Virginia court vacates prior restraint on witness names in murder case

The Newport News Circuit Court in Virginia on Tuesday vacated a lower court’s order that forbid the media to publish the names of certain witnesses who had testified in open court in a high-profile double murder trial.

A juvenile court judge ruled last week that journalists could not publish the names of non-law enforcement witnesses who had already testified in a hearing for Antwain Steward. The prosecution cited witness safety when it made the request at the close of a preliminary hearing, which was open to the public.

Police arrested Steward in July for two shootings from 2007 after claiming that one of his rap songs referenced the long unsolved murders. Steward, who records music under the name Twain Gotti, had recently tried to threaten potential witnesses, The Daily Press reported.

In response to the juvenile court’s order, The Daily Press filed a motion on Friday asking the circuit court – where the case had been transferred ­­– to throw out the prior restraint. Prior restraints, which occur when a government official restricts speech prior to publication, are presumed unconstitutional. The Supreme Court has said the prohibitions are only justified in the rarest circumstances, such as to prevent disclosure of troop location in wartime.

Witness safety “does not override the heavy presumption against prior restraints,” The Daily Press argued in its motion. The paper also pointed to other cases, which hold that the government cannot prevent journalists from writing about information that has been disclosed in open court.

“You can’t put the genie back in the bottle once you let it out,” said Marisa Porto, vice president of content for the Daily Press Media Group.

The prosecution apparently found these arguments persuasive. Earlier this week, before the circuit court could hold a hearing on the prior restraint, it withdrew its request to suppress the names.

“We had quite a little fire drill for a few days,” Daily Press attorney Craig Merritt said. “I give the prosecutors credit. They read our legal brief, they read the law, [and] they realized they were in an untenable position. Rather than taking up a silly fight, they did what good lawyers should do.”

The Daily Press, for its part, has decided not to publish the names even though it now has the right to so.

“It wasn’t about the names to begin with,” Porto said. “It’s about the principle of things.”

“We need to force legal professionals to make the right decisions,” Porto added. “We’ll continue to do this, and we’ll do it every time we find improper law when it comes to freedom of the press.”