Blackmun strikes down prior restraint on segment of CBS newscast

WASHINGTON, D.C. — Just hours before the scheduled broadcast of CBS’s “48 Hours,” U.S. Supreme Court Justice Harry Blackmun overturned a ban on the televising of a segment featuring videotape secretly shot at a meat processing plant.

The footage, which according to court documents was shot by an employee of Federal Beef Processors, Inc., who volunteered to wear a concealed camera during his shift at the plant, was part of a report about unsanitary practices in the meat industry.

Federal Beef sued CBS in early January for trespass and invasion of privacy and sought an injunction to prevent the broadcast of the tape, arguing that it would compromise trade secrets and hurt business. On February 7, Judge Jeff Davis of the Circuit Court in Rapid City, S.D., enjoined the network from “disseminating, disclosing, broadcasting, or otherwise revealing” any footage of the plant interior. The court accepted Federal Beef’s contention that it and the local economy would be financially harmed and found that because the tape was obtained by “calculated misdeeds,” conventional First Amendment prior restraint doctrine was inapplicable.

The next day, the South Dakota Supreme Court denied CBS’s motion for an emergency stay of the injunction. Later that day, the network sought a stay of the ban from Ciruit Justice Blackmun.

Justice Blackmun lifted the ban the next day, hours before the progam aired. He found that Federal Beef had not met the heavy burden established by Nebraska Press Assn. v. Stuart, which held that a prior restraint is allowable “only where the evil that would result from the reportage is both great and certain and cannot be militated by less intrusive measures.”

Blackmun said that economic harm is a “speculative prediction” and rejected the lower court’s finding that prior restraint doctrine is inapplicable because the tape was obtained through “calculated misdeeds.” Subsequent civil or criminal proceedings, rather than prior restraints, are the appropriate sanctions, he said.

(CBS Inc. v. Davis; Media Counsel: Stuart Pierson; Washington, D.C.)