NEW ORLEANS — A federal appeals judge Tuesday said the First Amendment exists to protect speech that officials in power find offensive and unsettling, including the content of a court-shuttered website critical of the Lafayette Police Department.
“That’s what makes it core speech,” said Judge Catharina Haynes, of the 5th U.S. Circuit Court of Appeals. “That’s what the First Amendment’s all about.”
Haynes and two other appellate judges heard oral arguments Tuesday that focused on U.S. District Court Magistrate Judge Patrick Hanna’s closure of www.realcopsvcraft.com in September 2012.
The website is the offspring of a federal lawsuit filed in June 2012 against Lafayette City-Parish Government by current and former city police officers who allege the department suffers top-to-bottom corruption.
The corruption allegations have been denied by city officials, and the lawsuit is on hold pending the 5th Circuit’s decision on whether Hanna’s closure of the website was an unconstitutional exercise in prior restraint.
The three-judge panel — Haynes, Ivan Lemelle and Priscilla Owen — did not issue a ruling Tuesday.
Among those attending the hearing were Police Chief Jim Craft and City-Parish Chief Administrative Officer Dee Stanley, who are named in the lawsuit.
Michael Corry, an attorney for Lafayette City-Parish Government, told the appellate court judges that in shutting down the website, Hanna was trying to keep the jury pool clean for the civil trial scheduled for December.
The site, Corry said, was getting too much publicity and it had content that “offends professionalism.”
“That’s what Judge Hanna found,” Corry said.
Haynes questioned whether offensive remarks on the site were issues with enough constitutional weight to clamp down on speech.
“People say that about their public officials all the time. It’s not pretty,” said Haynes.
Corry said the website contained audio posts of conversations among police officers, some of whom did not know they were being recorded.
Haynes asked Corry if that was illegal.
“No, but it was unethical,” Corry said.
“No, actually, it was not,” Haynes said.
Corry also said Hanna listed narrow, specific reasons in his Sept. 18, 2012, ruling closing the website.
“But he shut the whole website down,” Haynes said.
Lemelle, a U.S. district court judge sitting Tuesday as one of three 5th Circuit jurists, questioned Hanna’s full-scale shutdown of the website instead of a surgical approach that would have excised specific content.
“To me it’s a bludgeon instead of a scalpel,” Lemelle said.
Chris Alexander, an attorney for the suing officers, said the recordings posted on the website were made by plaintiffs who wanted insurance against reprisals within the department. Alexander said the lead plaintiff, Kane Marceaux, suffered from “daily retaliatory acts.”
Marceaux made the recordings, Alexander said, “to protect himself.
Corry said the website was created for one purpose, to taint a jury.
Haynes questioned whether anyone selected for jury duty would remember the website and what it contained. She said newspapers and their Internet sites, which have a much broader reach than the website closed by Hanna, are being read by fewer people and many of those don’t remember much of what they read in a particular case.
Stephen Spring, another attorney for the plaintiffs, said Hanna’s reasoning that the website would taint potential jury members was faulty: If the case goes to trial, a jury would be selected from within the 31-parish area of the Western District of Louisiana.
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