Why not?
It seems, as with other parts of the Constitution, elected and appointment members of the executive branches in the Constitution State have but a passing familiarity with the First Amendment to the Constitution of the United States1.
Just so we’re all on the same level playing field, that first Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In New York Times Co. v. United States2, Justice Hugo Black wrote:
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.
The press today takes many forms: it takes the form of traditional newspapers like the Danbury News-Times and it takes the form of dedicated, intrepid bloggers like Alfonso Robinson who runs both the HatCity Blog and My Left Nutmeg.
Both of these media outlets3 regularly cover politics in the border city of Danbury, which has been run for a long time by @MayorMark. Mayor Mark Boughton, who has had one unsuccessful run for Lt. Gov and is eyeing a run for Governor of CT is a Republican who might find more kinship with Sherrif Joe Arpaio than most people in the State of CT. While he is delightfully banal and irreverent on Twitter, his policies in Danbury have wreaked havoc on the lives of individuals4.
Most recently, in June 2012, he was sued by his former secretary who alleged that she was discriminated against when she was fired by his office. A lawsuit ensued and depositions were taken.
In October 2013, the News-Times reported that they’d made several Freedom of Information requests for transcripts of the deposition5. In October, apparently a month after the newspaper made the request for the transcripts, the city was still claiming:
they need time to review the evidentiary nature of the documents before releasing them to the public.
“If it were up to me we’d release the documents tomorrow but the legal department needs to complete its review,” Boughton said Monday. “Once that review is completed I’m sure they will be released
“Evidentiary review”? The only reason documents aren’t disclosable under the FOI is to the extent they contain privileged information. You redact that privileged information and turn over the transcript. It’s rather simple. Boughton’s claim that they’re just waiting for “review” is belied by the fact that for the last month, they’ve been fighting release of these transcripts in Federal Court.
On November 6, 2013, Robinson got a copy of the transcripts and posted two brief posts with an excerpt of testimony in each post. As you can see, neither excerpt has any identifying information and is essentially about 10-15 lines of Q&A each.
That’s it. Just a brief quarter page excerpt with the teaser “more to come”.
That was apparently enough for Boughton to flex his muscle. Represented by the fancy Hartford law firm of Rose Kellor, Boughton fired off a cease and desist letter to Robinson demanding that he return the transcripts – while acknowledging the pending FOI request – and alleging that he was violating several laws by publishing the excerpts. In doing so, she cites to Seattle Times Co. v. Reinhart for the proposition that depositions aren’t public and thus transcripts of that deposition aren’t protected by the First Amendment.
My knowledge of First Amendment law is weak – maybe the good folks at Popehat have an opinion and this article has a round up of opinions and quotes from local attorneys – but it seems to me that she’s right in the sense that if you advise someone who has given a statement to the police not to speak to them, you’re right, but you’re also sort of missing the bigger picture.
The bigger picture, of course, is New York Times v. US, which is commonly understood to stand for the principle that once the press gets hold of sensitive or even classified documents, the government cannot prohibit the press from publishing those documents. Consider the Pentagon Papers: they weren’t obtained legally and certainly while the First Amendment case was pending, a grand jury was conducting a criminal investigation. Further, consider the disclosures and revelations of Edward Snowden. Do you think there was a clause in his contract that permitted him to copy the NSA databases? Of course not. While there may be talk of the criminality of Snowden’s actions, no one has seriously suggested that the Washington Post and the Guardian not be permitted to print the articles. That would clearly be unconstitutional6.
The press exists, as Justice Black wrote, to shine a light on the government and the secret business it conducts, because it’s a government for the people.
The public certainly has a fundamental right to know just what its elected officials are doing behind closed doors and what they’re saying in sworn depositions about their conduct behind closed doors and this has to be made freely available to all.
An important factor in Reinhart that the letter also fails to acknowledge is whether the confidential documents are available to the public through another source, say, I dunno, the Freedom of Information Act.
In a bit of perhaps unrealized self-mockery, the cease and desist letter insists in its closing paragraph that not only is this not to be construed as an infringement on Robinson’s First Amendment rights, but that the cease and desist is only until they can just prepare the documents properly pursuant to the FOI request, please7.
I don’t think that’s how the First Amendment works. In fact, it’s quite the opposite. It’s precisely that which the First Amendment is designed to protect against: prior restraint.
And while you may not know exactly what sort of discrimination is going on at City Hall in Danbury, at least now you know what sort of Constitutional violation is going on outside it.
H/T: Cool Justice.
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