Judge Decides Prior Restraint Is The Best Solution To An Accidental Disclosure Problem
First Amendment principles are nothing new. A ton of precedent has been established that firmly limits what the government can do to stop someone from saying something (and, less often, to force someone to say something). Prior restraint is pretty easy to recognize.
And yet, every so often, a judge decides to rewrite the First Amendment from first principles. It's a great method for innovation. Not so much for court orders. As much as litigants dread hearing a judge call an argument novel," judges should be similarly wary of having one their own described the same way.
Someone screwed up and handed journalists documents that were still under seal in ongoing litigation. That really should only be a problem for the person who handed over the documents. It should have nothing to do with the recipient, especially when it's clear it was a mistake, rather than an attempt to bypass a court order.
Nonetheless, here we are, as Matthew Kish reports for The Oregonian, which is the current recipient of a blatantly unconstitutional court order.
A federal judge on Friday ordered The Oregonian/OregonLive not to publish information from documents it obtained last week from an attorney in ahigh-profile sex discrimination lawsuitagainst Nike and told the news organization to return or destroy the records.
The attorney, Laura Salerno Owens, who represents the plaintiffs in the case, sent a file of documents to a news reporter on Jan. 19. She subsequently asked The Oregonian/OregonLive to return them and the news organization declined.
She filed a sealed motion late Thursday with the court, asking in the title of the motion that inadvertently disclosed" documents be returned. The Oregonian/OregonLive was not provided a copy of the motion.
As one of the paper's editors points out, this is some bullshit.
Prior restraint by government goes against every principle of the free press in this country," said Therese Bottomly, the editor and vice president of content for The Oregonian/OregonLive. This is highly unusual, and we will defend our First Amendment rights in court."
And yet Judge Jolie A Russo does not see it that way. There's no written order that further explains the judge's rationale for bypassing the First Amendment. All anyone has at the moment is a lengthy docket entry that says The Oregonian (which is not a party to this litigation) is somehow subject to the court order sealing these documents.
ORDER issued by Magistrate Judge Jolie A. Russo: The Court is aware that certain documents marked Confidential" and Attorneys' Eyes Only" have been inadvertently disclosed by plaintiff's counsel to the Oregonian via e-mail dated January 19, 2024 and that the Oregonian refuses to return the documents. The Oregonian (as party-intervenor Oregonian Media Group) inserted itself as a party-intervenor in this case for the purpose of obtaining disclosure of these and other documents. This Court granted disclosure of the documents at issue on January 5, 2024 (ECF 403 ) which had previously been subject to a protective order. However, the Ninth Circuit stayed the Order pending appeal (ECF 408 ) and the Oregonian is a party to that appeal. Accordingly, the operative protective order requires parties to this litigation to not disclose such inadvertently disclosed documents. (ECF 82 ). Therefore, plaintiff's motion requesting return of inadvertently disclosed documents and requesting expedited consideration (ECF 410 ), to which defendant joins, is Granted. In order to assure non-disclosure, the Oregonian is Ordered as follows: return the inadvertently disclosed documents by January 31, 2024; agree not to disseminate that information in any way; and to destroy any copies in its possession.
Now, there's a bit of text in there that attempts to portray The Oregonian as a party to this litigation because it intervened in the past with its attempts to get various sealed documents unsealed. This does not make The Oregonian a party" to this litigation. This is still between the original plaintiffs and Nike and that protective order only affects those parties.
If Judge Russo wants to treat The Oregonian as a party to this litigation, then the judge should have had someone from the paper present when they considered the plaintiff's attempt to obtain an order requiring the return of mistakenly distributed documents. If the paper's a party, it should have been given a chance to present its counterarguments, rather than just be handed a docket order telling it that (1) it's a party as far as the judge is concerned for the purposes of this order only, and (2) it needs to comply with a protective order that originally only covered the original set of litigants.
The Oregonian is under no obligation to comply with an unlawful court order. But the downside is that even if it's unconstitutional, the court can still punish the paper for publishing these documents or simply refusing to give them back. The person who made the inadvertent disclosure faces no legal ramifications for their actions. And rightly so, since this appears to have been an honest mistake.
But the beneficiary of an honest mistake shouldn't be forced to comply with an order that violates the First Amendment. And yet, the paper is the only entity in this three-way that's likely to be punished for inadvertently obtaining something it shouldn't have because a judge clearly didn't think this thing all the way through before deciding the entity with the strongest claim to First Amendment protections should be the only one subjected to prior restraint.