This is a follow-up to my previous post about a Second Circuit opinion that was issued a few days ago, then withdrawn, and then the next day re-released with some redactions. Uber-blogger Howard Bashman got a copy of the original opinion and posted it, even though the Clerk of the Second Circuit asked him to take it down. (I originally thought he did take it down only to later put it back up, but I seem to be wrong on that; my earlier unsuccessful attempt to load the opinion from his site may have been due to server issues or a malfunction on my end.)
There’s been plenty of coverage of this little matter. See Howard here and Wait A Second! here and the Co-Op here and the Legal Blog Watch here and the BLT here and the LawBeat here and Patterico here and some solid coverage of the opinion itself at Psychsound here. I think I found all those links via Howard, which shows how much I count on his blog, even though I’m a tad critical of him this time.
I understand Bashman’s reasons for not taking down the opinion. First, he says, “No one from the Second Circuit has attempted to explain to me the so-called security concerns” behind withdrawing the opinion, and Howard analyzes the opinion and finds any such concerns unavailing in any event. Second, to quote Patterico’s analogy, the genie was already out of the bottle anyway, and it wouldn’t do any good for Bashman to pretend it wasn’t. I have a couple of responses.
First, the apparent reason for the Second Circuit’s withdrawal was that sealed material made its way into the publicly-released opinion. Patterico suggests that the material was sealed — and omitted from the re-released opinion — to save the government from embarrassment. (The case dealt with an FBI agent’s coerced confession.) Likewise, Howard doesn’t see any “security concerns” in the mistakenly-unredacted material. But is that their call? The material was sealed for some reason — maybe in the district court, and maybe by mutual consent of the parties. Even if it shouldn’t have been under seal, I think attorneys have a responsibility to respect a court order sealing portions of the record.
Second, sure the genie was already out, but did Howard need to keep rubbing the bottle? As Bashman noted, and I readily concede, the Second Circuit wasn’t in any position to retrieve all the copies of the opinion that were already out there. And yes, that had damaged, probably “irreparably,” whatever security concerns existed. But by leaving the opinion up after the Clerk expressed those concerns to Howard, he essentially said he wasn’t going to take the court’s word for it and take whatever admittedly minimal steps he could to minimize the damage. If hundreds or even thousands of people read the opinion before all this blew up, I’m sure many times more read the unredacted opinion afterwards, and Howard could have done a great deal to reduce that number.
I understand that all this is complicated by Howard’s role as a journalist, discussed in more detail at some of those links above. I don’t dispute that characterization, and I would assume that under Bartnicki v. Vopper, he has a First Amendment right to post the unredacted opinion. But even journalists who are not also lawyers should respect some limits. I’m sure that in the five-plus years Bashman has been running his blog, he’s had occasion to become privy to other court secrets. Has no judge’s law clerk out there ever slipped him advance notice of the outcome of a case before it was released? I’m certain Howard wouldn’t publish something like that.
Let’s even leave aside any concerns about the reliability of a tip like that, and assume a situation where Howard gets an insider tip and absolutely trusts that his source is correct. If he wouldn’t publish that (and I feel confident saying he wouldn’t), why is that categorically different than this situation? I’m willing to be persuaded, but I haven’t been yet. Is it enough that the opinion was publicly available for even a brief time? What if the mistakenly-unredacted material was something like a party’s social security number, or the full name of a sexual abuse victim who should have been referred to by initials? Is it still up to Howard to decide, on his own, that the “security concerns” present in those cases are sufficient for him to respect the court’s seal? Like I said, I’m willing to be convinced that this case is different (for some reason other than the fact that it’s the government getting embarrassed here). But I haven’t yet heard any articulation of why this case is so different from some other one where the lawyer/journalist would respect the court’s order sealing material in the record.
UPDATE: Howard collects some more coverage here, and see also AL&P here and here and Patterico’s updated post, complete with Instapundit link.