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LA judge greenlights dangerous prior restraint in LAPD photo controversy

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  1. Prior Restraint
The case concerns police records that the city of LA itself (inadvertently) provided to journalist Ben Camacho.
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In a concerning ruling this month, a California Superior Court judge allowed the city of Los Angeles to move forward with a lawsuit seeking to claw back police personnel records that the city itself (inadvertently) provided to local journalist Ben Camacho. The ruling gives a judicial stamp of approval to a classic prior restraint — a precedent that, the Reporters Committee and 21 news organizations had warned in a friend-of-the-court brief, “will undermine the news media’s ability to freely disseminate lawfully obtained information to the public.”

The U.S. Supreme Court has repeatedly condemned prior restraints — orders or regulations that “shut[] off communication before it takes place” — in the strongest terms, calling them “the essence of censorship” and “the most serious and the least tolerable infringement on First Amendment rights.” (Famously, for instance, the Court refused to bar the publication of the Pentagon Papers, a leaked, classified history of the Vietnam War, over the federal government’s objection that the disclosure could harm national security.) And in cases that involve, as Camacho’s does, information accidentally disclosed by the government itself, the Court has likewise made clear that news organizations can’t be punished for publishing information that comes into their hands lawfully “absent a need to further a state interest of the highest order.” The justices have yet to meet a fact pattern that would satisfy that exceptionally stringent test.

In Camacho’s case, the records at issue came his way as part of a settlement agreement in a public records lawsuit in which he sought a list of active-duty Los Angeles Police Department officers, along with their department headshots. The city turned over a flash drive with that information — but failed to withhold the information of officers that the city claims perform undercover work. By the time the city launched an effort to reclaim the data, Camacho had already shared it with others, including a local advocacy group, the Stop LAPD Spying Coalition, that had posted it online.

In a first round of the legal battle, the Superior Court judge initially assigned to the case denied the city’s request for a temporary restraining order requiring the flash drive’s return, finding both that the city failed to provide “admissible evidence” that the drive contained undercover officers’ information in the first place and that the city had offered no clear account of what it meant by “undercover officers.” But when it came time to rule on Camacho and the coalition’s motions to dismiss the city’s lawsuit under California’s anti-SLAPP law — a statute designed to quash lawsuits that aim to chill speech — a new judge had taken charge of the case.

In a short ruling, Judge Anthony Mohr found that the city was likely to prevail on its claims against Camacho, which the court saw as a simple contract suit — an effort to enforce the limits of the settlement agreement. To the argument that the information in question was already irretrievably public, the court ruled that “remedies that limit or impede disclosure are worth pursuing” regardless because of “the dangers attendant to publicizing undercover officers.”

The decision likewise allowed the city to move forward with its suit seeking to have the coalition take down its online database — even though the judge recognized that the relief sought was a prior restraint. Despite the fuzzy boundaries around the city’s definition of “undercover officers,” Judge Mohr found that “the government interest in preserving that anonymity justifies withholding information for public distribution (or in this case, limiting or preventing further distribution).”

We couldn’t disagree more, as our friend-of-the-court brief argued. Censoring Camacho or the coalition won’t change the fact that the city’s information will remain available on the internet — and in the months that the coalition’s database has been online, the city has struggled to surface any evidence of real harm. If the national security interests at stake in the Pentagon Papers didn’t justify a prior restraint, it’s hard to credit the claim that these facts do.

This isn’t the end of the road for this lawsuit; given the stark danger the court’s order poses to press freedom, an appeal seems likely. And we’ll be following this matter closely as it proceeds.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.

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