Judge refuses to lift prior restraint against reporter covering hearing

• A judge denied a newspaper’s motion to vacate a do-not-publish order but let it to expire one day later.

April 7, 2005 — A federal judge in Boston Tuesday refused to immediately lift a do-not-publish order he issued to a newspaper reporter who attended a hearing in a drug case during which privileged information was revealed.

Instead, U.S. District Judge Robert E. Keeton allowed the prior restraint against The Standard-Times of New Bedford, Mass., to expire one day after the newspaper challenged it in open court.

“It should have never been issued in the first place,” the newspaper’s attorney, Howard A. Merten Jr., said.

Standard-Times reporter Ray Henry had been let into a federal courtroom by a U.S. marshal and was sitting, notebook in hand, in the second row of seats during a March 31 hearing in a drug-trafficking case, when a prosecutor told Keeton that everyone present was “privileged” to hear information subsequently revealed, the newspaper reported.

After the hearing, a defense lawyer asked Henry who he was. Once he identified himself, defense and prosecution attorneys informed Keeton, who verbally ordered Henry not to publish anything about what he had heard. Keeton then sealed the order and the transcript, according to Merten.

“There was no hearing, there was no record, there was nothing that they could rely on, or point to, to uphold this thing,” he said.

Assistant U.S. Attorney William F. Bloomer, who had inadvertently disclosed the information in front of Henry, said its publication could put people at a “very serious risk of harm,” according to The Standard-Times. The hearing, however, was never closed to the public, Merten said.

Merten argued before Keeton on Tuesday that the prior restraint violated the reporter’s First Amendment rights, but the judge refused to vacate it, Merten said. Instead, Keeton — citing the “important” issues raised by the newspaper’s challenge — kept the order in effect until 11 a.m. Wednesday, over Merten’s protest, the attorney said.

“It’s a little frustrating because [Keeton] should have vacated the order . . . and then at least the record would have been that the prior restraint order was vacated, but he didn’t do that,” Merten said.

The order expired at the specified time with no appeal by either the government or Arlindo DosSantos Jr., the defendant in the underlying drug case.

With the prior restraint no longer in effect, Henry reported in The Standard-Times on Thursday that Bloomer had revealed DosSantos — who is charged with importing thousands of pounds of marijuana into New Bedford, Mass., — was cooperating with federal prosecutors.

(U.S. v. DosSantos, Media Counsel: Howard A. Merten, Jr., Vetter & White, Providence, R.I.) — KK

© 2005 The Reporters Committee for Freedom of the Press

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