publish non-public information they receive from these sources. The only thing self-serving here is the court’s new opinion, which expands the power of law enforcement at the expense of the general public.

The dissents push back hard against the loaded language of the majority opinion:

As Judge Ho notes, the majority is wrong to disparage Villarreal for, as it writes, “capitaliz[ing] on others’ tragedies to propel her reputation and career.” Not only is that characterization of Villarreal’s enterprise unfair—as the majority writes, her journalistic endeavor survives off the solicitude of fans and “occasional” advertising, id. at 3—but it insinuates that Villarreal’s First Amendment rights are somehow diminished because she makes a modest living while exercising them.

[…]

There is simply no way such freedom can meaningfully exist unless journalists are allowed to seek non-public information from the government. Today’s majority opinion overlooks that protection all too cavalierly.

Obtaining non-public information from non-public sources is an undeniable public good.

Americans only learned about the horrific My Lai Massacre, during the Vietnam War, because a journalist asked a backchannel Pentagon source about it. Many years later, that same journalist reported details of prisoner abuse at the Abu Ghraib prison after gleaning them from a non-public military report.

The majority would apparently prefer the government to have the power to control the narrative at all times.

[T]he majority would limit journalists who work the government beat to publicly disclosed documents and official press conferences, meaning they will only be able to report information the government chooses to share. That outcome is unfortunate, unfair, and unconstitutional. It is unfortunate because a democracy functions properly only when the citizenry is informed. It is unfair because it restricts the journalistic freedom to gather information. And it is unconstitutional, for “[a] free press cannot be made to rely solely upon the sufferance of
government to supply it with information.” Smith, 443 U.S. at 104. Indeed, it is not even clear whether the majority’s opinion would allow journalists to request information in good faith from official channels without fear of reprisal.

Obviously this is problematic. But that’s what the majority in this circuit prefers: the subjugation of the public to its government betters. And if cops need to cherry-pick laws to keep the public in line, so be it.

Filed Under: 1st amendment, 4th amendment, 5th circuit, border patrol, free speech, journalism, laredo police department, priscilla richman, priscilla villarreal, qualified immunity

City Of Los Angeles Files Another Lawsuit Against Recipient Of Cop Photos The LAPD Accidentally Released

Journalism

from the hoping-two-wrongs-will-make-things-right dept

Things remain troubling in Los Angeles. The city is still trying to somehow punish investigative journalist Ben Camacho and activist group Stop LAPD Spying Coalition for a mistake its own police department made.

Camacho made a public records request for LAPD officers’ photos. After some litigation, the LAPD finally complied. Camacho — who writes for Knock LA — sent these to Stop LAPD Spying, which then added them to its searchable database of LAPD officers.

All of this was completely above board. It involved a public records request and a response from the LAPD. Then everything got litigious. The LAPD’s union sued the city for releasing these photos, claiming doing so endangered undercover cops. The chief of the LAPD then started making his own noise, demanding the city sue Camacho and Stop LAPD Spying for… well, publishing records they had legally obtained.

The city complied. It sued both Camacho and Stop LAPD Spying, seeking an “emergency” order blocking the publication of officers’ photos and demanding the return of photos the LAPD had apparently accidentally released.

The city argued that the release of these photos (and their subsequent publication) undercut the public’s interest in public safety. According to the city’s attorneys, the public had more interest in protecting cops’ identities than learning more about their public servants.

It somehow managed to secure an obviously unconstitutional order last year:

In August, a judge ruled that the city could justifiably censor the free speech of Stop LAPD by forcing it to stop publishing pictures of officers online. Stop LAPD and Camacho have appealed the decision, which legal experts have described as unusual.

The order isn’t being complied with at the moment. The appeal process is still ongoing, so everything remains exactly where the LAPD and city of Los Angeles don’t want it: accessible to the general public.

The lawsuit filed against the city by the police union is still ongoing as well. And while that winds its way through the legal system, the city has decided to double down on its legal actions against journalist Ben Camacho and the Stop LAPD Spying Coalition.

In an effort to curtail unlawful LAPD overreach and entrapment, several activists across the city created a database of LAPD officers, an action that qualifies as free speech. Rather than heed the call-in by the public to Stop LAPD Spying, LA City Attorney Hydee Feldstein Soto has chosen to further the city’s attacks on the freedom of the press by issuing a lawsuit for these actions against Knock LA photo editor Ben Camacho.

Through this lawsuit, the city of Los Angeles has chosen to suppress the right of the public to hold police officers accountable instead of examining the culture of misconduct that has been proven to exist within the LAPD. Feldstein Soto and her office have expressly demonstrated the city’s use of censorship to suppress  information that keeps the public safe and free.

Being wrong twice isn’t going to make the city right. There’s a high bar to meet if the city wants to route itself around the First Amendment. It’s unlikely to clear it. The city screwed up when it released the photos of undercover officers. The recipients of inadvertent disclosure are under no legal or constitutional obligation to engage in self-censorship just because the city screwed up. The city, however, has plenty of obligations to the Constitution, so its best bet in this case would be to concede the loss and get back to defending itself against the police union’s allegation of a “negligent, improper, and malicious” photo release.

And that’s where things are going to get super-tricky for the city. The Los Angeles Times’ coverage of this second lawsuit details the defenses being offered up by the city in response to the police union lawsuit. Its primary defense makes it pretty clear it should never have sued Camacho and Stop LAPD Spying once, much less twice.

The city said it sought “indemnity and contribution” from Camacho and Stop LAPD. In its anti-SLAPP motion filed Jan. 16, the city called the release of the photos an “inadvertent production,” which, “while regrettable, is not actionable.”

If the city’s release of the photos was “regrettable” but “not actionable,” how can it possibly justify the legal actions it is pursuing against the recipients of its “inadvertent production?” It can’t. And I guarantee its defense of its actions against the police union’s allegations will be used against it in its lawsuits against Camacho and Stop LAPD Spying.

That’s an unforced error. But maybe the city feels it would be better or cheaper to get the police union’s lawsuit dismissed than somehow emerge with a victory against journalists and activists. If so, it’s (finally) correct. It would do far less damage to the city and its residents’ rights to convince a judge it simply made a (non-actionable) mistake. But its insistence on laying the blame for the alleged harms on the recipients of legally obtained information suggests it may ultimately feel it’s better to stay on the union’s good side, even if it means the First Amendment has to pay the price for its litigious actions.

Filed Under: 1st amendment, ben camacho, hydee feldstein soto, journalism, lapd, stop lapd spying

Sorry Appin, We’re Not Taking Down Our Article About Your Attempts To Silence Reporters

Free Speech

from the we-stand-by-our-reporting dept

Back in December, we wrote about Appin. We were not writing about the reports (of which there have been many) that the organization that started as a sort of cybersecurity training school, but morphed into a kind of “hack-for-hire” scheme was involved in all sorts of nefarious activity. Rather we wrote about their (ab)use of the Indian court system to order Reuters to remove a big, detailed, investigative report on the company.

The history of Appin, and reporting on its involvement in hacking schemes, goes back a over a decade. Reports of Appin trying to hide and suppress such stories is a bit shorter but are abundant. And Appin has, at times, been quite successful, especially in trying to remove the name of the guy regularly accused of being behind Appin, Rajat Khare. See this SwissInfo report on how Qatar “spied on the world of football,” which was forced to remove Khare’s name while leaving in Appin’s.

Or how about the Bureau of Investigative Journalism story published in 2022, Inside the Global Hack-for-Hire Industry. An earlier version of that report names Khare. In April of 2023, the article was updated, and all mentions of Khare disappeared. There are many more examples as well.

Back in December, the Daily Beast finally had an article entitled “Who is Killing all These Stories About a Controversial Tech Mogul?” highlighting how stories about Khare and Appin have a noticeable history of suddenly disappearing.

In a move that has press freedom campaigners troubled, Rajat Khare, co-founder of Appin, an India-based tech company, has used a variety of law firms in a number of different jurisdictions to threaten these U.S., British, Swiss, Indian, and French-language media organizations.

On Nov. 16, Reuters published a special investigation under the headline “How an Indian startup hacked the world,” detailing how Appin allegedly became a “hack for hire powerhouse that stole secrets from executives, politicians, military officials and wealthy elites around the globe”—a claim that Khare strongly denies. Khare retained the powerhouse “media assassin” firm Clare Locke LLP, which boasts on its website about “killing stories,” to send Reuters several legal threats over the past year about the story, according to two people familiar with the matter.

After the removal of the Reuters story, which at least involved an actual court order, others appeared to be bullied into submission as well. Perhaps most shockingly, Lawfare (who, of anyone, should understand how ridiculous this is) redacted their version of the story about Reuters pulling down its article, saying that they did so after receiving “a letter notifying us that the Reuters story summarized in this article had been taken down pursuant to court order in response to allegations that it is false and defamatory. The letter demanded that we retract this post as well.” And they did so, despite no legal basis:

Unsurprisingly, we also received similar demands. We received multiple emails claiming to represent “Association of Appin Training Centers” legal department, and claiming (falsely) that by quoting the Reuters article (which we did not even do) we were also liable for violating the court order. Similar demands were also sent to our CDN provider, our domain registrar, and the domain registry.

The only thing we quoted from Reuters was their announcement about the removal — not from the original article. The other parts we quoted were from SentinelOne, the security research firm that Reuters used to analyze the data. At the time we wrote the article, SentinelOne’s report remained online (it, too, has since been removed “in light of a pending court order … out of an abundance of caution”).

In the meantime, though, all these attempts to pull down and hide the content appears to be causing a bit of a Streisand Effect. Beyond the Daily Beast article calling out the campaign, the website Distributed Denial of Secrets decided to republish the Reuters piece as part of its new “Greenhouse” project, noting:

In response to the unacceptable censorship by Appin and the Indian courts, Distributed Denial of Secrets is launching a new initiative to combat censorship: the Greenhouse Project. The Greenhouse Project continues DDoSecrets’ mission of ensuring the free transmission of data in the public interest by making the ‘publisher of last resort’ concept proposed by George Buchanan in 2007 a reality. By ensuring the reporting and source files are preserved, the Greenhouse Project builds on previous efforts creating a “warming effect” to reverse the chilling effects of censorship.

In addition, the Freedom of the Press Foundation, Politico, and Columbia Journalism Review have all run stories on Appin’s attempt to silence reporters. And, of course, all of this just keeps bringing more and more attention to the underlying claims about Khare and Appin. If Khare disputes those claims he could respond to them and refute them directly. Instead, he appears to be continuing a campaign of legal threats and dubious legal filings to seek to scare off reporters.

A few weeks back, we found out that our friends at Muckrock, the operators of DocumentCloud, had also received similar threats regarding documents hosted on that site.

Earlier this week, EFF sent a letter to the Association of Appin Training Centers, on behalf of both us and Muckrock, pointing out that the arguments they made in their letters to both of us did not appear to match what was in the actual court filing, which (1) does not clearly establish that the articles were defamatory based on the full evidence and a complete defense by Reuters, and (2) very clearly only apply to Reuters and Google. Furthermore, the letter points out that we are protected by the First Amendment, and any move to enforce a foreign order that violates the First Amendment would be barred under the SPEECH Act.

You can find Muckrock’s article about this here. Andy Greenberg, at Wired, also has a story about this.

This kind of censorial bullying may work on other publications, but Techdirt believes that (1) important stories, especially around surveillance and hacking, deserve to be read and (2) it’s vitally important to call it out publicly when operations like Appin seek to silence reporting, especially when it’s done through abusing the legal process to silence and intimidate journalists and news organizations.

We want to thank David Greene and Aaron Mackey at EFF for their help with this.

To the Association of Appin Training Centers:

We represent and write on behalf of Techdirt and MuckRock Foundation (which runs the DocumentCloud hosting services), each of which received correspondence from you making certain assertions about the legal significance of an interim court order in the matter of Vinay Pandey v. Raphael Satter & Ors. Please direct any future correspondence about this matter to us.

We are concerned with two issues you raise in your correspondence.

First, you refer to the Reuters article as containing defamatory materials as determined by the court. However, the court’s order by its very terms is an interim order, that the defendants’ evidence has not yet been considered, and that a final determination of the defamatory character of the article has not been made. The order itself states ‘this is only a prima-facie opinion and the defendants shall have sufficient opportunity to express their views through reply, contest in the main suit etc. and the final decision shall be taken subsequently.

Second, you assert that reporting by others of the disputed statements made in the Reuters article ‘which itself is a violation of an Indian Court Order, thereby making you also liable under Contempt of Courts Act, 1971.’ But, again by its plain terms, the court’s interim order applies only to Reuters and to Google. The order does not require any other person or entity to depublish their articles or other pertinent materials. And the order does not address its effect on those outside the jurisdiction of Indian courts. The order is in no way the global takedown order your correspondence represents it to be. Moreover, both Techdirt and MuckRock Foundation are U.S. entities. Thus, even if the court’s order could apply beyond the parties named within it, it will be unenforceable in U.S. courts to the extent it and Indian defamation law is inconsistent with the First Amendment to the U.S. Constitution and 47 U.S.C. § 230, pursuant to the SPEECH Act, 28 U.S.C. § 4102. Since the First Amendment would not permit an interim depublication order in a defamation case, the Pandey order is unenforceable.

If you disagree, please provide us with legal authority so we can assess those arguments. Unless we hear from you otherwise, we will assume that you concede that the order binds only Reuters and Google and that you will cease asserting otherwise to our clients or to anyone else.
———————————————————–
David Greene
Civil Liberties Director/Senior Staff Attorney
Electronic Frontier Foundation

Filed Under: 1st amendment, censorship, free speech, hack for hire, india, rajat khare, streisand effect
Companies: appin, muckrock, techdirt

After Inexplicably Allowing Unconstitutional Book Ban To Stay Alive For Six Months, The Fifth Circuit Finally Shuts It Down

Free Speech

from the nonsensically-delaying-justice dept

Texas is in a close race with Florida for the title of “Most Unconstitutional Laws Enacted.” Florida’s legislators will probably end up taking this title because they seem crazier/more productive than their counterparts in Texas.

But let’s not encourage those Texas underachievers! These are bad laws written by worse people. They’re almost universally incapable of surviving a constitutional challenge.

Unless they’re passed in the Fifth Circuit. Then all bets are off. The Fifth Circuit Court of Appeals has upheld obviously unconstitutional laws twice in recent months. And six months ago it chose to allow Texas to enforce its unconstitutional book ban simply by refusing to keep an injunction put in place by the district court.

It’s not like it was a close question. The lower court’s ruling explained in detail how the state’s READER Act (Restricting Explicit and Adult-Designated Educational Resources) violated the Constitution so hard it could not possibly be allowed to remain in force. This decision was appealed and, last September, the Appeals Court inexplicably decided the law could be enforced until it finally got around to examining the case.

Nearly six months later, the Appeals Court has finally handed down its ruling. And it’s not even a close question here, either, which makes this delay all that more frustrating.

The law requires book vendors selling to school libraries to issue sexual-content ratings for all books they have sold or will sell. Books containing “sexually explicit” or “sexually relevant” content must be flagged as such, subjecting them to possible removal or restricted access.

Books flagged by the new rating system must be submitted to the Texas Education Agency (TEA), which enforces the restriction/removal process. Any books sold in the past that make the list must be “recalled” from the educational institutions that purchased them. The law also requires booksellers to list flagged books “in a conspicuous place on the agency’s Internet website.”

Clearly the law violates the First Amendment. Not only is it prior restraint (because it deters booksellers from offering certain books for sale), it’s also compelled speech — the forcible application of ratings to books in order to continue selling books to school libraries.

As the book vendor plaintiffs point out, sales are pretty much nonexistent as schools have paused all purchasing until the rating system is in place. They also point out it could cost several million dollars to vet all past and present books carried by these vendors — something that will likely put at least one vendor (Blue Willow) completely out of business.

The state argued that even if those allegations are true, the government can still violate the First Amendment because the “commercial speech” exception applies. While it’s true commercial speech can be regulated to ensure consumers receive factual and accurate information, that’s not what’s happening here. From the opinion [PDF]:

According to the State, Zauderer applies here because the library-material ratings are “purely factual and uncontroversial” like a nutrition label; they simply tell the buyer what they are receiving rather than pass judgment or express a view on the material’s appropriateness for children. We disagree. The ratings READER requires are neither factual nor uncontroversial. The statute requires vendors to undertake contextual analyses, weighing and balancing many factors to determine a rating for each book. Balancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information. And it has already proven controversial.

And while “thinking about the children” can sometimes be a cognizable government interest demanding a limited incursion on constitutional rights, this ain’t it, Texas.

We agree with the State that it has an interest in protecting children from harmful library materials. But “neither [the State] nor the public has any interest in enforcing a regulation that violates federal law.”

The long-paused injunction is back on. As the court notes, there’s very little chance the state of Texas will be harmed by being unable to enforce a statute that “likely violates the First Amendment.” It goes back down to the court that got this right the first time. And, with any luck, this temporary injunction should swiftly be made permanent.

Filed Under: 1st amendment, 5th circuit, book ban, free speech, texas, zauderer

Judge Reminds Deputies They Can’t Arrest Someone Just Because They Don’t Like What Is Being Said

Free Speech

from the time-for-some-remedial-civics-lessons dept

It shouldn’t need to be said, but it bears repeating: the First Amendment definitely protects speech the listener doesn’t like.

This holds true even if the one doing the speaking is personally and professionally unlikable. There’s some backstory to this First Amendment retaliation suit, which explains why certain government employees might have wanted to arrest someone for talking. But nothing can explain actually following through with that fantasy.

This lawsuit (coming to us via FourthAmendment.com) begins in the Trumbull County (Ohio) Board of Commissioners. The Board has three elected members and must hold at least 50 public meetings every year. For most of the past three decades, the Board of Commissioners has been the home of registered Democrats. That changed in 2020, when Niki Frenchko was elected. She was a Republican and ran on a platform of (quoting directly here) “disrupting the entrenched practices of county leadership.”

Disrupt, she did. But her disruption was generally along the lines of annoyance rather than upending the Board’s “entrenched practices.” Here’s how things were going shortly before the Constitution got dragged into it. From the opinion [PDF]:

In her own words, Commissioner Frenchko has “been critical” of her colleagues and “embarrassed [them] by . . .exposing how they’ve been doing business . . . over their terms in a very inept and corrupted way.”

At meetings of the Trumbull County Commission, Commissioner Frenchko and her two colleagues often sparred. Even disagreements over policy often devolved into arguments during which the commissioners interrupted one another. Often, the meetings descended into personal insults. For example, at public meetings Commissioner Fuda referred to Commissioner Frenchko as “this lady.” During one public meeting, he held up photographs to Commissioner Frenchko of the trash can in the women’s restroom containing used tampons.

Lovely. And then the Sheriff’s Department became part of this uncivil discourse. Frenchko read a letter purporting to be from the mother of a local inmate claiming the jail had failed to provide adequate treatment for her son’s meningitis, resulting in partial deafness and other injuries. Sheriff Monroe responded with a letter of his own, criticizing Frenchko for reading the letter into the record without bothering to investigate whether the allegations were true.

Commissioner Fuda read this letter at the next meeting (without the Sheriff’s knowledge or permission). Well, he attempted to. Frenchko loudly objected to the Sheriff’s letter being read. And by “objected,” I mean “acted like an entitled child.”

Demanding that Commissioner Frenchko stop interrupting, Commissioner Fuda banged his gavel and raised his voice. Commissioner Frenchko continued to interrupt the clerk, mocking the clerk and bringing her to tears. As she continued interrupting, people in the audience urged Commissioner Frenchko to stop upsetting the clerk. At one point, Commissioner Frenchko left her seat to record the clerk from a better angle because Commissioner Fuda held up a piece of paper to obstruct her from recording the clerk.

This culminated in the other commissioners utilizing the two deputies on security duty to remove Frenchko for “disrupting” the meeting. They not only removed her (while she continued her criticism of Sheriff Monroe) but arrested her for “disturbing a lawful meeting.” She was processed and released. Charges were brought but were rejected by the court, which dismissed them without prejudice.

This arrest deals with the tip of the iceberg. If you’re so inclined, the opinion contains several pages detailing the sort of impropriety, infighting, and general childishness all commissioners engaged in, including one verbal altercation bearing this intriguing heading:

D.4. Salsa Dancing Incident

The defendants argued Frenchko’s removal and arrest were justified. The court disagrees. It was the form the disruption took that matters. This wasn’t just any disruption. This was the sort of thing that always retains the utmost in free speech protections.

Without question, the disruption that led to Commissioner Frenchko’s removal and arrest was her speech itself. And not just any speech. The speech of an elected official, delivered at a public meeting, addressing a matter of public concern. Speech that communicated a message disfavored by those in power. Speech highly critical of another elected official. Contrary to Defendants’ argument, this record does not permit disentangling Commissioner Frenchko’s speech from the disruption she caused. Here, they are one and the same.

Yes, it’s true some semblance of order is needed to engage in the business of government. But the lead commissioner had several options but chose to have the deputies attending the meeting arrest the commissioner he couldn’t get to shut up.

As the presiding officer, Commissioner Fuda had ample tools available, such as adjourning, taking a break, or even a formal reprimand—all short of arrest—to protect the government’s interests in running an orderly meeting. Indeed, “elected bodies in this country have long exercised the power to censure their members” unimpeded by the Constitution’s speech protections. Of all the tools available, Defendants used one that would chill any ordinary person or public official from continuing to question the Sheriff’s performance of his duties—an arrest.

It all circles back to the opening sentence of this order:

Here in America, we do not arrest our political opponents.

Well, we do. Obviously. But we shouldn’t (barring any actual criminal activity). The lawsuit will now move forward for consideration by a jury. No qualified immunity. No dismissal of the First and Fourth Amendment claims. And the defendants’ inability to secure a dismissal will absolutely lead to several more contentious board meetings. But no matter how much any of these commissioners may not like what’s being said, it should be clear — even without a final order in this case — that having them arrested is no longer an option.

Filed Under: 1st amendment, frank fuda, free speech, niki frenchko, ohio, paul monroe, trumbull county

Trump Has To Pay $392k For His NY Times SLAPP Suit

Free Speech

from the pay-up-donald dept

I mean, there was no way not to see this coming. Last year we wrote about how Trump had lost his vexatious lawsuit against the NY Times regarding its interactions with his niece, Mary Trump. Mary had leaked some tax documents to the NY Times, and Trump sued the Times, arguing (laughably) that this constituted tortious interference.

No, as we expected, it represented Trump doing what he often seems to love to do: filing bogus SLAPP suits to try to silence the press. This not the only Trump lawsuit against the NY Times (or other publications).

But, as we noted back in May of last year when this lawsuit was tossed out, NY Judge Robert R. Reed applied NY’s anti-SLAPP law to the case, meaning that Trump would be on the hook for the legal fees of the NY Times. It took some time, but last week Judge Reed said Trump needs to pay $392,638.69 in legal fees.

Not surprisingly, Trump had opposed the awarding of any legal fees, or said they should be substantially cut down from the requested amounts. That… didn’t work so well.

Considering the complexity of the issues presented in this action, the number of causes of action, the experience, ability and reputation of the defendants’ attorneys, the considerable amount in dispute, and the attorneys’ success in dismissing the complaint against their defendants… the court finds that $392,638.69 is a reasonable value for the legal services rendered.

Of course, who is Trump to complain? After all, he won $293,052.33 in an anti-SLAPP judgment based on a (yes, dumb) SLAPP defamation lawsuit that Stormy Daniels filed against him.

That’s no excuse for him to go around filing more SLAPPs of his own. One would hope that being on the other side of a SLAPP suit might teach him not to keep filing them himself, but no such luck.

Still, this is yet another example of the importance of anti-SLAPP laws. NY has a good one, but we need strong such laws not just in every state, but we need a federal anti-SLAPP law to guarantee these kinds of protections can be used everywhere in the country and in every court. Anti-SLAPP laws are fundamental to making sure that the 1st Amendment actually functions.

Filed Under: anti-slapp, donald trump, mary trump, slapp
Companies: ny times

Oklahoma Senator Thinks Journalists Need Licenses, Should Be Trained By PragerU

Free Speech

from the garbage-people-doing-garbage-things dept

“They’re not sending their best.”

– Donald Trump, June 26, 2015

I hear ya, Donnie. Just look at the jamokes you’ve inspired to set fire to the Constitution, if only because they failed to set fire to Capitol Hill following the 2020 election.

Florida’s full of them. The state legislature is infested with people who think fascism is something to aspire to. As far as they see it, the Constitution protects the rights of white males. Everyone else should just get used to their faces being stamped on forever.

Florida may be the worst, but state governments all over the nation are filled with people too stupid to govern but savvy enough to get elected. The residents that support them love them for their stupidity and performative lawmaking. Everyone else is reduced to looking on in disbelief, at best. At worst, they’re now the target of laws meant to further elevate white, straight males at the expense of everyone else.

But let’s not short-sell these legislators. They’re willing to cross the line to punish white, straight males if these outliers are unwilling to bend the knee. Critics of these government figures are also being pushed up against the wall by legislators, a disturbing number of which are willing to rewrite the First Amendment in their own image. If “free” speech doesn’t make the people in power happy, then that speech should no longer be “free.”

That brings us to the latest bit of anti-Constitutional thuggery being pushed forward in a state legislature. This time is yet another state with a panhandle hosting the idiocy, as Walter Einenkel reports for Daily Kos.

On Wednesday, Oklahoma state Sen. Nathan Dahm has proposed a bill that would require journalists to submit to drug tests, take courses in being “propaganda-free,” and get a license from the state. 

Senator Dahm is not only an idiot when its comes to crafting law, but he’s also incapable of coming up with his own ideas.

This isn’t the first, second, or third time that conservative lawmakers have attempted to control the free press by demanding some sort of licensing requirements. In 2016, a South Carolina Republican introduced a bill that would require journalists to be registered and vetted by the state. An Indiana Republican tried to do a similar thing in 2017, arguing it was the same as licensing Second Amendment rights. And in 2023, a Florida lawmaker attempted to force bloggers who write about Gov. Ron DeSantis, people in his administration, or state legislators to register with the government.

About the only thing new in Dahm’s attack on the First Amendment is the entity he wants to aid and abet in this mass violation of rights. The bill [PDF] mandates cultural readjustment at the hands of Dahm’s preferred brainwasher.

Each individual reporter, producer, writer, editor, or any other employee involved in the production of content distributed by a media outlet is hereby required to:

a. complete a criminal background check conducted by the Oklahoma State Bureau of Investigation,
b. receive a license as prescribed by the Corporation Commission as provided in subsection C of this section,
c. complete a propaganda-free safety training course of no less than eight (8) hours as prescribed by the State Department of Education, which shall be developed in coordination with PragerU,
d. provide proof of liability insurance no less than One Million Dollars ($1,000,000.00), and
e. submit to quarterly drug testing for illicit substances to be administered by the Oklahoma State Bureau of Investigation;

Holy shit. We’re on the other side of reality now. “Propaganda-free safety training courses” developed by a performative “school” whose inability to comprehend the First Amendment and/or Section 230 immunity has seen it lose lawsuit after lawsuit. The Senator doesn’t want the state’s journalism to be “free” of “propaganda.” He wants it to parrot the propaganda he likes and is willing to use the government’s power to ensure this happens.

If you don’t think that set of mandates is ridiculous enough, there’s more. These are the ravings of someone who read 1984 and came to the conclusion the government didn’t punish Winston Smith enough.

The list above is just for individual journalists, whether or not they work for larger news agencies. The list of requirements for journalist entities demands $50 million in liability insurance, mandatory PragerU “propaganda” training for all employees (whether they’re journalists or not), and this fever dream of a disclaimer to be attached to anything published by journalists:

“WARNING: THIS ENTITY IS KNOWN TO PROVIDE PROPAGANDA. CONSUMING PROPAGANDA MAY BE DETRIMENTAL TO YOUR HEALTH AND HEALTH OF THE REPUBLIC.”

Welcome to Trump’s America, as legislated by long-time bootlickers like Senator Nathan Dahm. And if you really enjoy deep, dark levels of irony, you should definitely check out Dahm being absolutely crucified on a cross constructed entirely of his own hypocrisy by Jon Stewart. In this interview, Dahm argues against gun registration:

JON STEWART: You want to say I’m a Second Amendment purist and I’m making it safer? You’re not. You’re making it more chaotic. And that’s not a matter of opinion. That’s the truth.

STATE SEN. NATHAN DAHM: That is a matter of opinion, Jon.

STEWART: But why take away their tools?

DAHM: Because certain of their tools that they’re using would be infringements upon the people’s right to keep and bear arms upon their constitutional rights upon due process, upon other things.

STEWART: So you’re saying that registering is an infringement?

And there it is. Dahm thinks people exercising their Second Amendment rights shouldn’t have to be subjected to government interference like registration. But with this bill, he feels people exercising their First Amendment rights should be subjected to registration requirements.

This bill won’t make it far. I mean, I would hope. Even his allies in the state senate are unlikely to support a law that not only pretends the First Amendment doesn’t exist, but allows PragerU to come along for the ride. Unfortunately, Dahm is representative (no pun intended) of legislators being elected all over the country. These people are a threat to democracy and the nation itself. And yet it appears a sizable percentage of voters are ok with a descent into fascism, just as long as it hurts other people first.

Filed Under: 1st amendment, free press, free speech, journalism, licensing journalists, nathan dahm, oklahoma, propaganda
Companies: prageru

Appeals Court: Ban On Religious Ads Is Unconstitutional Because It’s Pretty Much Impossible To Define ‘Religion’

Free Speech

from the not-the-separation-of-church-and-state-to-founders-intended dept

Things become heated and tangled when it comes to free speech, religion, and the government’s attempt to control either of these things. Government entities tend to feel the best way to avoid the appearance of favoring any religion is to stay out of it completely.

A wise move by the government, but not the best move when it comes to free speech. The Hillsborough (FL) Area Regional Transit Authority (HART) has a policy that prohibits the placing of ads on its vehicles and property that “primarily promote a religious faith or religious organization.” The policy sounds pretty normal until you take a closer look at it.

That’s what the Eleventh Circuit Appeals Court has done, affirming the lower court’s ruling that this policy violated the plaintiff’s (Young Israel of Tampa) First Amendment rights. The advertisement Young Israel sought to place on HART property informed riders of the organization’s annual “Chanukah on Ice” event. It looked like this:

HART rejected the proposed ad outright. Young Israel appealed the decision, leading to a HART’s general counsel stating the ad might be ok once the menorah was removed, calling it a “religious-based icon.” Young Israel refused, stating the menorah was essential to the ad and the Jewish faith. HART responded by citing its policy again. Young Israel sued.

The lower court granted Young Israel a permanent injunction against the enforcement of this policy, stating that it was unconstitutional. The Eleventh Circuit [PDF] affirms this decision, for the most part.

In its appeal, HART asks us to overturn the district court’s summary judgment order and hold that its policy prohibiting advertisements that primarily promote a religious faith or religious organization is a permissible content (i.e., subject-matter) regulation of a nonpublic forum, and does not constitute improper viewpoint discrimination. We decline to answer this question of first impression—which has generated a small circuit split—because we affirm the district court’s alternative ruling that HART’s policy, even if viewpoint neutral, is unreasonable due to a lack of objective and workable standards.

It’s that last sentence that makes this decision extremely interesting, especially since there are likely dozens, if not hundreds, of government entities in the Eleventh Circuit that have similarly worded policies.

The biggest problem with this policy is that it doesn’t clearly define “religion,” which means advertisers can’t possibly know what is or isn’t permitted. Making things worse, HART itself doesn’t even know what is or isn’t permitted under this policy.

Significantly, HART acknowledges that “there is no specific training or written guidance to interpret its . . . policy.” Laurie Gage, an employee of HART’s advertising contractor, testified that, outside of HART’s written policy itself, there are no guidance documents, advisory opinions, or other materials available to help her implement or interpret the policy.

[…]

HART concedes that its policy allows “different people in the same roles [to] have different methodologies.” Although HART says that it is “not part of [its] practice” to review organizational websites to determine if an advertisement is primarily religious, Ms. Gage testified that she might review a religious organization’s website to determine if an advertisement is primarily religious depending on “[w]hat was going on with [her] day.” She explained that the application of the policy varies based on her understanding of the symbolism in an advertisement as religious. For instance, an advertisement featuring an image of Jesus Christ would result in her asking the organization whether it wanted to “pursue” the matter further, because she knows that “Jesus Christ is associated with religion.” But if she “didn’t know that,” “then [she] probably wouldn’t have a conversation, and [she] would just submit [the matter] to HART.”

In other words, religion is in the eye of whatever beholder is currently handling HART’s advertisement requests. If that person is only familiar with some religions, they might approve religious ads (in violation of policy) simply because they’re not familiar with the subject matter.

That’s a problem, says the Eleventh Circuit. And it’s a problem that doesn’t have a solution other than forbidding government entities from refusing to run ads government employees view as religion-based. The application of this policy by HART has been anything but sound and reasonable.

The concern about inconsistent application of the policy is not conjectural. As the district court explained, HART rejected an advertisement from St. Joseph’s Hospital based on information that the Hospital was “[f]ounded as a mission by the Franciscan Sisters of Allegany,” but said it would accept the advertisement if the Hospital used the name of its parent company, Baycare. Yet HART ran advertisements from St. Leo University—the oldest Catholic institution of higher education in Florida (established in 1889 by the Order of Saint Benedict of Florida)—without any changes because St. Leo is an “institution of higher learning, not a religious organization.” By that logic, why wasn’t St. Joseph’s Hospital considered a medical institution rather than a religious organization?

HART’s erratic application of its policy mirrors the problems identified by the Supreme Court in Mansky, 138 S. Ct. at 1891, and demonstrates that it is not capable of reasoned application. HART’s reference to some undefined abstract guidance that might have been (but was not) provided is insufficient to establish reasonableness. “

The concurrence digs even deeper into this. Judge Newsom says the problem isn’t just the ban on religious advertisements, the problem is the term “religion” is impossible to define with enough clarity to allow the government to regulate it without violating the Constitution.

The majority opinion says that the word “religious” has a “range of meanings.” That’s true, but colossally understated. Closer to the mark, I think, is the majority opinion’s recognition that the term “religious” is “inherent[ly] ambigu[ous].” Pretty much any criterion one can imagine will exclude faith or thought systems that most have traditionally regarded as religious.

Consider, for instance, one definition of “religious” that the majority opinion posits: “‘[h]aving or showing belief in and reverence for God or a deity.’” That, as I understand things, would eliminate many Buddhists and Jains, among others. Or another: “‘[b]elief in and reverence for a
supernatural power or powers as creator and governor of the universe.’” Again, I could be wrong, but I think many Deists and Unitarian Universalists would resist that explanation. And so it goes with other defining characteristics one might propose. Belief in the afterlife? I’m pretty sure that would knock out some Taoists, and presumably others, as well. Existence of a sacred text? My research suggests that at least in Japan, Shintoism has no official scripture. Existence of an organized “church” with a hierarchical structure?Neither Hindus nor many indigenous sects have one. Adherence to ritual? Quakers don’t. Existence of sacraments or creeds? Many evangelical Christians resist them. A focus on evangelization or proselytizing? So far as I understand, Jews typically don’t actively seek to convert non-believers.

Relatedly, what truly distinguishes “religious” speech from speech pertaining to other life-ordering perspectives? Where does the “religious” leave off and, say, the philosophical pick up? Is Randian Objectivism “religious”? See Albert Ellis, Is Objectivism a Religion? (1968). My gut says no, but why? How about “Social Justice Fundamentalism”? See Tim Urban, What’s Our Problem?: A Self-Help Book for Societies (2023). Same instinct, same caveat. Scientology? TM? Humanism? Transhumanism? You get the picture.

Given this, it would seem impossible to enforce policies restricting “religious-based” ads in any public area. If the term can’t be clearly defined, it subjects protected expression to subjective interpretations by government employees, which means any decision reached cannot be considered “reasonable” under the Constitution. So far, only HART is directly affected by this decision. But given what’s been handed down here, I would expect more constitutional challenges of state and local policies in the near future.

Filed Under: 11th circuit, 1st amendment, advertisements, chanukah on ice, florida, free speech, hart, religion, young israel

Colorado Journalist Says Fuck Prior Restraint, Dares Court To Keep Violating The 1st Amendment

Free Speech

from the one-finger-salutes-are-also-protected-speech dept

Most courts recognize prior restraint as a First Amendment violation. Most courts. Not all. And the lower you go on the judicial organization chart, the more likely you are to run into a judge who doesn’t seem to realize the Constitution exists.

The problem for people being sued in state and county courts is that it’s not a whole lot cheaper to get sued there. It’s definitely more of a hassle, especially when judges at this level are, generally speaking, seemingly less informed about [re-reads article] decades of precedent that renders their orders unconstitutional.

A Colorado journalist recently found himself on the receiving end of an unconstitutional gag order. But rather than play by the court’s unconstitutional rules/rulings (and waste his own time/money in the process), the journalist continued to gather documents and report on them, daring the court to continue ignoring the First Amendment. Here’s Seth Stern, reporting for the Columbia Journalism Review.

One Colorado journalist, Justin Wingerter of the Denver business-news outlet BusinessDen, isn’t standing for it. He’s refusing to comply with a prior restraint ordering him to return records that the court itself released. 

The ordeal arose from a case between the founders of a college-sports site called CaptainU and a company that bought the site and allegedly hadn’t made good on the purchase price. Judge Kandace Cecilia Gerdes of the District Court of Denver County granted the plaintiffs’ request to suppress filings that they said contained confidential and proprietary information. 

Wingerter submitted an open-records request for the documents, and the court clerk’s office complied. That prompted Judge Gerdes to issue an order on Nov. 30 demanding that Wingerter return the documents and destroy electronic copies. She also threatened to hold him in contempt if he disobeyed. Contempt of court is punishable by fines or jail time—though it’s questionable whether a judge has authority to hold in contempt a journalist who isn’t in their courtroom or a party to a case before the judge.

First off: lol. You can certainly order someone to destroy their own copies of digital documents. But you cannot (logically and legally) order someone to “return” PDFs, nor expect that they won’t be shared by others who have downloaded/shared these documents. An order like this is performative: it won’t change anything but it lets the person targeted by them know the judge is (ineffectually) angry and willing to cross even more constitutional lines.

The order issued by Judge Gerdes is even stupider than what’s shown above. As Stern reports, the order also bans Wingerter from obtaining copies of filings from this case without her explicit permission — an order that says public access to court filings and/or the state’s public records laws are not considered legal in her specific court.

Wingerter could have taken the easier (but more expensive!) way out. He could have filed motions to have the gag order lifted and engaged in further litigation to ensure he could continue to gather documents and report on them. But Wingerter went the other way: he decided the court was so wrong there was no reason to stop doing what he was doing.

Instead of pleading with the court to reverse course, Wingerter filed a “notice of reason for noncompliance” on Dec. 1. BusinessDen then published his report on the sealed records three days later. 

“We don’t feel that the judge has the power of prior restraint,” Wingerter said. “So we didn’t see any reason to stop the reporting process. We just continued doing our jobs.”

Wingerter is correct. From what’s been observed here, prior restraint is unconstitutional. And courts are not supposed to hand down unconstitutional orders. The end result was Wingerter informing [PDF] the court it could go fuck itself. He would not stop gathering documents and/or reporting on them. The ball is in the court’s… um… court. And that means the court must now say something constitutional that justifies this intrusion on his First Amendment rights.

Wingerter and his legal reps give Judge Gerdes far more respect than she deserves in this motion:

Movants respectfully request that Your Honor reconsider the Order Re: Requests for Suppressed Filings entered on November 30, 2023 (“Order”). The Order requires that “all documents obtained by any media outlet, including but not limited to those obtained by Justin
Wingerter of BusinessDen, shall be returned to the Court by hand-delivery, specifically Courtroom 275 (1437 Bannock St., Denver, CO 80202), by 4:00 p.m., on November 30, 2023.” It further states that “[a]ll electronic copies of said documents shall be permanently deleted from servers as well. Failure to do so will be considered contempt of this Court’s order.” And it further states that it is “ordered that any future attempt by any person/entity to obtain copies of filings in this case without the Court’s prior written order so authorizing disclosure will be considered a contempt of court.”

The order does not purport to prohibit publication of the information Mr. Wingerter lawfully obtained from the Court, nor could it do so consistent with the Constitution. Nevertheless, the Order, by requiring imminent return of physical documents and destruction of the information in its electronic form, appears designed to inhibit the media from reporting on that information. It also restricts the media (and everyone else) from engaging in lawful information-gathering activities. It is therefore unconstitutional under both the First Amendment to the United States Constitution and article II, section 10 of the Colorado Constitution. Accordingly, Movants respectfully decline to comply with the Order and urge the Court to vacate it.

IANAL, but I would have opened with “This order is unconstitutional and we refuse to comply with it. Your move, your honor.” I probably would have closed with that as well, serving Judge Gerdes’ court with a two-sentence motion. Then again, I’m not a lawyer. And my own money/time/freedom isn’t on the line here.

If the court system has a problem with Wingerter obtaining this information, it’s the court system violating the order, rather than the journalist. If Judge Gerdes wants to reshape the state court system via an unconstitutional order, she’s going to swiftly find out that’s not within her purview.

Mr. Wingerter obtained access to these court records simply by asking the Court for them. He submitted an open records request to the Court through an online form. This is ordinary, lawful, news-gathering activity. The Order purports to elevate such lawful activity, should it occur again by him or anyone else, to an offense punishable by contempt. But when the government makes information publicly available, whether on purpose or by mistake, it gives “implied representations of the lawfulness of dissemination.”

This is not a “close case.” This is not an unexplored margin of First Amendment law. This is not a novel set of circumstances where the court must make a ruling on first impressions. This is a violation of long-held and long-established law, court precedent, and the US Constitution itself. And, since it’s such a flagrant violation of all these things, Wingerter is completely in the right and fully justified telling the court (respectfully) he won’t be complying with its unconstitutional demands.

As CJR sees it, there’s no reason to play litigation footsie with judges who are clearly in the wrong. Sure, journalists and others should understand they do face the risk of being fined or jailed no matter how wrong the court is, but they also should feel free to blow off obviously unconstitutional orders to avail themselves of their rights. And the word “rights” is key: these are guaranteed. A court’s inability to respect them is secondary.

They say it’s better to ask for forgiveness than permission. But journalists don’t need either to publish government records. Outlets like BusinessDen should be commended for not stooping to ask. And the next censored news outlet should seriously consider doing the same.

That’s the lesson here. When you’re clearly in the right, there’s no reason to pretend courts and judges are worthy of deference. State your case clearly and dare them to make the next move. That’s the only way they’re going to learn from these mistakes. And the sooner you expose a judge who thinks the Constitution only applies to people who’ve never been charged with crimes or had a civil suit brought against them, the sooner that judge can be spotlighted, shamed, and (hopefully) encouraged to exit the judiciary.

Filed Under: 1st amendment, colorado, journalism, judge kandaces gerdes, justin wingerter, prior restraint, public records, transparency
Companies: businessden