Statutory restraints -- Prior restraints and the Internet
Statutory restraints
Some states have statutes that make it a crime to publish the names of rape victims. Journalists who break these laws are theoretically subject to fines and jail sentences.25
However, a Florida statute making it a misdemeanor for the media to identify alleged sexual assault victims violates the federal and Florida constitutions, the Supreme Court of Florida unanimously held in December 1994. The Florida Legislature may not impose automatic liability for publishing lawfully obtained, truthful information about matters of public concern, the court ruled.26
Similarly, an Alabama state judge overturned the conviction and sentence of two television newscasters who were accused of violating a state law that prohibits disclosure of information contained in juvenile records after the station broadcast the identity of a juvenile suspect. The judge said that because the juvenile was previously identified in a public forum, it was not illegal for the station to subsequently broadcast his identity.27 Likewise, the Georgia Supreme Court found a statute prohibiting the news media or other persons from naming or identifying rape victims unconstitutional.28
However, the South Carolina Supreme Court held that a statute that prohibits the publication of rape victims’ names was not unconstitutional on its face.29
Although the U.S. Supreme Court has not held that these statutes are unconstitutional as written, it has ruled that states cannot punish journalists for publishing truthful information they have obtained from public records or official proceedings.30
In another case, the U.S. Supreme Court refused to permit a newspaper to be held liable for publication of the name of a rape victim that was inadvertently released by a police department.31
A 2004 ruling by the Colorado Supreme Court in a sexual assault case against Kobe Bryant has received significant attention. In People v. Bryant,32 the court upheld a trial court’s order prohibiting media organizations from publishing inadvertently released transcripts from pre-trial hearings that, pursuant to Colorado’s rape shield law, were closed to the public. Although recognizing the trial courts’ order as a prior restraint, the Colorado Supreme Court concluded that the order, if properly narrowed, was justified. The court pointed to the state’s rape shield law as reflecting that the state had an interest “of the highest order” in protecting the secrecy of the closed hearing procedure. The court stated that such secrecy was a means of protecting a witness’ privacy, encouraging the reporting of sexual assault, and furthered prosecution and deterrence of sexual assaults.
Prior restraints and the Internet
Prior restraints on the publication of Internet content are subject to the same constitutional limitations as restraints on speech in other forums. Court orders that prohibit the publication of content are more likely to be upheld if they occur after a final court adjudication that the communication consists of non-protected speech. For example, in Evans v. Evans, the California Court of Appeals struck down a preliminary injunction prohibiting the defendant from posting allegedly private, false and defamatory comments on a website. Relying on state supreme court precedent, the court stated that a narrowly drawn prohibition on publishing false and defamatory comments could be permissible only after a final determination on the merits that the speech at issue was defamatory.33
The Kentucky Supreme Court reached a similar decision in Hill v. Petrotech Resources Corporation. After the defendant made allegedly defamatory statements about the plaintiff in a variety of forums, including on the Internet, the trial court granted a temporary injunction prohibiting the defendant from making further defamatory comments. The state supreme court vacated the injunction as an impermissible prior restraint on speech. The court went on to state, however, that a narrowly tailored prohibition on making further defamatory statements could be permissible if it were issued after a final court determination that the statements at issue were, in fact, defamatory.34
Notes:
25. Fla. Stat. Ann. § 794.03 (1998); Ga. Code Ann. § 16-6-23 (1998).
26. Florida v. Globe Communications Corp., 648 So.2d 110 (Fla. 1994).
27. Alabama v. Ozbirn, CC-93-143 (Dist. Ct. Franklin Cty., Ala., dismissed, Feb. 3, 1994). But see Ga. Code Ann. 15-11-60(g)(1) (1998) (stating that the name or picture of any child under the jurisdiction of the juvenile court for the first time shall not be made public by any news media upon penalty of contempt of court).
28. Dye v. Wallace, 553 S.E.2d 561 (Ga. 2001).
29. Dorman v. Aiken Communications, 398 S.E.2d 687 (S.C. 1990).
30. Cox Broadcasting v. Cohn, 420 U.S. 469 (1975).
31. Florida Star v. B.J.F., 491 U.S. 524 (1989).
32. People v. Bryant, 94 P.3d 624 (Col. 2004)
33. Evans v. Evans, 76 Cal. Rptr. 3d 859 (2008). The court also stated that a prior restraint on publishing private information required a demonstration of compelling or “extraordinary” circumstances.
34. Hill v. Petrotech Resources Corp., __ S.W.3d ___, 2010 WL 4146616 (Ky. 2010)
Connect with us:
