The Basis of the Taricani Ruling
The Providence Journal provides a link to Judge Torres’ order (pdf format) compelling Jim Taricani’s testimony about his source. Two things leap out at me.
1. It is clear from the memo that the leaking of the tape is not a violation of the law. It is a violation of a “protective order” issued by the judge. In explaining the validity of the order, Judge Torres cites its consistency with “the Local Rules of this Court” and the “Rules of Professional Responsibility” for lawyers. Do we now live in a society where rules that judges and lawyers make to police themselves, without consulting any other branch of government, can be used to take a citizen’s freedom away?
2. Judge Torres cites precedents stating “Certainly the public has no right to demand access to discovery materials which are solely in the hands of private party litigants” and “no public right of access submitted to court in camera as part of discovery dispute”. He uses these precedents to support the “rules” barring the release of evidence. The logical connection Judge Torres sees is troubling. Do we live in a society where everything that there is no right to is forbidden? Is the government’s enumeration of our rights the limit of our rights? More concretely, because I don’t have a right to a $1,000,000-a-year job, does that mean a $1,000,000-a-year job is forbidden to me?
I mean no personal disrespect to Judge Torres, but this memo contains the kind of sloppy reasoning that is only possible when courts feel that mere laws written by legislators are too harsh a limit on their powers.