Journalists facing orders of prior restraint question whether to comply or risk court action
From the Summer 2002 issue of The News Media & The Law, page 4.
By Phillip Taylor
The alleged escapades of Steven Newberg, reportedly caught on tape bragging about his sexual exploits and his ability to rape women, so appalled Las Vegas citizens that his impending trial has filled newscasts and newspaper pages.
During his preliminary hearing, three woman, including a self-described crack addict and former prostitute, took the stand to testify that Newberg raped them. Justice of the Peace Ann Zimmerman ordered the news media not to publish either the names or photographs of the victims or risk contempt charges.
The June 3 order, issued at the request of Clark County prosecutors, caught newspaper reporters off guard. After all, they were being ordered not to report on testimony in open court.
Even before Zimmerman’s order, Las Vegas Review-Journal editor Thomas Mitchell said the newspaper discussed not running the names of sexual assault victims. But facing a prior restraint order, he considered publishing the name of one of the witnesses in his Sunday column as a show of freedom of the press principles.
“I figured the courts would largely ignore my yipping if I didn’t snip at them,” Mitchell wrote on June 30. “Besides, I reasoned, any contempt citation would be quickly resolved in our favor, because the ruling was so blatantly illegal.”
Given time to cool, Mitchell nixed the name from his column and directed newspaper attorneys to vanquish the order. So far, they have not been successful as Zimmerman refuses to reconsider her demand on the press. An appeal to the Nevada Supreme Court is in the works.
“We’re working primarily on principle,” Mitchell said. “Prosecutors could have easily under the state law cloaked the sexual assault victims. They could have come up and gone on the stand with pseudonyms. I don’t like that, but the law allows it. Instead, the judge is basically telling the newspapers that they can’t report accurately and effectively what the people would see in court that day.”
Because timeliness is not a pressing issue at the moment — Zimmerman ordered Newberg to stand trial on 22 felonies — Mitchell said he chose to battle the order in court, not in the paper.
Considering several recent court cases, Mitchell probably took the safe route. In recent weeks, judges punished or threatened to punish journalists with contempt if they did not heed their prior restraint orders. These include:
• A New Jersey trial judge who found four Philadelphia Inquirer reporters guilty of contempt of court for printing the name of a juror in a celebrated murder trial in defiance of a court order. After the New Jersey Supreme Court determined that a judge could legally bar reporters from contacting jurors, a judge sentenced the reporters to suspended 30-day jail sentences and fined each of them $1,000. The same judge in February gave the same sentence to a Philadelphia Magazine reporter.
• A Kentucky state judge who cited an Inez, Ky., newspaper for contempt after it continued publishing under the name “Mountain Citizen” after a local official secured the name in state incorporation papers. The judge fined the newspaper’s owner, publisher and editor $500 each for defying his order.
• A judge in Charlotte, N.C., barred an alternative weekly from publishing information from student records, even though it did not identify the students. But the judge lifted the temporary restraining order after the newspaper challenged it as an unconstitutional prior restraint.
• A Utah juvenile court judge ordered an Ogden newspaper reporter not to publish a story about a custody hearing in his courtroom. The judge withdrew the restraint two weeks later.
• A Seattle judge jailed an elderly man for contempt after the man refused to remove personal information about officials at his former housing complex. Paul Trummel, who claims to be a “card-carrying journalist,” said he was investigating tenant abuse.
Despite the number of recent prior restraint orders and contempt threats, free press advocates and media attorneys hesitate to describe the situations as part of a growing trend.
“I have no sense of whether the numbers of these kind of cases are going up or going down or staying the same,” said Paul McMasters, First Amendment ombudsman for the Freedom Forum. “But I do have an impression that judges are a little bit more emboldened in recent months to punish the press and to defer to any governmental claims of harm or danger that the press might be doing.”
Numbers aside, McMasters said the Inquirer case alone should give the public, not just the press, pause.
The fines and sentencing of the reporters stemmed from the murder trial of Rabbi Fred Neulander, who is accused of arranging his wife’s murder. A first effort to try Neulander ended in a mistrial; a second one is expected to start this month.
The trial judge issued a variety of gag orders in the case,
including one that barred journalists from contacting jurors or publishing their names, even if called out in open court. When the newspaper published information about one of the jurors, the journalists were cited with contempt. At sentencing, the journalists were fined and ordered to do community service.
McMasters said the case and the punishment meted out to the reporters pose a considerable number of First Amendment problems for journalists, the public and the jurors.
“I think the gag order showed disrespect to the First Amendment rights of the public and their ability to find out what was going on in a high-profile trial.”
In part, the reporters were punished for challenging the validity of one juror who was suspected of living somewhere other than New Jersey. State law requires jurors to reside in the county in which a trial takes place.
Inquirer editors defend their reporters as engaging in First Amendment-protected press activities in a professional way.
“The testimony I heard in this case showed that Inquirer reporters acted courteously, honestly and in the highest journalistic traditions in their reporting following the Neulander trial,” Deputy Managing Editor Hank Klibanoff told the newspaper. “They pursued a story of genuine public importance and concern, including whether one of the jurors in the New Jersey case was, in fact, a Philadelphia resident. The reporters did their jobs professionally, and we remain steadfast in our support of them.”
Neulander’s attorneys, however, raved about the punishment, saying the judge’s decision should instill confidence in potential jurors.
“It allows jurors to believe it when there’s a court order that they will not be contacted by the media,” Jeffrey Zucker said.
Dennis Wixted, another lawyer for Neulander, said potential jurors in the trial fretted about the news media during the seven-week selection process.
“The one common fear almost all the jurors expressed, was they didn’t want to be bothered or hounded by the press,” Wixted said. “They want to be protected.”
Other newspapers have also been unsuccessful in avoiding contempt charges involved in prior restraint cases.
Staffers of the Mountain Citizen in Inez, Ky., discovered that the newspaper suddenly lost its incorporated name when a former water board chairman claimed it. John Triplett, whose position on the water board and issues of water quality had been the subject of critical newspaper stories, discovered the newspaper forgot to refile incorporation papers with the state and took the name for himself.
Triplett later persuaded a state judge to bar the newspaper from using the name “Mountain Citizen.” The judge lifted the restraint after the newspaper continued publishing, but fined three staff members $500 each for violating the order.
The newspaper has appealed the fines.
At least two newspapers recently have succeeded in fighting prior restraint orders.
Creative Loafing, an alternative weekly in Charlotte, N.C., fought a temporary restraining order that barred it from publishing student records provided by former teachers and employees at a local high school.
District Court Judge Yvonne Evans on June 21 issued the order after Creative Loafing published an article alleging that at least eight students out of a graduating class of 25 at Crossroads Charter High School did not meet the minimum standards for graduation but were still allowed to graduate.
The newspaper relied on copies of student tests and grades provided by former teachers but did not reveal any student names.
Another district court judge struck down the ruling as an unconstitutional prior restraint, determining that the newspaper legally obtained the information.
The Standard-Examiner in Ogden, Utah, also successfully dispelled such an order after a Utah judge told reporter Cheryl Buchta not to publish a story. The judge later withdrew the restraining order, saying it was “only an admonition.”
Editors at the paper say the restraint was not only unnecessary, because the paper agreed with participants in a child custody case not to run a story, but unconstitutional.
“In essence, the restraining order didn’t have any effect, because we’d already promised not to run the story,” said the paper’s managing editor, Ron Thornburg. He said the reporter’s previous confidentiality agreement is keeping the paper from publishing a story, not the now-inactive restraining order.
Openness advocates launched opposition to the restraint. The Utah Headliners Chapter of the Society of Professional Journalists said it would support the Standard-Examiner in court and wrote a letter to court officials on the newspaper’s behalf.
“In attempting to write about the struggles and successes of the juvenile justice system, Ms. Buchta was engaged in the very newsgathering and speech activities the First Amendment was designed to shield from prior restraints,” the letter read.
Although it did not have to, the newspaper was ready to fight the restraint.
Publisher Scott Trundle said the paper “stands ready to challenge this and similar orders in the future on behalf of our readers.”
What to do
A legal challenge, in most cases, is the best remedy to cure prior restraint problems, rather than ignoring court orders, said George Freeman, counsel for The New York Times.
“Unfortunately, the law is clear that you do have to appeal, even if it’s pretty obviously wrong,” Freeman said. “Sometimes in the cases that the orders are totally, unmistakeably wrong, reporters might get around it. But I’m assuming the safer course is to appeal instead of acting in face of a contempt citation.”
Freeman said one possible tactic often lost among the First Amendment and prior restraint arguments concerns the matter of jurisdiction. A judge, he explained, only has jurisdiction over her courtroom and not over everything and everyone around her.
“Judges can’t bind the world,” Freeman said. “They might like to, but they can’t.”
He explained that a judge can only dictate the actions of court workers or of people who are acting in concert with parties of a particular case before the court.
“As long as the offending conduct doesn’t occur in the courtroom, I don’t know how the judge has the power to restrict the actions of a journalist,” he said.
But Freeman would not say whether he believed the decision of the Inquirer to continue its pursuit of murder trial jurors while fighting the prior restraint orders was the best course of action.
Mitchell of the Las Vegas Review-Journal also said he could not second-guess the Inquirer‘s decision to ignore the judge’s order, noting that the newspaper might have had a tight time frame in which to report important news to the public. He has the benefit of some more time at the moment to argue to the court that it is the newspaper’s job to determine what is fit for print, not the court’s.
“We’re going the proper route,” Mitchell said. “We have a lot of issues about civil disobedience going on here right now, so I’m concerned that we follow the legal avenues. There isn’t a timeliness issue hanging over our heads, so it’s more about a principle.”
Christine Lagorio contributed to this report.