From the Spring 2005 issue of The News Media & The Law, page 16.
Sometimes judges issue prior restraints to prevent the press from publishing information the court itself released — by accident. But even under those circumstances, a do-not-publish order is presumed to violate the First Amendment.
In March, U.S. District Judge Robert E. Keeton ordered New Bedford Standard-Times reporter Ray Henry, who was covering a hearing in a federal drug case in Boston, not to publish anything he had just heard in the courtroom. Prosecutor William F. Bloomer, believing everyone present was legally bound to confidentiality, had disclosed privileged information concerning accused narcotics trafficker Arlindo DosSantos Jr.
The case is reminiscent of an incident in the Kobe Bryant rape case, when a court clerk inadvertently e-mailed transcripts of a closed-door hearing to members of the media last summer. Upon discovering the mistake, Eagle County (Colo.) District Court Judge W. Terry Ruckriegle ordered the press not to publish its contents. He eventually released the transcript in a redacted version after prodding by U. S. Supreme Court Justice Stephen Breyer, who recognized the “importance” of the constitutional issues at stake.
In the Boston case, a defense lawyer asked Henry — who had been let into the courtroom by a court officer and was taking notes the whole time — who he was. Once he identified himself, lawyers informed Keeton, who told Henry he couldn’t print what had just been revealed — that DosSantos was cooperating with the government. Keeton then sealed the order and the transcript of the hearing.
Attorney Howard A. Merten Jr. protested the prior restraint on behalf of The Standard-Times, but the judge refused to vacate it. Instead, Keeton allowed it to expire one day after the newspaper’s challenge. Neither the prosecution nor the defense appealed the expiration, so Henry was free to write about what happened at the hearing — one week after he covered it.
“It should have never been issued in the first place,” Merten said. — KK