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Sunday, March 3, 2024

Los Angeles’ latest lawsuit against journalist Ben Camacho is an unconstitutional mess – Orange County Register

The Supreme Court once called prior restraints — or government orders prohibiting the press from publishing -– the “most serious” of First Amendment violations. Well, the city of Los Angeles seems intent on proving the court wrong. It’s come up with an even more offensive way to trample on journalists’ constitutional rights. 

Not only does the city want a prior restraint barring journalist Ben Camacho from publishing pictures the city itself accidentally gave him, now it’s suing him to force him to pay the legal costs of the city’s mistake. It never even occurred to the Supreme Court that someone would have the chutzpah to try that one. 

Officials like Mayor Karen Bass and City Attorney Hydee Feldstein Soto must know the city’s claims are baseless and they’re essentially throwing money in the trash by pursuing them. The Supreme Court has said four times that, when the government inadvertently releases documents to the press, that’s the government’s problem, and it can’t stop the press from publishing what it released. Journalists, the court has reasoned, don’t work for the government, and it’s not their job to worry about what the government wants them not to publish.   

But hey, it’s your money, not theirs. They don’t have to win the case to teach Camacho a lesson. 

The ordeal started in 2021 when Camacho filed a public records request for a roster of LAPD officers and their headshots. He had to sue the city to get the photographs but the city agreed to provide them in a settlement. He shared the photographs with an activist group, the Stop LAPD Spying Coalition, which published them. 

When the city produced the photos it enclosed a letter explaining that it left out officers who work undercover. But, the city messed up — it neglected to actually omit those pictures. A police union sued the city demanding it recover the photos and stop their publication. Another lawsuit followed, accusing the city of negligence and asking for monetary damages to compensate the officers affected.  

The city then sued Camacho and the activist group last April, demanding the judge prohibit them from further publishing the photos and make them return or destroy their copies. That lawsuit amounts to a request for a blatantly unconstitutional prior restraint. It rightly drew the ire of press freedom advocates everywhere

And now comes the new lawsuit demanding Camacho cover any liability the city incurs to the officers due to its own recklessness. The city has hit the trifecta of anti-press First Amendment violations: first, demanding journalists give back documents the government released, second, censoring journalists from publishing information, and now, holding journalists financially liable for truthful publications — something that, once again, the Court has never permitted.

Sure, identities of undercover officers are sensitive (although the city is apparently defining “undercover” so broadly it encompasses all but 1.5% of those whose photos it initially released). But the Supreme Court has barred punishment for publishing government records even where they identified rape victims. And it has rejected prior restraints even where the government claims wartime national security is at stake. There’s no undercover cop exception. If the city’s mistake caused officers damages, it should pay up, do better, and leave journalists out of it. 

Unfortunately, Los Angeles is not alone in pursuing blatantly unconstitutional legal theories to silence reporters. There’s been a disturbing national increase in prior restraints generally, and clawback efforts, involving inadvertently released government documents, specifically. The U.S. Press Freedom Tracker documented 11 prior restraints in 2023 – the most since it began tracking them in 2017. Many of them were vacated after judges realized the constitutional can of worms they’d opened but some were not. 

A judge in Greensboro, North Carolina instructed bailiffs to seize a journalist’s notes and prohibit her from reporting on what she’d heard in open court. A St. Louis judge barred a newspaper from reporting on documents uploaded to a public court file. A judge in Denver ordered a journalist to return or destroy court records the court clerk gave him (that journalist courageously ignored the judge and published anyway).   

A New York Times op-ed last year, by law professor Gregory P. Magarian, noted that the Supreme Court has “abandon[ed] the press,” instead focusing its recent First Amendment jurisprudence on businesses, campaign financiers and activists. It has thereby “licensed law enforcement and lower courts to regard journalists with ignorance, laziness or malice.”

Ignorance, laziness and malice: sounds like yet another trifecta the city’s censorship campaign against Camacho has checked off.

Speaking of the Press Freedom Tracker, its senior reporter, Stephanie Sugars, recently identified the LAPD as having one of the nation’s most “atrocious” track records on press freedom. That may be surprising to some Angelenos, who likely shook their heads in disbelief when cops in places like Marion, Kansas and Atmore, Alabama made headlines by raiding newsrooms or arresting journalists for doing their jobs. 

It shouldn’t be. Government harassment of the press is a national problem, equally prevalent in cities red and blue, big and small, and LA’s antics are every bit as unconstitutional as those other cases. Those who value press freedom should demand better from their government.

Seth Stern is a First Amendment lawyer and the director of advocacy for Freedom of the Press Foundation, which operates the U.S. Press Freedom Tracker. 



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