Validity of Gag Order Against Blog, Newspapers Undecided
Panel Says Order, Assumed by Media Defendants to Be In Force, Actually Expired 14 Days in 2020
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals will not determine the constitutionality of a gag order imposed by a district court barring media defendants from further divulging the identity of a drug cartel kingpin who had been released from prison, whose identity had been contained in news reports, and who had sued over those reports, saying they caused him emotional distress.
Representing Borderland Beat—a blog that reported on matters relating to drug cartels—blog principal Roe I, and various newspapers, San Francisco attorney Joshua Koltun on March 31 told a three-judge Ninth Circuit panel at an oral argument session that his clients have been barred from conveying information about “a notorious drug lord” and have been “unable to report who it was that sued them.” He termed the prior restraint “kind of shocking,” and advised:
“It’s a very emotional principle for the media, I can tell you that.”
Dismissed As Moot
The case ended on Friday not with a bang but a whimper. The panel—Ninth Circuit Judges Sandra Ikuta and Ronald Gould and District Court Senior Judge James V. Selna of the Central District of California, sitting by designation—dismissing the appeal as moot, explaining that the Oct. 5, 2020 order is no longer in effect.
The judges wrote:
“Because we construe the Order as a temporary restraining order, the Order expired on October 19, 2020”
They cited Federal Rules of Civil Procedure, rule 65(b) which specifies that a temporary restraining order “expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension” and species that the reasons for any extension “must be entered in the record.”
The judges reasoned:
“The Order was a temporary restraining order because it was issued ex parte and ‘’specifically’ enjoined Roe and third parties from publishing Doe’s identity….It cannot be considered a preliminary injunction because the district court did not provide notice to the adverse parties or hold an adversary hearing….Because the district court never extended the temporary restraining order on the record, it expired within fourteen days….Thus, the expiration of the Order renders this appeal moot.”
Borderland Beat reported on June 23, 2020:
“Armando Valencia Cornelio, aka Maradona or Juanito, founder of the Millennium Cartel, was released after 17 years of confinement in Mexico and the United States and will now live on Marsh Road, in Atherton, California, the richest town in the U.S.
“On April 21, the capo left the Federal Medical Center in Lexington, Kentucky, after his sentence was reduced by 15% for having good behavior.
“He filed for an early release last year in the Federal Court of the Southern District of Florida, in Miami, but the request was denied.
“However, the drug trafficker who filed for a humanitarian release, and suffering from lymphatic cancer stipulated he would remain in the U.S. and live in his Atherton home.
“He was then granted release.”
Various publications contained similar reports.
‘John Doe’ Sues
On Sept. 30, 2020, Valencia, identifying himself as “John Doe,” brought suit in the U.S. District Court for the Northern District of California against Borderland Beat, Roe, a dozen Spanish language newspapers, Google, and Blogger.com. His claims included intentional infliction of emotional distress and negligent infliction of emotional distress.
U.S. Magistrate Judge Kandis A. Westmore on Oct. 5, 2020 proclaimed:
“IT IS HEREBY ORDERED that, after considering the records in this action including the Complaint, and the instant motion, it is hereby ordered that Plaintiffs motion for leave to proceed under a pseudonym is GRANTED. The Court orders that Plaintiff may proceed under a pseudonym, that Defendants are prohibited from disclosing Plaintiffs identity to any third party unless such disclosure is necessary to defend against this action (and if so, with a protective order), and any party that publicly files a document identifying Plaintiff shall redact all personal identifying information….”
Westmore issued the order without conducting a hearing.
Motion to Vacate
Koltun on May 24, 2021, filed a motion for an order vacating the gag order, arguing:
“[U]nder the circumstances, this Court’s order operates as an improper ‘gag order’ and an unconstitutional prior restraint. The Defendants, all of whom are news media who have been reporting on Doe, necessarily know Doe’s identity from the circumstances; that is not something that was revealed to them under a protective order. The Court’s order that the defendants not disclose Doe’s identity—or any ‘identifying information’ concerning Doe—necessarily severely restricts their ability to report on this litigation. That is a prior restraint on speech, against which the constitution imposes the heaviest of presumptions. Far from being able to meet that heavy presumption. Doe cannot even establish that he is entitled to the Order under the ordinary standard for issuance of any preliminary injunction.”
He contended that information that Doe “seeks to conceal became public through his own actions in filing that information in open court” in his motion for a compassionate release, filed in his true name.
Valencia responded to the motion by dismissing the complaint. District Court Judge James Donato, without holding a hearing, proclaimed to motion to vacate to be moot but ordered that papers that had been sealed remain sealed.
Donato on April 19, 2022, the denied a motion for reconsideration, declaring that Doe had dismissed his action and “[t]here is no good reason to revisit the motion to vacate.”
In his opening brief in the Ninth Circuit, Koltun pointed out that although Donato “ ‘terminated’ the motion to vacate the Order on the ground that it was ‘moot,’ he “also indicated that defendants remain restrained from publicly disclosing Doe’s identity.” The lawyer added:
“Since the Order continues to bind defendants, the motion to vacate that Order was not ‘moot.’ Even if this Court were to deem the Order to have been suspended, this Court should still determine that the District Court erred in issuing the Order in the first place, because such a violation of First Amendment rights is capable of repetition yet evading review.”
The panel on Friday did not comment on the permissibility of Westmore’s Oct. 5, 2020 order.
The case is Doe v. Roe I, 22-15757.
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