UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
|
Three Angels Broadcasting Network, Inc.,
an Illinois non-profit corporation, and
Danny Lee Shelton, individually,
Plaintiffs,
v.
Gailon Arthur Joy and Robert Pickle,
Defendants.
|
|
Case No.: 07-40098-FDS
|
PLAINTIFFS' RESPONSIVE MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR PERMANENT IMPOUNDMENT
INTRODUCTION
Plaintiffs' initial memorandum in support of impoundment set
forth Defendants' pattern and practice of using every possible
medium, including court documents, to impugn, directly through
defamatory statements and indirectly through innuendo and speculative
commentary, Plaintiffs' reputations and conduct. Plaintiffs have
thereby already provided this Court with ample justification
to impound documents in this case. In response, Defendants have
failed to raise any countervailing public interests that would
significantly weigh against impoundment or cite to any meaningful
authority to support their position. Instead, Defendants have
attempted to mislead this Court by misciting case authority.
Because impoundment is an appropriate mechanism by which this
Court can prevent Defendants from utilizing the Court's files
to further their campaign to defame Plaintiffs, but also recognizing
that impoundment of the entirety of every submission in this
case would be overbroad, Plaintiffs respectfully request that
this Court
[page 2]
issue the attached Order Governing Impoundment of
Pleadings, which contains a method for Plaintiffs to move for
impoundment on a document-by-document basis as to only those
documents or portions thereof that contain disparaging statements
or highly sensitive information that could be used by the Defendants
to disparage Plaintiffs. See Attachment 1, proposed Order Governing
Impoundment of Pleadings.
ARGUMENT
| I. |
This Court Should Exercise its Supervisory Power Over its Files and Records
to Prevent Defendants from Using them as a Reservoir for Libelous Statements. |
| |
A. |
The common law right of access to court files is not absolute and requires a
balancing of the right of the public to know with the private interests at stake. |
"Although the Supreme Court has not established whether the constitutional
right of access attaches to civil cases in general, the common
law right of access extends to judicial records in civil proceedings."
In re Providence Journal Company, 293 F.3d 1, 13 n. 5 (1st Cir.
2002). "Under the common law, there has been a long-standing
presumption of public access to judicial records." In re Gitto
Global Corp., 422 F.3d 1, 6 (1st Cir. 2005) (citing Nixon v.
Warner Communications, Inc., 435 U.S. 589, 597 (1978)). "This
presumption of access 'helps safeguard the integrity, quality,
and respect in our judicial system, and permits the public to
keep a watchful eye on the workings of public agencies.' " Id.
(quoting In re Orion Pictures Corp., 21 F.3d 24, 26 (2d Cir.
1994) (internal quotation marks and citation marks omitted)).
"[R]elevant documents which are submitted to, and accepted by,
a court of competent jurisdiction in the course of adjudicatory
proceedings, become documents to which the presumption of public
access applies." FTC v. Standard Financial Management, 830 F.2d
404, 410 (1st Cir. 1987).
This right of public access, however, is not absolute. See Gitto,
422 F.3d at 6. "Every court has supervisory power over its own
records and files, and access has been denied where
[page 3]
court files might have become a vehicle for improper purposes.
For example, the common-law right of inspection has bowed before
the power of a court to insure that its records are not 'used
to gratify private spite or promote public scandal[,]' " Nixon,
435 U.S. at 598 (quoting In re Caswell, 18 R.I. 835, 836 (1893)),
or to prevent their files from becoming "reservoirs of libelous
statements for press consumption." Id. (citations omitted).
"When faced with a claim that cause sufficiently cogent to block
access has arisen, it falls to the courts to weigh the presumptively
paramount right of the public to know against the competing private
interests at stake. This balance must be struck, of course, 'in
light of the relevant facts and circumstances of the particular
case.' " Id. (quoting Nixon, 435 U.S. at 599). See also In re
Providence Journal Company, 293 F.3d at 10. The First Circuit
has recognized that "privacy rights of participants and third
parties' are among those interests which, in appropriate cases,
can limit the presumptive right of access to judicial records."
Id. at 411 (citations omitted).
The majority of cases in the First Circuit that have applied
this balancing test have involved petitions by the press to gain
access in criminal, rather than civil cases. See, e.g., In re
Boston Herald, Inc. v. Connolly, 321 F.3d 174 (1st Cir. 2003);
In re Providence Journal Company, 293 F.3d 1, 5, and 13 n. 5
(1st Cir. 2002); United States v. Sampson, 297 F.Supp.2d 342
(D. Mass. 2003). Nevertheless, two First Circuit cases have addressed
impoundment in the civil context, In re Gitto Global Corp., 422
F.3d 1 (1st Cir. 2002) and FTC v. Standard Financial Management,
830 F.2d 404 (1st Cir. 1987).
In re Gitto Global Corp., 422 F.3d 1 (1st Cir. 2002) involved
interpretation of the definition of "scandalous or defamatory"
within the meaning of the Bankruptcy Code. By statute, Bankruptcy
filings are public records unless the filings constitute trade
secrets or other
[page 4]
confidential material and scandalous or defamatory material.
See 11 U.S.C. s. 107(b)(1)-(2). In reaching its decision, the
First Circuit noted that 11 U.S.C. s. 107 displaces entirely
the traditional common law analysis regarding public disclosure.
See id. at 9. Therefore, the Gitto opinion is largely inapposite
to this case. Nevertheless, at the very least, the statute itself
which exempts from public disclosure material that is scandalous
or defamatory reinforces the importance of court files not becoming
reservoirs for defamatory material about the litigants in a case.
In the latter case, FTC v. Standard Financial Management, the
court held that the press was entitled to access sworn personal
financial statements of the two principals of a closely-held
corporation, statements on which the Federal Trade Commission
(FTC) relied in agreeing to a settlement that would fall far
short of what would be needed to make the affected consumers
whole. Id., 830 F.2d at 406. In finding that the public should
have access to the personal financial statements, the court rejected
the appellants' privacy argument, finding instead that the appellants
waived privacy by choosing to submit the documents to the FTC
as part of the settlement process and further, that releasing
the documents had worked to their advantage in persuading the
FTC to agree to a desirable settlement. The appellants were not
then entitled to argue that "some general notion of fairness
requires the settlement to be made public but the documents to
be locked away." Id. at 412. In affirming the district court's
decision to unseal the documents, the First Circuit noted that
the record was void of any factual demonstration of a single
particularized tangible harm that might befall the appellants
from disclosure of the documents. See id. ("We continue to believe
that '[a] finding of good cause [to impound documents] must be
based on a particular factual demonstration of potential harm,
not on conclusory statements.")
[page 5]
| |
B. |
The private interests at stake in this case establish good
cause to tilt the balance overwhelmingly in favor of impoundment. |
Unlike the appellants in Standard Financial Management,
Plaintiffs 3ABN and Danny Shelton have never chosen to waive
their privacy interests. This case centers on a malicious campaign
of defamation orchestrated and perpetrated by Defendants Joy
and Pickle. In order to obtain relief, Plaintiffs have been forced
to repeat in their Complaint the offensive and scurrilous statements
that Defendants Joy and Pickle have made about them, and those
statements, as well as countless other misrepresentations of
fact concerning Plaintiffs 3ABN and Danny Shelton which have
been published on the internet will undoubtedly be contained
in other pleadings in this matter, in witness affidavits, and
perhaps even by necessity in the rulings of the Court. Without
impounding these documents, this Court's judicial record will
become an unwitting tool that Defendants will use to spread their
lies.
Plaintiffs do not seek impoundment lightly or request it as a
means of hiding this dispute, or the facts which underlie it,
from the public. Plaintiffs only ask this Court to authorize
impoundment as a means of preventing further irreparable injury
to Plaintiffs through the publication of pleadings and court
submissions containing further defamatory statements by Defendants.
The Affidavits of Mollie Steenson and Larry Ewing demonstrate
the tangible harm that has befallen and will continue to befall
Plaintiffs should Defendants be empowered to utilize this litigation
as a vehicle for continued defamation of Plaintiffs. See Attachment
2, Affidavit of Mollie Steenson
("Steenson Aff."), and Attachment
3, Affidavit of Larry Ewing ("Ewing Aff.").
These Affidavits as well as the attachments to Plaintiffs initial memorandum in
support of impoundment, which demonstrate Defendants' various
methods of defamation, establish good cause weighing in favor
of impoundment in this case.
[page 6]
According to Mollie Steenson, General Manager of 3ABN, donors
to the ministry have stopped or withdrawn financial support of
3ABN specifically because of the defamatory comments posted by
Defendants on their internet site, www.save3ABN.com, and other
Adventist outlets. See
Steenson Aff.
at ¶¶ 5—8. In fact, donations
to 3ABN decreased dramatically in direct correlation to the commencement
and continuation of Defendants' defamatory conduct, dropping
by almost 20% since July 2006. See
Steenson Aff.
at ¶ 4; Ewing
Aff. at ¶¶ 5-9. But the financial losses suffered as a result
of Defendants' activities pale in comparison to the immeasurable
loss of reputation 3ABN has unjustifiably incurred at Defendants'
hands.
As a direct result of Defendants' conduct, 3ABN has experienced
a substantial loss of goodwill within the Adventist faith community.
3ABN has received numerous communications from previous viewers
and supporters notifying the ministry that, based entirely on
the defamatory rumors and innuendo being spread by Defendants
on save3abn and other internet sites, those supporters have been
led to believe that 3ABN is no longer a reputable institution
and that Danny Shelton should be removed from his position at
3ABN. See
Steenson Aff.
at ¶ 5. Defendants have made sure
that their defamatory statements were not only spread to the
community of internet-savvy Adventists, but were publicized to
all Adventists by mailing postcards to every Seventh-Day Adventist
Church in the United States, encouraging church members to visit
the save3ABN.com website. See
Steenson Aff.
at ¶¶ 10—11.
It is simply not possible to quantify the damage to 3ABN's reputation
within the Seventh-Day Adventist community that has been caused
by the Defendants' campaign of willful disparagement.
3ABN has also suffered, as a direct result of Defendants' activities,
an irreparable loss of confidence on the part of the official
Adventist Conference, the South Pacific Division of which has
gone so far as to pass a moratorium prohibiting interaction with
3ABN. See Steenson Aff. at
[page7]
¶ 9. Without Conference interaction, 3ABN loses not only
the financial support of its Adventist donors, but also the opportunity
to spread its ministry by participating in important Conference-sponsored events.
See Steenson Aff. at ¶ 9.
As a non-profit organization, damage to 3ABN's mission is inherently
immeasurable in terms of pecuniary damages, since its primary
goal is not to make money but to spread its ministry and message.
The harm that 3ABN has already suffered in its ability to do
so is irreparable, as will be the harm 3ABN will suffer if Defendants
are permitted to publish further defamatory statements through
pleadings and submissions in this case.
Nor can it be argued that Plaintiffs' concern over continued
defamation is illusory. Since the advent of the PACER system,
the notion that court records are public documents has gained
new meaning. Any member of the public with access to a computer
anywhere in the world can obtain a PACER account and view any
and all pleadings and other submissions that are not sealed.
Defendants have shown that they are willing to go to great lengths
to direct people who might not otherwise use the internet or
visit certain internet sites to do so in order to ensure that
their libelous statements reach the widest possible audience.
See Steenson Aff.
¶10 (detailing Defendants' mailing of
postcards to Seventh-day Adventist Churches across the world
urging readers to visit www.save3ABN.com). Thus, one can surmise
without a great stretch of the imagination that, absent impoundment,
Defendants will direct members of the public to PACER to view
the pleadings and other submissions and thereby publish them
to the widest possible audience in that way.
The United States Supreme Court has stated that it is particularly
appropriate to impound court records in cases such as this one
where harmful, scurrilous, and defamatory statements are at the
heart of the cause of action. See Nixon, 435 U.S. at 598. The
Affidavits of Mollie
[page 8]
Steenson and Larry Ewing, as well as the attachments to Plaintiffs'
initial memorandum in support of impoundment, establish good
cause for impoundment, amply demonstrating the harm Plaintiffs
have suffered and will continue to suffer by repeated publication
of Defendants' defamatory statements. This is exactly the type
of case where impoundment is warranted and appropriate.
| |
C. |
The fact that statements made during the course of a judicial proceeding
are privileged will embolden Defendants and leave Plaintiffs without recourse. |
Massachusetts recognizes an absolute privilege with respect to
"statements made 'in the institution or conduct of litigation
or in conferences and other communications preliminary to litigation."
Taylor v. Swartout, 445 F.Supp.2d 98, 102 (D. Mass. 2006) (quoting
Sriberg v. Raymond, 370 Mass. 105, 109 (1976)). "[T]he litigation
privilege is absolute and 'provides a complete defense even if
the offensive statements are uttered maliciously or in bad faith.'"
See Taylor, 445 F.2d at 103 (quoting Doe v. Nutter, McClennan
& Fish, 41 Mass. App. Ct. 137, 140 (1996)). Plaintiffs have no
means of preventing Defendants or their witnesses from including,
in the pleadings, affidavits, motion papers and other court submissions
in this case, willful and malicious defamatory statements, and,
under the above-referenced cases, have no cause of action available
to them to redress the harm that would be caused by such statements.
In light of Defendants' admitted objective of
"indicting" the Plaintiffs in the public eye, see
Steenson
Aff. ¶ 4, Plaintiffs have no doubt that Defendants intend
to and will, in fact, include such defamatory statements in their
court submissions. Moreover, because they will be made in the
context of an official judicial record, Defendants' libelous
statements may appear to certain members of the public, particularly
web viewers unsophisticated about the law, as somehow having
the imprimatur of the Court. This is particularly likely in light
of the innuendo-laden commentary Joy and Pickle have routinely
attached to other official court documents they have
[page 9]
published on the internet in the past. See Memorandum
in Support of Plaintiffs' Ex Parte Motion for Preliminary
Impoundment and Request for a Hearing on Permanent Impoundment,
Attachments 2—3.
While the Court may not be able to order Defendants
to refrain from making defamatory statements in its proceedings,
it can intervene to prevent the irreparable injury that will
occur from a distorted dissemination of those allegations and
statements by prohibiting publication of any such statements
outside the context of the Court's proceedings. Impoundment is
the means of effectuating that protection. The avoidance of the
use of court files and proceedings for improper purposes has
been recognized by the United States Supreme Court as a fundamental
justification for impounding court records. See Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598 (1978) (citations omitted).
It is precisely to avoid Defendants' misuse of the record in
this case that Plaintiffs seek to have the attached proposed
Order Governing Impoundment of Pleadings entered.
| |
D. |
The public interest in this case does not tip the scales in favor of public access. |
Although Defendants have failed to provide any evidence, by affidavit
or otherwise, as to how or why the proceedings at issue are of
particular interest to the public at large, they vaguely argue
that freedom of the press to report items of community interest
precludes impoundment of the court files in this case. Defendants'
argument is both factually and legally inapplicable in the current
circumstances.
First, although 3ABN is a registered Illinois
corporation, it is nonetheless a private, nonprofit enterprise
and, absent criminal charges or an order of the court otherwise
compelling disclosure, it is entitled to confidentiality concerning
matters of corporate governance. This is,
[page 10]
after all, not a publicly traded, for-profit corporation where
the public, as shareholders or as potential stock purchasers,
have an interest in the litigation documents.
Second, Defendants are not media outlets, reporters or journalists
intent on disseminating objective facts, but are private individuals
who have admitted to a personal agenda of discrediting 3ABN and
its President. As Defendant Joy stated in an internet post on
November 20, 2006, "[i]f [the attempt to resolve the matter before
ASI [a religious tribunal] does not work out, then in January,
2007 we will launch a full scale and public effort to exonerate
Linda, to indict Danny in the public eye and to put pressure
on 3ABN. . .." Steenson Aff.
¶ 4. Glaringly absent from
Defendants' responsive submissions was any affidavit setting
forth that either Pickle or Joy are employed by a news or news
reporting agency, that either of them have any experience or
credentials as a journalist, reporter, or free-lance newsman,
or that either of them is currently on assignment by any legitimate
news organization as a reporter, columnist, correspondent or
newscaster. There is simply nothing unique about the nature of
the parties or their relationship with one another that weighs
against the impoundment of properly identified court documents.
Defendants cite Ottoway Newspapers, Cox Broadcasting
and Oklahoma Publishing for the proposition that the impoundment Plaintiffs
seek constitutes a prohibited "prior restraint" of publication.
However, none of these cases involved the publication of impounded
material, but rather the publication of proceedings in open court
with unrestricted files, and are inapplicable to the instant
case.
In Oklahoma Publishing Co. v. District Court In and For Oklahoma
County, 430 U.S. 308 (1977), the United States Supreme Court
undertook review of an Oklahoma Supreme Court ruling affirming
an injunction that prohibited a newspaper from publishing the
name or picture of
[page 11]
a minor child involved in a juvenile proceeding. In that case,
an 11-year old boy was charged with second degree murder in the
shooting of a railroad switchman. See id. at 309. A reporter
attended a detention hearing in the matter, where he learned
the boy's name, and took photographs of the boy immediately after
the hearing, as the boy was being escorted from the courthouse
to a waiting vehicle. The boy's name and picture were published
in several newspapers and broadcast on local radio and television.
Subsequently, at the boy's arraignment, the court entered an
order enjoining future publication of the juvenile's name and
picture, but the identifying information was published again
despite the order. The Oklahoma Publishing Company petitioned
to quash the order by writs of prohibition and mandamus, which
petitions were denied. The Oklahoma Supreme Court, relying on
statutes providing that "juvenile proceedings are to be held
in private 'unless ordered by the judge to be held in public,'
and that juvenile records are open to public inspection 'only
by order of the court,'" upheld the district court's order and
Oklahoma Publishing appealed to the United States Supreme Court.
See id. at 309—310 (quoting the relevant Oklahoma statutes).
In reversing the Oklahoma Supreme Court, the U.S. Supreme Court
acknowledged the Oklahoma statutes, but found that because the
prohibitions of the statutes had not been enforced and the reporter
was allowed to remain in the courtroom without objection by the
attorneys or the judge, who all saw the reporter in the courtroom,
during what otherwise should have been a closed hearing, the
information he discovered during the hearing was legitimately
obtained and publishable. See id. at 311. The case is therefore
inapplicable to the instant facts, because the information at
issue in Oklahoma Publishing should have been impounded, but
was not. The case merely stands for the proposition that the
press has a right to report unrestricted information; it does
not stand for the proposition that impoundment constitutes prior
restraint.
[page 12]
The Defendants similarly skew the holding of Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). In that case,
plaintiff Martin Cohn sued the Cox Broadcasting Company for invasion
of privacy in connection with the company's publication of the
name of his 17-year old daughter, the victim of a brutal rape
and murder. Six youths were arrested for the incident and the
victim's name remained unpublished for eight months, at which
time a hearing was held where five of the defendants pled guilty
to rape or attempted rape (in exchange for the prosecutor dropping
the murder charge) and one defendant pled not guilty. See id.
at 471—72. A Cox Broadcasting reporter attended the hearing
and, while in the courtroom, was allowed by the clerk to review
the various indictments in the case, all of which were public
documents open for inspection and all of which identified the
victim by name. See id. at 472—73.
Despite a Georgia statute that made it a misdemeanor to publish
the "name or identity of any female who may have been raped or
upon whom an assault with intent to commit rape may have been
made," the reporter published the victim's name as part of a
television news broadcast on Cox station WSB-TV. The victim's
father brought suit for invasion of privacy, and Cox defended
by claiming that its actions were privileged under the First
and Fourteenth Amendments. The trial court rejected Cox's constitutional
claims, held that the rape shield statute gave rise to a private
cause of action for those injured by a violation thereof, granted
summary judgment on liability, and set the damages determination
for jury trial. See id. at 474.
The Georgia Supreme Court found that the trial court had erred
in deciding that the rape shield law provided a civil remedy
for its violation and therefore found it unnecessary to reach
the constitutionality of the statute. It did, however, find that
the father had an independent cause of action for common law
invasion of privacy and that liability and damages would need
to be tried, overturning the trial court's grant of summary judgment.
See id. at 475. On motion for
[page 13]
rehearing, the Georgia Supreme Court found the rape shield statute
"an authoritative declaration of state policy that the name of
a rape victim was not a matter of public concern." Id. It addressed
the constitutionality question and sustained the statute as a
legitimate limitation on First Amendment rights. Id.
The United States Supreme Court took the case on the narrow issue
of whether the State may impose sanctions for the accurate publication
of the name of a rape victim obtained from public records—specifically,
judicial records—open to inspection and maintained in connection
with a public prosecution. See id. at 491. The Court held in
the negative, based on its finding that "even the prevailing
law of invasion of privacy generally recognizes that the interest
in privacy fade when the information involved already appears
on the public record." Cox, 420 U.S. at 494-95. It was specifically
because the victim's name was already part of the prosecutorial
process and had been disclosed by the State as part of the open,
public record in the case, that the Supreme Court found it sufficiently
in the public interest to warrant publication.
The Court held:
By placing the information in the public domain
on the official court records, the State must be presumed to
have concluded that the public interest was thereby being served.
. . .[T]he First and Fourteenth Amendments command nothing less
than that the States may not impose sanctions on the publication
of truthful information contained in official court records open
to public inspection.
Id. at 495. Thus, contrary to the overreaching assertions
of Defendants in this case, Cox merely stands for the proposition
that once a court has included information in that portion of
the public record open to inspection, the constitutional guarantees
of free press render the information publishable. Cox does not
stand for the proposition that the parties themselves, the press
or any
[page 14]
third parties are entitled to publish information
that is kept from public inspection or that the impoundment of
court materials constitutes prior restraint.
Finally, in Ottoway Newspapers, Inc., the Massachusetts
Commissioner of Banks, after determining that Bass River Savings
Bank had engaged in unsound commercial loan practices, began
statutorily-governed proceedings to remove the bank's officers.
See Ottoway Newspapers, Inc. v. Appeals Court, 372 Mass. 539,
541 (1977). To stem those proceedings, the bank filed an action
against the Commissioner, the crux of which was that the Commissioner
had a bias against the bank and its officers that was motivating
her conduct. Id. In support of its claims, the bank submitted
papers evidencing dealings between the Bank and Commissioner
over a period of time and copies of excerpts of bank examination
reports prepared by the Commissioner's staff. Id. Included with
these submissions was a motion to impound the Bank's papers,
which motion was granted. See id. at 542.
A local newspaper learned that litigation was pending between
the bank and the commissioner and sought access to the court
record to learn more about the dispute, at which time it discovered
that three impoundment orders were in place keeping various documents
and materials from public inspection. The newspaper brought an
action seeking to have the impoundment orders vacated. It first
attacked the impoundment order on the grounds that it was entitled
to inspect the documents under the Commonwealth's bank examination
laws, which require the custodian of those records to release
them for inspection upon request. The court held, however, that
the custodian was not required to release the documents because
once they were included in the lawsuit, and were impounded in
connection therewith, they came under an exception to the disclosure
statute. See id. at 545.
[page 15]
The newspaper then challenged the impoundment on grounds that
it violated the rule of open conduct of judicial proceedings.
In fact, the very issue for which the instant Defendants claim
the Ottoway case stands (that impoundment of court documents
constitutes prior restraint of the free press), was specifically
argued and soundly rejected by the Ottoway court. Acknowledging
the "general principle of publicity," the court nonetheless found
that:
At the same time there are statutes which, for a variety of reasons
that can be surmised, limit, or authorize limitation of access
to court proceedings and official records. These statutes do
not preclude the exercise by judges of a sound discretion to
impose reasonable cloture, including impoundment, in other cases
when found necessary.
Ottoway, 372 Mass. at 546. Determining that all three judges
who had reviewed and sustained impoundment in the underlying
action had acted properly in accordance with their discretion,
the court held that a judge may, without offense to the Constitution,
withhold case documents by impoundment. See id. at 549. Specifically
discussing the Cox Broadcasting and Oklahoma Publishing cases,
the court found:
[O]nly in the most extreme situations, if at all, may a State
court constitutionally forbid a newspaper (or anyone else) to
report or comment on happenings in and about proceedings which
have been held in open court; and a similar rule would apply
to court files otherwise unrestricted. . . . Different issues,
however, are raised by the question how far a State is required
to go in assisting the press (or others) to gather information,
or, in the context of the present case, how far the State is
constitutionally required to keep court proceedings public, or
court files open, in order to lend such support to intending
publishers.
Id. at 548.
Ottoway Newspapers stands for the proposition that after documents
and materials and other information are published in open court
and are made a part of the unrestricted record that is open to
public inspection, it may be an unconstitutional prior restraint
to prohibit their further
[page 16]
publication, but that a decision by the court to impound materials,
seal a record, or otherwise preclude the publication of the information
in open court or the unrestricted record does not constitute
prior restraint. Thus, contrary to Defendants' arguments, Oklahoma
Publishing, Cox and Ottoway Newspapers, Inc. do not support their
"prior restraint" claims.
| |
E. |
There is no "right to defame" that weighs against impoundment. |
Defendants also cite to Tory v. Cochran, 544 U.S. 734 (2005),
which they describe as a case where "an injunction against the
petitioner Tory from defaming the plaintiff Johnnie L. Cochran,
Jr. in certain specific manners was vacated as unconstitutional
prior restraint on the free speech guarantees of the First Amendment,"
and claim it stands for the proposition that "the free speech
guarantees extend to the out-of-court statements made even when
they are defamatory, where the recourse is to obtain judgment
for defamation... ." Defendants' Memorandum in Opposition to
Plaintiffs' Motion for Permanent Impoundment at p. 3. Though
Defendants' argument on this point is not entirely clear, to
the extent they are claiming that the Court cannot issue an injunction
prohibiting future defamatory speech or that such an injunction
constitutes prior restraint, they are wrong. If anything, Cochran
supports Plaintiffs' Motion for impoundment, with underlying
facts that mirror the concerted defamatory activities of Defendants
in the instant case.
Attorney Johnnie Cochran brought an action for
defamation against Ulysses Tory, who, with a cadre of other actors,
had engaged in a willful campaign of slander and libel by, inter
alia, falsely claiming Cochran owed him money, filing complaints
against Cochran with the bar association, writing threatening
letters to Cochran, and picketing Cochran's office holding up
signs containing insults and obscenities. See id. at 735—36.
The trial court determined Tory had committed a willful campaign
of slander and libel in an effort to coerce Cochran into paying
[page 17]
him money to which he was not entitled as a "tribute" for desisting
from the defamatory conduct, and, noting Tory had indicated an
intention to continue his efforts absent a court order, enjoined
Tory from future defamatory conduct. See id. at 73 6—37.
The decision was affirmed by the California Court of Appeals
and Tory petitioned for a writ of certiorari to the U.S. Supreme
Court on the issue of "[w]hether a permanent injunction as a
remedy in a defamation action, preventing all future speech about
an admitted public figure, violates the First Amendment." Id.
at 736. Certiorari was granted but before the Court issued its
decision, Cochran died and the parties agreed to substitute Sylvia
Dale Cochran, Johimie Cochran's widow, as respondent, with Tory
claiming the case was now moot. See id.
Finding that the existence of a valid and enforceable injunction
meant the case was not moot, the Supreme Court nonetheless determined
that Cochran's death made it unnecessary to address whether the
First Amendment prohibits issuance of a permanent injunction
in a defamation case where the plaintiff is a public figure or
whether the injunction was unconstitutionally broad. See id.
at 738. The Court merely pointed out that, because Cochran could
no longer be coerced to pay the "tribute," the underlying rationale
for the injunction was diminished, if not gone, and held that
the injunction, as it was written, had become overly broad and
was a prior restraint upon speech lacking plausible justification.
See id.
The Cochran case merely upholds the long-standing constitutional
principle that legislative and judicial proclamations must be
narrowly tailored to achieve the goals where there is arguably
an intrusion upon constitutional rights. Cochran does not stand
for the proposition that all injunctions against future defamatory
conduct are prohibited or for the proposition that free speech
rights protect the publication of defamatory out-of-court statements,
or for the
[page 18]
proposition that a court engages in unconstitutional prior restraint when it prevents, through
injunction, impoundment or otherwise, future defamatory conduct.
| II. |
The Impoundment Requested is Procedurally Authorized and Narrowly Tailored. |
The Federal Rules of Civil Procedure do not directly address impoundment. Local Rule
7.2 provides three general directives relating to impoundment governing (1) the required
contents of a motion for impoundment, (2) the clerk of court's responsibilities as to the
segregation and custody of impounded materials, and (3) the timing of impoundment motions.
See D. Mass. R. 7.2. With regard to the timing of such motions, Local Rule 7.2(e) provides:
The court will not enter blanket orders that counsel €or a party may
at any time file material with the clerk, marked confidential, with
instructions that the clerk withhold the material from public
inspection. A motion for impoundment must be presented each
time a document or group of documents is to be filed.
Contrary to Defendants' characterization, Plaintiffs have not requested any relief
prohibited under Local Rule 7.2. In their original Motion, Plaintiffs limited their request to
impoundment of the Complaint and Defendants' Answers or other responsive pleadings.
Plaintiffs' counsel is well aware of the Local Rule requiring that a motion for impoundment be
presented each time a document or group of documents is to be filed and have tailored the
requested relief accordingly. However, in light of the unique facts and circumstances of this case
and Defendants' declared intent to “indict” Plaintiffs in the public eye, Plaintiffs request that this
Court exercise its discretion to control its own files and enter the attached Proposed Order for
Impoundment. The Proposed Order is narrowly tailored to provide for the impoundment of only
those materials that contain disparaging statements or highly sensitive information that could be
used by Defendants to disparage Plaintiffs, either directly or through innuendo and speculative
commentary.
[page 19]
Plaintiffs' attached proposed Order Governing Impoundment of
Pleadings calls for a segregation period of 10 business days
for all documents filed with the Court, after which time, if
no objection or motion to impound is made, the subject documents
will be filed by the Clerk in the public file and made available
for inspection. Thus, the presumption is that submitted materials
will not be impounded. If a motion to impound is made, however,
the documents will remain sealed until resolution of the motion.
As to its own submissions, Plaintiffs intend to submit, simultaneous
with the filing, a motion to impound any documents it believes
should not be published. It is the filing of Defendants' submissions
that are of most concern to Plaintiffs, since Defendants will
likely not seek impoundment of their own materials and, barring
the segregation period, those materials would be publicly filed
(and available for inspection and publication via the PACER system
and otherwise) before Plaintiffs would have an opportunity to
seek impoundment. Thus, the impoundment order proposed by Plaintiffs
is not a blanket order impounding every document, sight unseen.
It merely provides a brief segregation period, before automatic
public filing, that gives Plaintiffs a short window of time in
which to seek impoundment of Defendants' submissions.
CONCLUSION
In weighing the right of the public to know against the competing
private interests at stake in this case, the Court must strike
a balance in light of all the relevant facts and circumstances.
The nature of the parties, the nature of the controversy, the
type of information, the extent of community interest and the
reasons for Plaintiffs' request all weigh decidedly in favor
of impoundment, particularly given the narrow scope and procedural
parameters of Plaintiffs' proposed Order Governing Impoundment
of Pleadings.
[page 20]
Dated: May 24, 2007
|
Respectfully Submitted:
On behalf of Plaintiffs
Three Angels Broadcasting Network, Inc. and
Danny Shelton,
By their attorneys,
FIERST, PUCCI & KANE, LLC
[signed] J.P.P.
John P. Pucci, Esq., BBO#000000
J. Lizette Richards, BBO #000000
64 Gothic Street
Northampton, MA 01060
Telephone: 413-584-8067
and
SIEGEL, BRILL, GREUPNER,
DUFFY & FOSTER, P.A.
|
[signed] Gerald S. Duffy
Gerald S. Duffy (MNReg. #00000)
Wm Christopher Penwell (MNReg. #000000)
Jerrie M. Hayes (MNReg. #000000)
Kristin L. Kingsbury (MNReg. #000000)
100 Washington Avenue South
Suite 1300
Minneapolis, MN 55401
(612) 337-6100
(612) 339-6591 – Facsimile
|
CERTIFICATE OF SERVICE
I, J. Lizette Richards, do certify that I have
this day served a copy of the foregoing document, along with
any attachments, on Defendants Gailon Joy and Robert Pickle by
mailing same, first class postage prepaid to their attorney of
record, Laird Heal, at 3 Clinton Road, P.O. Box 1425, Sterling,
MA 01564.
|
Dated: May 24, 2007
|
[signed] J.L.R.
J. Lizette Richards
|
|
