Posts tagged ‘Honor’

Liberty or Laws – Justice or Despotism

Liberty or Laws?

Justice or Despotism?

Gary Hunt
Outpost of Freedom
July 10, 2017

When the colonies severed their allegiance to England, in 1776, through the adoption of the Constitution in 1789, they had to have some form of law upon which to deal with matters, both criminal and civil.  To do so, they adopted the Common Law of England, as it existed on July 4, 1776.  This, then, became the foundation of laws upon which both the federal government and state governments began the process of developing their judicial systems.

What is important to understand is that the laws that they adopted were concerned with Justice.  For example, though Webster’s 1828 dictionary has no definition of “judicial”, an adjective, it does have one for that body that is responsible for that function of government, the Judiciary:

JUDI’CIARY, n.  That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government.  An independent judiciary is the firmest bulwark of freedom.

Through our history, there have been legal scholars who stand well above the current lot, in that their concern for justice was paramount in their considerations, and the subject of much of their scholarly writings.

Perhaps the best known of these legal scholars was Sir William Blackstone (1723-1780), and his seminal “Blackstone’s Commentaries.  From Book 1 of those Commentaries, we find some familiar phraseology:

“[A] subordinate right of every Englishman is that of applying to the courts of justice for redress of injuriesSince the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein.”

“And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property.”

Of course, personal security is best defined as “life”, as without it, we have nothing.  And, Blackstone used the common term, “property”, as did most of the declarations of independence that predate Jefferson’s more poetic version.

What else did Sir Blackstone tells us about justice that was of extreme importance then, and should be equally so, now.  When he discusses Felony Guilt, he states his understanding and then refers to another scholar, Sir Matthew Hale (1609-1676), from Book 4:

“Presumptive Evidence of Felony.  All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.  Sir Matthew Hale lays down two rules: (1) Never to convict a man for stealing the goods of a person unknown, merely because he will not account how he came by them; unless an actual felony be proved of such goods.  (2) Never to convict any person of murder or manslaughter, till at least the body be found dead.”

This subject can easily be set aside by the government simply stating that “times have changed”, since Blackstone wrote the Commentaries in the 1760s.  However, that discounts the fact that justice cannot change, only the misapplication of justice can change.  That latter is quite simply defined as injustice.

The Constitution provided two means by which the constitutionality of a law could be challenged.  The first, found in Article I, § 9, clause 2:

. Continue reading ‘Liberty or Laws – Justice or Despotism’ »

The Cause – What To Do?

The Cause – What To Do?

Gary Hunt
Outpost of Freedom
June 12, 2017

I have been writing about the Bundy Affair since April 12, 2014 and the Burns Chronicles since February 2, 2016.  Both evolved out of a common grievance, Public Lands, and the rights that are inherent in them.  There are other commonalities, such as some of the players involved in both events and the fact that both had left behind the concept of Civil Disobedience and had entered the realm of Civil Defiance.  Those players, unlike most other patriots, had moved along “The Other (not so) Thin Line” to a point where their actions were intended to speak louder than their words.

The first event, in Nevada, the Bundy Affair, was an evolution from an event back in 1993 when Cliven Bundy, supported by hundreds of patriots who went to his ranch to side with him, defied the federal government and first stood for his right to continue both grazing and water permits necessary to continue his ranching business.  Cliven Bundy’s right to his historical use of the public lands culminated on April 12, 2014, or so we thought, in the “Unrustling” of the cattle that had been rustled by agents of the Bureau of Land Management (BLM).

In 2015, in Oregon, Dwight and Steven Hammond had been “resentenced” for a “crime”, though they had already served their time.  Their “crime” was the use of controlled burn and backfire to do what ranchers and the BLM have done for over a century.  The first is to destroy unwanted vegetation, the second, to control an existing fire in order to protect property.

This was not the beginning of their ordeal with the Fish and Wildlife Service (FWS).  Their ordeal began almost a decade before Cliven Bundy’s first confrontation with an out of control federal government.  The FWS had been trying to restrict the Hammond’s ranching by cutting of water supply, fencing public corridors, and requiring annual licensing for what were perpetual rights to Public Land Usage.  “The Harassment of the Hammonds” dates back to October 1986.

For all intents, the Hammonds were tried, sentenced, served their time, and left prison as free men.  The government waited until all of this was done before filing an appeal to the Appellate Court, contending that they should have been sentenced according to the Sentencing Guidelines.  Funny, the word guidelines isn’t mandatory, simply a guide.  But, more on that in a future article.

The resentencing of the Hammonds raised the indignation of some of those players from the Bundy Affair, and others who had, possibly a result of what they witnessed in April 2014, moved further along that “Thin Line”.  Unable to convince the Hammonds that they should not turn themselves in for the additional 4+ years they would now have to serve, the objective changed to the FWS, the aggressors against the Hammonds.

There had been a planned demonstration in support of the Hammonds scheduled for January 2, 2016, just two days before they were to turn themselves over to the US Marshal Service to begin their second punishment for the first crime.  This demonstration, like many others, was Civil Disobedience.  However, behind the scenes, a plan of Civil Defiance had been hatched.  It was left to those who either went to Burns, Oregon, before or after the January 2 event to decide just how far along that “Thin Line” they had moved.  Unfortunately, many who claim that they are “fed up with the Feds” are not fully committed to action.  Instead, they chose to act big and criticize what was acted out by those who were more committed and chose to occupy the Malheur National Wildlife Refuge (MNWR), an FWS facility about thirty miles south of Burns, and the adversary of the Hammonds rights for three decades.

For nearly a month, the Civil Defiance brought attention to the country, and the world, that the historical rights of Public Land usage were being trampled upon by the government.  The government, possibly absent any legal standing to deal with the occupation of the MNWR, chose to ambush a two vehicle, eight-person convoy going to a public event in John Day, Grant County, north of Burns.

Lying to the Oregon State Police (OSP), the FBI claimed that they were making a “felony stop” (legally, to stop the completion of a felony) and/or to serve an arrest warrant.  The warrant, however, was not issued until after seven were arrested and one murdered, while in transit to the event in John Day.

. Continue reading ‘The Cause – What To Do?’ »

Memorial Day 2017

Memorial Day 2017

Gary Hunt
Outpost of Freedom
May 29, 2017 (Memorial Day)

 

Memorial Day began as a day of honoring and remembering those soldiers that died in the Civil War.  It was practiced beginning in the South in 1866 and the North in 1868.  It was a day in which the graves of those soldiers were decorated with flowers, in honor of their sacrifice, and was called Decoration Day.

Recognition as Memorial Day began as early as 1872, though it wasn’t commonly used until after World War II.  In 1967, it was officially changed to Memorial Day by the government.

It now honors all dead American Soldiers, Sailors, Marines, and Airmen, who died in service to their country, including those who fought for the South.

So, what is a holiday; what does it mean?  Well, we can look at the Ten Commandments and get an idea of just what led our Judeo-Christian values to recognize a special day.  The Fourth Commandment says, “Thou shalt keep the Sabbath Day holy.”  That means that the designated day is above all other consideration, on the day so designated.

Whether you hold Saturday or Sunday as the Sabbath is a choice that each of us makes.  However, we commonly recognize the last Monday in May to be Memorial Day, and on that day we recognize of the sacrifice of those soldiers; it is to be held above all other considerations.

There is little doubt that those in power have moved our country away from the Constitution that created that government.  They have moved the government away from the very reason for those who served, and those who gave their lives for what was intended — and what we fought for.

There are two soldiers that I have particular memories of.  First is William “Billy” Prescott.  We went through nearly our entire schooling together.  Bill was quiet and intelligent, and perhaps the least likely to consider to be a soldier.  I found out about Billy’s death, Killed in Action, on my first and only visit to the Wall in Washington, D. C. One-hundred and twenty-six of us, the “Prodigy Vets”, went to see the Wall, most for the first time, in 1992.  Walking down, along the wall, to the apex, then back up the other side, was probably the most emotional event in my life.  The magnitude of waste of those lives was beyond my comprehension.  Considering that the Vietnam War was nothing that we should have been involved in, rather a consequence of our government gone astray from the principles upon which this country was founded.  However, we were naive, and simply did our Country’s bidding.

. Continue reading ‘Memorial Day 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?’ »

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”’ »