[IMPORTANT UPDATE -- 06.05.08 -- all-new court filing here.]
our faithful readers will recall that we are awaiting a final, appealable ruling of the preliminary -- magistrate's -- denial of mr. howard's right to make public the video depositions referred to below. this is from howards' counsel -- and, his latest motion (just filed this very morning!) to free the video-tapes. let's listen in, shall we? yes, let's:
. . .The issue presently before this Court concerns public access to the videotaped depositions regarding eyewitness accounts of the events giving rise to Plaintiff Steven Howards’ false arrest on June 16, 2006 for an alleged “assault” of Vice President Dick Cheney, which violated Mr. Howards’ First Amendment right of free speech and right to petition the government and his Fourth Amendment right to be free from illegal searches and seizures. . . . During discovery, members of the United States Secret Service and employees of the Office of the Vice President who witnessed the interaction between Mr. Howards and the Vice President have been deposed. During these depositions, each witness was asked not only to reiterate what they observed between Mr. Howards and the Vice President but also to physically demonstrate these observations. Both the deposition testimony and the physical reenactments reveal contradictory and conflicting accounts of what occurred. In addition, the depositions contained accusations by Secret Service Agents of cover-ups and official misconduct by other Secret Service Agents and suggestions that perhaps the Vice President ordered the cover up. The issue at present is whether the public, in the interests of governmental transparency and accountability in revealing lies by government officials, should have access to the videotaped depositions. . . .
. . .Even if the videotapes were aired on a website such as Youtube.com [condor's editorial note, here: swwweeeeet!], there is nothing inherently private or embarrassing about the information on the videotapes that would amount to a particularized showing for a protective order. The videotapes contain individual recollections and reenactments of a purely public event in which the Defendant Secret Service agents acted entirely in the public view. . . .
The First Amendment right to disseminate information obtained in discovery absent a valid protective order is not obliterated by the speculative notion that an unflattering edited version of the deposition testimony could be disseminated by a third party. See, Exum v. United States Olympic Comm., 209 F.R.D. 201, 205 (D. Colo. 2002) (“[p]arties to litigation have a First Amendment right to disseminate information they obtained in discovery absent a valid protective order”) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 81 L. Ed. 2d 17, 104 S. Ct. 2199 (1984)). This case concerns a citizen (who, incidentally, was on his way to take his young son to a piano lesson) who spoke out about the Vice President’s and the Bush administration’s policies in Iraq—a statement which is well within his rights under the First Amendment, but which nevertheless lead to his arrest and threats of indictment. Indeed, the fact that the New York Times, L.A. Times and other newspapers around the country are publishing stories on this case highlights the importance the public has placed on this issue. Moreover, the Tenth Circuit has clearly held that “[a]n allegation that ‘seeks to expose improper operations of the government or questions the integrity of a government officials constitutes a matter of public concern.” Clinger v. N.M. Highlands Univ., 215 F.3d 1162, 1166 (10th Cir. 2000). The wide spectrum of the reenactments by the deposed eyewitnesses suggests that the differing stories are based on more than just poor memory; in fact, deposition testimony has quite clearly suggested cover-ups and lies by government employees. . . .
Moreover, it is important to note that [Howards'] counsel has offered a compromise -- to pixelize the faces of the deponents -- that would alleviate the Magistrate Judge’s concern about the ability to cut, splice and edit videos on the Internet. In light of the fact that the events giving rise to Plaintiff’s arrest were entirely in the public view, and in light of the fact that the deposition transcripts are not confidential (thereby establishing that the information contained therein is not inherently private), one would be hard-pressed to concede that pixelation is even necessary. However, in an effort to strike a balance with Defendants’ concern that videotapes are “vulnerable to abuse,” such a compromise has been offered. . . .
so, now we wait for a ruling from wiley b. daniel, the u.s. district court judge sitting in denver, colorado, on this case -- and the man before whom the above motion now sits. if he denies this motion, i suspect mr. howards' counsel will file an interlocotory appeal of that denial, to the tenth circuit, on this issue. but he could also choose to "move on", and "slug it out" on the issue of whether dick cheney may be deposed at all, before the tenth cicuit, as well. as ever, more to come.