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Precedent likely to be cited in other prior-restraint cases From the Fall 2004 issue of The News Media & The…

Precedent likely to be cited in other prior-restraint cases

From the Fall 2004 issue of The News Media & The Law, page 17.

By Kimberley Keyes

A “disastrous” Colorado Supreme Court opinion upholding a rare prior restraint on the press in the Kobe Bryant rape case could affect other cases in which a court orders the media not to publish information it obtained legally.

Media lawyers who were involved in People v. Bryant, however, say that the decision would be weak support for other do-not-publish orders, given the ultimate outcome of the case.

People v. Bryant is likely to be cited in a Florida prior-restraint case, Multimedia Holdings Corp. v. State of Florida, now pending before the state appeals court. A trial judge ordered First Coast News, a Gannett television network of ABC and NBC affiliates, not to publish transcripts of accused wife-killer Justin Barber’s grand jury testimony, which it received as public records from the state prosecutor’s office.

“I don’t have any doubt that our case will be cited in Florida,” said Tom Kelley, one of the attorneys who represented the media before the Colorado Supreme Court in the Bryant case. He called the Bryant decision “disastrous” because it forced the press go to the U.S. Supreme Court to fight a prior restraint. “Nowadays I don’t think you do that unless you have a disaster on your hands,” he said.

In People v. Bryant, the Colorado Supreme Court voted 4-3 to uphold an order forbidding publication of transcripts of a closed-door hearing that the trial court had inadvertently e-mailed to seven news outlets. The court ruled that Colorado’s interest in protecting the privacy of the alleged rape victim justified the do-not-publish order &#151 even though the U.S. Supreme Court has never sanctioned a prior restraint against the press.

The media petitioned for a stay of order from U.S. Supreme Court Justice Stephen Breyer, who handles emergency requests from the geographic area that includes Colorado. Breyer dismissed the petition but said the media could file it again in two days, giving the state courts time “to clarify, perhaps avoid, the controversy at issue here.” Noting the First Amendment concerns at stake, the trial court released most of the contents of the transcripts soon afterward.

“If the logic of the Colorado Supreme Court were followed elsewhere, it would be a dangerous precedent,” said Nathan Siegel of Levine Sullivan Koch & Schulz, one of the lawyers who represented the media in the appeal to Breyer. “But its value as a precedent was substantially watered down by what happened.”

Kelley, a partner at Faegre & Benson in Denver, Colo., agreed. He said People v. Bryant would be most pertinent to cases involving the privacy rights of alleged rape victims.

“If it doesn’t involve that set of facts, I think it’d be pretty hard to get another court to say ‘Kobe Bryant’ means prior restraints are fair game now in the free press-fair trial area,” he said.

Kelley also took issue with the court’s rationale that, he characterized as “prior restraints are really less than a problem than after-the-fact punishment, because they don’t tend to cause self-censorship; the government does the censorship itself.

“If that were to resonate with judges elsewhere and they decide to go with that, it could be a problem,” Kelley said. “But otherwise I think the case is likely to be limited to rape victim privacy rights &#151 in particular, the need to let victims out there know that the state is going to be behind them.”

Bryant, 25, an all-star guard with the Los Angeles Lakers, was charged with raping a 19-year-old woman at a resort near Vail, Colo., on June 30, 2003.

Nearly one year later, the Eagle County (Colo.) District Court held a closed-door hearing pursuant to the state’s rape-shield law to discuss the admissibility of evidence related to the accuser’s sexual conduct.

A court reporter mistakenly e-mailed transcripts of the confidential proceedings to the Associated Press, CBS, The Denver Post, ESPN, Fox News, the Los Angeles Times and Warner Brothers Television, all of which were on a mailing list to receive transcripts of public proceedings in the case. The court reporter realized the error immediately and notified the court. The same day, District Judge W. Terry Ruckriegle ordered the unintended recipients to delete and destroy the copies. He also warned that anyone who published the contents could be held in contempt of court.

Reporters who received the transcripts were already preparing stories about them when they received the order not to publish. On June 28, the news organizations asked the Colorado Supreme Court to set aside Ruckriegle’s order as an unconstitutional prior restraint on the press.

A divided state supreme court issued its decision July 19, agreeing with the media that the lower court’s order was a prior restraint &#151 but one that, when “narrowly tailored,” was nevertheless constitutional.

Balancing competing interests

A prior restraint &#150 a court order prohibiting publication or communication of certain information before such publication or communication occurs &#150 is an extraordinary remedy that is presumed unconstitutional. Indeed, “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,” the U.S. Supreme Court famously stated in 1976 in Neb. Press Ass’n v. Stuart.

To overcome the presumption that a prior restraint is unconstitutional, the government must show an interest “of the highest order,” which undoubtedly would be gravely harmed by publication of the information at issue.

The Colorado Supreme Court determined that the state had such an interest in the Bryant case, namely, in providing confidential pretrial evidentiary hearings in rape cases. The majority opinion by Justice Gregory J. Hobbs Jr. reasoned that “such hearings protect victims’ privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault.”

The majority also ruled that a narrowly tailored prior restraint in this case was not only possible, but “necessary to protect against an evil that is great and certain and would result” if the contents of the transcript were revealed publicly.

The seven media outlets pointed to news stories about the accuser’s supposed sexual activity to argue that her privacy was already “hugely compromised,” and thus publication of the transcript would result in no greater harm to her privacy.

But the majority rejected that argument, insisting that the test was not to compare the information in the transcript to information already made public, but rather to determine whether publication would cause “great and certain harm to a state interest of the highest order.”

The court concluded that disclosure would harm not only the accuser’s privacy interest but also the state’s interest in reporting and prosecuting sex crimes. It also pointed out that the transcripts had been released mistakenly to only a handful of news organizations and were plainly marked confidential.

“Here, where the mistake was caught before the [confidential] information was further disseminated, the balance must tip in favor of keeping the information private,” the majority wrote.

But dissenting Justice Michael L. Bender said that the responsibility for the error lay with the court, not the media. “Having failed, we, the judiciary &#151 the government &#151 cannot now order the media to perform the role that we were obligated, but failed to do &#151 to protect the privacy interests of the alleged victim,” he wrote in a dissent joined by fellow justices Alex J. Martinez and Nancy E. Rice. “Nonetheless, the majority approves the court’s power to prevent the dissemination of speech which the court deems dangerous or offensive. The power the majority authorizes is the power of the government to censor the media, which is precisely the power the First Amendment forbids.”

Bender also criticized the majority for focusing on the “abstract” purposes served by the rape shield statute while giving short shrift to the extensive media coverage of the case, including numerous stories about the accuser’s sexual conduct.

“The harm that could have been prevented by the prior restraint has already occurred, and, because this harm has occurred, the heavy presumption against the constitutionality of a prior restraint has not been overcome,” he wrote.


Although it upheld the lower court’s directive not to disclose the contents of the transcripts, the majority nevertheless declared it had a constitutional obligation to narrow the order as much as possible. To that end, it struck the part requiring the recipients to destroy any copies of the transcripts.

The appellate court further ordered Judge Ruckriegle to determine which, if any, parts of the transcript could be admitted at trial, and to consider releasing a redacted version of the transcript that disclosed the admissible portions.

The seven news organizations immediately asked Justice Breyer to stay enforcement of the order. Seventeen other media organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief supporting the petition.

“If this Court allows the order to stand, it will be the first time in its history that it has sanctioned a prior restraint of the media,” the groups pointed out.

Before Breyer issued his decision, Ruckriegle ruled that certain evidence was relevant and material to the rape case and could be admitted in court. Breyer then denied the media’s application, indicating that Ruckriegle’s relevancy determination likely would lead to disclosure of the transcripts. “Their release, I believe, is imminent,” Breyer wrote.

He stated a “brief delay” would give the state courts time to possibly resolve the conflict, and ruled that the media could refile their application if necessary in two days.

One week later, Ruckriegle “with great reluctance” released a redacted version of the transcripts, saying he felt “compelled” to do so after reviewing Breyer’s ruling. The seven media outlets then dropped their bid for review by the U.S. Supreme Court.

“There was pretty clear agreement that we had in fact won, and it didn’t make sense to press the appeal once virtually all the transcripts had been released,” Siegel said. Kelley said he agreed with the decision to drop the appeal at that point.

The day after the transcripts were released, The Denver Post published a story detailing their contents. A forensics expert had testified at the closed-door hearing that DNA testing of semen found in the accuser’s underwear and on her body indicated she had sexual intercourse with another man shortly after her encounter with Bryant.

Prosecutors dropped the felony sexual assault charge against Bryant in September when the accuser decided she no longer wanted to pursue the criminal case.

Questionable precedent

Although the Colorado Supreme Court decision in People v. Bryant still stands, its power to serve as legal precedent to uphold future prior restraints against the press is dubious, according to media lawyers involved in the case.

“Looking at the totality of the judicial decisions made here, we’re comfortable that these events are not likely to recur and that the doctrine that presumes prior restraints are unconstitutional remains intact,” Steve Zansberg of Faegre & Benson told The Denver Post.

Siegel emphasized that in cases of this type, it is not unusual for the media to prevail in a practical way, “without a clear repudiation” of a seemingly unfavorable court opinion. He said any lawyer whose opponent tries to use the Bryant decision as support for a prior restraint should point out that in the end, “98 to 99 percent” of the transcripts were released.

“A very good argument can be made that it’s not something courts should look to, because of the ultimate outcome of the case,” he said.

In the Florida case, after First Coast News reported on Barber’s grand jury testimony, the trial judge sealed the transcripts and threatened the organization with criminal sanctions if it continued to publish the information. The judge even asked Gov. Jeb Bush to appoint a special prosecutor to investigate whether the state violated criminal laws by releasing the transcripts to the press.

First Coast News appealed the prior restraint to Florida’s Fifth District Court of Appeal in August. Kelley surmised that the court would have been made aware of the Bryant decision through briefing. “We’ll have to see what they do,” he said.