Nevada court’s order barring news outlets from reporting on public autopsy record is an unconstitutional prior restraint

Jose Ochoa | February 14, 2018
A Nevada court’s ruling that the Las Vegas Review-Journal and Associated Press must destroy and stop reporting on an autopsy report that another judge declared a public record just a week before is an unconstitutional restraint on the news outlets’ First Amendment right to publish.
 
On Feb. 9, a trial court judge ordered the two news outlets to forfeit one of 58 anonymized autopsy reports for people killed in the Oct. 1 Las Vegas mass shooting. The order came after the widow of an off-duty police officer who was killed in the shooting filed a lawsuit claiming the release of her husband’s autopsy report violated her privacy rights. The week prior, the Review-Journal and Associated Press successfully sued the county coroner’s office for access to anonymized versions of the 58 reports, including the officer’s. 
 
On Monday, the Review-Journal and Associated Press asked the Nevada Supreme Court to step in and overturn the lower court’s order. Today, the Reporters Committee for Freedom of the Press and Nevada Press Association filed an amicus brief in support of the news outlets, arguing that demanding they destroy the records and stop reporting on them constitutes a prior restraint and infringes upon the news outlets’ First Amendment rights. A prior restraint occurs when a government, often through the courts, suppresses information before it is published or broadcast.
 
While the trial court’s ruling states it is protecting the privacy rights of the officer’s widow, it also strips the Review-Journal and Associated Press of their rights under the First Amendment by forcing them to turn over records that are already public – and that have been sent to approximately 100 other members of local, state, and national media. Some of those news outlets have already reported on the autopsy reports.
 
However, the Nevada judge’s ruling does not affect those other media organizations who received the autopsy reports because he has jurisdiction over only the two news outlets named in the lawsuit. The ruling’s basis in privacy concerns is especially egregious because the records ordered to be destroyed are already heavily redacted to eliminate any information that would allow the news outlets to identify the victims, including names, age, race, and hometown. 
 
The judge’s proposed solution for destroying the particular autopsy record is also dubious: Because the newspapers do not know which report to destroy, since they are anonymized, the judge suggested that government officials could visit the Review-Journal and Associated Press’s offices, review the 58 records to determine which is the officer’s, and remove it. Maggie McLetchie, the Review-Journal’s attorney, called this kind of government interference in a newsroom “unprecedented,” and the newspaper’s editor-in-chief, Keith Moyer, called it a “preposterous demand of a free press.”
 
“Barring reporting on information that a court has said belongs to the public violates the news media’s core First Amendment rights to publish without government interference,” said Caitlin Vogus, staff attorney at the Reporters Committee for Freedom of the Press. “Autopsy reports provide critical information for journalists, helping them confirm key information in developing stories and piece together important details about how institutions responded to tragedies like the one in Las Vegas. This information not only helps the public understand important events, but may even inform responses to future incidents.”
 
Journalists’ independent investigations into incidents like the Las Vegas shooting are essential to revealing important details about events of major public interest. For example, the autopsy report for the Las Vegas shooter showed he was not under the influence of any substances except for possibly an anti-anxiety drug. The report also confirmed that he died of a self-inflicted gunshot wound and did not reveal any physical conditions that might have shed light on his motives or behavior.
 
Both private citizens and government officials have sought court orders such as this one to restrain speech, but such attempts are frequently based on claims that the information is libelous or harmful to national security or other interests, not on privacy concerns. The U.S. Supreme Court has held that these types of orders are “the most serious and the least tolerable infringement on First Amendment rights.”
 
In one of the most well-known attempts at prior restraint, the 1971 “Pentagon Papers” case of New York Times Co. v. United States, the federal government sued The New York Times and The Washington Post in an effort to prevent the newspapers from publishing secret documents about the government’s handling of the Vietnam War, which it alleged would jeopardize national security. The newspapers argued that the documents provided information to the public about a matter of great public interest and asserted a First Amendment right to publish them. The Supreme Court ruled in favor of the newspapers, finding that a restraint on publication like the one the government sought violated the First Amendment.
 
When considering a potential prior restraint, courts often use the “clear and present danger” test. Under this test, a court may allow a restraint on speech only if its publication would create an imminent danger, such as in the event of a national emergency. Courts have been reluctant, however, to permit a restraint primarily based on a claim of privacy.
 
For more about what to do if you’re ordered not to publish, see the Reporters Committee's First Amendment Handbook.
 
Read the Reporters Committee and Nevada Press Association’s brief here.