United States District Court Judge John F. Walter, sitting in federal court in Los Angeles, has issued an extraordinary, dangerous, and illegitimate order to the Los Angeles Times directing it to remove factual information from a newspaper article discussing a federal criminal case. Judge Walter's order is lawless.

The case at hand is the federal prosecution of Glendale, California police detective John Saro Balian, who pleaded guilty last week to federal charges. His plea agreement should have been filed under seal, which would have rendered it unavailable to the public. Instead, through an error — perhaps by the prosecution or a court clerk — filed it normally, so it became publicly available on PACER, the federal courts' online docketing system and an indispensable tool for any legal journalist. The Los Angeles Times wrote a story based in part on that plea agreement. Balian's lawyer — who likely found out about this error when the Times called for a comment — filed an emergency motion asking the judge to forbid the Times from running a story discussing the contents of the plea agreement and to remove any such story to the extent it had already published it. The order is here. Note that Judge Walter simply signed the defense attorney's proposed order, which contains no legal analysis whatsoever.

The order includes the following language:

IT IS HEREBY ORDERED that the Los Angeles Times and each of its parent companies, subsidiaries, or affiliates (collectively "the Los Angeles Times") directly or indirectly, and whether alone or in concert with others, including any officer, agent, employee, and/or representative of the Los Angeles Times, be and hereby are ENJOINED from: Disclosing the under seal plea agreement in this case, in whole or in part, or publishing any article, piece, post, or other document whether in print or electronic format that quotes, describes, summarizes, references, relies on, or is derived in any way from the under seal plea agreement in this case and that it return forthwith any and all copies of such plea agreement in its possession to the United States Attorney's Office for the Central District of California.

The order also includes this crucial passage:

IT IS FURTHER ORDERED that defendant shall serve the Los Angeles Times with a copy of this order but not the Ex Parte Application forthwith. To the event any article is published prior to issuance of this order, it shall be deleted and removed forthwith.

Judge Walter also ordered the Times to appear in Court this Wednesday to argue whether the temporary order should be made into a permanent injunction.

In other words, based on an emergency request from the defendant, with no prior opportunity to be heard, a federal judge ordered a major newspaper (1) not to write about the details of a federal plea agreement it had obtained lawfully, (2) not to write anything that "relies on, or is derived in any way" from the plea agreement, an incredibly broad and vague term that is extraordinarily chilling to speech about the case, (3) to take down any story it's already published, and (4) told the paper they can see the order, but not the application stating the legal and factual grounds for the order.

I haven't seen the plea agreement and didn't see the L.A. Times article before they edited it to comply with the order. But it's rather obvious what happened — Balian almost certainly agreed to cooperate with the government. I don't need the plea agreement or the article to know that; I only need a minimal familiarity with federal criminal procedure. In a detailed criminal complaint that is public and available on PACER, the government accused Balian of lying to federal investigators about his ties to, and favors for, the Mexican Mafia and Armenian organized crime. After his arrest, Balian repeatedly waived his right to a timely indictment and eventually waived the right to indictment and entered a guilty plea to an information. An information like the one Balian pleaded to is a charging document issued by the U.S. Attorney's Office rather than the grand jury. You only plead to it if it charges a crime so minor that it doesn't require grand jury indictment or when you agree to plead up front before indictment. By pleading guilty to the information, Balian admitted to taking bribes and to tipping off someone to avoid arrest. These facts in the public record all suggest that it is very likely that Balian agreed to cooperate. Is it certain? No. But it's likely. No federal practitioner would be surprised.

So: if Balian asked the Court to muzzle the L.A. Times because the accidentally released plea agreement revealed he was cooperating, and Judge Walter agreed on that grounds, it's a preposterous justification. The plea agreement isn't necessary to show his cooperation; reasonable observers can infer it as a strong likelihood. The plea agreement may also have included factual details about what Balian admitted to doing — prosecutors typically get cooperators to agree to a detailed set of facts to "lock them in" to a story. But that's the government's concern, not Balian's.

But even if Balian's cooperation — or anything else in the plea agreement — were truly secret, Judge Walter's order would still be entirely without legitimate legal basis. The order is classic prior restraint — it prohibits publication of facts in advance, and (to the extent the Times already had the story up) prohibits continuing publication of facts. Prior restraint is genuine First Amendment red line — forbidden almost without exception, routinely prohibited and overturned, soundly rejected. American courts have repeatedly rejected efforts to de-publish documents that the media has obtained through inadvertence or mistake.

I said that prior restraint is prohibited almost without exception. Some of you will leap at that. Don't bother. Though the Supreme Court has not held that all prior restraints are automatically invalid, it has articulated limitations that, for practical purposes, are fatal to any effort to defend them. In the Pentagon Papers case, the Supreme Court said that there is a "heavy presumption" against the constitutional validity of a prior restraint. Other courts have overturned prior restraints on reporting about criminal proceedings and have noted that a prior restraint could only survive it it passes the strict scrutiny test – that is, it serves a compelling interest, it is narrowly drawn, and there are no less restrictive alternatives. To review more extensive discussions of prior restraint law, you can review the briefs from the Electronic Frontier Foundation's successful fight to overturn a prior restraint requiring a web site to de-publish lawfully acquired documents. There is no way that the order in this case meets that incredibly difficult standard.

This is not a close call. Judge Walter's order is not plausibly lawful. It is patently unconstitutional, and the sort of order that is only issued when a judge deliberately defies First Amendment law or is asleep at the switch. This is utterly unacceptable. The Los Angeles Times will be challenging the order, and I expect them to win, and look forward to all of the briefing — and the original article — becoming available.

At a minimum, this is a foolish move on Balian's part. It will necessarily draw many orders of magnitude more eyes to his plea agreement than would have otherwise seen it.

Last 5 posts by Ken White