FAN 199.4 (First Amendment News) Volokh on “Super-Secret Prior Restraints”

Over at The Volokh Conspiracy (on Reason.com) blog, Professor Eugene Volokh has some quite thoughtful observations on a most unusual case.  The controversy arose in connection with an extortion case and a court-0rdered sealed emergency speech-restrictive injunction, a matter about which Volokh wrote about earlier.

Since then, the judge in the state district court of Garfield County, Oklahoma, issued a permenant injunction.

Here is how Porfessor Volokh summed up his take on the matter as of that point in time:

Professor Eugene Volokh

“This seems to me an interesting test case for many recurring questions about the First Amendment and injunctions:

  • “Should courts be able to order people not to reveal certain information because they acquired it unlawfully, because revealing it would be a breach of a duty of confidentiality, or because it is allegedly false?
  • Should it matter that the person’s motives for threatening to reveal the information seem to be extortionate—and, if so, should the court try to enjoin just the extortion, or also enjoin the revelation of the information, period?
  • Should the victims of this apparent attempted extortion be only able to proceed by calling on criminal prosecutors, or should courts be able to supplement this criminal process with fast-moving emergency injunctions? (Acosta was never prosecuted; PSSI’s counsel tells me that this is because law enforcement couldn’t locate him, and he wasn’t heard of again after being served on April 27.)
  • Was the injunction correct in barring Acosta “from contacting any governmental agency or media outlet regarding his allegations”? Or should any duty of confidentiality in such a case be rejected as against public policy, when it bars people from alerting the U.S. Department of Agriculture (or similar agencies) to possible health risks—however ill-intentioned the people were when they gathered the information, and however spurious those allegations may (or may not) prove to be when the government does investigate them?”

“These are all interesting questions, I think, and ones much worth debating. It’s certainly possible (though I think not obvious) that the right answer to those questions is that PSSI should have prevailed under all of them.”

The conceptual plot thickens

“But the problem is that it was impossible for anyone to debate them, because all the documents in the case (though, thankfully, not the docket) were sealed. I think this sealing violated the common-law and First Amendment rights of access to court records; those rights aren’t absolute, but they are quite strong, especially when sealing of entire documents (including court orders) is involved. (See this post about a different case for more on that body of law.) Moreover, as I argued in this post from two months ago, an Oklahoma statute expressly requires that any sealing order itself be public, and expressly explains why the case was sealed; in this instance, this statute wasn’t followed. (The statute was enacted in 2014, and might thus not have been on the judge’s radar.)”

Sealed Orders Unsealed 

“Fortunately, after I moved in June of this year to unseal the sealing orders—a first step towards unsealing the rest of the case—the judge promptly did so (without objection by PSSI). And as I was preparing a motion to unseal the rest of the case, the judge, to his credit, himself issued an order to show cause why the case shouldn’t be unsealed. PSSI responded that it didn’t object to the unsealing at this point, “because Defendant’s allegations regarding the presence of bacteria on equipment at the Enid Plant have been definitively proven to be false and the emergent concerns associated with the disclosure of the allegations have since subsided.” The case was indeed unsealed several days ago.”

Some New Questions

“So, to the questions I ask above, I should also add:

  • Should such disputes be litigated under seal—on the theory that this is the only way to effectively prevent the harm caused by defendant’s apparently tortious conduct—or should they be litigated in open court, on the theory that it is important for the public to be able to “monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system”?
  • Indeed, might such monitoring be especially important precisely when the courts are issuing orders restricting people from speaking—including through allegations (whether or not the courts view them as well-founded) of serious risks to public health?”

To read the full blog post, replete with all the incredible factual background, go here.

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