The Supreme Court in Nebraska Press Association v. Stuart called prior restraints “the most serious and the least tolerable infringement on First Amendment rights.” These bans, it stressed, are presumptively unconstitutional.
Despite the near impossibility of upholding prior restraints — which occur when government officials restrict speech prior to publication — courts around the country occasionally try to issue them. At least two caused frenzies in newsrooms this fall.
In Florida v. Tadros, in September, a judge told reporters that they could not publish portions of a police report that contained a supposed confession. The next month in Virginia v. Steward, a court prohibited the press from naming certain witnesses who had testified in a murder trial.
Although in both states appellate courts ultimately lifted the prior restraints, news outlets faced frightening scenarios while the bans were in place: They could either cover the news and risk being held in contempt or not publish the information and have their independent editorial judgment stripped away. After media companies pursued appeals, Virginia lifted its ban in four days while Florida’s was removed in 14 days.
Still, even a brief restriction can have a significant effect because it undercuts reporters’ ability to promptly report the news, said Holland & Knight media lawyer Tim Conner, who represented the Florida Times-Union and First Coast News in Tadros.
“News delayed is news denied,” Conner said, quoting State of Florida ex rel. Miami Herald Publishing Company v. McIntosh, which struck down a prior restraint in a securities fraud case. “Even a temporary prior restraint is going to delay the dissemination of news to the public.”
Despite their fight, Conner’s clients ended up not publishing the parts of the arrest report that were at issue, though at least one Florida news outlet ran excerpts. Similarly, The Daily Press of Newport News, Va., which got the Steward ban lifted, did not run the witness names.
But people involved in both cases said the fight was necessary to guard against government interference with editorial decisions.
“It wasn’t about the names to begin with,” said Marisa Porto, vice president of content for the Daily Press Media Group. “It’s about the principle of things.”
Defining prior restraints
The Supreme Court has never upheld a prior restraint, and media lawyers in Tadros and Steward pointed to key cases where justices explained that only in the rarest of circumstances would a ban be constitutional.
In 1931’s Near v. Minnesota, the Court speculated that one might only be allowed to prevent disclosure of the “number or location of troops” during wartime. The court there struck down a Minnesota law that had let the government halt the printing of “malicious,” “scandalous,” or “defamatory” articles after the state had tried to stop a known anti-Semitic paper from running stories critical of public officials.
Forty years later, in the famous “Pentagon Papers Case,” the Supreme Court cited Near when it found that The New York Times and The Washington Post could publish classified documents regarding the history of U.S. involvement in Vietnam. The court heard oral arguments in New York Times v. United States in an emergency Saturday session in June 1971 and decided the case just four days later. In a concurring opinion, Justice William Brennan suggested that, in addition to troop locations, “information that would set in motion a nuclear holocaust” might also justify a prior restraint.
The restricted items in Tadros and Steward are no doubt a far cry from the direct dangers to national security that Near and New York Times singled out. Why, then, did the courts issue the prior restraints in the first place?
Some media lawyers said judges may issue the bans because they are unaware of precedent in the area but feel the need to make a quick decision — especially if news outlets are eager to publish the information. Moreover, disclosure of the facts can often implicate other constitutional rights, such as the Sixth Amendment guarantee of a fair trial.
But Supreme Court cases, such as Nebraska Press Association v. Stuart and Sheppard v. Maxwell, stress that judges have many methods — including not impaneling jurors who are well-versed in the case; giving jury instructions that emphasize that only evidence from the courtroom can be considered; and even changing the trial location — to ensure that defendants are not prejudiced. Other decisions, meanwhile, hold that news outlets cannot be punished for publishing truthful material that they lawfully obtained, absent the highest state interest.
In Florida, prior restraints are so uncommon partly because new judges receive training on these topics at orientation workshops known as “baby judges school,” media lawyer Jonathan D. Kaney said.
“One of the speakers there says, ‘if you really want to be famous, here’s what you do. Enter a prior restraint,’” said Kaney, who is general counsel at the First Amendment Foundation in Florida.
On the rare occasion a reporter is slapped with a prior restraint, Conner said the best course of action is to alert an editor and then immediately inform a lawyer who can file paperwork to get the ban lifted. Media organizations in Tadros and Steward did just that.
Florida v. Tadros
James Patrick Tadros’ arrest in Jacksonville, Fla. drew lots of local publicity.
Police had charged the Florida man in August with false imprisonment, criminal mischief and attempting to murder a 9-year-old girl in a Best Buy bathroom.
Upon his arrest, Tadros reportedly gave statements in which he explained that he lured the child into the bathroom by asking her to retrieve a phone that he told her he left there. Florida law allows alleged confessions to be redacted from police reports, but a television station got an unedited version after its lawyer found it on a section of a court database that is not available to the general public.
The station, WJXT TV4, planned to disclose the supposed confession on the six o’clock news on Aug. 28, but Tadros asked Duval County Circuit Court Judge Adrian G. Soud that afternoon to stop the broadcast. At an emergency hearing around 5:30 that day, Soud sided with Tadros. He explained that the restraint was only temporary, and that he issued it because he wanted time to analyze the law.
But WJXT TV4 ran a “screen shot” that contained the supposed confession that night, and Tadros then sought to hold it in contempt. Soud declined to do so, finding that the broadcast was unintentional. But at the evidentiary hearing on the issue, he issued a second prior restraint. This time, he forbade a Florida Times-Union reporter from publicizing the information from the arrest report as well.
On Sept. 11, following a hearing where news media representatives explained why the prior restraint was unconstitutional, Soud lifted the ban. He wrote in his opinion, “Although a government may deny access to information and punish its theft, a government may not prohibit or punish the publication of information once it falls into the hands of the press unless the need for secrecy is ‘manifestly overwhelming.’”
Soud explained the court could take other measures if need be to ensure Tadros a fair trial, but he admonished the news outlets not to publish the information. “On the facts before this Court, while the law cannot require the embracing of this duty, the law expects it,” Soud wrote.
Soud also found that the unredacted report was available due to clerical error, and that the attorney who got it did not violate the law. But to Conner, the legality of how the report was obtained should not have factored into Soud’s initial decision to enter the prior restraint. There are other ways, such as theft and wiretap laws, to deal with that issue if need be, he said.
Virginia v. Steward
Craig Merritt, one of the attorneys who fought the prior restraint in Steward, called it nothing more than “an oddball situation that got out of hand” and that he “tried to contain as quickly as possible.”
Witness-safety concerns and not fair-trial rights prompted juvenile court judge Thomas Carpenter to issue the ban. It prevented reporters from naming people, aside from law-enforcement officials, who testified at a preliminary hearing for Antwain Steward.
Police arrested Steward, of Newport News, Va., in July for two 2007 killings after claiming that rap lyrics that he wrote referenced the unsolved murders.
Steward had threatened potential witnesses, according to court filings. At the end of the Oct. 2 hearing, state attorneys made an oral request for the ban. Carpenter immediately granted it, but noted that the state should have filed a written motion before the hearing.
“This was truly done on the fly at the end of the hearing,” said Merritt, attorney for The Daily Press in Newport News. “It goes to show that bad process leads to bad results.”
Just two days later, Merritt and colleague David Lacy filed a brief on behalf of The Daily Press in which they explained the presumptive unconstitutionality of prior restraints.
“When, as in this case, the information has already been disclosed, a prior restraint may not be used to unring the bell,” they wrote. The constitutionally permissible path, they argued, would have been for the court to weigh in on disclosure concerns before the information became public.
Before the Newport News Circuit Court — where the case had been transferred — could hold a hearing on the ban, the prosecution withdrew its request to suppress the names.
“I give the prosecutors credit,” Merritt said. “They read our legal brief, they read the law, [and] they realized they were in an untenable position.”
Why fight prior restraints?
Only one of the publications involved in the two suits decided to publish the facts in question after getting the right to do so.
WJXT TV4 ran a story in which it described some details about how Tadros said he lured the child into the bathroom. The station thought the piece had an important public-safety purpose, said its attorney, Edward Birk.
The WJXT TV4 story repeatedly emphasized that it left out details from the report that were too graphic or that could interfere with Tadros’ Sixth Amendment rights.
The Florida Times Union and First Coast News, meanwhile, did not publish the information at issue, Conner said. It was crucial that the editors — and not a judge — got to make that decision, he said.
“It’s a matter of principle,” Conner said. “Prior restraints cannot be tolerated so we felt like it was an important principle to address.”
The Daily Press did not publish the names, and never intended to do so, Porto said. The purpose of the suit wasn’t about the names, she said, but about maintaining journalistic independence.
“We need to force legal professionals to make the right decisions,” Porto said. “We’ll continue to do this, and we’ll do it every time we find improper law when it comes to freedom of the press.”