Super Double-Secret Takedown Injunction

My research on Internet libel takedown orders has profited tremendously from the Lumen Database (formerly, a website to which Google and others archive takedown requests. I’ve seen a couple of orders, though, that purport to bar search engines from posting the orders on Lumen.

That, I think, is an unconstitutional restriction on the search engines’ First Amendment rights. Such gag orders are controversial even when they’re entered in response to national security letters, where there’s a government interest in national security and the underlying order only seeks to gather information from Internet services — they should be unconstitutional when there’s no national security interest and the underlying order is an attempt to take down speech outright. I can understand why libel litigants might want to hide the very existence of the underlying lawsuit. But American civil litigation is supposed to be a publicly open process, and there is no exception to that for libel cases.

One such order, from Clark County, Nev., struck me as especially troubling: It purported to outright command search engines to de-index certain material — even though the search engines were not parties to the case — and ordered them not to submit copies of the order to Lumen. And when I tried to check the authenticity of the order, I was told that the entire court file was sealed, even though Nevada law seems to prohibit such categorical sealing.

I’m pleased to say that yesterday, pro bono counsel Kristen T. Gallagher and Adam D. Hosmer-Henner of McDonald Carano LLP filed a motion on my behalf, seeking the unsealing of the file. (Thanks to my UCLA Scott & Cyan Banister First Amendment Clinic student Stefan Caris Love for his help with the motion.) Here is the text of the motion, in case our readers are interested in such open records questions. Out of deference to the court’s having sealed the case, I’m not mentioning the name of the case or the parties, or enclosing or quoting the underlying injunction. As you can see in Part IV, part of the relief I seek is an order clarifying that, even if the case remains sealed, third parties such as me are not bound by any sealing order.

To read entire article click here.

By Eugene Volokh

Washington Post, Nov 28





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