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Judge restrains newspapers from printing legal document

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NEWS MEDIA UPDATE   ·   MISSOURI   ·   Prior Restraints   ·   March 5, 2007


Judge restrains newspapers from printing legal document

  • Two newspapers are challenging an order to remove articles from their Web sites that used information from an attorney’s analysis of a utility company’s liability for possibly violating EPA regulations.

March 5, 2007  ·   A Missouri state judge on Friday barred two publications, The Kansas City Star and The Pitch, from publishing articles based on a local utility’s confidential document.

Jackson County Circuit Judge Kelly Moorhouse in Kansas City issued a temporary restraining order to make the publications to remove the articles from their Web sites.

The articles contained information from a document prepared in 2004 for the Board of Public Utilities of Kansas City, Kan.

According to the article that was posted to the Star Web site on Friday, the document was a liability analysis prepared by an attorney to evaluate whether the utility was at risk for being penalized by the Environmental Protection Agency.

The report examined 73 projects for possible regulation violations. In the article, the Star reported that the liability analysis determined that 15 of the projects were “probably not defensible” and another 15 were “questionable.”

The newspapers obtained the document from an anonymous source.

On Friday night, Moorhouse ordered the publications to remove the articles from their Web sites and to refrain from publishing any information contained in the document. Both newspapers had articles posted on their Web sites Friday but removed them after the judge’s ruling.

When a court prohibits the media from publishing or airing a story, it is considered a prior restraint. Prior restraints are viewed by the U.S. Supreme Court as “the most serious and the least tolerable infringement of First Amendment rights,” as the court wrote in the 1976 landmark case Nebraska Press Association v. Stuart.

The judge justified the ruling by arguing that the document is a privileged attorney-client communication.

The Star‘s attorney, Sam Colville, told the newspaper that the restraining order violated not only the constitutional rights of the press, but the right of the people to be informed.

“Every moment the Star is restrained constitutes further damage to the constitutional rights of each of us,” Colville said.

A hearing is scheduled before a state trial judge on Friday regarding the temporary restraining order.

In addition, attorneys for the publications filed papers on Monday asking a court of appeals to prohibit enforcement of the temporary restraining order.

“We’re extremely disappointed with the judge’s ruling,” said Steve Suskin, legal counsel for Village Voice Media, which owns The Pitch, a weekly newspaper based in Kansas City, Mo. “We are going to push back and fight this thing.”

He called the order a “serious error that files in the face of many years of First Amendment jurisprudence.”

(Kansas City Board of Public Utilities v. The Kansas City Star; Media Counsel: Sam Colville, Holman Hansen & Colville, P.C., Overland Park, Kan., for The Kansas City Star; Mark Sableman, Thompson Coburn LLP, St. Louis, Mo., for The Pitch; Steve Suskin, Phoenix, Ariz., for Village Voice Media)CS

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