July 15, 2018
LOS ANGELES — A federal judge ordered The Los Angeles Times to remove information from a published article on Saturday, a step that legal experts said was extremely unusual and conflicted with the First Amendment. The newspaper said it was appealing the order.
The article, published Saturday morning, described a plea agreement between prosecutors and a police narcotics detective in Glendale, Calif., who was accused of colluding with a Mexican crime syndicate.
The detective, John Saro Balian, 45, pleaded guilty on Thursday to federal charges that he had accepted a bribe, obstructed justice and lied to federal investigators about his involvement with organized crime. Judge John F. Walter of United States District Court for the Central District of California ordered the plea agreement sealed, but a reporter found it posted online on Friday in a public database of federal court documents.
Before the article was published, a lawyer for Mr. Balian told editors at the newspaper that doing so would put his family at risk. The newspaper decided to publish, and a few hours later, it received the court’s order. By 5 p.m. Saturday, it had complied by removing any references from the sealed document, although the article still made clear there had been a plea agreement with federal prosecutors.
The Times said it chose to abide by the order while it appealed, rather than risk being held in contempt of court.
“There is sort of constant effort to nibble away at the First Amendment, and I think there is an obligation to respond to that and push back,” said Norman Pearlstine, the paper’s executive editor. “Once it’s out in the public record, it is our decision to decide whether it is newsworthy and we should publish.
“Ultimately we will get the information out,” he added.
The judge sealed the motion, filed by Mr. Balian’s lawyer, that requested the order to the newspaper, so it was not clear on what basis it was sought or justified.
Mr. Balian’s lawyer declined to comment.
Kelli Sager, a lawyer handling the case for The Times, said it was particularly strange that the judge did not involve the newspaper in any hearing before acting.
“It is very surprising that this kind of order would be issued without being heard,” Ms. Sager said. “We were never given notice. We don’t know what was said. We hear speculative threats, we hear these safety allegations all the time. Courts have said that’s not enough. There has to be a clear threat, and the example is troop movements during wartime — it has to rise to that level.”
Ms. Sager said she was confident an appeals court would vacate the judge’s order.
“The Supreme Court has ruled over and over again, the press can publish the information it has lawfully obtained if it is of public concern and interest,” said Ted Boutrous, a First Amendment lawyer who has represented the newspaper in the past but is not involved with this case. “It’s extraordinarily unusual for something to be de-published, and in some ways it is worse than prior restraint. It plainly violates the First Amendment.”
Judges have issued similar orders before, instructing news outlets not to use court documents that were made public in error, said Bruce Brown, the executive director of the Reporters Committee for Freedom of the Press. But in every case, he said, the order has ultimately been overturned.
“For a court to say something that was put in a public file by mistake from a clerk or a court cannot be published would be putting 90 years of constitutional law on its head,” Mr. Brown said. “The judges get frustrated because these mistakes are under their own docket, but nothing can be more clear. But mistakes get made, and it will happen again.”
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