Judge blocks articles, bloggers republish
March 5, 2007 10:58 AM Subscribe
Judge blocks damaging articles, bloggers republish them in defiance here and here. Will the Kansas City utility board sue them, too?
I don't see how the power company would be “irreparably harmed” if the newspapers didn’t take down the articles. Sure they may face a fine, but that was a foregone conclusion. Glad the bloggers reposted the articles - this gives them even more credibility and weight (the articles, that is).
posted by pithy comment at 11:26 AM on March 5, 2007
posted by pithy comment at 11:26 AM on March 5, 2007
"monetary damages which might result from a publication of such information would be difficult or impossible to measure in money.”
Wait, what? That tripe from a Judge? Tell me "monetary damages" has a legal meaning different from its lay meaning.
Also, I thought prior restraint was verboten.
posted by Richard Daly at 11:28 AM on March 5, 2007 [1 favorite]
Wait, what? That tripe from a Judge? Tell me "monetary damages" has a legal meaning different from its lay meaning.
Also, I thought prior restraint was verboten.
posted by Richard Daly at 11:28 AM on March 5, 2007 [1 favorite]
I thought prior restraint was verboten.
It is. This judge does not appear to understand the Constitution.
posted by languagehat at 11:43 AM on March 5, 2007
It is. This judge does not appear to understand the Constitution.
posted by languagehat at 11:43 AM on March 5, 2007
After reading the judge's order (and not just the quote in the summary article) it looks like "monetary damages impossible to measure in money" is standard language maybe? That's just weird. I can understand if the first "monetary" was left off, but it's quite strange this way.
posted by Richard Daly at 11:46 AM on March 5, 2007
posted by Richard Daly at 11:46 AM on March 5, 2007
This isn't prior restraint though is it? The judge only required it's removal after it had been published to the web.
posted by Mitheral at 11:49 AM on March 5, 2007
posted by Mitheral at 11:49 AM on March 5, 2007
Mitheral, prior restraint is a bit of a term of art.
posted by exogenous at 11:57 AM on March 5, 2007
In other cases, the government attempts to halt ongoing publication and prevent its resumption. These injunctions are also usually considered to be cases of prior restraint, because future publications are stopped before they start.
posted by exogenous at 11:57 AM on March 5, 2007
I'm no expert on how a "confidential letter" should be treated - can a newspaper print its contents? - but you know, after that whole Hewlett Packard thing, a publicly traded company by the way, I kind of want to say fuck you to the anonymous source at the newspaper that is so giddy to have me subscribe to their website and pay to read their stories (thanks, bugmenot). I think a (publicly traded) company should be allowed to have these discussion internally, to protect their investors at the very least, without having information leaked ..
posted by phaedon at 11:57 AM on March 5, 2007
posted by phaedon at 11:57 AM on March 5, 2007
that comment makes little sense
posted by nospecialfx at 12:02 PM on March 5, 2007
posted by nospecialfx at 12:02 PM on March 5, 2007
it upsets me that i would take the time to respond to your post just for you to respond that way - so short, so empty. im actually going to keep myself from insulting you personally because i wouldn't want to be called out as a hypocrite in this particular instance. but trust me, the temptation is there.
In the meantime, the temporary restraining order indicates that:
"1. The document prepared... was intended to be and is a privileged legal communication..." and
"2. Plaintiff did not provide, authorize, or consent to the disclosure of Mr. Riegel's memorandum to either defendant or any other third party..."
I hope you understand that my argument is that the newspapers shouldn't be allowed to print this material. Is that too dense for you, nospecialfx?
posted by phaedon at 12:13 PM on March 5, 2007
In the meantime, the temporary restraining order indicates that:
"1. The document prepared... was intended to be and is a privileged legal communication..." and
"2. Plaintiff did not provide, authorize, or consent to the disclosure of Mr. Riegel's memorandum to either defendant or any other third party..."
I hope you understand that my argument is that the newspapers shouldn't be allowed to print this material. Is that too dense for you, nospecialfx?
posted by phaedon at 12:13 PM on March 5, 2007
Phaedon, absolutely! If they knowingly break the law, they should be able to keep it a secret. So what if a few people die here and there?
The law is obviously not as important as profit. Anyone saying otherwise is a lefty treehugger who deserves execution for treason.
posted by Malor at 12:15 PM on March 5, 2007 [4 favorites]
The law is obviously not as important as profit. Anyone saying otherwise is a lefty treehugger who deserves execution for treason.
posted by Malor at 12:15 PM on March 5, 2007 [4 favorites]
Loving the 'the' tag.
posted by anotherpanacea at 12:20 PM on March 5, 2007
posted by anotherpanacea at 12:20 PM on March 5, 2007
Er, phaedon, if you're talking about the HP leak case and the illegal methods a private investigator took to silence leaks, Hewlett Packard is widely considered to have been deeply in the wrong. People resigned, and I think there might be ongoing civil and criminal hearings pending. What did you mean to imply with reference to HP?
posted by Richard Daly at 12:25 PM on March 5, 2007
posted by Richard Daly at 12:25 PM on March 5, 2007
Right -- it makes total sense that a public company can flagrantly violate the law, admit to it, but then a newspaper can't expose them.
Oh yeah, wait. Now I understand. Total sense.
posted by nospecialfx at 12:27 PM on March 5, 2007 [1 favorite]
Oh yeah, wait. Now I understand. Total sense.
posted by nospecialfx at 12:27 PM on March 5, 2007 [1 favorite]
Since I don't want to spam too much, I thought I'd paste the smaller version of the articles here. Bwahahaha?
BPU document details possible clean-air violations
At least 15 projects and upgrades at power plants operated by the Board of Public Utilities of Kansas City, Kan., may have violated federal clean air laws, according to a confidential BPU document.
The document, obtained from an anonymous source by The Kansas City Star, was prepared in 2004 by an attorney to lay out the odds for the BPU of the risks of penalties by the Environmental Protection Agency. It examined 73 projects that may not have followed regulations.
Of those, 15 were “probably not defensible” and another 15 were “questionable,” it said.
The document, which calls itself a “liability analysis,” says that the utility could be subject to thousands of dollars in fines. It also says the BPU has the choice of approaching the EPA to reach a settlement or waiting for the EPA to initiate action.
It is unclear which course the BPU took.
EPA and Kansas Department of Health and Environment officials said they did not know anything about possible violations. BPU officials could not be reached for comment Friday afternoon.
| Karen Dillon, kdillon@kcstar.com
posted by taursir at 12:28 PM on March 5, 2007
BPU document details possible clean-air violations
At least 15 projects and upgrades at power plants operated by the Board of Public Utilities of Kansas City, Kan., may have violated federal clean air laws, according to a confidential BPU document.
The document, obtained from an anonymous source by The Kansas City Star, was prepared in 2004 by an attorney to lay out the odds for the BPU of the risks of penalties by the Environmental Protection Agency. It examined 73 projects that may not have followed regulations.
Of those, 15 were “probably not defensible” and another 15 were “questionable,” it said.
The document, which calls itself a “liability analysis,” says that the utility could be subject to thousands of dollars in fines. It also says the BPU has the choice of approaching the EPA to reach a settlement or waiting for the EPA to initiate action.
It is unclear which course the BPU took.
EPA and Kansas Department of Health and Environment officials said they did not know anything about possible violations. BPU officials could not be reached for comment Friday afternoon.
| Karen Dillon, kdillon@kcstar.com
posted by taursir at 12:28 PM on March 5, 2007
I appreciate the fact you are taking *my* argument and turning it into a strawman argument, but I'm just pointing out that a corporation should have some form of legally protected internal communication - much like a criminal, or rather an alleged criminal, has the right to a lawyer, and privileged communication with him. i could imagine a conversation where he asks his lawyer, "should i confess to the crime that i committed? or is it better to go to court?" you're fucking telling me that's a confession? noticed that i didnt say "if they knowingly break the law, they should be able to keep it a secret." im not interested in protecting companies that break the law, for the sake of profit. but i am upset, as a relative of mine invests heavily in HP, with the idea that there are journalists - who maybe they are just doing their jobs, maybe they are trying to further their careers - provide the media with company secrets - yes, those that create a profit for the company - at the expense of the company itself and its shareholders. or am i supposed to giggle and twinkle my toes whenever somebody at mefi brings up "the big bad business wolf". Teehee! lefty treehugger! execution for treason! grow up.
posted by phaedon at 12:30 PM on March 5, 2007
posted by phaedon at 12:30 PM on March 5, 2007
Hmm. That's called prior restraint, and it's unconstitutional. That's what you're arguing.
posted by nospecialfx at 12:36 PM on March 5, 2007
posted by nospecialfx at 12:36 PM on March 5, 2007
Well slap my ass and call me Sally. I didn't realize gag orders and temporary restraining orders were unconstitutional. Subsection 4 of the judge's order reads:
"Plaintiff has a protected interest in its attorney-client privileged communications and montary damages which might result from a publication..." (my emphasis)
You guys are way ahead of me, somehow.
posted by phaedon at 12:49 PM on March 5, 2007
"Plaintiff has a protected interest in its attorney-client privileged communications and montary damages which might result from a publication..." (my emphasis)
You guys are way ahead of me, somehow.
posted by phaedon at 12:49 PM on March 5, 2007
So, phaedon, lemme see if I got this: HP commits crimes, media exposes crimes, HP (and thus your relative) loses money--and you're mad at the media?
posted by agentofselection at 12:52 PM on March 5, 2007
posted by agentofselection at 12:52 PM on March 5, 2007
Yeah we are, it's called Near v. Minnesota. It's called NYT v. U.S.. It's called United States v. Progressive Inc. It's called Snepp v. United States. It's called Procter & Gamble v. Bankers Trust Co. It's called these things never survive appeal, it's called a court can't ascribe a client's privilege with its attorney to a newspaper whose activities are protected by the First Amendment. Ever hear of the Pentagon Papers?
posted by nospecialfx at 12:55 PM on March 5, 2007 [2 favorites]
posted by nospecialfx at 12:55 PM on March 5, 2007 [2 favorites]
This is very odd. I just briefly looked at the article, and I'd like to see the order, but this set off all kinds of warning alarms.
A couple of things with regards to questions in this thread (with the understanding that Kansas *probably* has the same procedure as the jurisdictions I'm fluent in):
1. Bond. One cannot get a TRO without putting up a bond to cover the reasonable costs of forbearance of the restrained party. If the TRO is lifted or dissolved, you forfeit the bond.
2. "Incalculable damages" or "cannot be measured." This is buzzword language. In order for injunctive remedies to issue, the party applying for the injunction must show the following:
a. That the applicant has plead for for some form of permanent relief.
b. Probable right of relief - applicant must show it is likely to succeed on the merits of its underlying claims.
c. Probable injury from an imminent harm that will result in an irreparable injury, and that there is no other adequate remedy at law. This last prong is the trickiest. In most cases, there is an adequate remedy at law: damages. Sufficiency of monetary damages also means that the injury is not irreparable. However, an injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages were not ascertainable or calculable. This last part is where the language cited above comes from. Basically, if the harm your facing is such that cannot be reasonably measured by a pecuniary standard, then you can satisfy the 'irreparable injury' requirement.
3. Prior restraint. I'm not sure if I have the facts totally clear, but I will say this: typically a defamation case cannot be the basis for a TRO to issue. (See, e.g., Hajek v. Bill Mowbry Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983) expressly rejecting a TRO based on a defamation claim as a violation of the Constitution and constituting prior restraint). That being said, if the material to be expressed evokes a threat of danger to a person or the government, then a judge can engage in limited prior restraint. Moreover, one can restrain the publication of trade secrets as that it is not considered protected under the First Amendment. But basically, if the speech is such that it is protected under the First Amendment, you cannot get a TRO to stop the speech.
I'm going to go see if I can find the order and anything else and see if I see something interesting.
posted by dios at 12:58 PM on March 5, 2007
A couple of things with regards to questions in this thread (with the understanding that Kansas *probably* has the same procedure as the jurisdictions I'm fluent in):
1. Bond. One cannot get a TRO without putting up a bond to cover the reasonable costs of forbearance of the restrained party. If the TRO is lifted or dissolved, you forfeit the bond.
2. "Incalculable damages" or "cannot be measured." This is buzzword language. In order for injunctive remedies to issue, the party applying for the injunction must show the following:
a. That the applicant has plead for for some form of permanent relief.
b. Probable right of relief - applicant must show it is likely to succeed on the merits of its underlying claims.
c. Probable injury from an imminent harm that will result in an irreparable injury, and that there is no other adequate remedy at law. This last prong is the trickiest. In most cases, there is an adequate remedy at law: damages. Sufficiency of monetary damages also means that the injury is not irreparable. However, an injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages were not ascertainable or calculable. This last part is where the language cited above comes from. Basically, if the harm your facing is such that cannot be reasonably measured by a pecuniary standard, then you can satisfy the 'irreparable injury' requirement.
3. Prior restraint. I'm not sure if I have the facts totally clear, but I will say this: typically a defamation case cannot be the basis for a TRO to issue. (See, e.g., Hajek v. Bill Mowbry Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983) expressly rejecting a TRO based on a defamation claim as a violation of the Constitution and constituting prior restraint). That being said, if the material to be expressed evokes a threat of danger to a person or the government, then a judge can engage in limited prior restraint. Moreover, one can restrain the publication of trade secrets as that it is not considered protected under the First Amendment. But basically, if the speech is such that it is protected under the First Amendment, you cannot get a TRO to stop the speech.
I'm going to go see if I can find the order and anything else and see if I see something interesting.
posted by dios at 12:58 PM on March 5, 2007
the order is linked on the blog...
posted by nospecialfx at 1:09 PM on March 5, 2007
posted by nospecialfx at 1:09 PM on March 5, 2007
agentofselection, that's a really sad recapitulation of what went down with HP. im not really trying to defend dunn's actions at HP, but nobody talks about the situation that led up to "HP committing crimes" as you call it - which was basically a reporter or a member of the board leaking information about upcoming products. this is and should be illegal. at least i think so. so boohoo, for me, thats fine. i just think its ridiculous for a blue-chip stock to be assassinated because some bullshit story that doesn't even really have anything to do with the performance of the company, and wasn't prompted by any malfeasance on the part of an employee at HP.
i bring this up because i believe in privileged communication. talk about your prior restraint precedent all you want. also, i think this thread is heading in the direction of establishing a distinction between "what is admissible in court" versus "what is admissible in the public realm". at this point, i dont know where i fall on that.
posted by phaedon at 1:13 PM on March 5, 2007
i bring this up because i believe in privileged communication. talk about your prior restraint precedent all you want. also, i think this thread is heading in the direction of establishing a distinction between "what is admissible in court" versus "what is admissible in the public realm". at this point, i dont know where i fall on that.
posted by phaedon at 1:13 PM on March 5, 2007
btw -- I don't think defamation was the theory behind the TRO ... it was violation of attorney/client privilege and the interest the client has in maintaining that privilege.
The case law on this is pretty clear, though. The judge is way out of bounds.
posted by nospecialfx at 1:13 PM on March 5, 2007
The case law on this is pretty clear, though. The judge is way out of bounds.
posted by nospecialfx at 1:13 PM on March 5, 2007
there's no law against publishing privileged communication if you're not a party to the privilege in the first place. THERE IS NO LEGAL BASIS for the TRO...
posted by nospecialfx at 1:15 PM on March 5, 2007
posted by nospecialfx at 1:15 PM on March 5, 2007
you believe in privileged communication that keeps secret a violation of our air pollution laws? do you extend this solicitude to individual criminals, e.g., murderers and child-molestors who stamp "confidential" on the evidence, or are you just a corporate tool?
posted by bruce at 1:17 PM on March 5, 2007
posted by bruce at 1:17 PM on March 5, 2007
Is this one of the activist judges I hear so much about from the right?
posted by maxwelton at 1:21 PM on March 5, 2007
posted by maxwelton at 1:21 PM on March 5, 2007
exogenous: thanks for a link to the order. Yeah, after reading that and looking at the blog about the nature of the case, this looks like even a poorer case. I am unaware of a civil cause of action for a third parties' violation of the attorney/client privilege. I am read in the past suggestions that one should exist, but my understanding is that there is no such thing in most jurisdictions. Perhaps Kansas has such a cause of action; I would doubt it. That really makes me wonder then what the cause of action is upon which injunctive relief could issue. Defamation seems out. Public disclosure of private facts? That doesn't really fit. There has to be some cause of action upon which the court could issue a TRO. I am at a loss as to what it is. And though there are times when prior restrain is kosher (e.g., trade secrets; threat of danger), I have an extremely hard time figuring out how this phantom cause of action would support such a bad move.
This was either incredible lawyering to get the judge to do this, or it was a limp fish, idiotic judge.
posted by dios at 1:27 PM on March 5, 2007
This was either incredible lawyering to get the judge to do this, or it was a limp fish, idiotic judge.
posted by dios at 1:27 PM on March 5, 2007
The case law on this is pretty clear, though. The judge is way out of bounds.
there's no law against publishing privileged communication if you're not a party to the privilege in the first place. THERE IS NO LEGAL BASIS for the TRO...
Not so fast, pardner! Near as I can tell, the current state of the law calls for a balancing of interests. There was a series of cases called Noriega v. United States that involved CNN airing surveillance tapes of Noriega speaking to his attorneys. The courts balanced the prejudice that would result from airing privileged communications against the harm caused by a restraint on speech -- ultimately deciding in that case that the balance favored the speech. But to say that the law is that a third party can publish anything -- even privileged communications -- is simply not accurate.
do you extend this solicitude to individual criminals, e.g., murderers and child-molestors who stamp "confidential" on the evidence, or are you just a corporate tool?
Setting aside your "stamp 'confidential'" remark, I certainly would protect the confidentiality of attorney-client communications between accused murderers and child-molestors and their attorneys. And I think you'd find a lot of criminal defense lawyers and civil rights activists who would defend to their deaths the importance of confidentiality of attorney-client communications.
posted by pardonyou? at 1:30 PM on March 5, 2007
there's no law against publishing privileged communication if you're not a party to the privilege in the first place. THERE IS NO LEGAL BASIS for the TRO...
Not so fast, pardner! Near as I can tell, the current state of the law calls for a balancing of interests. There was a series of cases called Noriega v. United States that involved CNN airing surveillance tapes of Noriega speaking to his attorneys. The courts balanced the prejudice that would result from airing privileged communications against the harm caused by a restraint on speech -- ultimately deciding in that case that the balance favored the speech. But to say that the law is that a third party can publish anything -- even privileged communications -- is simply not accurate.
do you extend this solicitude to individual criminals, e.g., murderers and child-molestors who stamp "confidential" on the evidence, or are you just a corporate tool?
Setting aside your "stamp 'confidential'" remark, I certainly would protect the confidentiality of attorney-client communications between accused murderers and child-molestors and their attorneys. And I think you'd find a lot of criminal defense lawyers and civil rights activists who would defend to their deaths the importance of confidentiality of attorney-client communications.
posted by pardonyou? at 1:30 PM on March 5, 2007
queef, huh? that's a brand new one in my experience.
once i get ahold of your confidential information i can do whatever i want with it, because i'm not bound by any confidence; at that point it's just evidence, not privileged, and any prior restraint on my publication of it is blatantly unconstitutional (check out the u.s. supreme court case of near v. minnesota sometime).
yeah, i saw your previous comments, including the one where hewlett packard's problems should not have been exposed to the media. so rare to hear a voice in favor of the right of a big corporation to spy on people by pretexting to get their phone records, then draw a veil of secrecy over its misconduct. have a nice day!
posted by bruce at 1:35 PM on March 5, 2007
once i get ahold of your confidential information i can do whatever i want with it, because i'm not bound by any confidence; at that point it's just evidence, not privileged, and any prior restraint on my publication of it is blatantly unconstitutional (check out the u.s. supreme court case of near v. minnesota sometime).
yeah, i saw your previous comments, including the one where hewlett packard's problems should not have been exposed to the media. so rare to hear a voice in favor of the right of a big corporation to spy on people by pretexting to get their phone records, then draw a veil of secrecy over its misconduct. have a nice day!
posted by bruce at 1:35 PM on March 5, 2007
It seems odd that the TRO fails to even address the issue of prior restraint. Even more odd is that they ever prepared such a document in the first place. What were they thinking? Rule No. 1, never write an incriminating document, even under privilege.
Also, interesting is how moot the TRO becomes now that web sites are starting publish it. You could never shut them all down as the desire to publish is fueled by the opposing desire to avert such publication. This battle is already lost for the BPU.
posted by caddis at 1:38 PM on March 5, 2007
Also, interesting is how moot the TRO becomes now that web sites are starting publish it. You could never shut them all down as the desire to publish is fueled by the opposing desire to avert such publication. This battle is already lost for the BPU.
posted by caddis at 1:38 PM on March 5, 2007
hewlett packard's trade secrets should not have been released to the media. that was my point. did you catch this:
"im not really trying to defend dunn's actions at HP, but nobody talks about the situation that led up to "HP committing crimes"... "
it's called being charitable, brucie. don't let the door hit you on the way out.
posted by phaedon at 1:39 PM on March 5, 2007
"im not really trying to defend dunn's actions at HP, but nobody talks about the situation that led up to "HP committing crimes"... "
it's called being charitable, brucie. don't let the door hit you on the way out.
posted by phaedon at 1:39 PM on March 5, 2007
For more on CNN v. Noriega (not, apparently, Noriega v. U.S. as I wrote earlier), see here .
posted by pardonyou? at 1:39 PM on March 5, 2007
posted by pardonyou? at 1:39 PM on March 5, 2007
the CNN case isn't on point -- the privilege was violated by the government in a criminal case and there were substantial DUE PROCESS rights at stake... no due process violations were raised in the TRO -- this was simply a matter of privilege.
posted by nospecialfx at 2:23 PM on March 5, 2007
posted by nospecialfx at 2:23 PM on March 5, 2007
Also, that case is 11th circuit... this TRO was issued by a state judge in the 10th circuit. Any precedent set by Noreiga isn't binding because cert. was denied by the Supreme Court.
posted by nospecialfx at 2:30 PM on March 5, 2007
posted by nospecialfx at 2:30 PM on March 5, 2007
phaedon, a couple of people have hit on the issues here, but I don't think it's yet been spelled out in a single coherent position. So while I'll leave the law to the lawyers, here comes the ethical reasoning.
1) I think we all agree that criminals (or, in this case, polluters) should have protected access to lawyers, and that prosecutors, plaintiffs, and regulators should never be able to take those conversations.
2) Many of us would also likely agree that, on balance, protected communication shouldn't be leaked to the public, or at least there should be rules against leaking. The morality of obeying those rules is beyond the scope, here.
3) Once the damning communication has been leaked, however, it's not just protected communication between a client and a lawyer, other people know through no fault of their own. You're arguing that reporters should be prevented from spreading what they know as if they were prosecutors, and you' seem to have taken this position to protect the business's market position and stock price.
There are two issues with this.
A) The reporters are not bound by the same restrictions as the government, and probably shouldn't be. To do otherwise is to create a special legal protection for secrets: you want keep something hush-hush? Ask your lawyer to research it for you: anything he tells you would be a legally perfect secret, and you could sue newspapers and private citizens to keep it that way. Why should the mere presence of a lawyer entitle you to suppress the truth?
B) More broadly, it's entirely within everyone's right to hurt a business. For example, competing businesses try to hurt each other every chance they get. Under capitalism, they're supposed to! That's what keeps them responsive to the demands of the consumer, and keeps them (at least, in theory) honest in their dealings. Failure of this system is what results in monopoly and oligopoly cartels, where businesses refuse to harm one another.
Taking these two things together, we can distinguish between proper and improper harm. HP did something wrong and reporters publicized that information. Yes, it's clear that the reports harmed HP. But it was proper harm: HP had done wrong and was raked over the coals of public reprobation as a just result.
So are these Kansas City news reports improper? It is one of the fundamental duties of a free press to inform the public of lawbreaking, especially by the powerful. If companies break the law, we expect reporters to say something. Maybe HP has a case against the leakers for damages, but the reporters were doing exactly what they're supposed to do: report. No reporter owes HP, or the Kansas City utility board, or anyone else, a high stock price. That's something a business earns.
In short, don't blame the messenger.
posted by Richard Daly at 2:45 PM on March 5, 2007 [3 favorites]
1) I think we all agree that criminals (or, in this case, polluters) should have protected access to lawyers, and that prosecutors, plaintiffs, and regulators should never be able to take those conversations.
2) Many of us would also likely agree that, on balance, protected communication shouldn't be leaked to the public, or at least there should be rules against leaking. The morality of obeying those rules is beyond the scope, here.
3) Once the damning communication has been leaked, however, it's not just protected communication between a client and a lawyer, other people know through no fault of their own. You're arguing that reporters should be prevented from spreading what they know as if they were prosecutors, and you' seem to have taken this position to protect the business's market position and stock price.
There are two issues with this.
A) The reporters are not bound by the same restrictions as the government, and probably shouldn't be. To do otherwise is to create a special legal protection for secrets: you want keep something hush-hush? Ask your lawyer to research it for you: anything he tells you would be a legally perfect secret, and you could sue newspapers and private citizens to keep it that way. Why should the mere presence of a lawyer entitle you to suppress the truth?
B) More broadly, it's entirely within everyone's right to hurt a business. For example, competing businesses try to hurt each other every chance they get. Under capitalism, they're supposed to! That's what keeps them responsive to the demands of the consumer, and keeps them (at least, in theory) honest in their dealings. Failure of this system is what results in monopoly and oligopoly cartels, where businesses refuse to harm one another.
Taking these two things together, we can distinguish between proper and improper harm. HP did something wrong and reporters publicized that information. Yes, it's clear that the reports harmed HP. But it was proper harm: HP had done wrong and was raked over the coals of public reprobation as a just result.
So are these Kansas City news reports improper? It is one of the fundamental duties of a free press to inform the public of lawbreaking, especially by the powerful. If companies break the law, we expect reporters to say something. Maybe HP has a case against the leakers for damages, but the reporters were doing exactly what they're supposed to do: report. No reporter owes HP, or the Kansas City utility board, or anyone else, a high stock price. That's something a business earns.
In short, don't blame the messenger.
posted by Richard Daly at 2:45 PM on March 5, 2007 [3 favorites]
hewlett packard's trade secrets should not have been released to the media. that was my point.
I think everyone got confused by your point having little to do with the topic of this post. This is about what happens after something is leaked to the media, and you're still focusing on the leak itself, which is irrelevant at this point. The judge didn't block anyone from leaking; he blocked the media from further reporting the leak.
posted by scottreynen at 2:53 PM on March 5, 2007 [1 favorite]
I think everyone got confused by your point having little to do with the topic of this post. This is about what happens after something is leaked to the media, and you're still focusing on the leak itself, which is irrelevant at this point. The judge didn't block anyone from leaking; he blocked the media from further reporting the leak.
posted by scottreynen at 2:53 PM on March 5, 2007 [1 favorite]
bleh. there's nowhere new for me to go with this.
Why should the mere presence of a lawyer entitle you to suppress the truth?
You mean its not even worth bringing up attorney-client privilege in my comments? It's cited twice in the TRO. Does this not go on in one form of the other, all the fucking time, with the blessings of the ACLU?
More broadly, it's entirely within everyone's right to hurt a business.
Am I really coming out and saying the public has an obligation to protect a company I invest in? I'm just trying to put a friendly face on a big corporation that everyone is referring to as "the man" around here. Jesus, enough with the rhetoric.
This is about what happens after something is leaked to the media, and you're still focusing on the leak itself, which is irrelevant at this point.
To put it a little too roughly, who are you to dance in start making distinctions. You make it sound like "the leak itself" and "what the judge decided to do because of the leak" are like two planets on differing sides of the galaxy. The nature of the leak's got fucking everything to do with the judge's decision. Are we going to get all hoyty-toyty (sp?) because i dragged a different story into this? sorry.
Taking these two things together, we can distinguish between proper and improper harm. HP did something wrong and reporters publicized that information. Yes, it's clear that the reports harmed HP. But it was proper harm: HP had done wrong and was raked over the coals of public reprobation as a just result.
I have never argued against the reports that followed Dunn's sting operation at HP. Does anyone even remember the original story? This is the third time I've repeated myself: I'm talking about the trade secrets that were reported prior to the sting.
posted by phaedon at 3:34 PM on March 5, 2007
Why should the mere presence of a lawyer entitle you to suppress the truth?
You mean its not even worth bringing up attorney-client privilege in my comments? It's cited twice in the TRO. Does this not go on in one form of the other, all the fucking time, with the blessings of the ACLU?
More broadly, it's entirely within everyone's right to hurt a business.
Am I really coming out and saying the public has an obligation to protect a company I invest in? I'm just trying to put a friendly face on a big corporation that everyone is referring to as "the man" around here. Jesus, enough with the rhetoric.
This is about what happens after something is leaked to the media, and you're still focusing on the leak itself, which is irrelevant at this point.
To put it a little too roughly, who are you to dance in start making distinctions. You make it sound like "the leak itself" and "what the judge decided to do because of the leak" are like two planets on differing sides of the galaxy. The nature of the leak's got fucking everything to do with the judge's decision. Are we going to get all hoyty-toyty (sp?) because i dragged a different story into this? sorry.
Taking these two things together, we can distinguish between proper and improper harm. HP did something wrong and reporters publicized that information. Yes, it's clear that the reports harmed HP. But it was proper harm: HP had done wrong and was raked over the coals of public reprobation as a just result.
I have never argued against the reports that followed Dunn's sting operation at HP. Does anyone even remember the original story? This is the third time I've repeated myself: I'm talking about the trade secrets that were reported prior to the sting.
posted by phaedon at 3:34 PM on March 5, 2007
scottreynen writes "The judge didn't block anyone from leaking; he blocked the media from further reporting the leak."
She. FWIW.
posted by mr_roboto at 3:35 PM on March 5, 2007 [1 favorite]
She. FWIW.
posted by mr_roboto at 3:35 PM on March 5, 2007 [1 favorite]
phaedon writes "You mean its not even worth bringing up attorney-client privilege in my comments? It's cited twice in the TRO. Does this not go on in one form of the other, all the fucking time, with the blessings of the ACLU?"
No. Privilege does not attach to a third party. The newspapers are not subject to privilege, and there's no compelling interest in abridging their First Amendment rights.
phaedon writes "The nature of the leak's got fucking everything to do with the judge's decision."
The restraining order does not prevent or retract "the leak itself"; it limits the speech of two publications. That's unconstitutional.
posted by mr_roboto at 3:40 PM on March 5, 2007
No. Privilege does not attach to a third party. The newspapers are not subject to privilege, and there's no compelling interest in abridging their First Amendment rights.
phaedon writes "The nature of the leak's got fucking everything to do with the judge's decision."
The restraining order does not prevent or retract "the leak itself"; it limits the speech of two publications. That's unconstitutional.
posted by mr_roboto at 3:40 PM on March 5, 2007
fine. im no expert. so every email ive ever gotten that has a "confidential disclaimer" at the bottom - its just there for show? anybody who gets the email can publish it? make money off of its contents? the "confidential" aspect only applying to the sender and the recipient?
posted by phaedon at 3:47 PM on March 5, 2007
posted by phaedon at 3:47 PM on March 5, 2007
Am I really coming out and saying the public has an obligation to protect a company I invest in?
yes ... furthermore, you are arguing that if that company is involved in illegal activities, which is something that will hurt members of the public who invest in that company, then any documents leaked should not be published because they hurt the investors
it's not the leak that hurts the investors ... it's the illegal actions the company makes that hurts the investors
I have never argued against the reports that followed Dunn's sting operation at HP.
we don't care about hp ... go whine about your bad investments somewhere esle
posted by pyramid termite at 3:48 PM on March 5, 2007
yes ... furthermore, you are arguing that if that company is involved in illegal activities, which is something that will hurt members of the public who invest in that company, then any documents leaked should not be published because they hurt the investors
it's not the leak that hurts the investors ... it's the illegal actions the company makes that hurts the investors
I have never argued against the reports that followed Dunn's sting operation at HP.
we don't care about hp ... go whine about your bad investments somewhere esle
posted by pyramid termite at 3:48 PM on March 5, 2007
phaedon writes " fine. im no expert. so every email ive ever gotten that has a 'confidential disclaimer' at the bottom - its just there for show? "
Oh yeah, that's just nonsense. I don't think the "confidential" aspect even applies to the recipient. Unless the recipient is the sender's attorney.
posted by mr_roboto at 3:48 PM on March 5, 2007
Oh yeah, that's just nonsense. I don't think the "confidential" aspect even applies to the recipient. Unless the recipient is the sender's attorney.
posted by mr_roboto at 3:48 PM on March 5, 2007
every email ive ever gotten that has a 'confidential disclaimer' at the bottom - its just there for show?
It would only apply if you, as the recipient, signed a confidentiality agreement with the sender. Third parties are not bound by your agreement, either.
posted by IronLizard at 4:39 PM on March 5, 2007
It would only apply if you, as the recipient, signed a confidentiality agreement with the sender. Third parties are not bound by your agreement, either.
posted by IronLizard at 4:39 PM on March 5, 2007
More on that confidentiality agreement at the bottom. So sorry. You gave me the information, and then you tried to bind me to confidentiality. Sorry, I reject your terms. Next time, ensure that we have a confidentiality agreement in place *before* you send me confidential data.
posted by eriko at 4:53 PM on March 5, 2007
posted by eriko at 4:53 PM on March 5, 2007
I'll toss in my thoughts.
In the first place, it is not the job of the media to respect attorney/client privilage. The government is bound to do so, but the press is not part of the government [1], and is not under the same obligations as the government. If a confidential communication between an individual criminal and his attorney were listened in on by the government that'd be illegal; if the press somehow got hold of a message between a criminal and his attorney and published it that shouldn't be illegal.
In the second place, I'll argue that corporations, as large, powerful, engines of profit are neither humans nor citizens and therefore should not be accorded the same rights we grant real, human, people.
I'll get upset over the *government* violating the rights of the Jose Padilla, a *human*being*. The media, publishing confidential corporate communications I'm not at all upset over. Corporations are big and powerful, if they can't take care of themselves they deserve to fail; and, I'd like to emphisize again that they aren't people, they aren't citizens, etc.
[1] Except for FOX News, and then only until 2008.
posted by sotonohito at 5:05 PM on March 5, 2007
In the first place, it is not the job of the media to respect attorney/client privilage. The government is bound to do so, but the press is not part of the government [1], and is not under the same obligations as the government. If a confidential communication between an individual criminal and his attorney were listened in on by the government that'd be illegal; if the press somehow got hold of a message between a criminal and his attorney and published it that shouldn't be illegal.
In the second place, I'll argue that corporations, as large, powerful, engines of profit are neither humans nor citizens and therefore should not be accorded the same rights we grant real, human, people.
I'll get upset over the *government* violating the rights of the Jose Padilla, a *human*being*. The media, publishing confidential corporate communications I'm not at all upset over. Corporations are big and powerful, if they can't take care of themselves they deserve to fail; and, I'd like to emphisize again that they aren't people, they aren't citizens, etc.
[1] Except for FOX News, and then only until 2008.
posted by sotonohito at 5:05 PM on March 5, 2007
IANAL, but I think Phaedon needs to consult an attorney.
posted by Kirth Gerson at 5:12 PM on March 5, 2007
posted by Kirth Gerson at 5:12 PM on March 5, 2007
Someone who sends you an email still has copyright on it, so they can restrict you from republishing it. They cannot, however, prevent you from TELLING PEOPLE about the email. As long as you use your own words to spread the information you were given, you're not violating copyright.
Absent some other contractual obligation on your part, I don't believe there's a damn thing they can do. If they sent you a trade secret without an NDA, then as far as I know it's no longer a trade secret.
IANAL, YMMV, etc etc.
posted by Malor at 5:22 PM on March 5, 2007
Absent some other contractual obligation on your part, I don't believe there's a damn thing they can do. If they sent you a trade secret without an NDA, then as far as I know it's no longer a trade secret.
IANAL, YMMV, etc etc.
posted by Malor at 5:22 PM on March 5, 2007
"i could imagine a conversation where he asks his lawyer, "should i confess to the crime that i committed? or is it better to go to court?" you're fucking telling me that's a confession?"
Yeah, and the press should run with it. It's inadmissable as law, but if someone leaks it, it's a leader.
"this is and should be illegal. at least i think so. so boohoo, for me, thats fine."
No, and you're retarded. Sorry. Please think more about the functions of a free press and what it means to be an American. There's nothing criminal about leaking, and while you could argue that it's "illegal" to leak (actionable), it ain't and shouldn't be illegal to print it. That's where you are, to repeat, retarded.
posted by klangklangston at 5:39 PM on March 5, 2007
Yeah, and the press should run with it. It's inadmissable as law, but if someone leaks it, it's a leader.
"this is and should be illegal. at least i think so. so boohoo, for me, thats fine."
No, and you're retarded. Sorry. Please think more about the functions of a free press and what it means to be an American. There's nothing criminal about leaking, and while you could argue that it's "illegal" to leak (actionable), it ain't and shouldn't be illegal to print it. That's where you are, to repeat, retarded.
posted by klangklangston at 5:39 PM on March 5, 2007
ill take the first option. and thanks for the ad hominem. im like, so offended.
posted by phaedon at 5:44 PM on March 5, 2007
posted by phaedon at 5:44 PM on March 5, 2007
"And I think you'd find a lot of criminal defense lawyers and civil rights activists who would defend to their deaths the importance of confidentiality of attorney-client communications."
In terms of admissibility, yeah. In terms of press freedom? Please.
"Someone who sends you an email still has copyright on it, so they can restrict you from republishing it. They cannot, however, prevent you from TELLING PEOPLE about the email. As long as you use your own words to spread the information you were given, you're not violating copyright."
Even further, they can quote (or arguably publish the whole thing) under the fair use news exception. If you send me an email about how you've methodically defrauded pirates and ninjas of their medicare benefits, you'd be laughed out of court attempting to assert copyright over any resultant news story that quotes the email.
posted by klangklangston at 5:49 PM on March 5, 2007
In terms of admissibility, yeah. In terms of press freedom? Please.
"Someone who sends you an email still has copyright on it, so they can restrict you from republishing it. They cannot, however, prevent you from TELLING PEOPLE about the email. As long as you use your own words to spread the information you were given, you're not violating copyright."
Even further, they can quote (or arguably publish the whole thing) under the fair use news exception. If you send me an email about how you've methodically defrauded pirates and ninjas of their medicare benefits, you'd be laughed out of court attempting to assert copyright over any resultant news story that quotes the email.
posted by klangklangston at 5:49 PM on March 5, 2007
"ill take the first option. and thanks for the ad hominem. im like, so offended."
What the hell are you on about this time? Try quoting— it's not just for breakfast!
posted by klangklangston at 5:50 PM on March 5, 2007
What the hell are you on about this time? Try quoting— it's not just for breakfast!
posted by klangklangston at 5:50 PM on March 5, 2007
kk: i gotta run so, after this, not so much..
and while you could argue that it's "illegal" to leak (actionable)
me like!
four hours ago, i said: also, i think this thread is heading in the direction of establishing a distinction between "what is admissible in court" versus "what is admissible in the public realm". at this point, i dont know where i fall on that.
again, i like the higher standard for whats admissible in court, broad, lower standards (practically non-existent) for what can or can't be printed.
me being retarded solved. so why is the judge using client-attorney confidentiality to defend/define her position?
posted by phaedon at 5:55 PM on March 5, 2007
and while you could argue that it's "illegal" to leak (actionable)
me like!
four hours ago, i said: also, i think this thread is heading in the direction of establishing a distinction between "what is admissible in court" versus "what is admissible in the public realm". at this point, i dont know where i fall on that.
again, i like the higher standard for whats admissible in court, broad, lower standards (practically non-existent) for what can or can't be printed.
me being retarded solved. so why is the judge using client-attorney confidentiality to defend/define her position?
posted by phaedon at 5:55 PM on March 5, 2007
Because the judge is retarded. And it's important to note that the "illegal" that you like would be directed at the leaker, not the leakee. That's why Scooter Libby's on trial, not Novak.
posted by klangklangston at 6:25 PM on March 5, 2007
posted by klangklangston at 6:25 PM on March 5, 2007
You mean its not even worth bringing up attorney-client privilege in my comments? It's cited twice in the TRO. Does this not go on in one form of the other, all the fucking time, with the blessings of the ACLU?
The attorney/client privilege just means the government can not compel the attorney or client to reveal the protected communication and that such communications which are kept confidential are not admissable in court. Here someone has obviously breached that. Someone who had access to the communication leaked it. They may have violated confidentiality contracts etc. in the process yet the mere fact that they leaked it (depending upon who did it) may very well mean that there is no longer any attorney/client privilege with regard to this subject. In any event, I doubt there is case law supporting this judge's actions, although I haven't searched. As others have said, in prior restraint situations the assumption is that restraint is wrong and the burden is then upon the party seeking restraint to show one of the extreme circumstance in which it is allowed. I doubt protection of the attorney/client privilege, noble as that is, qualifies.
posted by caddis at 7:55 PM on March 5, 2007
The attorney/client privilege just means the government can not compel the attorney or client to reveal the protected communication and that such communications which are kept confidential are not admissable in court. Here someone has obviously breached that. Someone who had access to the communication leaked it. They may have violated confidentiality contracts etc. in the process yet the mere fact that they leaked it (depending upon who did it) may very well mean that there is no longer any attorney/client privilege with regard to this subject. In any event, I doubt there is case law supporting this judge's actions, although I haven't searched. As others have said, in prior restraint situations the assumption is that restraint is wrong and the burden is then upon the party seeking restraint to show one of the extreme circumstance in which it is allowed. I doubt protection of the attorney/client privilege, noble as that is, qualifies.
posted by caddis at 7:55 PM on March 5, 2007
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posted by exogenous at 11:23 AM on March 5, 2007