Someone needs a crash course on the First Amendment.
In a move the paper described as “highly unusual and unconstitutional,” a federal judge ordered The Los Angeles Times to remove information from an article over the weekend.
The story in question concerned John Saro Balian, a California police detective accused of working with the Mexican mafia. The Times article referenced a plea deal Balian made with prosecutors because the document was publicly available on Pacer, a public online database for federal court documents.
But Balian’s attorney Craig Missakian claimed the plea agreement was supposed to be filed under seal and remain private. As such, the Times broke the law by publishing the information.
Missakian sought a temporary restraining order to stop the publication, which Judge John Walter granted on Saturday.
“Absent reasoning, it’s completely unconstitutional,” Garson told Observer. “One of the basic necessities of the law is that a judge be brave enough to lay down his reasoning in writing. If not, it shows the judge is afraid his decision won’t bear up to scrutiny.”
The Times was similarly miffed with the ruling. Even though the paper complied with Walter’s order, it made clear that it was doing so under duress.
“We believe that once material is in the public record, it is proper and appropriate to publish it, if it is newsworthy,” Times executive editor Norman Pearlstine said in a statement to Observer.
“The paper did what it was supposed to do,” Garson concurred. “The judge is trying to put the baby back in the womb. This isn’t just about stopping the reporting, it’s asking them to sanitize the historical record.”
Kelli Sager, the lawyer for the Times, did not respond to an Observer request for comment. But in a statement over the weekend, she pointed out that Walter’s order didn’t really make sense in the digital age.
“Typically, courts take into account if information was already published. Where it is no longer secret, the point of the restraining order is mooted,” Sager said. “To order a publication to claw it back doesn’t even serve the interest that may be intended.”
Indeed, while the article was never published in print, a cached version of the story containing the removed information is still available online.
In spite of this loophole, Walter’s ruling could have a chilling effect on the First Amendment if left unchecked.
“This opens up a Pandora’s box where judges can go back and look at old cases,” Garson said.
In order to avoid those problems, the Times is appealing Walter’s ruling. And in the hands of another judge, Garson said the First Amendment will likely prevail.
“I expect the paper’s actions to be fully vindicated, and the article to be online in its full, unadulterated form,” he said.