A fine imposed on a passenger for allegedly hitting a flight attendant—the passenger says he was woken up by a cart hitting him, and accidentally swung his arm as a result—has led to a First Amendment controversy. From last week's decision by U.S. Department of Transportation Administrative Law Judge J.E. Sullivan in In the Matter of Assadourian:
On May 31, 2024, the FAA filed a Motion for Protective Order. In this May 31, 2024 Motion, the FAA requested that "any information that may identify any potential witness for the FAA … including the alleged victim and other crewmembers—not be released to anyone other than counsel for the Respondent." … [At argument on the motion], the Presiding Judge discussed the public policy favoring disclosure,[1] as well as relevant FAA Rules of Practice ("ROPs"), federal rules, and federal caselaw.
[1] It is understood that no litigant or witness wants negative allegations about them circulated in the public forum, particularly when such negative allegations may be strongly disputed. Nevertheless, common law tradition and current public policy promotes public access to federal litigation disagreements.
… [T]he Presiding Judge noted that most government prosecutions did not require protective orders, "[i]n part, because the counsel who appear before tribunals understand their obligations to manage information responsibly and respectfully." Even when counsel who appeared in media venues were simultaneously engaged in the active practice of litigation, they had repeatedly shown, in multiple jurisdictions throughout the country, that they could appear on media outlets to opine and/or "comment about matters of the day, whether political or legal," without litigation disclosure problems…. [T]he FAA's Motion was orally denied….
In [a] July 19, 2024 Renewed Motion, the FAA asserts that new evidence now supports its request that a protection order should issue that precludes the release of "any information that may identify any [FAA] potential witness … including the alleged victim and other crewmembers … to anyone other than counsel for the Respondent." In support of its Renewed Motion, the FAA proffers Attachment A as evidence, which is a July 18, 2024 informal email message by an ABC News producer/reporter addressed to the FAA's attorney. This July 18, 2024 informal email message states:
Wanted to reach out about an incident that occurred on May 2, 2023, between Vahe Assadourian, a passenger on Delta Flight 1779, and a flight attendant. We are aware of the litigation filed since then and the FAA's fine to the passenger. Does the FAA have any statement or context to provide?
… The FAA then argues that ABC News' July 18, 2024 informal email, and ABC News' possession of a motion document in this case, is proof that the Respondent has initiated his campaign "to annoy, to embarrass, to harass, and to oppress the alleged victim of the assault…and subject him to undue burden and expense." The FAA also argues that the ABC News reporter's July 18, 2024 email message is proof that Mr. Assadourian is engaged in actions that rise to "specific harm … aimed personally at the FAA's witnesses," and that the "FAA is also harmed" when its witnesses are chilled from testifying….
Mr. Assadourian [responded] that a protection order would conflict with his right to free speech under the First Amendment…. Mr. Assadourian disclosed that on July 27, 2024, he and his attorney, Ms. Azari, had appeared on an ABC News Live televised program to discuss the incident in this case and the FAA's charges…. The purpose of the ABC News Live interview was "to raise public awareness" about this case, as well as in other cases, where disputes between flight attendants and flying passengers have been reported. Mr. Assadourian argued that his case, and others like it, was a matter of great public interest….
The administrative law judge rejected the FAA's argument:
First, contrary to the FAA's Renewed Motion assertion the government is not "harmed" when a reporter contacts a government representative for comment about government action(s). Such contacts occur daily throughout the nation. They may also include inquiries about pending government litigation. In the instant case, the FAA may choose what it will or will not say or do, whenever ABC News Live (or other media workers) contacts it for comment on a pending case.
Second, … [t]he FAA's evidence shows that Mr. Assadourian has disclosed a litigation filing to the media which contains no witness information, and the media has expressed interest (on behalf of the public) in knowing more about the case. The FAA's evidence goes no farther than that. It fails to make a threshold showing on any of the FAA's assertions (as identified above). Instead, the FAA's arguments and assertions about Mr. Assadourian's motivations, and all the harm the FAA asserts to itself and its witnesses, remain speculative and assumptive, and are unsupported by any proffered evidence.
In short, the FAA has failed to carry its prima facie burden to show that: a) Mr. Assadourian's choice to engage in certain acts of public disclosure are wrong and/or harmful; b) Mr. Assadourian has malevolent intent because he contacted the press and disclosed a litigation document; c) Mr. Assadourian is trying to discourage FAA witnesses from testifying; d) any specific harm has occurred or is imminently pending to the FAA's witnesses; and/or e) any material harm has occurred or will occur to the adjudicative proceeding. Thus, the FAA's Renewed Motion should be denied, and Mr. Assadourian's responsive materials need not even be addressed….
Given the timing, content, lack of evidentiary support, and broadly worded requested relief in the FAA's July 19, 2024 Renewed Motion, the FAA appears to believe that public disclosure of any information in this case to media outlets is, in itself, a basis for a protective order. The FAA is mistaken in this belief.
It is well-established that FAA civil penalty adjudications are public proceedings. In public adjudications, the public has a right of access to litigation documents and disagreements, unless otherwise ordered by the tribunal. This general right of public access to the government public proceedings serves: a) to educate the public; and b) as a public check on government charging and prosecution decisions. The American Bar Association's ("ABA") Model Rules of Professional Conduct for lawyers appear in accord with this understanding that public policy supports reasonable disclosure of information during litigation, to the extent that such disclosure does not cause any material prejudice to the adjudicative proceeding….
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