Judge Donald L. Graham's Magistrate, Frank Lynch Jr., Issues First Prior Restraint
on Pure Speech
In Over Two Hundred Years.
This blog is part of series that seeks to gain public scrutiny and a little sunshine into the "Culture of Corruption" that exists within the Federal Judiciary. See mmason.freeshell.org/methods.htm which will demonstrate that Federal Judges are accountable to no one and to see how dishonest Federal Judges can be. In reality there is no such thing as discipline of a Federal Judge!! If you ask the fox to guard the chickenhouse, then you should not be surprised when the fox eats the chicken.
In February of 1999, Marcellus Mason filed a suit against the Highlands County Board of County Commissioners and other governmental officials in the US District Court for the Southern District of Florida, Case No, 99-14027-CV-Graham.
On June 19, 2000 and July 25, 2000, the Magistrate Judge, Frank Lynch Jr., issued the following directives or "discovery orders":
Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case. (DE #201).
Plaintiff shall correspond only with Defendants' counsel including any requests for public records. (DE #246). Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case. (DE #246).
“
Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court except a motion for injunction relief,…”
28 U.S.C. § 636 (b)(1)(A).
Judge Graham has held that the above are orders are not "clearly erroneous nor is it contrary to law." Specifically Judge Donald L. Graham held:
On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary injunction prohibiting the Plaintiff from contacting any of the Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion for Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants' Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants' counsel.
Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff's Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch's ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).
See
Docket Entry No. 407 dated November 2, 2000. Judge Graham has stated: "including continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants' employees. Mason, however, ignored the Court's order and continued to contact the Defendants."
Docket No. 878.
Eleventh Circuit, US Court of Appeal
The Eleventh Circuit, Circuit Court Judge Ed Carnes, has apparently taken the view that a Magistrate may issue an injunction and a prior restraint so long as the Magistrate does not call it an injunction or a prior restraint, but calls these orders "discovery orders". In denying an in forma pauperis petition for mandamus on April 6, 2001, to vacate these orders, the Eleventh Circuit stated:
With regard to his requests for relief from the order granting the defendants' motions for preliminary injunction, which the court construed as a preliminary discovery motion, Mason has an alternative remedy. He may either comply with the district court's discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt . See Rouse Constr. Int'l, Inc. v. Rouse Constr. or ., 680 F.2d 743, 745 (11th Cir . 1982).
See
Eleventh Circuit Case No. 01-11305, Order Denying Mandamus. However, on direct appeal, Case No. 01-13364-A, the Eleventh Circuit, Judges Stanley F. Birch, Jr., Ed Carnes, and Stanley Marcus apparently have upheld the first prior restraint on pure speech in over 200 years by simply ignoring the issue altogether. See
Case No. 01-13364, Direct Appeal Opinion dated October 16, 2002.
Direct Appeal Eleventh Circuit Case No. 01-13664
In this appeal the Eleventh Circuit takes the absurd position, that it can not review the validity of the injunctions because they are "discovery orders". See "discovery orders", above. As fully, set forth above, Judge Graham called these orders injunctions and the Defendant asked for and got the very injunctions granted they sought. In this appeal Mason attacked the validity of these orders because of the following reasons:
- Docket entries 201 and 246 or "discovery orders" are really injunctions and a federal Magistrate may not issue an injunction.
- These Orders violate the First Amendment, Tenth Amendment, and the Florida Constitution.
In this appeal, the Eleventh Circuit boldly admits to the following:
On appeal, Mason argues that the magistrate's discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records
See Illegal Orders, below. This opinion is 14 pages long and discusses alleged violations of these so-called "discovery orders", Docket entries 201 and 246 , but refuses to discuss the validity of these so-called "discovery orders".
LAW ON PRIOR RESTRAINTS
“[P]ure speech –[is]- speech not connected with any conduct..” In Re Providence, at 820 F.2d 1348. “'Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.'; see also Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The Government 'thus carries a heavy burden of showing justification for the imposition of such a restraint.'” New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)(citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963)) . “[T]he principal purpose of the First Amendment's guaranty is to prevent prior restraints.” In Re Providence at 820 F.2d 1348. “Prior restraints are presumptively unconstitutional and face strict scrutiny.” Burk v. Augusta-Richmond County, 365 F.3d 1247 (11th Cir., 2004). "In its nearly two centuries of existence, the Supreme Court has never upheld a prior restraint on pure speech. " Providence Journal Co, at 820 F.2d 1348. The presumption of unconstitutionally of prior restraints has been described as “virtually insurmountable” by Supreme Court judges and others. In Re Providence, at 820 F.2d 1348 (citing Near, 283 U.S. at 713). The Supreme Court has refused to uphold a “prior restraint” even when the matter of national security was involved. See New York Times, at 403 U.S. 713, above. In over two centuries, the United States Supreme Court, composed of nine Article 3 judges, has never upheld a prior restraint involving pure speech; however, in this matter, a statutory judge, Magistrate Judge Lynch breezes right through this barrier and issues a prior restraint on pure speech with no problem.
In Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 578 (Fed. 5th Cir., 2005), the district court “enjoined Singh from communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, its staff, or TES's counsel, counsel's employees, or counsel's staff.” The Fifth Circuit, (citing Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), defined “prior restraints” thusly: Prior restraints are "administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Id. at 579. The Fifth Circuit then expressly declared: “The district court's order enjoining Singh from having any future communication with the specified persons was a prior restraint.” Id. The Court went on to find:
To quote selectively from the district court, the court found that the parties had demonstrated an "immaturity" and "mean-spirited[ness]," and that Singh was pursuing "vexatious litigation." However, despite the perhaps need of these parties to never speak again, the court did not detail, and the record does not reflect, any "exceptional circumstances" to justify permanently enjoining Singh from generally communicating with TES, TES's counsel and their staff and employees. The district court's order enjoining Singh from communicating with TES employees, TES's counsel, and its counsel's employees was a prior restraint limiting Singh's first amendment rights, and because the injunction order is not supported by exceptional circumstances, it is an unconstitutional restraint on Singh's free speech rights. *** The cantankerous relationship between these parties is clearly evident from the record in this case. There is enough evidence presented in the record to justify an injunction order prohibiting Singh from threatening or harassing TES, its employees, its staff, TES's counsel, counsel's employees, or counsel's staff. However, the injunction here went beyond enjoining harassing and threatening conduct. The district court's order swept too broadly when it prohibited all communication between Singh and TES employees, staff or TES's counsel, counsel's employees or counsel's staff.
Id. at 579-80.
U.S. Const. amend. I states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Article 1, Fla. Const., in pertinent part states:
SECTION 4. Freedom of speech and press.—
Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.
SECTION 9. Due process.—
No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.
SECTION 24. Access to public records and meetings.--
Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution
Fla.Stat., §119.07, in pertinent part states:
(1)(a) Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.
