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Supreme Court justice won't stay judge's do-not-publish threat

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  1. Prior Restraint

    News Media Update         WASHINGTON, D.C.         Prior Restraints         April 18, 2005    

Supreme Court justice won’t stay judge’s do-not-publish threat

  • Kennedy’s decision acknowledged the risk of prior restraints from judges’ ‘informal procedures,’ but found the threat to a Florida broadcaster was minimal.

April 18, 2005 — U.S. Supreme Court Justice Anthony M. Kennedy Friday denied a Florida broadcaster’s emergency request to stop enforcement of two trial court orders that it said prevented publication of grand jury testimony by an accused killer.

First Coast News had argued that the orders last summer from Florida Seventh Judicial Circuit Judge Robert Mathis, who is now retired, operated as an unconstitutional prior restraint against the press because they threatened criminal prosecution for future disclosure of the transcript of Justin M. Barber’s grand jury testimony, which First Coast had obtained from the prosecutor’s office.

But Kennedy — while acknowledging that “informal procedures undertaken by officials and designed to chill expression can constitute a prior restraint” — said any threat implied in Mathis’ first order was “much diminished,” noting that Mathis is no longer in office and that the state’s attorney had suggested that further publication by the broadcast outlet would not be prosecuted.

“We consider it a victory even though the stay was denied,” First Coast attorney George Gabel of Holland & Knight in Jacksonville, Fla., said. “Justice Kennedy made it clear that the only reason for the denial was the fact that during briefing the Attorney General’s office represented that the State has no current plans to enforce the order of the now-retired judge prohibiting publication of the material at issue.”

Kennedy’s six-page opinion essentially means First Coast News — a Gannett duopoly of an ABC and NBC affiliate — is free to re-publish the grand jury transcript. Barber, who allegedly killed his wife, is scheduled to go to trial in June.

“With this ruling the station can now air the material, and we have a U.S. Supreme Court opinion of lasting value on the prior restraint issue,” said Gabel, adding he was “pleased” that Kennedy chose to explain in writing his reasons for denying First Coast’s request. Gabel said First Coast would not seek review of the case by the entire Supreme Court.

Mathis had ordered First Coast on July 30 not to re-publish information contained in the transcript, portions of which the station had already broadcast. After First Coast challenged the order as an unconstitutional prior restraint, the judge issued a second order purporting to clarify the first one.

The second order stated that releasing the transcript violated a Florida law that generally prohibits disclosing grand jury testimony, and threatened First Coast with criminal sanctions if it re-published the information. Mathis also called for Gov. Jeb Bush to investigate the release of the document by the State’s Attorney’s office, although no such investigation was ever done.

In March, after six months of inaction, Florida’s Fifth District Court of Appeal refused without comment to review First Coast’s challenge to Mathis’s orders. State rules of appellate procedure prevented the Florida Supreme Court from considering the appeals court’s denial, prompting First Coast to seek relief from Kennedy, who serves as circuit justice for the geographic area that includes Florida. A coalition of media groups, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief supporting the request.

Kennedy could have granted the request only if the issue was so substantial that four Supreme Court justices likely would agree to take the case.

“I think Justice Kennedy’s reasons for denying this order are all practical ones and are all tied to the unusual facts of this case,” said attorney Nathan Siegel of Levine Sullivan Koch & Schulz, who wrote the friend-of-the-court brief. “The opinion suggests no diminution at all in the First Amendment’s protection against prior restraints. To the contrary, it’s a rather First Amendment-friendly opinion that includes some nice language about how restraints can result from informal court orders and actions as well as formal injunctions.”

Siegel said Kennedy’s marks the latest in a line of single-justice opinions involving applications for stays of prior restraints dating back to the 1970s, adding to a “fairly significant body of law” in this area. The issuance of written opinions on stay applications — which are often denied without explanation — in such cases indicates the justices “view prior restraint as the kind of issue that . . . merits very quick action and some explanation for it,” he said.

(Multimedia Holdings Corp d.b.a. First Coast News v. Florida, Media Counsel: Holland & Knight LLP, Washington, D.C.; Levine Sullivan Koch & Schulz, Washington, D.C.)KK

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