First Amendment advocates cry foul after judge orders LA Times to delete portions of article

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A federal judge over the weekend issued an edict to the Los Angeles Times newspaper ordering the news outlet to delete portions of an article that were sourced to court records in the public domain.

The judge, John Walter, responded to a restraining order issued by a party in a criminal proceeding by ordering the newspaper to remove sections of an article detailing a plea agreement reached with a Glendale police officer in a corruption case.

The plea agreement reached with John Balian, 45, was ordered by the court to be sealed. It somehow made its way onto PACER, an electronic document repository for federal court records, where Times reporter Alene Tchekmedyian downloaded the document.

Balian was accused of lying to federal authorities about his links to organized crime groups and was said to have tipped off members of the Mexican Mafia about one impending gang sweep, the Times reported. The tipoff allowed one top member of the group to avoid apprehension, the paper said.

As part of his plea agreement, Balian agreed to cooperate with investigators in interviews and court proceedings, according to a version of the original Times article obtained by The Desk through online archival services. Prosecutors said they would recommend a reduced sentence in exchange for his cooperation, the Times said.

The Times initially reported that the plea agreement said Balian gave four interview with authorities where he gave misleading information in order to conceal his relationship with the Mexican Mafia and an Armenian organized crime group. The interviews were prompted by a series of investigations law enforcement authorities were conducting into several murders and other activities by the groups in question, the Times said.

In 2015, Balian reportedly overheard other Glendale police officers discussing an upcoming gang sweep on individuals loyal to the Mexican Mafia. He tipped off one member, named in the sealed document as Jorge Grey, which helped him avoid arrest, the Times said. He also reportedly accepted $2,000 to help locate someone who broke into an associate’s office and stole thousands of dollars worth of property, the agreement said.

After that information was published on Saturday, an attorney representing Balian sought an emergency restraining order against the Times. Walter granted the order later in the day without citing any legal justification.

“To the extent any article is published prior to issuance of this order, it shall be deleted and removed forthwith,” the order said. The Times did not delete the article entirely, but said it complied with the order by removing information sourced to the documents there were reportedly placed on PACER by accident.

The order extended only to the newspaper and media outlets operated by the Los Angeles Times and its parent company Tribune Publishing. It did not apply to other media outlets who may have obtained or seen the plea agreement, nor did it require operations outside of Tribune Publishing to withhold information found in the document. The Desk is publishing some of the information contained in the original Times article because the restraining order did not apply to journalists or news outlets unaffiliated with the Times.

The Times promptly filed a request to stay the judge’s order, the paper said, and lawyers for the newspaper believe they will ultimately prevail in the issue.

“Typically, courts take into account if information was already published,” Kelli Sager, an attorney representing the Times, said in an interview published by the paper. “Where it is no longer secret, the point of the restraining order is mooted…to order a publication to claw it back doesn’t even serve the interest that may be intended.”

Typically, once a record is in the public domain, it is fair game for news outlets and others who disseminate information in the public interest, regardless of whether or not the record was supposed to be kept a secret, argued Peter Scheer, the former executive director for the First Amendment Coalition.

“A news organization that wishes to write about the content has the right to do so under the 1st Amendment,” Sheer said, adding that it is typically a matter of editorial ethics and not legal requirement as to whether or not a reporter publishes information on material that is supposed to be secret.

Scheer told the Times that the judge may lack jurisdiction to order the Times to remove anything from the website because the media outlet is not a party to the case.

In a statement e-mailed to CNN, a Times spokesperson said they stood by the paper’s decision to initially publish the information in the article.

“We believe that once material is in the public record, it is proper and appropriate to publish it if it is newsworthy,” Norman Pearlstine, the executive editor of the Times, told the news outlet.

Cached versions of the initial Times article have been located and republished online since news of the judge’s order broke over the weekend. Peter Sterne, a senior reporter with the Freedom of the Press Foundation, used the website DiffChecker to show a side-by-side comparison of the information that was published on the original article and then deleted once the judge’s order was handed down. Others have used websites like the Internet Archive to obtain and distribute copies of the original story.

The Times has been ordered to appear in court on Wednesday to argue why it believes it should not be restrained from publishing the information in the plea agreement. The Times’ opposition to the judge’s ruling was ordered to be placed under seal.