U.S. District Judge John F. Walter had issued the order Saturday after The Times published information on its website about a plea agreement between prosecutors and the former detective. The agreement had been sealed by the court but was placed in a court database of documents accessible to the public.
After The Times challenged the order, Walter held a hearing Tuesday in which he said he was initially unsure whether the newspaper had legally obtained access to the agreement but after conducting an investigation concluded the document was publicly posted as the result of a clerical error.
The sealed agreement was publicly available for more than 31 hours from Thursday afternoon to Friday night, the judge said.
The document contained new details about crimes committed by the former detective while he was serving on the force, including how he overheard some of his Glendale police colleagues discussing plans to raid a local gang tied to the Mexican Mafia and then called someone in the criminal organization to warn them.
The detective, John Saro Balian, pleaded guilty to one count each of soliciting a bribe, obstruction of justice and making false statements to federal investigators and agreed to cooperate with federal authorities.
The Times had been closely following the case as a matter of public interest because it involved a police officer who had allegedly tipped off gang leaders about impending raids and lied to cover up his crimes.
Walter said he had issued his extraordinary order over the weekend out of concern for the safety of the former detective and his family; an attorney for Balian said their safety would be jeopardized by the paper’s disclosure. The three days since his initial order, the judge said, should have given both the prosecutor and defense attorney enough time to take steps to protect Balian and his family from any potential harm.
“I’m concerned about somebody’s life. And if I err, I’m going to err on the side of protecting this defendant,” Walter said.
He added: “I’ve always been a strong proponent of the 1st Amendment and believe in public access to this courtroom.”
Walter said the paper was free to publish the information subject to his earlier order, but said he hoped The Times “will use some restraint … in light of potential consequences.”
Balian’s attorney, Craig Missakian, told the judge that he knew the law gives weight to the freedom of speech but said the risks to his client were grave enough to justify putting a restriction on the press.
“They took an irresponsible action in placing details of his plea agreement in public,” Missakian said at Tuesday’s hearing. “With no good reason, other than they had it and they wanted to do it.”
Kelli Sager, an attorney for The Times, said no matter how the information was obtained by the reporter, the law was abundantly clear that the press cannot be prevented from publishing it or ordered to delete information it had already made public. She said Balian’s attorney was misleading in his filing to the judge, implying The Times reporter may have illegally obtained the information when he knew it had been publicly available on the court’s website.
She pointed to the U.S. Supreme Court decision allowing the press to publish the Pentagon Papers, which was leaked to reporters and contained highly classified and sensitive information. Sager said the case showed the incredibly high bar for “prior restraint,” preventing the press from publication.
Courts have said such censorship should be permitted only in extraordinary cases, such as troop movements in wartime or information that would “set in motion a nuclear holocaust.”
The Times initially complied with Walter’s Saturday order, deleting paragraphs relating to the sealed information to avoid being held in contempt by the judge, but challenged it. After Walter lifted his order Tuesday, the original version of the article was restored on the paper’s website.
The newspaper also sought review Sunday night in the U.S. 9th Circuit Court of Appeals. Walter asked attorneys to immediately notify the higher court of his vacated order, stopping the appellate case.
On behalf of 59 media organizations, the Reporters Committee for Freedom of the Press filed a petition before the 9th Circuit late Monday proposing to file a friend-of-the-court brief in favor of The Times.
Those supporting The Times included the New York Times, the Washington Post, the Associated Press, the major network news broadcasters and other prominent media throughout the nation.
Constitutional scholars who have followed the case said it was rare for a judge to issue the kind of order that Walter handed down. They also said the news media cannot lawfully be ordered to excise information they have lawfully obtained and published except in exceptional circumstances.
The scholars pointed to a 1989 U.S. Supreme Court ruling finding that it was unconstitutional for a Florida weekly to be punished for publishing the name of a rape victim, which is barred under Florida law.
The woman had sued the paper and won damages, but the high court reversed the jury verdict and award because the newspaper truthfully published information released by the government.
Norman Pearlstine, executive editor of The Times, welcomed Walter’s decision to lift his order but reiterated the paper’s position that the initial order was an unlawful violation of the paper’s 1st Amendment rights.
“The district court recognized that we acted lawfully in downloading a publicly available plea agreement from the PACER electronic retrieval system,” he said in a statement Tuesday. “We continue to believe that it was unconstitutional for The Times to be ordered to take down portions of the article on the plea agreement that we already had published.”