Lamenting season of prior restraints

From the Summer 2002 issue of The News Media & The Law, page 3.

Perhaps we should call it "The Summer of Our [dis]Contempt."

Bad puns aside, the spring and summer of 2002 will be noteworthy in media law history for the strikingly unusual number of contempt citations against the media. This disturbing trend came out of nowhere.

In the most disturbing case, four Philadelphia Inquirer reporters were found guilty of contempt of court and fined $1,000 each. Their crime was defying a trial judge's illegal gag order by identifying a juror who had possibly served illegally. The newspaper printed the juror's name in the murder trial of Rabbi Fred Neulander, questioning whether she even lived in the state. Three of the reporters also were sentenced to community service for contacting jurors after a mistrial, also in defiance of a court order that was illegally imposed.

To paraphrase Inquirer Editor Walker Lundy (a former boss of mine), it is astonishing that journalists in this country could be found guilty of a crime for publishing the truth.

The Neulander case demonstrates why gag orders in court cases are so dangerous. If the court system did not have the wherewithal to identify the false residence of a juror, how else but through the media is the public supposed to find out there is a problem with the juror selection process in Camden County, N.J.?

Journalists violate court orders at their peril. As the Neulander case demonstrates, the media cannot count on the courts to recognize a great public service in revealing misdeeds when a court order is defied. While it may have been popular and accepted for courts to excuse various forms of righteous civil disobedience during the glory days of the civil rights movement, these days, judges are more likely to get their noses out of joint and punish uncooperative reporters.

It's the public that loses.

The argument that journalists have no special right to defy unconstitutional orders would have more merit if courts these days weren't so eager to disregard the law and issue blatantly unconstitutional prior restraints.

The problem is not confined to the East Coast.

In Las Vegas, a justice of the peace recently illegally prohibited the media from naming alleged sexual assault victims who took the stand in open court and identified themselves. Local journalists decided to abide by the order while challenging it in an appeals court.

In Kentucky, a state judge cited an Inez 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.

In Seattle, a judge jailed an elderly man for contempt after he refused to remove information about officials at his former housing complex from his Web site. The appropriate vehicle for complaints about Paul Trummel, who undoubtedly was a thorn in the sides of his former neighbors, would have been a libel lawsuit. But housing officials decided he didn't have enough money to make a lawsuit viable, and the judge decided to handle the matter with a restraining order.

Every time a court issues an illegal prior restraint, all constitutional rights are jeopardized. We'd like to think that basic prior restraint cases such as Near v. Minnesota and the Pentagon Papers case are part of a judge's basic education when he or she takes the bench. Obviously, they are not.

Most of the time, the media is successful in getting prior restraints declared unconstitutional.

But it would be nice if litigation was not necessary. It would be even better if journalists didn't risk jail time every time a judge imposed an illegal prior restraint.

We're not looking to create First Amendment media martyrs. We just want the right to report the truth to the public.

— Lucy Dalglish