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A new wave of prior restraints?

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From the Spring 2007 issue of The News Media & The Law, page 37. A Florida TV station buys boxes…

From the Spring 2007 issue of The News Media & The Law, page 37.

A Florida TV station buys boxes of documents at an auction, but a judge in February forbids journalists to report on the contents. In March, a Missouri judge tells two newspapers to take down articles based on a legal memo about a utility company’s possible liability.

If prior restraints are truly the “most serious and least tolerable” form of restrictions on speech, as the U.S. Supreme Court held in 1976 in Nebraska Press Association v. Stuart, why are they on the rise in what seem like trivial cases?

It always seemed like the classic prior restraint case would concern some burning issue of national security — if not exactly movements of troops during wartime, then maybe locations of secret prisons or the existence of domestic wiretapping programs. But those two controversies, revealed by The Washington Post and The New York Times, never did draw a serious effort from the government to restrain the press, even though the White House had been specifically told about the upcoming reports in order to give the administration an opportunity to respond.

Instead, the prior restraints that judges will occasionally allow to stand are those that are about the legal process, where judges believe that information may affect a defendant’s right to a fair trial by prejudicing potential jurors before the trial. When this clash between fair trial rights and a free press is purely speculative, these orders are offensive enough. But if judges are going to take things another bold step forward, to cover vague privacy interests and possible corporate liability issues, prior restraints take on a new shade of ugly.

In the Missouri case, the restraint was issued “solely to protect a municipal agency’s three-year-old memo concerning its possible legal and regulatory difficulties,” according to the media parties. And in the Florida case, the court issued the restraint not only to protect legal memos, but out of concerns for the medical privacy of Doug Guetzloe, a political consultant whose records had been auctioned when he failed to pay a storage fee and who has been convicted of campaign law violations. Never mind that the news media never wanted to cover his health issues; they were much more interested in documents detailing his role in the political donation manipulations.

It didn’t use to be this way. The Nebraska Press case itself was over whether material revealed in open court during both pretrial and trial proceedings could be the subject of a prior restraint, and the Supreme Court held that it could not — even though the trial court’s order was entered before the evidence was discussed in court.

The tide may have started to turn with the trial of Panamanian leader Manuel Noriega. In 1990, CNN had obtained tape recordings of conversations between Noriega and his attorney. The network aired the tapes in violation of a court order and, not surprisingly, were promptly held in contempt; the surprise came when the U.S. Supreme Court declined to review the case. It may have been that CNN’s decision to go ahead with the broadcast and violate the order was to blame for the Supreme Court’s disinterest in the case, but it seems to have been the case that made prior restraints acceptable if they were imposed to protect some part of the judicial process.

Another watershed moment in the acceptance of prior restraints came in the criminal trial of basketball star Kobe Bryant in 2004. Court personnel inadvertently released sealed documents to reporters, and the judge immediately issued an order restraining the media from publishing details. The Colorado Supreme Court voted 4-3 to uphold the order, finding that it was justified by the state’s interest in protecting the privacy of the alleged victim. The media petitioned for a stay of the order from U.S. Supreme Court Justice Stephen Breyer, who handles emergency requests from that part of the country. 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.” And while the trial court released most of the contents of the transcripts soon afterward, a prior restraint in effect for a month does not “avoid” the infringement on First Amendment rights.

The decision to restrain speech in these cases reflects the perverse axiom that is practically carved in stone in the nation’s courthouses regarding potential jurors: Knowledge corrupts. (The corollary, of course, is that ignorance is bliss when it comes to serving as a juror.) Potential or sitting jurors who hear a statement about a case, whether from friends or news reports, will be immediately rendered biased, unable to think clearly, unfit for service in a court of law.

Of course, the average criminal case in the typical courtroom garners little or no media coverage, and finding a jury that knows nothing about the events or those involved is a straightforward process: a voir dire panel of 20 to 30 citizens will easily produce a dozen acceptable to the court and parties, once those with connections to the case or other biases are weeded out.

But the higher profile cases create the conflict between attempts by the court to seat a jury and by the news media to report the news. And some judges have been too willing to forego the tough decisions.

Hopefully, the trivial prior restraints we’ve seen recently will be anomalies. But if you’re wondering if restraints will continue to be imposed by trial judges — and be sanctioned by higher courts — when there’s a speculative threat to a fair trial, consider this: In urging the Supreme Court to let the sanction against CNN stand in the Noriega case, the government argued that temporary prior restraints on speech are acceptable — to give a judge the chance to weigh the competing interests and determine whether to impose a permanent prior restraint. That brief was written by a then-Deputy Solicitor General named John Roberts.