I previously discussed this issue here and here, so start there to get caught up. PG and I also had a little back-and-forth in the comments.
The latest is that Howard Bashman has provided a lengthy and detailed account of the incident in his latest law.com column. Basically, he had two reasons for his position that he should leave the withdrawn Second Circuit opinion his post. First, essentially, the genie was out of the bottle, and that’s true. As I argued, though, this didn’t mean that Howard had to be the one rubbing the lamp.
Second, to quote Howard, “I decided to read closely through the Higazy decision to see whether anything in the decision seemed so inflammatory that I should join the 2nd Circuit in taking the decision off-line. However, I did not find anything that resembled an important government secret or information that would prove harmful to anyone.”
Again, I’m willing to concede that may be true as well. And I really do believe that Bashman the Journalist probably has every right to post the opinion, regardless of the Second Circuit’s order sealing portions of the record that ended up in the opinion. I’m just still not convinced that Bashman the Lawyer is free to second-guess the court’s order and post the opinion if he disagrees with its redactions.
So I guess we’ll agree to disagree. And even that may be too strong, as I’m not completely sure Bashman is in the wrong here. I just think it’s a closer call than Howard’s many supporters do, is all.