NEWS MEDIA UPDATE · MISSOURI · Prior Restraints · March 7, 2007
Prior restraint against two newspapers overturned
March 7, 2007 · Two newspapers won their battle Tuesday for the right to publish articles that used information from an attorney’s analysis of a utility company’s liability for possibly violating Environmental Protection Agency regulations.
On Tuesday, a state appeals court in Kansas City, Mo., ruled that a Friday order issued by a Missouri trial court judge was an unenforceable prior restraint. The ruling means that two newspapers can legally publish articles they were prohibited from printing.
The trial court judge, Kelly Moorhouse in Kansas City, had ordered The Kansas City Star and The Pitch to remove from their Web sites articles based on a local utility’s confidential document.
Attorneys for the publications filed papers on Monday asking the court of appeals to prohibit enforcement of the temporary restraining order.
In their petition asking for the order to be ruled unenforceable, attorneys for the media argued that “the order violated the most fundamental principle of constitutional law — the prohibition against prior restraints against publication in any but the most extraordinary situations.”
In this case, the attorneys wrote, the purpose of the prior restraint was “solely to protect a municipal agency’s three-year-old memo concerning its possible legal and regulatory difficulties.”
The articles contained information from a document prepared in 2004 for the Board of Public Utilities of Kansas City, Kan.
The document is a liability analysis prepared by an attorney to evaluate whether the utility was at risk for being penalized by the EPA.
The report examined 73 projects for possible regulation violations. 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.
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 trial judge justified the ruling by arguing that the document is a privileged attorney-client communication.
(State of Missouri ex rel. Cypress Media v. The Honorable Kelly J. Moorhouse, 16th Judicial Circuit; 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, for Village Voice Media) — CS