U.S. District Judge John Walter’s order Saturday that the Los Angeles Times alter a published news story is an egregious attack on well-established principles of American liberty. It is also a futile gesture in an era in which information, once in the public realm, simply cannot be called back, even if the news article that first carried it is ostensibly suppressed.
It is the court itself that first published the information in question: a plea agreement between prosecutors and Glendale Police Det. John Saro Balian, who pleaded guilty to obstruction of justice and making false statements to federal investigators about his links to organized crime.
Although the plea document was filed under seal — meaning that it was supposed to remain secret — the court inadvertently made it public by posting it on an online system called PACER, an acronym for Public Access to Court Electronic Records.
That’s where a Times reporter found it — in plain sight, in the public realm — as duly noted in a story posted online Saturday morning.
That should have been the end of it. The court erred and published a document it meant to suppress and then tried to fix its mistake by removing it from its website. It can do that.
You don’t lock the barn door after the horses have escaped. You can’t put the cat back in the bag.
But it can’t control who saw it during the time it was public, and under a long line of court rulings outlining press freedoms and public protections under the 1st Amendment, it can’t now grab it back from anyone who saw it and later described it verbally, in print or online — including The Times — after the fact. Judicial orders to de-publish material are at least as threatening to freedom of speech and press as pre-publication censorship of the type that the federal government attempted unsuccessfully in the landmark Pentagon Papers case in 1971. Court orders, like this one, to actually alter a story are exceedingly rare.
In the end, they are also useless. In the wake of Judge Walter’s order, legal commentators had a good time trotting out every tired yet on-point cliché about trying to undo something already done: You can’t unring the bell. You don’t lock the barn door after the horses have escaped. You can’t put the cat back in the bag.
And in the era of social media and online communication, you can’t make an already published news story disappear. Although The Times complied with Walter’s order, the substance of the story and the content of the plea agreement were noted and republished by others and are available. The court cannot and should not now try to track down every blogger or citizen journalist who got the information from the public site and order them to unring their bells.
It’s as if a 20th century judge had ordered The Times to pick up its printed newspaper from every driveway in which it had landed. As a practical matter, it’s too late for that. And as a matter of liberty — the freedom from shocking restraints on the flow of information — it’s dangerous.