‘Confidentiality order’ sent to California news outlet attempts to stop newsgathering

A California judge granted a motion on Nov. 16, 2022, seeking to prohibit reporters from contacting people who filed letters of support for a Contra Costa middle school teacher accused of sexual abuse.

East Bay Times reporter Rachel Heimann Mercader told the U.S. Press Freedom Tracker she and a colleague attended a bail hearing in October for the teacher, who was arrested the month before for sexual misconduct with a minor.

During the hearing, Public Defender Manisha Daryani submitted 16 letters of support from the teacher’s students, their parents and his family members.

Mercader said she received a copy of the public motion, which had the letters attached, from the clerk’s office after the hearing. “​​Each letter included the person’s name and email and phone number,” she said.

As Mercader began contacting the letter writers, she received a call from Daryani who accused her of attempting to influence witnesses and the outcome of the case. Both Mercader and an East Bay Times editor, also contacted by Daryani, refused the requests to stop contacting the supporters.

“To be clear, none of these letter writers are considered witnesses at this point, and all I am asking them is if they would like to speak with me about their letters,” Mercader said.

On Nov. 16, without a hearing or notice to the journalists, the California judge signed and entered the public defender’s motion requesting that “further unwanted contact by the press be ceased.”

The order, which included an instruction for the parties to “advise those individuals to whom disclosure of the contact information has been made,” was sent to the East Bay Times by Daryani.

Freedom of the Press Foundation’s Advocacy Director Seth Stern wrote that what seems like an innocuous “confidentiality order” is effectively a prior restraint that attempts to restrict future speech.

“It is elementary that a court cannot tell non-parties what to do especially without notice or a hearing, but the apparent intention was to intimidate the press into compliance despite the order’s invalidity under the First Amendment,” Stern said.

FPF oversees the U.S. Press Freedom Tracker.

Attorney Duffy Carolan, who represents the East Bay Times, told the Tracker the outlet did not believe the protective order applied to its reporters and would not alter their newsgathering practices.

“None were named in the order or even had notice of the motion or an opportunity to be heard on the matter,” Carolan said.

Public Defender Daryani did not respond to requests for comment from the Tracker.