Blogger Gagged

On May 29, 2009,  the 79th District Court of Jim Wells County, Texas  released its decision in Coronado Energy  E&P Company, L.L.C. v. McGill Ranch, Ltd.,  Stephen Burns and Elizabeth Burns; Cause No. 08-06-47106-CV. (This link will take you to the blog which has several links to documents.)

According to the Court’s papers,  Plaintiff   Coronado alleged that Ms. Burns,  based on her previous actions, is likely to publish “proprietary”  information  about Coronado’s practices if she isn’t stopped.  Coronado further  alleged that Ms. Burns has published confidential  documents provided to her during the legal discovery process.

On December 3, 2008, Plaintiff Coronado Energy requested, and  the Court signed, a Protective Order which was entered  against Ms. Elizabeth Burns who publishes the blog,  “A Satirical View from the McGill Bros Lease in South Texas.”  The Court evidently agreed with Coronado’s  wish  “to protect Coronado’s  proprietary and trade secret related or type information that will or may be revealed through the course of depositions and other discovery in this matter.  Such order will allow all  parties in this case to designate certain discovery  products as confidential and thereby limit disclosure and use of such information outside of this lawsuit…”

Under normal circumstances, such confidential designations are frequently made in civil suits.  However, under normal circumstances,  the party wishing to designate documents as “confidential”  does not do so in the aggregate and provides specific reasons for each instance.  The concern in this case is that the burden  of proof has been  shifted to Ms. Burns,  who, if she wants to publish Coronado documents, must show, apparently,  that such documents should not be designated “confidential.”  By placing the burden on Ms. Burns,  the Court has effectively ruled that  she must return to the  Court for permission whenever she wishes to publish  Coronado documents

During our 330-mile River Trip to light up the Delaware River,  Leni and I discovered that very few people in our River Basin had ever heard of  hydraulic fracturing and even fewer knew what it was.

The burden of educating the public about what the gas companies plan for our communities has fallen, in large part, to bloggers.  Although there are notable exceptions  (The River Reporter and  The Intelligencer, to name just two)  the understanding most people have regarding the issues  comes from watching a virtual deluge of pro-drilling ads on their TVs.

The U.S. Supreme Court said in New York Times v. United States (1971)  “The United States, which brought these actions to enjoin publication in the New York Times and in the Washington Post of certain classified material, has not met the “‘heavy burden of showing justification for the enforcement of such a [prior] restraint.'”

(“Prior restraint” refers to  restrictions placed on  a citizen’s rights in case the citizen  might overstep legal bounds at some future time.  The Supreme Court was reminding us that  if the State seeks to restrict a person’s  speech,  the burden on the State is enormous.  In so saying,  The Court was reminding us that  our nation is only as strong as our sources of information,  our ability to access that information and the  open fora in which we discuss that information.)

In one of the most brilliant and moving opinions ever published by the Court, Justice Black wrote, in part, with Justice Douglas concurring:

“In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.

‘Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

“James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 2 (Emphasis added.)

“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”

I am not an attorney and  would not presume to voice an opinion on either Coronado’s allegations or Ms. Burns’ response, but I  hope that all of us — bloggers, the populace,  mainstream media and Courts of Law —  will read and re-read Justice Black’s statement.  Although it  concerns restraints placed on citizens by  The State,  in our current oligarchy where  The State and Corporations are enmeshed,  Justice Black’s words ring with  deep import.

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