Monday, March 23, 2015

Is GLWA Gag Order Constitutional?

For most purposes, Detroit’s historic bankruptcy (Case #13-53846) is over. However, on February 6, 2015, Bankruptcy Judge Steven Rhodes extended his Mediation Order (Docket #8468) of November 26, 2014, providing for negotiations concerning the lease of certain water treatment facilities from the Detroit Water and Sewerage Department by a newly created regional entity, the Great Lakes Water Authority.

Under the supervision of U.S. District Judge Sean Cox as mediator, representatives of the City of Detroit and the several counties that comprise the new authority will review anticipated costs and revenues and discuss the financial viability of the proposed lease.

In his Mediation Confidentiality Order (Docket #9176) of February 6, 2015, Judge Rhodes ordered that discussions and documents related to the lease negotiations shall be privileged and confidential. This is commonly referred to as a gag order.

For background, note that, concerning an overly broad, court-imposed gag order following the criminal indictment of former Massey Energy CEO Don Blankenship, the Corporate Crime Reporter said (November 18, 2014), “University [of] California Irvine Law Professor Erwin Chemerinsky has written on gag orders, including a seminal 1997 law review article…”

In the 1997 piece, [now Dean] Chemerinsky reminded us that, in Nebraska Press Association, 427 U.S. 539 (1976), the Supreme Court forbad gag orders on the press -- gag orders which were intended to thwart prejudicial pretrial publicity.  To get around that decision, trial courts began to impose gag orders on the parties and their attorneys.

Chemerinsky concluded that such orders are virtually always unconstitutional because they are founded on untenable assumptions.

First, it is assumed by judges imposing gag orders that publicity puts a fair outcome at too great a risk. Chemerinsky lists numerous, highly publicized criminal cases wherein defendants were subjected to prejudicial pretrial publicity but were acquitted nonetheless.

Next, even if publicity impairs fairness, it is false to assume that the comments of the parties or their attorneys outside the courtroom to the press or the public cause or exacerbate the impairment. Media frenzy doesn’t depend exclusively or even principally on what parties or counsel say.

In denying media access to the thoughts and opinions of participants, gag orders are likely counterproductive to a fair outcome.  That is to say, media are forced to rely on inferior sources of information, to which parties and counsel can’t respond, eroding the prospect of fairness even further.

The third untenable assumption is that, even if you accept that publicity is prejudicial and gag orders on participants make a positive difference, these considerations count more than our rights under the First Amendment.  Gag orders are prior restraints.  They restrict free speech and should be subjected to close, strict scrutiny.

The public has a right to know what is being discussed behind closed doors about a proposed $50 million per year lease that water and sewer ratepayers will be obligated to pay for 40 years.  The GLWA/DWSD gag order is unconscionable, should be challenged in court and, if necessary, taken on appeal.


  1. The new Janicki wastewater processor is suitable for populations of 100,000 to 200,000. With 24,000 gallons of sewage sludge (9 truckloads or 10-12 dry tons of biosolids) per day, it will produce 150 to 250 kW of surplus electricity and 13,000 to 22,000 gallons of potable water, along with a cubic meter of ash.

  2. Consider developing dense mini-forests as another means of stormwater control. Shubhendu Sharma starts by testing the soil for deficiencies. He supplements a site of at least 10 x 10 meters to a depth of one meter with nearby biomass like manure or other agricultural waste. A suitable variety of trees is chosen, depending on relative heights, the climate, soil conditions and other, compatible purposes (e.g. producing fruit). Sharma plants three to five saplings per square meter. He waters and weeds the plot for two or three years; then disturbs it as little as possible. It’s wonderful habitat for wildlife, too.

  3. Paul Stamets has been studying the capacity of Stropharia rugosoannulata (aka wine cap or garden giant mushroom) to destroy E. coli bacteria in water. The research commenced after Stamets observed that one of his mushroom beds eliminated E. coli in water draining from a livestock pasture. Stamets says, “As mycofiltration is low-cost, low-impact, and requires relatively little installation space, it may soon provide municipal storm water managers with the perfect tool to help them meet their legal obligations under the Clean Water Act.”