Website appeal may be landmark

Next month, a panel of the 5th Circuit Court of Appeals will convene for arguments on whether the U.S. District Court in Lafayette went too far in shutting down a website critical of the Lafayette Police Department, the city’s police chief and other officials.

It’s a nuanced issue that pits the right of government to quell the public dissent of employees who are suing their employer, say free speech experts.

“They’re at a First Amendment crossroads,” Tulane University Law School professor Keith Werhan said.

Former and current police officers last year in federal court sued the department, Lafayette City-Parish Government, Police Chief Jim Craft, and other government officials.

In the lawsuit, filed June 5, 2012, the officers allege fraud, racial discrimination and other offenses within the police department and are seeking a monetary award.

The lawsuit, Marceaux et al v. Lafayette Consolidated Government et al, remains on hold while the website issue is being resolved.

In September, U.S. Magistrate Patrick Hanna issued a gag order on the parties in the lawsuit. Hanna later lifted most of the gag order, but the order shutting down the website — — remains in effect.

U.S. District Judge Richard Haik ratified that remaining order on March 6.

The website contained audio conversations secretly recorded within the department, Hanna wrote in a 17-page ruling, dated Sept. 18, 2012, stating his reasons for shutting down the website.

Hanna said the content of the website and leaks to the media about the case were harming the process of bringing the lawsuit to trial, Hanna wrote.

“There is a likelihood that the extra-judicial comments made in the media and on the website by the plaintiffs and/or their counsel, if allowed to continue unfettered, will undermine a fair trial and taint the jury venire,” Hanna wrote.

Werhan said government employees such as police officers can be censored by their bosses just like in the private sector. But only to a point. He said clamping down on employees’ speech must stop when private matters become issues of public interest.

“If the content is a matter of public concern … even though they’re police officers, they’re speaking as citizens,” he said. “The government has a very special burden (to meet) in silencing someone before they speak.

“Shutting down the website is draconian under any set of circumstances,” Werhan said.

Lori Mince, an attorney in New Orleans who represents media, including The Advocate, said courts rarely order or condone a shutdown of a medium used in free speech, such as a media website.

But, she said, the 5th Circuit panel could uphold Hanna’s decision because the website belongs to litigants in a lawsuit. The current and former officers are plaintiffs who might have insider knowledge of the case that outside media do not have, such as details unearthed during the “discovery” phase of a case, she said.

“It’s not automatic by any means, but I think the theory behind that is that the parties and the lawyers have unique access to information,” Mince said, “and they also have special duty to ensure the fairness of the proceedings that you and I as citizens do not have.”

Mince said one of the questions the appellate judges will want answered is whether the district court in Lafayette considered other remedies that could ensure an impartial jury, such as moving the trial away from Lafayette and the publicity the website generated.

The attorneys for the current and former officers said their clients’ rights as U.S. citizens to free speech and to disseminate that speech on a website have been unlawfully stopped.

“You’re talking about a blanket shutdown,” attorney Chris Alexander said. “The officers’ freedom of expression has been completely blanked out.”

Michael Corry, the lead attorney defending Lafayette City-Parish Government and the officials in the lawsuit, did not return messages left at his office last week.

Patrick Briney, another attorney for the City-Parish, said he would issue no comment other than referring questions to Hanna’s court writings.

In the Sept. 18 ruling, Hanna directed some of his strongest criticism toward the officers’ attorneys.

Hanna said the website was started by the plaintiffs’ attorneys, Alexander and Stephen Spring, and maintained until sometime between Friday, Sept. 14, and Monday, Sept. 17. During that weekend, the attorneys transferred ownership of the site to Regina Briscoe, one of the plaintiffs, Hanna said.

“Some of the recordings (on the website) include confidential personnel matters that do not involve any of these plaintiffs,” Hanna wrote. “The recordings were given by the plaintiffs to their (attorneys), who had the postings made to the website without the permission of the other parities to the conversations.”

Dave Woolridge, a media attorney affiliated with the Louisiana Press Association, said Hanna and Judge Haik were “trying to balance” individuals’ right to expression with the judges’ jobs of preserving the integrity of the court.

The question is, Woolridge said, “did they exceed the boundaries, or go out of bounds.”

In their request to the 5th Circuit for an immediate hearing, Spring and Alexander said the officers who are suing were accused by Chief Craft and other higher ranking officers of “besmirching the department’s ‘good name’ by daring” to tell the truth about corruption.

“Once plaintiffs began to publicly reveal the Lafayette Police Department’s malfeasance, they were singularly and collectively targeted by the defendants for retribution and reprisals,” Spring and Alexander wrote.

One of the ways the plaintiffs “fought back” was to include on the website “a factual rendition” of the lawsuit and goings-on at the department, the attorneys said.

Erin Coyle, assistant professor at LSU’s Manship School of Mass Communication, said Hanna could have sought a more “narrowly construed” method of ensuring that the court and the trial had access to an impartial jury.

“It’s going to be really interesting to see what the 5th Circuit says about this case,” she said.