|
April 12, 2000 Via Facsimile and Overnight Mail
The Honorable Margaret Cooper
Dear Judge Cooper: The Reporters Committee for Freedom of the Press writes to protest the Court's April 2000 temporary restraining order in the above-referenced case. The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970, including litigation concerning the issuance of prior restraints against the news media. The Reporters Committee does not seek to intervene in the case. It writes only to emphasize to the Court the broad First Amendment principles at stake. The April 2000 temporary restraining order bars the Associated Press from disseminating information that it lawfully acquired from the Texas Department of Agriculture concerning an application for participation in a public loan guarantee program. The state agency's decision to release the information to the Associated Press under the Texas Public Information Act was supported by an opinion letter from the Texas Attorney General's office. Therefore, the information in question was lawfully obtained and properly released. But even if the information had been obtained illegally or wrongfully released, this Court cannot sit as a public censor -- even on a temporary basis -- if it wants to act in accordance with the U.S. and Texas constitutions. In 1931, the U.S. Supreme Court stated in Near v. Minnesota, 283 U.S. 697 (1931), that government attempts to censor the media are presumed unconstitutional. In the intervening 70 years, the Court has repeatedly recognized that courts can only attempt to restrain the dissemination of information if the information to be published presents a clear and present danger or a serious and imminent threat to the administration of justice. In fact, the Supreme Court in Near articulated only one hypothetical circumstance under which a prior restraint would be permissible: an order barring publication of the movement of troop ships during war time. In addition, the Texas Supreme Court held in Davenport v. Garcia, 834 S.W.2d 4, 8-9 (Tex. 1992), that the Texas Constitution requires an even more stringent test for prior restraints.
This case does not concern national security or the administration of justice. Instead, it involves a loan application to a state agency. If Permian wants to seek redress from the State of Texas for releasing the information, it can. But this Court cannot constitutionally grant Permian's request to bar a news organization from disseminating information. The April 2000 temporary restraining order against the Associated Press violates the First Amendment to the U.S. Constitution and article one, section eight of the Texas Constitution. The Reporters Committee for Freedom of the Press urges the Court to immediately dissolve the order. Respectfully,
Lucy A. Dalglish, Executive Director
cc:Mr. Benjamin H. Hathaway (by facsimile)
Mr. David H. Donaldson Jr. (by facsimile)
|