-Caveat Lector- from: http://www.apbnews.com/cjsystem/findingjustice/1999/12/16/judges_legal1216_01. html Click Here: <A HREF="http://www.apbnews.com/cjsystem/findingjustice/1999/12/16/judges_legal12 16_01.html">Leahy Wants Judges' Financial Data Posted Online</A> ----- Disclosure Case a Pandora's Box of Legal Issues Can Public Documents Be Barred From the Internet? Dec. 16, 1999 By Bob Port and Ben Lesser Related Document: Read the Law NEW YORK (APBnews.com) -- Is it legal to deny a news service access to public financial disclosures for federal judges in order to prevent those documents from being published on the Internet? The answers from legal scholars: Yes, no and maybe. This Pandora's box of legal ambiguities was opened this week when the Committee on Financial Disclosure, a panel of 15 federal judges, voted to deny a request from APBnews.com to obtain copies of the financial disclosures for all 1,600 federal judges. APBnews.com had planned to publish the documents on the Internet in a way that would make it easy for the public to use them. The committee of judges said that federal law prohibits making a disclosure available to anyone who has not made a written request to the federal bench. If the disclosures appeared on the Internet, then anyone could see the public documents. Violates constitutional guarantees? Experts agree that federal law gives the judicial branch the right to know who asks for a disclosure and the right to censor information for security reasons. However, some experts say a blanket order meant to censor all the disclosures from the Internet violates the U.S. Constitution's guarantees of free speech, freedom of the press and equal protection under the law. It's also clear, say scholars, that the Ethics in Government Act of 1978 -- the Watergate-era law that requires federal officials to file an annual listing of gifts, free travel, loans and assets -- has contradictory language. On the one hand, the law was amended last year to say the judiciary, in consultation with the U.S. Marshal Service, can edit a disclosure to protect an individual judge. On the other hand, the law has long said it is legal for copies of disclosure forms to be used "by news and communications media for dissemination to the general public." 'Written for past, not future' "What we have here is a statute that was written for the past, not the future," said Eugene Volokh, an expert in constitutional and cyberspace law at the University of California at Los Angeles. "The Congress should sit down and think about this," the professor said. Volokh said that in the past the prospect of government documents being published in their entirety was less a concern because of space limitations in newspapers, but with the rise of the Internet, the news hole is virtually limitless. Judges, Volokh said, want "controlled release" of disclosure forms. "The Web changes that. Either the information is accessible to the whole world or not at all." "If we don't get to see the information, then what's the point of the disclosure?" asked Erwin Chemerinsky, an expert in constitutional law and civil rights at the University of Southern California. "I certainly think that every step needs to be taken to protect the security of the judges, but I don't understand the security issues." 'Not prior restraint' Are judges ordering Web sites not to publish a judge's financial disclosure? No, said Chemerinsky. "It's really not a prior restraint." But Chemerinsky said he'd question the constitutionality of the ruling on Firs t Amendment grounds. "I think if they're going to allow the print media to have it, I don't see how they can discriminate against the Internet media," he said. "If they're going to make it available to some media and not other media - then that in itself is a problem." Steven Lubet of Northwestern University in Chicago, an expert in legal ethics, agreed. "Certainly you couldn't have a law that says we will provide public disclosure to some members of the news media and not to other members of other news media. That would violate First Amendment for sure," Lubet said. Administrative, not judicial Lubet said this week's ruling, which comes from a policy-making panel of judges, is an administrative ruling and not a judicial ruling, as would occur in court. Therefore, he said, it shouldn't be given too much weight. "Even though they're judges," he said, "they're deciding this as bureaucrats, and that's the way bureaucrats respond." He said APBnews.com should go to court if it wants the documents. "I think you would win," he said. Wouldn't any federal judge have a conflict of interest in hearing such a case? Arguably, he or she would, Lubet said, but he explained that federal courts use a well-established ethical doctrine, "the rule of necessity," in resolving cases where all judges share the same conflict of interest. Reason for disqualification ignored When that occurs, he said, that reason for disqualification is ignored, the belief being that some judge has to hear the case -- period. "It happens from time to time," Lubet said. William Ross, a legal ethics expert at the Cumberland School of Law of Samford University in Birmingham, Ala., said the Committee on Financial Disclosure appropriately interpreted the law it had in hand. "I think the committee has made a fair reading of the statute," he said. Ross, too, acknowledged that federal law says the disclosures can be used by the news media for dissemination to the public at the same time the law lets judges censor the forms for security reasons -- a contradiction. Jeffrey M. Shaman, professor of law at DePaul University in Chicago, said a Catch-22 in federal law is not unusual. "One doesn't take precedence over the other. It's not infrequent for there be conflicting provisions," Shaman said. 'Far-ranging effects' Shaman agreed with Ross that the committee was within its power to deny release, but he said the committee's interpretation could have far-ranging effects. "If the judicial conference would follow this interpretation, they would have to deny the disclosure form to other news organizations, like newspapers," he said. Since 1979, federal judges have had to file an annual listing of gifts, free travel, assets and loans for themselves and their immediate family. The law requires "the immediate and unconditional" release of the documents to the public. Last year Congress amended the Ethics in Government Act to give federal judges the right to expunge selected information, temporarily, from their disclosures for security reasons. The law says financial information can be kept secret "only to the extent necessary to protect the individual who filed the report" and only "for as long as the danger to such individual exists." Bob Port is APBnews.com's senior computer-assisted reporting editor ([EMAIL PROTECTED]). Ben Lesser is APBnews.com's assistant computer-assi sted reporting editor ([EMAIL PROTECTED]) ----- Aloha, He'Ping, Om, Shalom, Salaam. Em Hotep, Peace Be, All My Relations. Omnia Bona Bonis, Adieu, Adios, Aloha. Amen. Roads End DECLARATION & DISCLAIMER ========== CTRL is a discussion and informational exchange list. Proselyzting propagandic screeds are not allowed. Substance—not soapboxing! 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