This is the second installment of our newsletter series analyzing U.S. press freedom violations in 2022. You can find links to all four parts in this blog post.
In 2022, we saw several incidents of court orders barring journalists from reporting on matters of public interest and one instance in which a journalist was criminally prosecuted for his reporting. Court orders that prevent news organizations from publishing newsworthy information are known as “prior restraints,” and, according to the U.S. Supreme Court, they are “the most serious and the least tolerable infringement on First Amendment rights.” As a result, prior restraints are subject to a “heavy presumption against [their] constitutional validity.”
Court-ordered prior restraints on journalism are always cause for tremendous concern because they threaten press freedom. As far as we know (using data from the U.S. Press Freedom Tracker), 2022 saw five such prior restraints, four of which were later reversed or dissolved by a reviewing court. To an extent, these incidents indicate the built-in checks of the judicial system are working, but these orders can still have a chilling effect even if they are ultimately blocked. They may make journalists more wary of reporting on certain subjects, especially journalists from smaller outlets unable to bear the cost of challenging such an order.
The first incident began in 2021, when The New York Times published an article excerpting memoranda prepared by an attorney for Project Veritas, which was unrelated to a defamation lawsuit that Project Veritas filed against the newspaper the year before. Less than a week later, Project Veritas asked the state court handling the defamation case to enter a prior restraint against the Times, arguing that the memoranda excerpted in the article were subject to the attorney-client privilege. The court granted Project Veritas’s request, ordering the Times not to publish Project Veritas’s “privileged materials.” As the Reporters Committee for Freedom of the Press argued in two friend-of-the-court briefs filed on behalf of a coalition of media groups in the case, this prior restraint violated the First Amendment and harmed journalists’ ability to gather and report the news. In February 2022, a New York judge finally lifted the order.
In another incident last year, a court issued a “gag” order in an attempt to prevent a Denver Gazette reporter from publishing a story based on documents that a county court staffer mistakenly released to her, records related to the killing of Elijah McClain in 2019. As we pointed out in a friend-of-the-court brief in the case, this kind of unconstitutional prior restraint “poses a grave danger not just to The Gazette, but to all members of the press — and by extension to the public.” Fortunately, the district court later granted the Gazette’s motion to lift the restraint, allowing the newspaper to report on the government records.
In a third incident, a Florida judge issued an order barring a local reporter from publishing the names of deputies involved in a fatal shooting. The order was later dissolved, after the paper fought back in court.
The fourth prior restraint in 2022 was a so-called “confidentiality order” entered by a California court to stop journalists from contacting people who submitted public letters of support for a teacher accused of sexual misconduct. After the journalist reached out to individuals who submitted these letters, which included the contact information of their authors, the court signed an order requesting that “further unwanted contact by the press be ceased.” Though this order was not dissolved, the news organization the journalist works for said that it would refuse to comply with this unconstitutional prior restraint.
The Reporters Committee was intimately involved in the fifth and final incident. Pennsylvania Local Legal Initiative Attorney Paula Knudsen Burke and Media Litigation Fellow Charlie Hogle represented a Pennsylvania journalist after a court ordered him to take down his reporting on copies of an independent investigation into sexual harassment allegations against a local official. A Pennsylvania township sued the reporter last December, but the township ultimately dropped the lawsuit a month later, on the same day that Reporters Committee attorneys responded to a township motion seeking to hold the reporter in contempt of court.
In an incident resembling a prior restraint, Michael Mario Santillanes obtained a temporary restraining order in April 2022 against two Los Angeles Times journalists to stop them from reporting on him. As the LA Times reported, the journalists began investigating Santillanes, a cosmetic surgeon whose medical license was revoked in 2020, after receiving a tip that he was continuing to practice medicine without a license. The restraining order, which was issued after one of the reporters asked Santillanes questions related to the investigation in the parking lot outside his office, contained false claims that the reporters threatened Santillanes with violence. The LA Times challenged the restraining order, and it was eventually dissolved. The court ordered Santillanes to pay the newspaper’s legal fees, which totaled $117,000 — but a newsroom with fewer resources might not have been able to bear that upfront cost.
Restraining orders are emergency civil measures intended to stop violence, harassment, or stalking. But the misuse of them to stop journalists from reporting is tremendously concerning, as the Reporters Committee pointed out in its friend-of-the-court brief in Counterman v. Colorado, a case before the U.S. Supreme Court that asks whether speakers can be punished for making a “threat” absent proof that they subjectively intended to threaten the listener. Bad actors should not be able to abuse the restraining order process to try and stop an unflattering story about them from being published, and, as we argue in the Counterman brief, requiring proof of intent to threaten is an important safeguard for journalists acting with a good-faith intent to inform the public. This kind of abuse may have a chilling effect on newsgathering even where the allegations were false, as in the LA Times case, because of the high cost of litigating these issues.
Prior restraints are not the only kinds of restraints on journalists we saw in 2022. In one particularly egregious incident, an Ohio journalist was arrested for violating a wiretapping law by publishing audio of witness testimony in a high-profile murder trial, and his phone and laptop were seized. After a judge prohibited journalists from filming the testimony of one witness because it might make him “nervous” and, as a result, appear less credible, someone in the courtroom surreptitiously recorded the testimony anyway and sent it to the journalist, who published it on his paper’s website. Days later, the journalist was charged with interception of wire, electronic or oral communications, a fourth degree felony.
As we previously discussed in a post in The Nuance, the Reporters Committee’s weekly newsletter, this prosecution is flagrantly unconstitutional. It violates the Supreme Court’s holding in Bartnicki v. Vopper that the First Amendment protects publishing illegally obtained information, at least when the publisher did not participate in the illegal conduct. (In this case, it’s also far from clear that the recording was made illegally — the journalist has said that the audio recording was captured by someone with authorization to have a phone in the courtroom.) These charges are still pending, but even if they are dropped or rejected by a judge in response to a First Amendment challenge, this incident could have a chilling effect on journalists. It might make them more hesitant to publish records they receive from confidential or anonymous sources. It could also make them wary of reporting on public court proceedings because of judicial restrictions like the ones in this case.
All of these examples make clear that, at times, courts get it wrong. They issue unconstitutional prior restraints to stop journalists from reporting on matters of public interest and fail to dismiss unconstitutional criminal charges. To us, these incidents underscore the need for broad access to judicial records, as guaranteed by the First Amendment and the common law. They demonstrate that reviewing courts tend to apply and abide by the strong presumptions against judicially-imposed restraints on journalism, and that public pressure and outcry has an impact.
As a member of the U.S. Press Freedom Tracker’s advisory board, the Reporters Committee for Freedom of the Press has published annual reports analyzing press freedom violations confirmed by Tracker researchers each year and highlighting the Reporters Committee’s work to protect journalists and the public’s right to access information. You can find reports from 2017, 2018, 2019, 2020, and 2021 on our website.