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When a judge ordered the Daily Camera not to publish the mug shot of a suspect in a highly publicized…

When a judge ordered the Daily Camera not to publish the mug shot of a suspect in a highly publicized attack, the Colorado newspaper fought back.

From the Summer 2005 issue of The News Media & The Law, page 41.

By Kimberley Keyes

One year after the Colorado Supreme Court upheld a prior restraint against the media in the Kobe Bryant rape case, a Boulder, Colo., county judge ordered the Daily Camera not to publish the photo of a man charged with a racially motivated assault on a 22-year-old student.

District Judge John Stavely lifted his do-not-publish order and another order sealing public documents in the case only when the prosecutor said the orders were no longer necessary to protect the investigation.

“I am pleased that the orders were vacated, but troubled by the fact that they were issued in the first instance,” said Marc D. Flink, the newspaper’s attorney.

The Daily Camera had already posted the mug shot, which it received from the Boulder Sheriff’s Department, on its Web site when Stavely issued his July 6 do-not-publish order. The newspaper did not run the photo of suspect Phillip Bernard Martinez in its daily print edition, but kept it on the Web site.

The paper also asked the court to vacate what it called a “classic prior restraint.”

For Editor Sue Deans, who has been at the helm of the Daily Camera for two years, it was a matter of constitutional principle &#151 something the paper made clear in its news articles and editorials on the issue.

“Prior restraint flouts a bedrock principle of our free society,” said a July 10 editorial. “That’s why the Camera is challenging Judge Stavely’s censorial decree.”

The controversy began July 5, when Boulder police announced they had arrested the man who one month earlier had broken the jaw of University of Colorado student Andrew Sterling.

Sterling, whom the paper described alternately as “biracial” and “African-American,” was attacked as he and a friend were walking early in the morning of June 3.

Martinez allegedly yelled a racial epithet at Sterling, then punched him twice in the face. The Boulder community raised $20,000 to help catch the assailant.

Martinez was being held in the Boulder County Jail on unrelated charges when he was arrested July 5. Daily Camera reporter Brittany Anas requested Martinez’ mug shot from the sheriff’s department, which e-mailed it to her July 6. The paper immediately posted the photo on its Web site along with an article about Martinez’ arrest.

Later that day, the newspaper’s photo director went to court seeking Stavely’s permission for a camera in the courtroom during Martinez’s bond hearing. District Attorney Mary T. Lacy opposed the request, arguing it could taint the investigation. “The news story can just as effectively be delivered without a photograph of the suspect,” she said in a court filing.

Stavely declined to allow a camera in the courtroom based on the prosecution’s intent to conduct a photo lineup for witnesses, according to the paper. When informed that the Camera already had posted Martinez’s mug shot on its Web site, Stavely issued a written order that the “defendant’s photograph or likeness shall not be used or broadcast unless and until further order of the court or by Chief Judge Roxanne Bailin.”

In a separate proceeding July 5, Bailin sealed from public view the arrest warrant, affidavit and other information in the case.

On July 7, the Daily Camera ran a story saying it intended to challenge both the sealing order and Stavely’s do-not-publish order. In the meantime, the photo of Martinez remained on the Web site.

“He [Stavely] didn’t order us to take it down in the order that was written and . . . the issue of prior restraint didn’t quite equate in that situation. That’s my reading of it,” Deans explained. “We just decided since we had already published it there, we would leave it there, but we wouldn’t take affirmative action to publish it elsewhere.”

Through its attorneys at Baker & Hostetler in Boulder, the newspaper on July 8 asked the court to reconsider the sealing order and to vacate the “unconstitutional prior restraint.”

The paper pointed out that the state’s high court upheld a prior restraint only once.

In July 2004, the Colorado Supreme Court affirmed a judge’s order not to publish the contents of a transcript of a closed-door hearing in the Kobe Bryant rape case that a clerk had inadvertently e-mailed to reporters. The court held that the alleged victim’s interest in privacy outweighed the public’s interest in disclosing the transcript.

Media lawyers, however, contend the decision is of little value in prior restraint cases outside those narrow circumstances. Indeed, the Daily Camera took pains to distinguish its case from Bryant.

“No privacy interests are at stake in this matter, let alone the statutorily and judicially recognized interest in the privacy of rape victims,” the newspaper said in its motion to vacate. It also noted that the trial court’s eventual release of the transcripts in Bryant rendered the prior restraint question in that case “moot.”

The newspaper requested a hearing on its motions, but none was held. Instead, prosecutor Lacy asked the court on July 12 to rescind its order not to publish the mug shot, saying that since the investigation was by then “substantially complete,” publication of Martinez’s photo no longer threatened “the integrity of the investigation.” Lacy also asked the court to rescind its order sealing the arrest warrant and affidavit, citing the same reason.

The next day, the Camera reported that Stavely had unsealed the affidavit, allowing the press to publish Martinez’s photo “because prosecutors have finished interviewing witnesses.” The story included excerpts from the newly released documents as well as the mug shot.

Deans, a journalist since the late 1970s, wouldn’t rank the legal skirmish as the most significant of her career. “Every time that we have to fight for our rights under the First Amendment, it’s important,” she said.

“I can’t really say that this is the most important or the least important or where it fits on the list, but they’re always important because this is one of the issues that determines how our democracy works &#151 whether people can get information. It’s our job to give it to them, and if the courts interfere with that, it’s very important to us and to the public that we represent.”