Texas judge tries to order the entire world not to discuss case

By Jon Cassidy | Watchdog.org

A district court judge in Galveston County is issuing orders to the entire Internet, trying to gag the world from writing anything about a case that didn’t matter much to anyone in the first place.

The facts of the case aren’t that important. A lawyer named Calvin C. Jackson was accused of forging signatures, and later tried to get the record expunged. A judge obliged, but extended the order, in theory, to the entire world, requiring the Internet to be cleansed of any mention of disciplinary proceedings against Jackson.

The court held Google responsible for scrubbing the Internet, and presumably a few other search engines. AltaVista, maybe? Ask Jeeves?

We don’t know who all received the order, or the name of the judge, as his or her name is covered by the gag order, as is the order itself, as are the briefs filed in an appeal. The judge’s identity should come to light soon, once the 1st District Court of Appeals for Texas finishes laughing. It heard arguments from Google last week.

This order might even apply to us, in theory, as this is the Internet and we’re mentioning Calvin C. Jackson, and that’s just one reason secret court orders are such a bad idea.

There are some very specific reasons why a judge can’t just sign an order sealing records — Rule of Civil Procedure 76a, for example, which requires noticing, and a hearing, and, well, prohibits the sealing of court orders in the first place.

Maybe it’s too much to expect our judges to know all the rules they have to follow, but some general knowledge should have been enough to keep the court from embarrassing itself.

First, there’s the matter of jurisdiction. If you get yourself elected judge of a district court, you get some authority, but that authority has boundaries — boundaries that cover around the 457th part of the state’s geography. It’s not a license to tell bloggers in Burkina Faso what they can put on the Internet.

Then there’s the First Amendment, which almost never allows for “prior restraint” of speech. The Supreme Court has called prior restraint the “the most serious and the least tolerable infringement” of the First Amendment that would be permissible only in extreme cases of a threat to national security.

A lawyer named Calvin C. Jackson, who may or may not forge signatures (will we ever know?), falls somewhat short of that standard.

Prior restraint and Rule 76a were two of the arguments made by Chip Babcock, an attorney for Google, in a hearing last week.

“The order required Google to expunge all references to the lawsuit and information about the lawsuit,” Babcock said. “It also required Google to contact third parties who may have accessed the information and get it back from them. It further restrained Google from ever talking about it in the future, which is a prior restraint on speech.”

Babcock had plenty of other arguments: The order was a violation of the federal Communications Decency Act. It was a misreading of state law, which allows an attorney in an abandoned disciplinary proceeding to seek expunction “of all records on the matter.”

Everyone else has understood that reference to records to mean government records, but the Galveston court figured the Texas Legislature must have been creating a grant of worldwide authority to search and destroy spiral-bound notebooks. It’s that question of jurisdiction again.

It’s unlikely the judge is actually as dumb as this decision. Babcock said the judge simply signed an order prepared for the court by Jackson’s attorney.

I should make clear that the jabs are mine, not Babcock’s, although he did allow that he’s “never seen anything like this before.”

One of the justices who heard the appeal reportedly said the order sounded like “something Stalin was able to do in Russia.”

Contact Jon Cassidy at jon@watchdog.org or @jpcassidy000. If you would like to send him documents or messages anonymously, download the Tor browser and go to our SecureDrop submission page: http://5bygo7e2rpnrh5vo.onion