Welcome back to This Month in the Law! This marks our two month anniversary, which is a fancy way of saying I actually wrote something before July ended. I am pretty proud of this because it means This Month in The Law remains a valid title for at least another month!
Last month I ended with the comment – “maybe we can even find something to talk about besides the First Amendment.” In hindsight, that was a mistake. The First Amendment is always going to pop up, it seems.
First Amendment First Up: Sacha Baron Cohen
For example, there has been news about a new Sacha Baron Cohen new fake documentary/satire show – “Who Is America?” Pretending to be a former agent of the Mossad, the comedian interviews various people in an attempt to get them to say or do something ridiculous. (Full disclosure, I have not watched the show, and I do not plan to. It’s not some sort of protest, I just have never found Sacha Baron Cohen to be very funny. If you like him, have at it. I tell lots of jokes that no one else thinks are funny, so, to each his own.) This show has been in the news primarily because former Governor and Vice-Presidential candidate Sarah Palin was one of the victims of the prank. She has aggressively lambasted the comedian for his trickery. Apparently, in another gag, the comedian hands former Vice-President Dick Chaney a water-boarding kit and asks for him to autograph it.
Regardless of how you feel about Sacha Baron Cohen (and if you wonder why he is always referred to with all three names, I think it is to avoid confusion with American figure skating silver medalist Sasha Cohen, a point driven home to me when I had to correct the spelling of Mr. Cohen’s first name in this article), it is worth acknowledging how amazing it is that a comedian can get away with setting up fake interviews with the former second-in-command of the country, and someone who was almost second-in-command. He also scores a fake interview with Bernie Sanders. If we did not have the robust freedom of speech guaranteed by the First Amendment, no one would be able to get away with this sort of political comedy. Like it, loathe it, or ignore it, you have to admit it is a great feature of our system that it is available. I doubt there are too many comedians performing this type of act in North Korea, China, or Russia.
Los Angeles First Amendment Case
On a more important First Amendment note, there is a case out of Los Angeles which should give everyone a moment of concern. A Los Angeles police detective was accused of working with organized crime. Last week he entered a guilty plea to charges of accepting a bribe, obstructing justice, and lying to investigators. The plea deal was supposed to be sealed by order of the Federal Judge, Judge John Walter, who took the plea. Most likely the plea was sealed to protect the officer from violence in prison, although that is just a guess. Regardless of the reason for sealing the plea, it was not done correctly. The federal court mistakenly posted the plea on the public portion of its website. A reporter from the Los Angeles Times found the publicly available information (available at the time it was found) and the Times posted a story including information which was supposed to be protected under seal. The Judge reacted by issuing an Order to the Los Angeles Times to remove the information which was intended to be secret. The Times complied with the Order but has challenged it on First Amendment grounds.
There are both practical problems, and a philosophical one, with this Order. First, the Los Angeles Times was not a party to the actual case. The two parties were the United States of America, represented by the U.S. Attorney’s Office, and the defendant himself. As a result, it is unclear how the court had jurisdiction over the Times to issue this particular Order. It may be that the Los Angeles Times had filed some paperwork to get access to other information, but that is not clear from the reporting I read. If not, this Order seems unenforceable. The Judge can order the parties not to disclose information because they are involved in the case. The Judge can order the court staff to seal the document from public view, because they are part of the judicial branch. But without having the newspaper as a party somehow, I am not clear how the Judge has the authority to tell them what to do. The Judge also has the right to control his actual courtroom. He could close it to the media, if circumstances warranted it. This type of order would probably be challenged by the press, but at least it falls under the purview of the court. In this case the Times reported on a document which was made publically available.
The second practical problem with this Order relates to an old legal saying, “You can’t unring a bell.” The information has already been published. Telling the paper to remove the publication after the fact is virtually pointless. The material has been disclosed (by a mistake at the courthouse, no less). Telling the paper to remove the story at this time does not make the information secret again.
The philosophical problem goes straight to the heart of the First Amendment. Namely, is it okay for a District Court Judge to censor a newspaper from reporting true information? Keep in mind, the report was based on a guilty plea entered by the defendant. The argument would, perhaps, be different if we were only discussing charges filed against the defendant. But he has admitted his guilt. Furthermore, the information was revealed because the court staff publicly published the information. The newspaper did not steal it, or use an unverified confidential source, or make it up from whole cloth. If we believe, as the founding fathers did, that a free press is vital to protect our democracy, this Order should be worrisome. There certainly may be good reasons the Court wanted to keep this information secret. The defendant was accused of working with two different organized crime outfits. There may be legitimate concerns his life is in danger as a result of this plea. This may be especially true if the officer cooperated in order to reduce some of the charges against him. But the public has a right to know about corruption of public officials. An argument can be made that sealing this information away protects those officials who violate the law. In essence, the system protects its own. If the press does not report on these types of cases, the public may never know what is happening.
Kavanaugh Replaces Kennedy
Finally, there may be one or two people who were hoping I would address the retirement of Supreme Court Justice Anthony Kennedy, and the nomination of U.S. Court of Appeals Judge Brett Kavanaugh to succeed him. Obviously this is a huge story in the legal world. Justice Kennedy has been the swing vote on many, many 5-4 decisions over the years. Judge Kavanaugh clerked for Justice Kennedy at one time. However, he has been described as being more conservative than his former boss. So there has been a great deal of discussion about what this nomination will mean to the Court. I am not going to add to this for a couple of reasons. First, I do not practice in federal court, and I have never appeared in the U.S. Court of Appeals or the U.S. Supreme Court. As a result, I have no real insight into either Justice Kennedy or Judge Kavanaugh. Second, I may not be the sharpest knife in the drawer, but I know this is a very live wire that I do not want to touch. Anything I say will surely upset someone. As the great Mark Twain said, “It’s better to remain silent and be thought a fool than to speak and remove all doubt.” Or, it turns out, that might have been Abraham Lincoln. Or a book of nursery-type rhymes written by Maurice Switzer in 1906. The origin of the phrase is unclear, even if its application makes perfect sense.
See you next month!