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Informal court action can be prior restraint, Kennedy says

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From the Spring 2005 issue of The News Media & The Law, page 15. First Amendment lawyers predict an April…

From the Spring 2005 issue of The News Media & The Law, page 15.

First Amendment lawyers predict an April opinion by U.S. Supreme Court Justice Anthony M. Kennedy in a case brought by a Florida broadcaster is likely to be cited favorably in future cases involving do-not-publish orders.

Although Kennedy denied a request by First Coast News for a stay of trial court orders that threatened criminal prosecution if the media re-published grand jury testimony by accused killer Justin M. Barber, he acknowledged that “informal procedures undertaken by officials and designed to chill expression can constitute a prior restraint.” Warnings from a court have even more weight, he added, which also bears on whether an order is a prior restraint.

“A threat of prosecution or criminal contempt against specific publication raises special First Amendment concerns, for it may chill protected speech much like an injunction against speech by putting that party at an added risk of liability,” Kennedy wrote in his April 15 opinion in Multimedia Holdings Corp. d/b/a First Coast News v. Circuit Court of Florida.

After a Florida appeals court refused in March to review the case, First Coast appealed to Kennedy, the circuit justice for the geographic area that includes Florida. The broadcast outlet argued that the orders issued by Judge Robert Mathis last summer constituted a prior restraint in violation of the First Amendment.

But because Mathis is now retired, and because the state’s attorney “suggested” that further publication would not be prosecuted, Kennedy found no reasonable probability that four U.S. Supreme Court justices likely would agree to take the case &#151 the standard for granting a stay application. Kennedy’s ruling essentially freed First Coast News to re-publish the grand jury transcript. Barber’s trial is expected to start in June.

“With this ruling the station can now air the material, and we have a U.S. Supreme Court opinion of lasting value on the prior restraint issue,” said First Coast attorney George Gabel of Holland & Knight in Jacksonville, Fla.

Ronald K.L. Collins of the First Amendment Center in Arlington, Va., agreed, saying Kennedy “came up with a way of allowing the press to have their cake and eat it too.”

“I think that opinion is going to be quoted a lot in prior restraint cases,” Collins said.

Attorney Nathan Siegel of Levine Sullivan Koch & Schulz in Washington, D.C., said Kennedy’s opinion in no way diminishes constitutional protection against prior restraints.

“To the contrary, it’s a rather First Amendment-friendly opinion that includes some nice language about how restraints can result from informal court orders and actions as well as formal injunctions,” said Siegel, who wrote a friend-of-the-court brief to Kennedy on behalf of a media coalition, which included The Reporters Committee for Freedom of the Press, supporting First Coast News.

Although single Supreme Court justices do not often write opinions when deciding stay applications &#151 which are typically denied without explanation &#151 such “in chambers”opinions seem to be more common in prior restraint cases, Siegel observed.

Justice Harry Blackmun issued two “in chambers” opinions in 1975’s Nebraska Press Ass’n v. Stuart, in which a trial court barred the press from publishing details of the alleged sexual assaults and murders of six members of a Nebraska family. Blackmun first declined to act on the media’s application for a stay of the prior restraint, expecting the Nebraska Supreme Court to take action, but after that court failed to do so within a week, Blackmun stayed the parts of the trial court’s order “that require resolution immediately and without one moment’s further delay.”

Nearly 20 years later, Blackmun again wrote as a single justice in the 1994 case CBS v. Davis, in which a South Dakota trial court ordered the network not to broadcast footage it had secretly videotaped inside a meat-packing facility.

After the state Supreme Court denied CBS’s request to stay the order, Blackmun granted an emergency stay, finding that “infinite delay of the broadcast will cause irreparable harm to the news media that is intolerable under the First Amendment.”

More recently, Justice Stephen Breyer &#151 Blackmun’s replacement on the court &#151 wrote a single-justice opinion last July in Associated Press v. District Court for the Fifth Judicial District of Colorado, in which the press asked for a stay of a prior restraint against publishing the transcript of a closed-door hearing in the Kobe Bryant rape case.

Believing release of the redacted transcript to be “imminent,” Breyer denied the application without prejudice for two days to give the Colorado courts time “to clarify, perhaps avoid the controversy at issue here.”

Siegel said the court likely sees prior restraints, which are presumed unconstitutional, “as the kind of issue that . . . merits very quick action and some explanation for it.” &#151 KK