Freedom of the Press #8
“Qualified Press Privilege”
Outpost of Freedom
February 21, 2017
In Freedom of the Press #6 – “Tilting at Windmills” – Redux, I address the jurisdictional issue that the government addressed in their Supplemental Memorandum in Support of Government’s Motion For an Order to Show Cause, of February 7, 2017. Due to the length of the Supplement, and the length of #6, I chose to address two remaining issues in a subsequent post. Those two issues, Prior Restraint and Qualified Press, will be addressed in that order. From the Supplemental Memorandum:
IV. There Is No Prior Restraint Issue or Qualified Press Privilege
A. There Is No Prior Restraint Issue Presented Here
This Court has the authority to issue protective orders protecting criminal discovery and, specifically, confidential source information. The substantial government interest in protecting confidential sources is long established. See Roviaro v. United States, 353 U.S. 53 (1957). This substantial government interest is unrelated to any suppression of expression and outweighs Hunt’s First Amendment rights. No one has challenged the legitimacy of the Court’s Protective Order, and to permit a party to end run the order by passing the information to a blogger threatens to undermine criminal discovery and the interests identified in Roviaro—i.e., if we cannot protect the confidentiality of our law enforcement informants, we cannot expect their cooperation in future investigations.
We are not asking this Court to restrain Hunt’s ability generally to write about the case— or even the informants—we only want him to observe this Court’s Order, which means that he cannot publish the discovery material subject to the Court’s Order. This discovery material was not in the public domain in any form. This Court should be able to enforce its Protective Order and prohibit wide dissemination of discovery which includes confidential FBI reports. See Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny). Besides Seattle Times Co. there are no cases that discuss the prior restraint issue in the context of sealed and protected discovery information in the context of a criminal trial. In United States v. Noriega, 917 F.2d 1543 (1990), the issue was the balance between a defendant’s Sixth Amendment Right to a fair trial and the First Amendment interests asserted by CNN. The Noriega Court held that CNN should not be able to violate a court order and litigate at the same time. Hunt has waived any First Amendment defense by defying the Court’s Orders.
Let’s address these underlined items, one at a time. First, we will look at Roviaro. Although I have addressed Roviaro, before, it is worth revisiting, since the government seems to rely heavily upon that decision. Here is what they said:
This Court has the authority to issue protective orders protecting criminal discovery and, specifically, confidential source information. The substantial government interest in protecting confidential sources is long established. See Roviaro v. United States, 353 U.S. 53 (1957)
The government asserts that they have a right to protect the identity of informants with a protective order. They have made this assertion, before, though they appear to have not yet read the decision nor understand the ramifications.
Albert Roviaro was indicted on two counts of trafficking narcotics. When he was arrested, a John Doe was present and was closest in proximity to the transaction, which led to Roviaro’s arrest. In requesting a Bill of Particulars, including the identification of the informant, he was denied that information. He was subsequently convicted in a bench trail. The Court of Appeals sustained the conviction. The United States Supreme Court granted certiorari and heard the case. Justice Burton wrote the decision.
Though they recognized the informants privilege, they held that the right of the accused, if the informant would provide possible exculpatory testimony, exceeded that of the privilege. The following are from that decision:
Before trial, petitioner moved for a bill of particulars requesting, among other things, the name, address and occupation of “John Doe.” The Government objected on the ground that John Doe was an informer and that his identity was privileged. The motion was denied.
The protection of the informant was held by the District Court and upheld at appeal. However, in their decision, the Supreme Court stated.
The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.
Once the informant is identified, the privilege is removed, as explained, “where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.” That was the circumstance with the Discovery information in question. However, once “the identity of the informant has been disclosed… the privilege is no longer applicable.” They don’t suggest by what means that disclosure might be achieved, however, the public should, by right, have any knowledge that can be obtained by such disclosure. So, while the government contends that such disclosure by Hunt is a violation of the Protective Order, once that disclosure is made, the informants privilege ceases to exist.
A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.
So, was it judicial discretion, on the part of Judge Brown, that favored, at least selectively, the protection of the identity of the informants? There was no objection when the government exposed Mark McConnell. There was no objection when Terri Linnell exposed her role as an informant. There was no objection when the diligence of the defense exposed Fabio Minoggio. For, at that instant in time, as each was exposed, the informants privilege ceased to exist.
Once the privilege, intended to protect the identity of the informant, ceases to exist, so, too, does the need for protection under the Protective Order.
The government goes on to say that the “substantial government interest is unrelated to any suppression of expression and outweighs Hunt’s First Amendment rights.” Now, it seems that the government, in the use of the term “expression”, is speaking of my right to freedom of speech. I have never contended such, and I am sure that both Facebook hearsay and recorded statements made by me make clear that it is the right of the people to the Freedom of the Press, the right to know what their government is doing, is at stake here.
Then, they state that “[n]o one has challenged the legitimacy of the Court’s Protective Order, and to permit a party to end run the order by passing the information to a blogger[sic] threatens to undermine criminal discovery.” I must admit that they are correct in that. I have not challenged the legitimacy of the Protective Order. I have no doubt that it applies to those so identified within the Protective Order of March 2016. I have clearly stated that I am not among those so identified.
They go on to state that “if we cannot protect the confidentiality of our law enforcement informants, we cannot expect their cooperation in future investigations.” I have no qualm with what they are asserting, however, as was decided in Roviaro, once the identity is known, then the informants privilege no longer exists. It does not matter whether the government, the informant, the defense, or any other party exposes the identity. That was not a consideration then, nor should it be now.
They then state:
if we cannot protect the confidentiality of our law enforcement informants, we cannot expect their cooperation in future investigations.
Well, that is correct. However, that protection is not a right of the government, it is simply what they endeavor to do, and it does not preclude such exposure by the government, the informant, or any other party. The government should do their best. However, if they cannot achieve the desired result, they have no right to blame such failure on anybody else.
Next, we have:
This Court should be able to enforce its Protective Order and prohibit wide dissemination of discovery which includes confidential FBI reports. See Seattle Times Co. v. Rhinehart
Before we get to Seattle Times Co., let’s look at what they said. They don’t want “wide dissemination of discovery“. The discovery was not widely disseminated. It is only when the informants privilege ceased to exist that those portions of discovery that no longer came under the privilege were excerpted and made public, via the press.
Now, on to Seattle Times Co. v. Rhinehart. This case was civil, not criminal. As such, many standards are different. Even the federal judiciary recognizes this, as they have Rules for both Criminal and Civil Procedures. However, Rhinehart was the spiritual leader of a religious group, the Aquarian Foundation. The discovery that the Seattle Times wanted to publish had to do with the names of the member’s and financial contributors to Foundation. If we compare the private names and contributions of a religious order to the actions of government, we need to make a distinction. The former is a private entity, as are its members and contributors. As such, they are afforded the protection of the Constitution and the Bill of Rights. The latter, however, is the servant of the people and are afforded only those powers and authorities provided for in the Constitution. Informants are nothing more than contract employees of government, paid under the table (no IRS form 1099 provided), and as such are subject to the scrutiny of the citizenry as much as any other government employee. In addition, by the way, the Seattle Times Co. discovery had nothing, at all, to do with “confidential FBI reports”. In fact, the Discovery in this (Ammon Bundy, et al) case are “Unclassified”.
Then, we have:
In United States v. Noriega, 917 F.2d 1543 (1990), the issue was the balance between a defendant’s Sixth Amendment Right to a fair trial and the First Amendment interests asserted by CNN.
The Noriega case is so far off point that it is a surprise that the government would even bring it up. CNN obtained recordings made by the government of privileged attorney client communications while Noriega was in jail in Miami, Florida. To compare disclosure of attorney-client privileged information, most likely made available by a government employee of the jail, to the identification of informants is, well, beyond absurd.
Then the government asserts that,
Hunt has waived any First Amendment defense by defying the Court’s Orders.
First, Hunt has not defied “the Court’s Order”, as Hunt was not among those to whom the Order was addressed. Second, it is not Hunt’s right that the Court is trying to suppress; it is the right of the press to inform the public of the doings and misdeeds of that government.
Now, that second issue:
B. No Qualified Press Privilege Is Implicated Here
Although the Ninth Circuit has recognized a qualified press privilege in Shoen v Shoen, 5 F.3d 1289 (9th Cir. 1993), the doctrine simply doesn’t apply to the Motion before this Court. The government is not seeking the testimony of third-party Gary Hunt to identify the source or sources of the protected discovery information. The government intends to investigate that on its own. The government is merely seeking the removal of protected discovery material that this Court has ordered protected. Nothing about Gary Hunt’s blogging activities is implicated by the Motion to Show Cause. Third-party Gary Hunt is continuing to disseminate protected discovery material in the face of three Court Orders. No privilege is implicated.
Finally, even if this case were subject to a balancing test, the government’s interests far outweigh any First Amendment interest Hunt may assert. First, we need to protect our confidential sources for all of the valid reasons identified in Roviaro. Second, the Court has a significant interest in enforcing the terms of its own Protective Order. Without enforcement, Hunt’s defiance threatens to undermine our ability to exchange discovery in future criminal cases.
First, we have:
Although the Ninth Circuit has recognized a qualified press privilege in Shoen v Shoen, 5 F.3d 1289 (9th Cir. 1993), the doctrine simply doesn’t apply to the Motion before this Court.
Regarding Shoen, I agree with the government. The government has not sought to have me divulge the source of my information. Maybe their investigation has gone far enough that they really do not want that source known. However, they did choose to include it in their Supplemental Memorandum, so now it has been addressed. It does not, however, reach the point of excluding any “qualified press privilege”, if that is what they are trying to get at.
Then, they say, “The government is merely seeking the removal of protected discovery material that this Court has ordered protected.” Darn, the informants privilege ceased to exist, once the identities were exposed.
“[T]he Court has a significant interest in enforcing the terms of its own Protective Order.” Well, that is quite understandable. So, enforce away. Find the person subject to the Protective Order and go after them. Far be it for me to discourage you from doing so. Moreover, your repetition of the same arguments will not make them any more irrelevant than they already are.
Then, they endeavor to make me “defiant”, when they state:
Hunt’s defiance threatens to undermine our ability to exchange discovery in future criminal cases.
If the Protective Order included me within its reach, that might be true. I am not being defiant, I am simply asserting my rights as press and challenging their misguided presumptions of my culpability.
However, to suggest that the government would no longer be able “to exchange discovery in future criminal cases” suggests that they would ignore standing Rules and law regarding discovery. I am not quite sure that this is what they were suggesting, however, I think that they should consider just how they word things, in the future. This is almost an admission to future illegal activity on the part of the government.
Note that they only had one citation to suggest that I have no “Qualified Press Privilege”, as if with the sweep of their magic pen, they can simple say it, and make it so. They have, at least, in that stroke, dispelled their assertion of my right of expression (speech).
Now, it is my turn. Let’s start with just who is violating clearly stated rules. The applicable Rule, from Federal Rules of Criminal Procedure (1215), is,
Rule 49.1. Privacy Protection For Filings Made with the Court
(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, a financial-account number, or the home address of an individual, a party or nonparty making the filing may include only;
(1) the last four digits of the social-security number and taxpayer-identification number;
(2) the year of the individual’s birth;
(3) the minor’s initials;
(4) the last four digits of the financial-account number; and
(5) the city and state of the home address.
However, on January 6, 2017, the government filed “Affidavit of FBI Special Agent Ronnie Walker in Support of Motion to Enforce Protective Order (Expedited Consideration Requested)”. That document contained my home address, twice. Not just “city and state”, but the street name and number, as well. I suppose that they simply assume that they are above the law.
Now, unlike the specific wording of the Protective Order, as to who is subject to the Order, in this instance, there is specific wording on what must be redacted. But, heck, since the government can do no wrong, and those on the other side of the bar can do no right, this double standard is not surprising. Let me guess that no sanctions or other action will be taken against FBI SA Ronnie Walker, who prepared the Affidavit for filing, or Pamala Holsinger, whose electronic signature is on the filing of the Motion to which the Affidavit is attached.
I would not want to suggest that the government would not enforce Rules and laws violated by the government. So, well, I won’t. However, they will twist the wording to suit their needs, even when one is acting within the Rules and law.
As much as we pay these people, don’t you think that they might be able to do a better job?