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Prior Restraints: What to do if ordered not to publish

If an individual requests that you not publish certain information, try to determine the motivation for it. For example, is an individual unduly sensitive to what he thinks you might publish? See if you can address those concerns without acquiescing to the demand. Remember, in most of these situations you can refuse the request and decide for yourself what information you will publish.

If you are threatened with prosecution under a statute that supposedly makes publication of the information a crime, ask to see the statute or get enough information so that you can obtain a copy of it yourself. If such a law exists and covers the kind of information you want to publish, consult an attorney about the constitutionality of the law. Make a reasoned decision about publication only after you and your editors have considered the legal ramifications of that decision.

If a judge orders you not to publish, take the order seriously. Ask for a copy of the order and consult your editors immediately.

In these circumstances, three courses of action are open to you: obey the order, obey the order while challenging it, or violate the order as a means of testing its constitutionality. Your choice should be made with a lawyer's assistance.

If you elect to obey the order, file your objection to the order at the earliest opportunity and ask permission to appear with legal counsel to challenge the ruling. If the initial request to vacate the order is denied, or if you are denied the opportunity to be heard on your challenge, your attorney should be prepared to appeal quickly.

If you elect to challenge the order by violating it and publishing the information, the court may hold you in contempt. Even if the order is later found to be unconstitutional, you could be fined or even imprisoned.

Some courts have concluded that it is permissible to challenge obviously unconstitutional prior restraints in this way. Others have rejected this method.³² Always consult your news organization's lawyer before publishing despite a court order prohibiting it.

Notes

32. In re Providence Journal, 820 F.2d 1354 (1st Cir. 1987) (letting stand lower court ruling striking down contempt finding against editor for violating prior restraint order as means of testing its constitutionality); United States v. Dickinson, 465 F.2d 496 (5th Cir. 1972) (upholding contempt finding against editor and paper for violating court order not to publish even though order was found to be unconstitutional).

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