first_published_at,last_published_at,title,slug,latest_revision_created_at,charges,legal_orders,updates,categories,links,equipment_seized,equipment_broken,targeted_journalists,authors,date,exact_date_unknown,city,state,latitude,longitude,body,introduction,teaser,teaser_image,primary_video,image_caption,arrest_status,arresting_authority,release_date,detention_date,unnecessary_use_of_force,case_number,case_statuses,case_type,status_of_seized_equipment,is_search_warrant_obtained,actor,border_point,target_us_citizenship_status,denial_of_entry,stopped_previously,did_authorities_ask_for_device_access,did_authorities_ask_about_work,assailant,was_journalist_targeted,charged_under_espionage_act,subpoena_type,subpoena_statuses,name_of_business,third_party_business,legal_order_target,legal_order_type,legal_order_venue,status_of_prior_restraint,mistakenly_released_materials,type_of_denial,targeted_institutions,tags,target_nationality,workers_whose_communications_were_obtained,politicians_or_public_figures_involved 2023-10-11 19:21:57.276749+00:00,2023-12-01 21:45:51.368586+00:00,Judge again bars media from publishing on expelled student or his lawsuit,https://pressfreedomtracker.us/all-incidents/judge-again-bars-media-from-publishing-on-expelled-student-or-his-lawsuit/,2023-12-01 21:45:51.276995+00:00,,,(2023-11-28 10:45:00+00:00) Judge ends restraining order; allows press to publish on UNC suit,Prior Restraint,,,,,,2023-10-10,False,Asheville,North Carolina (NC),35.60095,-82.55402,"
A U.S. district judge in Asheville, North Carolina, issued a second temporary restraining order on Oct. 10, 2023, barring members of the press from publishing about a former student who is suing the University of North Carolina System and multiple university administrators, according to court records.
The plaintiff, who filed the suit on Feb. 15 under the pseudonym Jacob Doe, alleges that he was wrongfully expelled from UNC-Chapel Hill after being accused of sexual assault by four undergraduate women.
When filing the suit, Doe simultaneously filed the motion for a temporary restraining order and a preliminary injunction, requesting that no information be released by the defendants or published by the media. Chief U.S. District Judge Martin Reidinger granted that temporary restraining order on Feb. 22, citing possible irreparable harm to the plaintiff.
Immediately after the restraint went into effect, however, the parties jointly filed to withdraw the motion and Reidinger dissolved the order on March 1.
Doe refiled his motion seven months later, after UNC informed him that it had received a public records request seeking to identify him, according to court records. On Oct. 10, District Judge Max Cogburn Jr. granted the motion.
As with the initial prior restraint, the university is barred from disclosing any information about the disciplinary proceedings at the heart of the lawsuit. UNC is also required to instruct news outlets that they are barred from publishing any information about Doe or his disciplinary proceedings that they may receive.
Students sit on library steps at the University of North Carolina at Chapel Hill in 2018. As part of a 2023 lawsuit against UNC, a judge issued a new restraining order barring media from publishing information about a former student or his expulsion.
",None,None,None,None,False,None,[],None,None,False,None,None,None,False,False,None,None,None,None,False,None,None,None,None,None,None,None,dropped,False,[],Media,,,, 2023-02-28 18:43:10.249527+00:00,2023-03-01 17:36:58.959821+00:00,Judge bars media from publishing on expelled student suing UNC system,https://pressfreedomtracker.us/all-incidents/judge-bars-media-from-publishing-on-expelled-student-suing-unc-system/,2023-03-01 17:36:58.886857+00:00,,,(2023-03-01 12:27:00+00:00) Judge lifts order barring media from publishing on former student suing UNC system,Prior Restraint,,,,,,2023-02-22,False,Asheville,North Carolina (NC),35.60095,-82.55402,"An Asheville judge issued an order barring members of the press from publishing about a former student who is suing the University of North Carolina System and multiple university administrators on Feb. 22, 2023, according to court records.
The plaintiff, who filed the suit on Feb. 15 under the pseudonym Jacob Doe, alleges that he was wrongfully expelled from UNC Chapel Hill after being accused of sexual assault by four undergraduate women.
When filing the suit, Doe simultaneously filed the motion for a temporary restraining order and a preliminary injunction, requesting that no information be released by the defendants or published by the media. Those filings appear to have been sealed and are not available for public review.
Chief United States District Judge Martin Reidinger granted the temporary restraining order on Feb. 22, citing possible irreparable harm to the plaintiff. The order bars the defendants from disclosing any information about the disciplinary proceedings at the heart of the lawsuit and requires them to inform media outlets about the restraint.
The order also requires the defendants to instruct news outlets that “they are prohibited from publishing any information concerning the Plaintiff, the disciplinary proceedings, or the outcomes of such proceedings.” It is unclear which media outlets, if any, were informed of the order.
Immediately after the restraint went into effect, the parties jointly filed to withdraw the motion, asking the judge to dissolve the TRO and cancel a preliminary hearing scheduled for March 7.
As of publication the restraining order remains in effect.
Students walk across the University of North Carolina at Chapel Hill in this 2018 file photo. As part of a lawsuit against the university system, a judge approved a motion barring media from publishing information about a former student or his expulsion.
",None,None,None,None,False,None,[],None,None,False,None,None,None,False,False,None,None,None,None,False,None,[],None,None,None,None,None,dropped,False,None,Media,,,, 2023-01-17 16:56:48.597929+00:00,2023-01-17 16:56:48.597929+00:00,Texas judge vacates order limiting murder trial coverage,https://pressfreedomtracker.us/all-incidents/texas-judge-vacates-order-limiting-murder-trial-coverage/,2023-01-17 16:56:48.471282+00:00,,,,Prior Restraint,,,,,,2023-01-09,False,Waco,Texas (TX),31.54933,-97.14667,"A judge in Waco, Texas, issued a sweeping gag order on Jan. 9, 2023, restricting media coverage ahead of a retrial in a murder case. The order was vacated two days later after attorneys for local broadcaster KWTX successfully argued that it amounted to an unconstitutional prior restraint, the outlet reported.
Judge David Hodges’ order prohibited the press from reporting on basic facts about the case, including testimony or evidence from the initial trial in 2015, that it resulted in a conviction, the fact that the case was reversed or the reason behind the reversal. It also barred any reporting on any pretrial rulings in the case.
The case — which was set to begin on Jan. 9 — was postponed citing concerns that there would not be insufficient jurors from which to select a jury, according to KWTX.
The Waco Tribune-Herald reported that the gag order forced it to hold its reporting on the postponement.
Attorneys for CBS-affiliate KWTX sent a three-page letter to the court arguing against the order the same day it was issued, according to the outlet. KWTX Vice President and General Manager Josh Young declined to comment when reached by email.
Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, told the outlet that the order would have infringed on First Amendment rights and Hodges was right to lift the restrictions on the press.
“Journalists have a right — and a duty — to cover what’s going on at the courthouse to keep the public informed,” Shannon said. “It’s understandable that the judge wants to ensure a fair trial and try to select a local jury, but attempting to restrain what the news media reports is not the answer.”
Pennsylvania journalist Jerry Geleff, host of The Exeter Underground podcast and publisher of The Exeter Examiner, was ordered on Dec. 15, 2022, to take down reporting on a leaked document and destroy copies of it.
In July 2022, Geleff filed a public records request for a report from an investigation into allegations of harassment against a Township Supervisor. His request and subsequent appeal were denied. During a Dec. 14 episode of the Underground, Geleff announced that he had obtained excerpts of the report and read sections aloud. He also published images of the first page and the last two pages on his local news website, the Examiner, which transitioned to Facebook-only in early 2023.
According to court records reviewed by the Tracker, an attorney for the Township emailed Geleff on Dec. 15 at 10:45 a.m., threatening legal action against him unless he immediately agreed to return all physical or electronic copies of the report, and destroy copies and descriptions of it that had been published on his platforms. The attorney said he would bring a lawsuit against Geleff and his media companies, and had plans to present an emergency motion for a preliminary injunction, an order requiring Geleff to destroy and unpublish the report, to a judge at 1:30 p.m. that day.
Geleff told the U.S. Press Freedom Tracker that he replied he would not comply with the request.
The judge granted the Township’s motion at 2 p.m., and within two hours Geleff had removed the podcast and the article with images of the report.
“I had no time to get legal representation and how a judge allowed that to happen I can’t understand,” Geleff said.
That evening, Geleff posted on the Examiner’s Facebook page a link to an external website that published photos of the report. Within 15 minutes, he was contacted by the Township’s attorney who alleged posting the link violated the order. Geleff promptly removed that post and mentions of the website from his podcast.
Two days later, Geleff published an article (available through a web archive) about the emergency order and the lawsuit against him, alleging that it was entirely retaliatory.
“This is nothing but retribution for a very vocal critic who has a media outlet and audience. They are attempting to silence any dissent of their plans. And they must be stopped,” Geleff wrote.
On Dec. 23, an attorney for the Reporters Committee for Freedom of the Press filed a motion to dissolve the restraint on Geleff’s behalf. RCFP Local Legal Initiative Attorney Paula Knudsen Burke wrote that the prior restraint “flatly violates” the First Amendment and the state’s constitution.
That same day, the Township’s attorney filed a motion for Geleff to be held in contempt for the Facebook post linking to the external website, asking that the court fine Geleff and order him to pay the Township’s attorneys and court fees.
In its January 2023 filing of arguments against the lawsuit and the motion to hold Geleff in contempt, RCFP attorney Burke wrote that the Township was asking the court to further punish Geleff without cause.
“This behavior would be troubling from a private litigant. From the Township, a local government seeking to punish one of its residents for speech on a matter of public interest, it shocks the conscience,” Burke wrote.
On Jan. 10, the Township’s attorney withdrew the lawsuit with prejudice, meaning that it cannot be refiled at a later date. The preliminary injunction barring Geleff from publishing the report was also lifted.
Geleff republished his article and podcast episode that day, writing on the Examiner’s Facebook, “The cowardly Exeter Township Supervisors dropped their lawsuit against me, and I'm able to put this back up. The unconstitutional temporary injunction they were granted no longer applies.”
On its Facebook page, the Township acknowledged that portions of the report had continued to be shared online and that continuing the lawsuit would only incur additional expenses for the taxpayers.
A portion of the Dec. 15, 2022, order directing journalist Jerry Geleff to destroy all copies of a leaked report from Exeter Township, Pennsylvania, as well as all of his coverage of the report’s contents.
",None,None,None,None,False,None,[],None,None,False,None,None,None,False,False,None,None,None,None,False,None,[],None,None,None,None,None,dropped,False,None,"The Exeter Examiner, The Exeter Underground",,,, 2019-12-23 18:12:26.960064+00:00,2024-02-27 20:35:54.885210+00:00,California journalists sued for ‘hacking’ city’s open Dropbox folder; barred from publishing,https://pressfreedomtracker.us/all-incidents/california-journalists-sued-for-hacking-citys-open-dropbox-folder-barred-from-publishing/,2024-02-27 20:35:54.795416+00:00,,,"(2020-03-12 11:30:00+00:00) Judge denies motion to dismiss under anti-SLAPP law, (2021-05-12 13:59:00+00:00) City drops lawsuit against bloggers it accused of hacking documents",Prior Restraint,,,,,,2019-10-24,False,Fullerton,California (CA),33.87029,-117.92534,"In a complaint filed in the California Superior Court of Orange County on Oct. 24, 2019, the City of Fullerton, California, accused a community blog and two contributors of violating anti-hacking laws for accessing confidential files city employees posted online, according to their lawyer Kelly Aviles and court documents reviewed by the Committee to Protect Journalists. Aviles told CPJ in December that the suit could go to a jury trial in early 2020. The press freedom and legal advocacy group Reporters Committee for Freedom of the Press called the case the “first … we’re aware of where the computer crime laws have been misused so brazenly against members of the news media.”
The City of Fullerton claims that the blog, Friends for Fullerton’s Future, and two of its journalists, Joshua Ferguson and David Curlee, accessed more than a dozen internal documents stored on the file hosting and sharing service Dropbox without permission, according to CPJ’s review. The blog publishes original articles and commentary on the city government and the local police department.
Aviles alleged, in a phone interview with CPJ, that the case is designed to retaliate against her clients for reporting and to block future publication. She told CPJ she has filed an anti-Strategic Lawsuit Against Public Participation motion, or SLAPP, which permits courts to dismiss lawsuits that are intended to censor public speech.
“The City’s suit was not in retaliation for anything,” Fullerton’s lawyer Kimberly Hall Barlow wrote in an email to CPJ. The blog was not a factor in the decision to bring the case, she said.
“If the argument is that a reporter can steal information him or herself and then be allowed to publish it at will, that is neither consistent with the first amendment law nor the ethical tenets of professional journalists,” she said.
Ferguson routinely requested public records, and the city had provided him with a link to the Dropbox folder in the past, he told CPJ. The city acknowledges sending a link to access the folder in response to records requests, according to court filings reviewed by CPJ. The folder was not password protected, and anyone could access it via the web address in the link. Files that were approved for public release were kept in the same folder as others that had not been, some of which were password protected, according to those documents.
The complaint said Ferguson and Curlee accessed files in the folder that had not been approved for release, thereby violating the Computer Fraud and Abuse Act, a federal law intended to combat hacking, and a similar state law, the California Comprehensive Computer Data Access and Fraud Act. CPJ has reported concerns that the CFAA’s broad wording could be used to punish routine online journalistic activity.
The complaint said the journalists had intentionally obscured their activity using a virtual private network and the Tor browser — digital security tools that CPJ and others routinely recommend that journalists use online. The City also requested a forensic analysis of the reporters’ computers and sought prior restraint to block future publication based on the files — a request that RCFP called “concerning” and Aviles called unconstitutional in court documents.
In November, a trial court in Orange County did not allow that forensic examination, according to Aviles, while an appeals court stayed the attempt to block future publication in December. But the anti-hacking lawsuit against the blog is ongoing, Aviles told CPJ.
“The city is calling me a hacker and a thief,” Ferguson told CPJ in December. Yet, he said, “the idea they are presenting — that hacking is just clicking a link — that idea would literally break the internet if broadly applied.”
“The conduct that the City complains of is no more criminal than clicking through the City’s website, finding confidential information, and downloading it,” Aviles wrote in court filings reviewed by CPJ. The city’s lawsuit is in “retaliation for Mr. Ferguson’s CPRA lawsuit and to silence the Blog,” she wrote. Immediately before the city launched its lawsuit, Ferguson had filed a California Public Records Act lawsuit requesting the release of documents related to alleged police misconduct, he told CPJ.
Kimberly Hall Barlow told CPJ that the city decided to file their suit before Ferguson filed his.
Ferguson told CPJ that the city’s complaint included Christopher Tennyson, his former co-worker at a local camera store where they sometimes shared the same computer, in order to damage Ferguson’s professional relationships. Kimberly Hall Barlow denied this, noting to CPJ that the city later dropped Tennyson from the suit.
Aviles said the case was draining her clients’ financial resources and impeding their ability to continue reporting.
“It would be hard for a large newspaper to deal with this,” Aviles told CPJ in November. “But for a blog of concerned citizen journalists — who felt like there was no voice in their community — it’s an outrageous thing to face.”
RCFP filed an amicus brief in support of the bloggers, as did the Electronic Frontier Foundation, a leading U.S. digital rights group. The editorial board of the local Orange County Register newspaper published an editorial in November asking the city to drop the case and “get some professional advice on how to password-protect its files.”
On March 14, 2019, a Cook County Juvenile Court judge ordered ProPublica Illinois and other news organizations not to publish certain details about an ongoing child welfare case in the Chicago-based juvenile court.
In the course of reporting on child welfare issues, a ProPublica Illinois reporter had learned about the case. On March 7, after the reporter tried to attend a hearing in the case, the hearing was closed to the public and press.
Bruce Boyer — a Loyola University law professor whose legal clinic represents the foster children in the case — then requested that the court issue an order prohibiting news outlets from publishing details about the case. On March 14, Patricia Martin, the presiding judge of the juvenile court’s child protection division, granted the request and issued a prior restraint order.
Documents related to the juvenile court case, including Martin’s prior restraint order, have not been made public. But on March 19, ProPublica Illinois reported on the existence of the prior restraint order, describing it as an order “forbidding news organizations from publishing the names, addresses or any demographic information that would identify the children or the foster parents in a case ProPublica Illinois has been investigating.”
ProPublica Illinois was not initially a party to the case, but it asked the court to intervene in order to oppose the prior restraint order. On March 19, the court granted ProPublica Illinois’ motion to intervene, and on March 22, the news organization filed its opposition to the prior restraint order. A court hearing on the prior restraint order is now scheduled for April 5.
Prior restraint orders are relatively unusual and should not be confused with sealing orders, which are far more commonly employed by courts. A sealing order is used when a court needs to allow attorneys and parties to a case access to sensitive information; the sealing order just prohibits the attorneys and parties from turning around and disclosing that information to the public. A prior restraint order is much more serious, since it prohibits a third party with no connection to the case (often a news organization) from publishing information that they learned on their own.
ProPublica Illinois is opposing Martin’s prior restraint order because it sees it as an unconstitutional attempt by the government to interfere in its editorial process.
“The Supreme Court has made it very clear that courts are not supposed to be editors,” ProPublica President Richard Tofel told the U.S. Press Freedom Tracker. “One of the Constitution’s guarantees is that editors should be editors.”
Tofel is correct that legal precedent is on ProPublica Illinois’ side. In 1971, the Supreme Court famously ruled that the government’s attempts to prevent The New York Times and the Washington Post from publishing a classified history of the Vietnam War violated the news organizations’ First Amendment rights. This “Pentagon Papers” case established the precedent that, except in extreme circumstances, prior restraints on the press are unconstitutional.
A Cook County judge ordered the the Better Government Association, an Illinois investigative government watchdog, not to publish records released by Chicago Public School lawyers during a lawsuit brought by the BGA. BGA detailed the context of this order in an article published on Feb. 7, 2019.
The article reported that a CPS lawyer supplied BGA with requested investigative files and internal records on Jan. 24. Four days later, the school’s lawyers asked for their return and the destruction of any copies that had been made, claiming that their release had been a mistake.
The lawsuit and files pertained to a 2017 BGA and Chicago Sun-Times investigation which revealed that a 14-year-old boy with autism was permitted to enter a school pool with neither direct supervision nor a life vest. They reported that the boy drowned within minutes.
When BGA refused to return the released files, CPS attorney Mara Warman asked Circuit Court Judge Peter Flynn during a hearing on Feb. 4 to “claw back” the records. Flynn ruled in their favor, ordering that BGA delay publishing the records until at least Feb. 20. Following an emergency request from BGA to vacate that order, Flynn reaffirmed his ruling on Feb 6.
“Just hold your horses,” Flynn said during the second hearing, BGA reported. “There is no emergency here in any meaningful way… I don’t think it’s a prior restraint. I think it’s efficient management of a case.”
BGA attorney Matt Topic disagreed. “You have the press, which has a highly relevant, important document that they obtained through nothing illegal and you are restraining them from publishing that document where they have an ethical and professional obligation,” Topic said.
Bob Secter, senior editor for BGA, told the U.S. Press Freedom Tracker that Topic reached out to the deceased child’s parents to have them sign a paper authorizing the release of the materials. Based on that release, Flynn vacated his order to delay publication. Some of the documents did have the names of child witnesses to the incident redacted, as well as their social security numbers and other private information.
BGA published an article on Feb. 8 about the judge vacating the original order and what was in the documents.
“This started as a simple FOIA case,” Secter told the Tracker about BGA’s use of the Freedom of Information Act. “We wrote a story with the Chicago Sun-Times reconstructing that incident and how it came about and who might have been responsible and who made mistakes. As part of the reporting on that, we issued a FOIA… As the Chicago Public School does, they basically blanket deny everything, so we filed a lawsuit, and they fought us for well over a year.”
The child’s parents had also sued CPS for wrongful death, reaching a $4 million settlement which was approved by the Illinois Board of Education the day before the documents requested in the FOIA were released to BGA.
“[The prior restraint] was entirely out of the ordinary. Outside of national security cases this doesn’t happen, and, not to minimize what we did, but it was an everyday case about a tragic accident and the subsequent legal case,” Secter said.
U.S. Supreme Court precedent has held that prior restraint—in which government officials seek to block information from becoming public—is unconstitutional in all but the most extreme circumstances.
Details around the Chicago public school pool drowning death of 14-year-old Rosario Israel Gomez were at the heart of documents sought by the Better Government Association and the Chicago Sun-Times.
On Oct. 17, 2018, Orange County Superior Court judge Gregory Jones ordered members of the media not to report on a sealed search warrant that had previously been made available to the public—an unconstitutional prior restraint. Four days later, he rescinded the order and unsealed the search warrant materials.
The search warrant was executed in January 2018 against Grant Robicheaux, a prominent surgeon suspected of sexually assaulting multiple women. Like most search warrants in California, it was initially filed under seal but was automatically unsealed and made available to the public shortly after it was carried out.
Eight months later, in September 2018, police arrested Robicheaux and his girlfriend, Cerissa Riley, and the Orange County district attorney Tony Rackauckas charged them with sexually assaulting two women. After the arrests were announced, a number of journalists found the January search warrant materials (which were now available to the public) and reported on their contents. In response, both prosecutors and Robicheaux’s defense team asked a judge to re-seal the search warrant materials, which he did.
The next month, as The Associated Press reported, Rackauckas announced that five more women had accused Robicheaux and Riley of sexual assault. At a court hearing on Oct. 17, Rackauckas’ office formally filed additional charges against Robicheaux and Riley, who pleaded not guilty.
According to the OC Register, outside the hearing, Orange County supervisor Todd Spitzer — who is challenging Rackauckas in the election for Orange County district attorney — held a press conference to criticize Rackauckas for taking so long to arrest Robicheaux and Riley. Speaking to a group of reporters, Spitzer said Rackauckas should have had Robicheaux and Riley arrested back in January 2018, right after the search warrant was executed. To prove his point, Spitzer and his assistant handed out copies of the January 2018 search warrant materials to reporters.
Rackauckas objected to Spitzer’s stunt, since the search warrant materials were supposed to be sealed from the public, and the district attorney’s office asked judge Jones do something about it. (Jones was not the judge who originally ordered the search warrant sealed, but he was the judge presiding over the hearing.)
Jones called reporters back into the courtroom and told them to return the copies of the search warrants that they had received. He then told them to remind their news organizations that the search warrant was sealed and they should not publish it.
The Orange County Register and the AP challenged Jones’ order, arguing that it amounted to an unconstitutional prior restraint on the press. On Oct. 21, Jones unsealed the search warrant, finding that it could not be re-sealed once it had already been made available to the public.
On Oct. 10, 2018, Los Angeles County Superior Court Judge Gustavo N. Sztraicher ordered The Los Angeles Times not to publish “descriptors” of a defendant charged with murder — even though journalists watched his proceedings in an open courtroom.
According to The Times, an attorney for Dejone Wright, the defendant charged with the July shooting of anti-gang activist Garry Dorton, objected during a pre-trial hearing to a media request issued by The Times to photograph or describe his client to the public. Wright’s attorney argued that any information about his client’s appearance, if published, “would affect the outcome of a jury trial."
Court documents state Sztraicher agreed with the lawyer’s request and ordered “no descriptors” of Wright be published, citing an “identification issue.”
A sworn declaration by Times reporter Cindy Chang, who was present for the hearing, states no further elaboration of the order was given and that the order was not mentioned in the hearing’s official minutes.
“My understanding is that the Court has prohibited me from publishing any information that visually describes Mr. Wright or Mr. Dixon that I obtained from observing them in open court,” Chang wrote. “However, given the brief exchange in court on Oct. 10 and the lack of any reference to it in the Minute Order, I am uncertain and confused about what the ruling requires.”
On Oct. 12, Dan Laidman, an attorney for The Times, challenged the order, requesting clarification and that the order be vacated as an unconstitutional prior restraint on free speech.
“The Times respectfully requests that this Court clarify the scope of the Order, particularly whether it restricts the publication of any information,” Laidman wrote. “If the Order prohibits The Times from publishing information about Defendants that is obtained through a journalist’s observations in open court (or any lawful source), then it is an unconstitutional prior restraint.”
Laidman also challenged the order on the grounds it was unconstitutionally vague.
“Without further clarification from this Court, the media will be required to steer wide of describing Defendants, who were lawfully observed in open court, and the Oct. 10 Order therefore imposes an unconstitutionally vague prior restraint,” he argued.
Laidman went on to note that Wright’s name and birthdate were released by the Los Angeles Police Department on Oct. 3, and no California court has ever upheld a prior restraint “on publication of lawfully obtained information about criminal court proceedings.”
Sztraicher reversed his ruling on Oct. 12 after acknowledging even he did not fully comprehend the scope of order, according to The Times.
“Any observations made by a reporter who is lawfully in court… may be reported and disseminated,” Sztraicher said in his reversal.
In September, Sztraicher also prohibited reporters from The Times and other outlets from publishing information in a criminal court proceeding over an “identification issue.” That ruling was also reversed.
On Oct. 16 The Times Editorial Board responded to the ruling and its reversal:
It is a settled principle of 1st Amendment law that judges can't bar journalists (or anyone else) from reporting what they see and hear in open court. So it's astounding that a Los Angeles Superior Court judge on Wednesday ordered The Times not to publish information as basic as the physical description of a criminal defendant who was appearing in his courtroom.
A few weeks earlier, the same judge granted permission to photograph another defendant — but then tried to block The Times from publishing the photos. Both gag orders were impermissible and deeply disturbing prior restraints on speech.
Judge Gustavo N. Sztraicher reversed himself in both cases after The Times objected, so one might be tempted to conclude, "No harm, no foul."
But there is indeed serious harm every time a judge disregards or misunderstands the 1st Amendment and the strict limitation it places on the government’s power to prevent a person or news outlet from repeating or reporting what goes on in open court.
Editorial: Note to Judge Sztraicher: ‘Open court’ means open for journalists to report freely
Editor's Note: This article was updated to reflect the correct spelling of Times reporter Cindy Chang's name.
On July 14, 2018, a federal judge in California ordered the Los Angeles Times to remove certain information from an article that the paper had published about a corrupt police officer accepting a plea deal. The newspaper had published details of the plea deal after a document spelling out the deal was inadvertently made publicly available, rather than being filed under seal.
On the morning of July 14, the Times reported that John Balian, a narcotics detective accused of working with the Mexican Mafia, had accepted a plea deal and agreed to cooperate with federal prosecutors. The article was based on a copy of the sealed plea agreement — which had been inadvertently made available to the public through the online court records database PACER — and included specific details included in the plea agreement:
According to the plea agreement, Balian accepted $2,000 to help locate someone believed to have broken into his associate’s office and stolen $100,000 worth of property.
In March 2017, the agreement said, Balian gave information to the U.S. Marshals Services stationed at the Glendale Police Department, causing law enforcement resources to be used in an attempt to find the alleged thief.
In June 2015, Balian overheard Glendale police officers discussing a plan to search and arrest about 22 people in a federal racketeering case targeting the Frogtown gang, which is loyal to the Mexican Mafia, the agreement said.
Balian then tipped off his associates within the Mexican Mafia, saying authorities planned to arrest Jorge Grey, a Frogtown “shotcaller” who was a top target.
Archived version of "Glendale detective pleads guilty to obstruction, lying to feds about ties to organized crime" (Los Angeles Times)
Shortly after the article was published, Balian's attorney filed an emergency motion, asking the U.S. District Court for the Central District of California to issue a temporary restraining order to prohibit the Times from publishing details from the plea agreement. District court judge John Walter, the federal judge overseeing Balian's criminal case, quickly granted the temporary restraining order. Judge Walter's order also directed the Times to remove any articles about the plea agreement that it had already published.
IT IS HEREBY ORDERED that the Los Angeles Times and each of its parent companies, subsidiaries, or affiliates (collectively “the Los Angeles Times”), directly or indirectly, whether alone or in concert with others, including any officer, agent, employee, or representative of the Los Angeles Times, be and hereby are enjoined from:
Disclosing the under seal plea agreement in this case, in whole or in part, or publishing any article, piece, post, or other document whether in print or electronic format that quotes, describes, summarizes, references, relies on, or is derived in any way from the under seal plea agreement in this case and that it return forthwith any and all copies of such plea agreement in its possession to the United States Attorney's Office for the Central District of California.
...
IT IS FURTHER ORDERED that defendant shall serve the Los Angeles Times with a copy of this order but not the Ex Parte Application forthwith. To the extent any article is published prior to the issuance of this order, it shall be deleted and removed forthwith.
Temporary Restraining Order issued on July 14, 2018
At 5:15 p.m. on July 14, the Times edited its earlier article to remove certain details about the plea deal, and added a note to the bottom of the story: "This story has been updated to remove references from the filed plea agreement, which was ordered sealed by a judge but publicly available Friday on the federal court’s online document database. The changes were made to comply with an order issued Saturday by a U.S. federal judge. The Times plans to challenge the order."
Times publisher Norm Pearlstine defended the Times' decision to report on the plea deal.
“We believe that once material is in the public record, it is proper and appropriate to publish it if it is newsworthy,” Times publisher Norm Pearlstine said in an interview with the paper.
The temporary restraining order will remain in effect until Walter rules on whether or not to grant Balian a preliminary injunction — which is similar to a temporary restraining order, but more permanent — against the Times.
On July 16, the Times filed an emergency petition for a writ of mandamus with the U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction over federal district courts in California. The petition, which was filed under seal, essentially asks the appeals court to step in and order the district court to immediately rescind the temporary restraining order.
A coalition of 60 news and press freedom organizations, led by the Reporters Committee for Freedom of Press, submitted a letter to the Ninth Circuit in support of the Times' petition.
"It appears that the district court may have entered the temporary restraining order in an attempt to correct the mistaken public filing of the plea agreement, which was meant to be kept under seal," the letter states. "The district court's desire to correct this administrative error, however, cannot justify the imposition of a prior restraint, which has now created a constitutional harm. Although courts have the power to enter sealing orders when common law and constitutional standards are met ... once information is made public, nearly 90 years of constitutional law stand in the way of using prior restraints to prevent a newspaper from communicating the information to its readers."
On Dec. 11, 2017, Iowa Supreme Court judge David Wiggins issued an order prohibiting the Des Moines Register and reporter Clark Kauffman from publishing information obtained legally through court records. On Dec. 19, Wiggins lifted the stay.
The temporary stay issued by Justice David Wiggins blocked the newspaper from publishing information about Des Moines attorney Jaysen McCleary obtained from private medical records.
“A temporary stay is imposed until the supreme court rules on McCleary's combined applications,” Wiggins wrote in the order. “Pending further order from this court, the defendants shall not disclose or share (other than with legal counsel) any information in the defendants' possession that was obtained exclusively from the reports.”
The records in question were first made public in July 2017, when they were filed by McCleary’s attorney as part of a personal injury suit that he brought against the city of Des Moines (Jaysen McCleary v. City of Des Moines). The records probably should have been filed under seal, but they were not, which, which meant that any member of the public could (theoretically) access them.
McCleary told the Freedom of the Press Foundation that the records containing his private information were mistakenly attached to expert reports that were filed publicly by his attorney.
In November, Des Moines Register reporter Clark Kauffman obtained a copy of the private records and asked McCleary for comment about them. Soon after, McCleary settled with the city of Des Moines and asked for McCleary v. City of Des Moines to be dismissed.
On Nov. 16, McCleary filed a motion in McCleary v. City of Des Moines, asking the District Court to seal the expert reports containing his private records. District Court judge Jeffrey Farrell granted the motion and issued a protective order. The protective order prohibits the parties in McCleary v. City of Des Moines — i.e., McCleary, the city of Des Moines, and their attorneys — from disseminating the sealed records to the public. The order also requires that any “third parties” in possession of the sealed records destroy them.
On Nov. 27, McCleary sued Kauffman and the Register in District Court (McCleary v. Kauffman), claiming that Kauffman conspired with the city of Des Moines to defame him and damage his reputation.
McCleary then filed a motion in McCleary v. Kauffman asking for a temporary injunction. McCleary asked the court to order the Register not to publish any articles including information gleaned from his medical records. He also argued that the paper had violated the protective order issued in McCleary v. City of Des Moines, which instructed “third parties” in possession of the records to destroy them.
On Dec. 7, District Court judge Eliza Ovrom denied the motion for a temporary injunction, ruling that the Register was not subject to the protective order.
“Mr. McCleary alleges that Clark Kauffman obtained copies of said reports during the period they were part of the public court file,” Ovrom wrote in her order. “Even if true, this court cannot enjoin publication of the reports, as such an injunction would violate the First Amendment and Article I, Section 7. Moreover, the defendants in this case were not parties to [McCleary v. City of Des Moines], and are not bound by orders in that case.”
On Dec. 8, McCleary filed an application to show cause in McCleary v. City of Des Moines, essentially asking District Court judge Farrell to hold the Register in contempt of court for violating the protective order.
Farrell denied the motion on the grounds that the Register was not subject to the protective order.
“The application must be denied for the same reasons noted by Judge Ovrom,” Farrell wrote. “Neither Mr. Kauffman nor the Register are parties to this case, and thus, neither are subject to the protective order. As a result, the application is denied.”
McCleary appealed both District Court decisions to the Iowa Supreme Court.
On Dec. 11, Wiggins ordered that the Register not publish the records until court had ruled on McCleary’s appeal.
Wiggins may have seen the order as a typical procedural ruling, intended to ensure that the Iowa Supreme Court had a chance to consider the merits of McCleary’s appeal before the Register published the records.
But whatever his intention, Wiggins’ order had serious First Amendment implications. The Supreme Court of the United States has repeatedly ruled that the First Amendment prohibits the government from preventing a newspaper from publishing information, barring extraordinary circumstances in which national security is at stake.
On Dec. 19, after the Register had filed a response to McCleary's appeal and McCleary had filed a reply to the response, Wiggins lifted the stay and issued an order denying McCleary's appeal.
Wiggins defended his decision to issue the temporary stay.
"The stay was strictly temporary in nature, its duration limited to the time necessary for the filing of the defendants’ response, the plaintiff’s reply, and this court’s entry of a ruling on the plaintiff’s combined applications," he wrote in the order.
McCleary then asked a three-judge panel to review Wiggins' decision, but the panel affirmed Wiggins' ruling and denied McCleary's appeal.
McCleary told the Freedom of the Press Foundation that he now plans to appeal his case to the U.S. Supreme Court.
On Dec. 20, the Des Moines Register published an article about McCleary that included information obtained from his medical records.
The Polk County courthouse in Des Moines, Iowa.
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