Is a Law Blogger a Journalist? (Second Circuit prematurely releases Higazy Decision)

[djg21]

Source: Law.com

When a legal ruling is mistakenly released into the public domain, does a lawyer, who is also a blogger, have an obligation to the court to remove the opinion -- or an obligation as a journalist to leave it up for readers? That's an interesting question posed by this scenario that unfolded over the past two days, involving an ALM blogger, How Appealing's Howard Bashman, and a 2nd Circuit decision in Higazy v. Templeton that Bashman posted on Thursday. As described here, in the Higazy case, the 2nd Circuit revised a lawsuit brought by an Egyptian student detained as a material witness after the Sept. 11 attacks. The student claimed that he had been coerced by an FBI agent to make a false confession. But the court withdrew its opinion several hours later because of concerns that the decision contained information filed under seal.

A 2nd Circuit clerk asked Bashman to remove the decision from his site, but he declined. Bashman explained his reasoning for declining the request in this letter that he sent to the ABA Journal:

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Read more: http://legalblogwatch.typepad.com/legal_blog_watch/2007/10/is-a-law-blogge.html

[Kagemusha]

1. This has nothing to do with the man's being a lawyer or a blogger.

This has to do with the court having made a mistake on its own and seeking to undo the mistake by restricting free speech after the fact. This has nothing to do with a shield law; had someone who hadn't been a journalist or writer a single day in his life, printed the decision out and nailed the stack of paper to a billboard sitting on his porch, the court would have no proper right to demand that the papers be taken down.

The fact the individual involved is an "officer of the court" means nothing - he was not involved in the case and there is absolutely no suggestion that he was responsible for the Second Circuit releasing the decision online.

I am annoyed at the question, "But what if the facts were different?" They aren't.