Down the memory hole

According to the Houston Chronicle,

But in a stunning and all-encompassing gag order signed over a year ago and now being appealed to Houston’s 1st Court of Appeals, attorney Calvin C. Jackson, who was accused of forging attorney signatures on court records, demands Google erase all mention of those accusations from the entire Internet including other websites….

The gag order, signed by visiting San Antonio Judge Richard Price in February 2013, forces Google and other search engines to wipe out all record of the allegations from the Internet. It also compels the search engine to find third parties who posted the information to get it back and destroy it. The order also prohibited Google and parties to the suit from talking about the allegations after the order was signed.

Indeed, even the gag order seems to be secret: “Neither Babcock nor the court, district clerk or any of the parties connected to the case would release a copy of the order, saying the release was prohibited under the final order expunging records.”

As the Southeast Texas Record (a legal newspaper) reported at the time,

The Commission For Lawyer Discipline has filed suit against Houston attorney Calvin C. Jackson over allegations he committed forgery.

According to a lawsuit filed June 18, Jackson “deceitfully” filed pleadings in a June 2010 lawsuit in Galveston County Court at Law No. 3 under the forged signatures of the plaintiff’s counsel.

Jackson was representing one of the defendants in the litigation, which was consolidated into another case….

“The respondent, as defense counsel, had no authority to act on behalf of the plaintiff,” the suit says.

“Further, the respondent’s fraudulent filings caused delay, and wasted the court’s time and resources.”

Galveston County Court at Law No. 3 Judge Christopher Dupuy found Jackson in contempt of court on Sept. 9, 2011.

According to the Chronicle, “[t]he allegations against [Jackson] were settled, but no one connected to the case would say what happened because of the gag order.”

If the facts are as reported, then this order is clearly unconstitutional. Given the First Amendment, a court can’t order a publisher — whether Google, some other Web site, the Houston Chronicle, or this blog — to delete formerly public records.

Even damages liability in such cases is generally unconstitutional, see Florida Star v. B.J.F. (1989) (in which the Court that a newspaper had a right to publish even an erroneously released name of a rape victim, notwithstanding a state statute prohibiting such publication). The case against an injunction is even clearer.

Indeed, I’m surprised that the injunction hasn’t been vacated through some emergency proceeding, as has happened with other overbroad injunctions in the past. The appellate process can be slow, but there are some procedures (such as petitions for mandamus) that make it possible to quickly overturn such unconstitutional injunctions. In any event, I expect the injunction to be overturned on the appeal.

Disclosure: I have represented Google in the past, though not on anything having to do with this case. I have also filed an amicus brief in Martin v. Hearst Corp., arguing that a court cannot impose damages liability on a publisher that declines to take down a Web page accurately reporting an arrest that has since been expunged.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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Eugene Volokh | April 21