This week in a dispute between Google and Oracle, a California federal judge issued an unusual order that both sides disclose individuals to whom they have paid money to comment about the case publicly. Coverage, including commentary from CL&P Blog's own Paul Levy, is here, and the order is here.
Underlying the judge's order appears to be the possibility that the parties are using paid shills to advocate their positions in public. Whether or not that is the case, I'm troubled to see a court opening the door to judicial oversight of speech about litigation. Litigants do not give up their right to speak by filing a lawsuit, except to the extent that speech could undermine the integrity of the proceeding (by influencing a jury, for instance, or by violating a court's protective order). Where judicial integrity concerns are absent, the justification for investigating speech about litigation is unclear to me. Litigation often involves important issues of public policy, and the litigants themselves may be in the best position to inform the public about those issues. So a judicial order that chills a party's out-of-court advocacy by forcing it to disclose how it goes about advocating its position, including its associations for that purpose, would have a dangerous potential to limit public debate.
If the problem the court perceives is that the marketplace of ideas contains speakers who have ulterior motives, then this is a classic case in which the remedy for speech is more speech -- either good muckraking journalism on the subject of paid shills, or a public debate over how much background information listeners should expect a speaker to disclose before listeners decide to take that speaker seriously. Absent some concern for the integrity of a judicial proceedings, it does not seem like a job for a court to police public speech related to the litigation before it.
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