Posts tagged ‘Harney County’

Burns Chronicles No 59 – Ryan Bundy Holds the Key

Burns Chronicles No 59

Ryan Bundy Holds the Key

Gary Hunt
Outpost of Freedom
August 30, 2017

On January 26, 2016, several people, in two private vehicles were on their way to a scheduled meeting John Day, Oregon.  While in a forested area, with extremely poor, if not non-existent, cell phone coverage, they were set upon by modern day highwaymen (highwaymen were people who stopped travelers and robbed them).  The driver and passengers of the second vehicle submitted to the demands of the heavily armed interlopers, at gunpoint, to leave the vehicle and sit on the side of the snow-covered roadway.

The driver of the second vehicle, a white pick-up truck, following the exit of one of the passengers, sped away, seeking the assistance of a peace officer, Sheriff Glenn Palmer, of Grant County, Oregon.  However, within a couple of miles they found that the highwaymen had set up a barricade across the road, barring passage.  The highwaymen, hidden behind their vehicles, began firing shots at the white truck.  This forced the truck off the road, where some rather adept driving may have saved one of the highwaymen’s life, by swerving, at the last moment.

The truck then came to a stop, and the driver, LaVoy Finicum, exited.  In the back seat were three people; Shawna Cox, Victoria Sharp, and Ryan Bundy.  Bundy sat on the left and Cox on the right.

Having already been shot at, there was concern for the safety of the party.  Finicum, in an effort to draw fire away from those still in the truck, began moving towards the rear and away from the truck.

There were lots of loud noises.  Some from 40 mm projectiles of rubber bullets and tear gas (OSP recovered 13 40 mm casings), others from flash-bang type grenades.  Included, however, were two shots that came from the left-rear of the truck.  One hit the top of the truck and one broke the driver side rear window.  The round that broke the window may well have hit the side of the truck, pressuring the window to break, and deflecting into the shoulder of Ryan Bundy.  This is the more logical explanation, as the velocity of the bullet, absent any other external resistance, should have penetrated much further than the fleshy part of Bundy’s shoulder.

Now, this gets interesting since the Oregon State Police (OSP) had to account for shots fired, though they could not account for two shots.  Shell casings were missing, and the rather perplexing task resulted in speculation regarding the bullet impact on the driver’s side of the truck.  Their conclusion was that it must have come from the shooter that fired three shots as the white truck approached the highwaymen, as shown in this OSP exhibit:

The government tried to attribute the shot at the rear door to the three shots fired as the vehicle approached the barricade.  However, this does not quite work, as if you look at the yellow line in the third image.  You see that if it did hit the truck, it would be a glancing strike.  It would have been deflected upon impact, and the initial point of impact would be the most damaged.  Any additional damage would have been less, as the bullet was deflected away from the truck body.  As you can see, the greater impact was on the right side of the gap between the door and frame.

. Continue reading ‘Burns Chronicles No 59 – Ryan Bundy Holds the Key’ »

Statement by Gary Hunt Regarding the Freedom of the Press – Show Cause Hearing of August 23, 2017

Statement by Gary Hunt
Regarding the Freedom of the Press;
Show Cause Hearing of August 23, 2017

Gary Hunt
Outpost of Freedom
August 26, 2017

I intended to write an article about the Freedom of the Press hearing in Portland, Oregon.  However, since I had decided to testify, I had mentally prepared to answer cross-examination questions, should they be asked.  My problem in writing this is that the answers given and the answers not given are mingled together in my mind, I can’t quite sort them out and be sure of the accuracy of what I say.  As to discussing other matters that were brought up, as well as examination and cross-examination of the government’s two witnesses, FBI SA Jason Kruger and FBI SA Matthew Catalano, are also mingled in my mind, as well as much that was presented by both the prosecuting attorney and my able counsel, Michael Rose.

Therefore, I will, at this time, simply give an overview, from my perspective, of what occurred.

AUSA (Assistant United States Attorney) Pamala Holsinger opened by telling us how damaging my exposing the informants was.  She then called FBI SA Jason Kruger to the stand.  Kruger must have listened to many hours of various internet radio shows I did, as well as reading, perhaps, all that I have written in both the “Burns Chronicles” and “Freedom of the Press” series.  I would say that he was accurate in his quoting from both, but often the words, without inflection and out of context, tell a story that is, at best, just close.  However, his testimony, until cross-examination, simply painted a picture of me saying that what I had written would help the defendants.

However, in cross-examination, he was referred to what he had written in his 302 reports and it was pointed out that I had said that my purpose in doing the outing was to shed light on the “Misdeeds of Government”, a phrase that I has been used for decades in describing my writing.

Next came Catalano.  Matthew is a nice guy and we got along well, in our two meetings.  However, his examination followed the same course.  Well, until cross-examination, where Mr. Rose elicited some more positive aspects of our meetings, as well as the fact that from the beginning, I had told Catalano that I didn’t believe that I was subject to a Protective Order, especially one issued out of  Oregon, and me not being among those to whom the Protective Order was addressed.

Now, the dilemma is that given what they had presented, both the positive and the negative were nothing more than words.  Very little about my motivation to investigate the identities and then write about the informants is addressed in the articles, themselves.  And, the radio shows, well, when you speak to an audience, you are not under oath, and you may tend to not present certain statements with sufficient explanation to put a proper context on what is said.  Kind of like a politician seeking election, but not telling you all that he believes.

Absent my testimony, where I could present the motivation, it would simply be a coin-toss as to whether the negative or positive would be used by Judge Anna Brown to make her ruling on the matter.

Interestingly, those who wish to ridicule me on the Internet reported that my attorney told me to “shut up”.  Well, that is very far from the truth.  The day before the Hearing, when I arrived in Portland, I met with him to discuss the hearing.  He asked if I had any witnesses to call, and I told him that I keep all but my articles to myself — that nobody could really speak to what my motivation was — except me.  He advised me of the dangers of taking the stand, though I already understood what those were.  It was clear that I could not speculate on the source, which was a comfort to me, as I simply had to tell the truth, that I didn’t know who sent me the Discovery information that was the evidence I used to identify the informants.  He said that he felt comfortable that I could take the stand, so it was decided that I would.

As my turn to take the stand arrived, Judge Brown asked whether I was properly advised of the potential risk, if I took the stand.  Mr. Rose explained that we had discussed that, and that I was aware of the necessity that I do so.  So, I took the stand and testified.

. Continue reading ‘Statement by Gary Hunt Regarding the Freedom of the Press – Show Cause Hearing of August 23, 2017’ »

Freedom of the Press #17 – Is This Legal?

Freedom of the Press #17
Is This Legal?

Pamala R. Holsinger, (OregonLive)

Gary Hunt
Outpost of Freedom
May 25, 2017

In a previous article, “Freedom of the Press #13 – Sojourn to Sacramento“, I explained that Federal Magistrate Brennan (Sacramento) intended for me to receive diesel therapy, and that I would provide insight into just why he chose that route.  It was an expected response based upon the information that he had been provided, regarding the Sealed Order Granting Government’s Request for Arrest Warrant as to Gary Hunt and Order Sealing Arrest Warrant (ECF #2017).

This Sealed Order was obviously prepared by the US Shyster’s Office.  Their intention was to punish me, as they have most of the others in the Oregon and Nevada indictments, based upon contrived accusations.

The most oft-repeated contrived accusations that we are all familiar with are:

  • To justify shooting someone, “I feared for my life and/or the life of a fellow officer”.
  • Though some have homes, family, and jobs, “They are a flight risk and should be detained in jail until trial”.

Well, now we get another one to add to the list.  I have been writing for 24 years.  I have never carried a firearm during that period.  Though my words may be inciteful, they are simply words (The Pen can be mightier than the Sword).  There is no reason to believe that I would avoid arrest, as I had continued the dialogue regarding Freedom of the Press for nearly three months, and met, willingly, with FBI Special Agent Catalano, whenever requested.  However, the wording in the Sealed Order states:

The Court, however, finds good cause to file under seal both this Order and the arrest warrant. Throughout this case and in the factually-related matters that took place in Bunkerville, Nevada, in April 2014 that are the subject of ongoing criminal proceedings in the District of Nevada, there have been instances of individuals avoiding the execution of court orders and/or arrest by engaging in armed confrontations with law enforcement. The Court issues under seal this Order and the warrant for Hunt’s arrest in an effort to permit the orderly execution of the arrest warrant.

Well, I wrote about Bunkerville (The Bundy Affair series), and I continue to do so.  However, I was not present at that armed, yet peaceful, protest of the government’s effort at the semi-legal rustling of cattle by the BLM, including their intended violation of numerous state and federal laws regarding branding and cattle health certifications.  I was at Burns for a few days.  However, I was there to get a story on the treatment of the Hammonds, prior to the fires (See “The Harassment of the Hammonds“), that got them imprisoned for five years.  There has been no effort on my part  to avoid arrest by engaging in an armed confrontation with law enforcement.  There was no arrest warrant in the possession of the FBI or the Oregon State Police during the stop, roadblock, and murder of LaVoy Finicum.  Finicum, as the government has admitted, expressed to those who had no warrant, that he was going to a law enforcement officer, Sherriff Glenn Palmer of Grant County, Oregon.

This fiction was probably simply glossed over by Judge Brown.  However, she “rubber-stamp” signed the Sealed Order and the Arrest Warrant.  This was the documentation that was presented to Eastern District of California Magistrate Brennan, who had to decide if I should be detained and diesel transported back to Oregon.  And, of course, with that as the only information that he had before him, the demonization of me was such that he curtly denied any alternative.

The case that Magistrate Brennan ruled on is United States of America v. Gary Hunt, Case No. 2:17-mj-00058.  The records transferred from California to the Oregon case, United States v. Ammon Bundy, et al, case, in Oregon (which my matter still falls within), and the Booking Report, list the only charge as a violation of 18 U. S. Code §3146, “failure to appear”.

. Continue reading ‘Freedom of the Press #17 – Is This Legal?’ »

Freedom of the Press #13 – Sojourn to Sacramento

Freedom of the Press #13
Sojourn to Sacramento

Gary Hunt,
Outpost of Freedom
April 11, 2017

Introduction

This past Friday, April 7, I returned home from a week long visit the Sacramento County Jail.  I was in jail based upon a Warrant for my arrest for failing to appear at a show cause hearing on March 10.  The Warrant and what led up to it will be the subject of a future article.

I am writing this article to explain a system that, quite frankly, ignores our rights, especially when only accused of a crime.  It will give a little insight into life behind bars, at least those of the Sacramento County Jail.  I can’t say that this compares to the treatment that those currently held in jail in Oregon (Jason Patrick) or Nevada (many still innocent people) are receiving, but, perhaps it will help to understand that they are being treated similarly, or worse.

It will also explain what I have gone through.  Now, when I go to Court in Portland, next month, I will be entering the courtroom on the terms that I had to establish.  Fortunately, though without a plan going in, the final result is that I achieved a bit more than I could have expected, thanks to Judge Anna Brown.

The Arrest

Around noon on March 30, 2017, a nice, sunny, warm day, here in Los Molinos, California, I received a phone call from FBI Special Agent Catalano.  This was the fourth call he had made to me, since back in January when he first provided me a copy from the US Shyster demanding that I cease and desist publishing information obtained from the United States v. Ammon Bundy, et al, discovery evidence.  He began by saying, I am here in Los Molinos with the US Marshals, and I suppose you know what this is about.”  About that time, my wife buzzed me and told me that lunch was ready.

I then asked if it was to arrest me.  He affirmed that that was the purpose.  I asked if I could have about an hour to explain to my family what was occurring.  After conferring with someone on his end, he said that would be okay.  I told him that I would call him when I was ready.  I must say that I honestly believe, because of the tone of his voice, that SA Catalano did not enjoy his task

I called my team and gave them the simple message, “I am going to be arrested and transported to Sacramento.”  Please post that on my Facebook pages.”  I told them that there was no more to report, at this time.  Then, I went to the house, planning to do a bit more preparation, after I had eaten.

As I sat down to eat lunch, the task that I had anticipated, though somehow hoped would not occur, became reality.  My wife and children know what I do, but our agreement is that my work stays in my office, and out of the house.  They had no idea what I had been writing, but that was about ready to explode, big time, as I began, “I am going to be arrested within an hour.”

. Continue reading ‘Freedom of the Press #13 – Sojourn to Sacramento’ »

Burns Chronicles No 58 – “Twice Put in Jeopardy”

Burns Chronicles No 58
“Twice Put in Jeopardy”

 

Gary Hunt
Outpost of Freedom
March 23, 2017

Of course, we must start with the Fifth Amendment to the Constitution, as it is the “supreme Law of the Land.  The pertinent part reads:

“No person… shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

Now, that phrase, “twice put in jeopardy” is also referred to as “Double Jeopardy”, though whichever way we choose to phrase it, the meaning is quite simple.  If you are charged with a crime, absent a mistrial or some other legitimate cause, you can only stand trial one time.

It used to be that a crime was simply stated.  If you murdered someone, then you were charged with murder.  If you murdered more than one person, then additional counts of murder were added to the charge.  You would not be charged with, say, unlawful discharge of a firearm within the limits of the city, destruction of private property if the bullet damaged something, assault, illegal possession of a weapon, or any other crimes that you may have committed while also committing murder.  You simply stood trial for murder.

If you were acquitted, that was it.  If they found additional evidence that proved that you had really committed the murder, that was too bad.  They had their chance, and they blew it.

This protection, afforded by the Bill of Rights was a prohibition against the government trying and then retrying, you until they could get a conviction.  It also precluded your being tried by one court, found not guilty, and then tried by another court in different jurisdiction, for the same crime.

. Continue reading ‘Burns Chronicles No 58 – “Twice Put in Jeopardy”’ »

Freedom of the Press #12 – Fully Biased Instigators

Freedom of the Press #12
Fully Biased Instigators

Gary Hunt,
Outpost of Freedom
March 13, 2017

When I was in the Army, I had to obey the orders that were given to me, by my superiors.  That obligation ceased nearly fifty years ago.

Since that time, I have only taken “orders” from my employer or supervisor, though I have given “orders” to subordinates, as a part of my supervisory responsibilities in various positions I have held.

I have also given “orders” for food or other purchases, as I don’t expect waitresses or clerks to be mind readers.

In all of the above instances, there has been a relationship predicated on the fact that there was some implied obligation by virtue of the relationship, fiduciary or voluntary, between the “orderer” and the “orderee“.  Yes, I made those two words up, but I suppose that all reading this will get the point being made.

This tribulation began when the U. S. Department of Justice “Demanded” that I Cease and Desist publishing a series of articles exposing informants, both inside and outside of the Malheur National Wildlife Refuge during the occupation by those seeking a “Redress of Grievances” (First Amendment).  The Letter also wanted me to return information that I had obtained without any illegal act on my part.  And, in a somewhat ridiculous (impossible) Demand, that I remove the articles from my website “and any other website”.

However, I have no more control over “any other website” than the Justice Department has over me.

An FBI agent delivered the Letter.  I asked the agent what obliged me to recognize the authority of the Letter.  He said that he did not know.  (See Freedom of the Press #1 – Meeting with the FBI)

Since that time, the Court has “Ordered” me to do things that I didn’t want to do.  I have refused service on two of them; the second (middle) one was never even offered to me to be refused.  In each instance, I have asked for some law that I violated or how I came under the jurisdiction of the Court in Portland, Oregon.  I have yet to receive a qualified answer thereto.

Now, I say “qualified answer”, in that the US Shysters have included case law in their Motions, though when I researched those cases submitted, I found that those cases really supported my position, not the government’s position.

The government is using the Court as a forum, while I cannot do so, since I would be submitting to the Court’s jurisdiction.  So, my recourse is to use the “Court of Public Opinion”.  The government has introduced articles from both the “Burns Chronicles” and “Freedom of the Press” series into the Court Record.  As I have pointed out, one cannot submit a page of a book into the record without submitting the whole book.  The articles are nothing less than pages of a book, and must be taken as a whole.  This is especially true with “Freedom of the Press”, as it is chapters in an ongoing story — recorded as that story plays out.

The government has set forth arguments, made assertions, and have otherwise provided “papers” to the Court which represent that I am subject to jurisdiction.  However, each of those assertions has been disproven in my responses.  So, though they began by using my articles in an effort to defame me, and have selectively chosen what “evidence” they want in the Record, the government has been remarkably consistent in ignoring content that disputes those claims.

On Friday, March 10, 2017, the government filed “Government’s Status Report Regarding Order to Show Cause” (Report), asking that the Court “issue a warrant for his arrest to be served by the United States Marshal.”  In support of that Report, they also filed the “Affidavit of FBI Special Agent Jason P. Kruger in Support of Government’s Status Report Regarding Order to Show Cause” (Affidavit).  This article is my response to which can only be seen as a demonstration of the incompetence of the Federal Bureau of Investigation.

The first section of the Report is titled “The Government Has Established by Clear and Convincing Evidence That Gary Hunt Is Violating This Court’s Lawful and Direct Orders“.  So, let’s look at some of that “clear and convincing evidence”. (Emphasis, mine.)

 

Continue reading ‘Freedom of the Press #12 – Fully Biased Instigators’ »

Freedom of the Press #11 – Aiding, But Not Abetting

Freedom of the Press #11
Aiding, But Not Abetting

Gary Hunt,
Outpost of Freedom
March 3, 2017   (Coincidental to the presumed authority of Judge Brown’s assumption that she could Order me to answer by this date.)

The government has persistently suggested that I have “aided and abetted” the defendants by exposing informants that were paid by the government to spy on the occupiers of the Malheur National Wildlife Refuge during January 2016.  That is only one of the elements that needs to exist before the Court can find me in contempt of court for non-compliance with the Order to remove all prohibited material from my website and any other website.

The other elements include whether I am subject to the Court’s Protective Order, and, if so, do I fall within the jurisdiction of the Court.  Currently, the Court has an outstanding Order that I appear and show cause why I should not be held in contempt of court.

Well, as explained in Freedom of the Press #3 – “Contemptuous Postings”, aiding and abetting has a legal definition.  That definition can be found in case law as well as legal dictionaries, such as Black’s Law Dictionary, 5th Edition, which states:

Help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission.

The case law cited by the government shysters also includes criminal activity as a necessary element.  One of the reasons for the Supreme Court decision in New York Times Co. v. United States (Pentagon Papers) was that there was no crime resulting from the disclosure of the classified documents.  The Court then upheld, in rather strong terms, the right, even the responsibility, of the press to publish such information.

Key to that decision was an absence of aiding and abetting, since though the exposure of the information was in good faith and brought to light some misdeeds of government, the publication of that material was not criminal, nor did it lead to a criminal act.  The person (Daniel Ellsberg) who violated his signed agreement not to disclose the information, committed the only criminal act.  The New York Times aided and abetted no one.  (See Freedom of the Press #9 – “Prior Restraint”.)

In the Court’s Order (ECF #1691) of January 11, 2017, Judge Brown states:

On this record, therefore, the Court concludes the government has sufficiently demonstrated that Hunt has aided and abetted the dissemination of materials covered by the Protective Order, and, therefore, the Court GRANTS in part the government’s Motion (#1680) to Enforce Protective Order as follows:

Using her judicial discretion (See Freedom of the Press #7 – “Judicial Discretion” and Tyranny), she has determined that there is no party that I aided, since that party is unnamed.  She has also made the dissemination of materials a criminal act, though I, similar to the New York Times, am not subject to the Protective Order.

Continue reading ‘Freedom of the Press #11 – Aiding, But Not Abetting’ »

Freedom of the Press #10 – Not Served, Again

Freedom of the Press #10
Not Served, Again

Gary Hunt,
Outpost of Freedom
February 27, 2017

As has been reported by Maxine Bernstein’s Tweets (my primary source for keeping track of the doings in the Portland Group 2 trial), I have finally been served with the Order to Show Cause (ECF No. 1901). I say “finally” since the first notice had come from Maxine. Next, I received a FedEx delivery.  However, that doesn’t satisfy initial service. So, On Wednesday, February 22, I received a call from my favorite FBI personality. SA Matthew Catalano. He is good natured, diligent in his duties, and appears to have not taken a side in this ongoing battle between Judge Anna J. Brown and the United States’ chief Shyster, Billy J. Williams, on the one side, and yours truly on the other. I had already made plans for Thursday, and he seemed quite busy with other matters, so we agreed to meet on Friday. When we met, he handed me some paperwork, specifically the Order to Show Cause.

Now, as required, he reported to Portland that it had been delivered (note, I didn’t say served), and the Certificate of Service was duly recorded in the Ammon Bundy, et al, trial docket, that afternoon. The text of that Certificate of Service reads as follows:

Pursuant to this Court’s February 16, 2017, Order (ECF No. 1900) the government certifies that on February 24, 2017, FBI Special Agent Matthew Catalano met with third party Gary Hunt and personally served Hunt with a copy of the Order to Show Cause (ECF No. 1901). Agent Catalano had previously sent the Order to Hunt by FedEx. Hunt acknowledged that he had already seen and read the Order. Hunt stated that the Order included a time for him to respond to the Order, which he understood to be for civil contempt. Agent Catalano showed Hunt that there was an option for Hunt to call and request a defense attorney, and Hunt acknowledged this. Although Hunt took the copy of the Order to Show Cause, he stated that he was refusing service of the Order.

Now, they did get it right when they stated that I had refused service, though they pointed out that I had taken the Order to Show Cause. I simply want to set the record straight with my notes, taken shortly after the meeting:

Continue reading ‘Freedom of the Press #10 – Not Served, Again’ »

Freedom of the Press #9 – “Prior Restraint”

Freedom of the Press #9
“Prior Restraint”

Gary Hunt

Outpost of Freedom
February 22, 2017  – George Washington’s Birthday

In the previous article, though suggested in the government’s Supplemental Memorandum in Support of Government’s Motion For an Order to Show Cause, of February 7, 2017, it really didn’t get to the heart of “Prior Restraint”.  So, let’s get to the heart of that matter.

Let’s start with the law that explains the potential severity of publication of certain information, in a case similar to what the government and Judge Anna J. Brown are attempting to construct against me.  Section 793 (e) of the Espionage Act was cited as the authority by which the government attempted to impose “Prior Restraint” on the New York Times for publishing what was known as the “Pentagon Papers”.  The Papers had been leaked to the press by a government employee who had signed a non-disclosure agreement (not just based upon a Protective Order), which precluded that employee from divulging any information protected by Section, 793 (e):

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.
… Shall be fined under this title or imprisoned not more than ten years, or both.

There, in a rather large nutshell, is the extent of the government’s authority to impose upon a party limitations in communicating certain information, and/or retaining and/or not delivering it to the government.  However, as we shall see, even that did not have the effect implied in the wording of the Act.

To understand the legal limitations of government’s authority, we need to look at New York Times Co. v. United States 403 U.S. 713 (1971).  The case taken up by the Supreme Court included a similar action brought against the Washington Post.  The cases were joined and the Supreme Court granted certiorari, in which the United States sought to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy.”  Prior to the Supreme Court decision, the District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia, and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden of proof.

The Second Circuit Court of Appeals overruled the District Court in the New York Times case, putting a stay on publication on June 25, 1971.  The Supreme Court then ordered that the stay be vacated.

Now, before we go on, this is not about the source that provided the information to the newspapers.  It is solely about the right of the press to publish what it had obtained, regardless of the source.  With that in mind, we must take the reader back to a statement in the Supplement Memorandum (linked above), which states:

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[sic] 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.

This demonstrates the similarity of the parties in New York Times Co. and the current situation.  In neither case is the source of the information sought, though there can be little doubt that in both cases, the government was investigating the source.

. Continue reading ‘Freedom of the Press #9 – “Prior Restraint”’ »

Freedom of the Press #8 – “Qualified Press Privilege”

Freedom of the Press #8
“Qualified Press Privilege”

Gary Hunt
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.

. Continue reading ‘Freedom of the Press #8 – “Qualified Press Privilege”’ »