Retract? There’s No Law For That

In the back of fair-minded people’s heads, there’s a bug that whispers that the law should provide a remedy for things that are wrong. It’s only fair. And to a large extent, the law does, but one of the biggest cracks in the system surrounds wrongs committed by federal prosecutors.

Sure, the prosecutors have immunity so they can prosecute criminals without fear of being sued, which does little to stem misconduct, abuse and concealment of exculpatory evidence used to convict the innocent and guilty alike. But the courts have chosen to side with the poor prosecutors and they’re sticking with their narrative.

Yet, there is no rationale to justify why prosecutors should be entitled to issue press releases that are flagrantly false and defamatory. Indeed, issuing press releases alone emits an unpleasant odor, but to be able to lie and defame?

Former InterMune CEO W. Scott Harkonen demanded correction of a press release issued by the FBI and United States Attorney announcing his conviction for wire fraud, that also announced that he lied to the public about the effectiveness of his company’s drug. While the former was true, the latter was entirely false.  So Harkonen sought to have the government correct its release, withdraw its release, unring the bell of their lie.

The government’s deeply sympathetic response was, in effect, “bite me, dirtbag.” From the WSJ Lawblog:

The Justice Department argued that it was under no obligation to correct press releases, even ones that are allegedly false or defamatory.

Why?  Because they can.

[T]he Ninth U.S. Circuit Court of Appeals said that without a statutory provision, principles of sovereign immunity bar individuals from suing the federal government for publishing something defamatory, absent a statutory provision that says otherwise.

Harkonen sought to use the Information Quality Act, a 2000 law whose purported purpose was to

ensure “quality, objectivity, utility, and integrity” of information disseminated to the public, and it sets up a process for allowing people to correct information that falls short of that standard.

Laws are always full of cool, heart-warming words to restore our faith in government.  And to people of good will who read those words, apply their intended meaning, close their eyes tightly and hope for the best, that should be enough, right?

The Ninth Circuit said the wording in the original statute is ambiguous, leaving it up to agencies to decide if press releases are correctable. As such, the court declined to strike down guidelines issued by the Office of Management and Budget and the Department of Justice that explicitly exclude information published in press releases.

“Congress left a gap in the [Information Quality Act] for OMB and DOJ to fill regarding the definition of ‘disseminated,’” wrote Ninth Circuit Judge John T. Noonan, Jr. “This analysis leads to the conclusion OMB’s and DOJ’s exclusion of press releases was not arbitrary and capricious, or manifestly contrary to the statute.”

In other words, whether the content of information the government disseminates to the public adequately meets the high level of “quality, objectivity, utility, and integrity” one would expect of the government is left for bureaucrats to decide. You can point it out to them, hat in hand, and nicely ask them to, you know, correct the lies, but after that, it’s their call whether the act applies and should be invoked.

In this case, the Office of Management and Budget decided that press releases were not included within the law’s coverage of “shit the government disseminates,” because it’s only a friggin’ press release. It’s not like it’s a 32-page form under the Paperwork Reduction Act, for crying out loud.

Relevant here, the scope of the guidelines “does not apply to information disseminated in . . . press releases fact sheets, press conferences or similar communications (in any medium) that announce, support or give public notice of information in DOJ.” DOJ also expressly stated that the

guidelines are not a regulation. They are not legally enforceable and do not create any legal rights or impose any legally binding requirements or obligations on the agency or the public. Nothing in these guidelines affects any otherwise available judicial review of agency action.

I mean, it’s just a press release, the only purpose of which is to inform the media of the government’s great glory and let the media know which enemies to smear and destroy. What’s the big deal?

Naturally, Harkonen disagreed.

An attorney for Dr. Harkonen, Mark E. Haddad, said the Ninth Circuit was wrong to “read such an exception into” the Information Quality Act.

“A press release is clearly information disseminated by a federal agency,” Mr. Haddad told Law Blog. “It falls within the plain terms of the act.” He said he and his client are considering appeal options.

Much as Haddad’s rejoinder seems eminently reasonable on its surface, this is law. Like a parent who responds to his child’s plea for “why?”, the government need only answer, “because I said so.” The “plain terms” mean whatever the government says they mean, provided they can come up with some remotely rational explanation for their decision.

And the government has decided that it’s allowed to issue false and defamatory press releases because, well, screw you.  It’s good to be the king.


9 thoughts on “Retract? There’s No Law For That

  1. dm

    Why, in your opinion, do appellate courts ignore the plain language of the U.S.C. or state statutes in order to reach a conclusion that gives “those in authority” a free pass on bad conduct/misconduct. I don’t recall this ever being discussed in law school and it seems that many appellate attorneys are (understandably) loathe to discuss it in public forums. As you raised the matter, would you mind a brief foray into the reason(s) why? I cannot understand why it’s done so often, even to the point of some appellate jurists intentionally misstating the facts of a case to arrive at a specific outcome. Thanks.

    1. SHG Post author

      First, these are called comments, not questions, for a reason. Second, your question is off topic. It interests you? Woo hoo!!! Third, how much of my time do you think you’re entitled to, just because you have a question? And finally, your question is so loaded and poorly framed that if I could, I would reach through the computer and rip your ticket into shreds.

      Does that answer your question?

          1. dm

            If there’s only a hope that you might answer a question, but no expectation that you’ll answer the question, there’s no “assholish entitlement.”

            1. SHG Post author

              Now you want to waste my time and space in these comments to argue whether your comment reflected assholish entitlement? Are you kidding me?

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