FREE PRESS — The Ventura County Star reports that the judge who prohibited it from publishing the contents of sealed search warrant documents in a child murder case lifted the temporary gag order Monday. "But with Superior Court Judge Ken Riley saying the ruling would not take effect until 5 p.m. Wednesday, editors of The Star decided to immediately publish the information on the newspaper's Web site Monday and in today's print edition," the report says.

In the warrant documents, detectives said defendant Calvin Sharp told them he "received messages" from satellite radio that made him "commit the crime." He is accused of killing a 6-year-old Newbury Park boy in August 2007.
    Although the judge lifted the gag order, he stood by prior court orders stipulating that only edited or redacted portions of the warrants should be made public.
    Those are different from the less heavily edited versions that the court clerk's office mistakenly released to a Star reporter in late November and that a Ventura radio station has already broadcast.
    But less than three hours after a hearing Monday, the judge ruled that it would be unfair to prohibit The Star from using the information when the radio station had already broadcast it.
    He also said the gag order would be unenforceable because The Star may have already obtained the information from other sources.

An editorial, "Why The Star Is Publishing," says:

The decision of The Star to publish the story online Monday and on today's Page One is not about courtesies. It is about the proper administration of the law and recognizing that constitutional rights cannot be subordinated. There are literally volumes of case law reaffirming the right of a free press to publish without censorship or prior restraint by the government or the courts.
    It is the very core of the principle of a free press. There can be no free press, no free expression of any kind if the government has the power to decide what can be published and when it can be published. The Supreme Court has made this principle abundantly clear, and even Judge Riley's decision to vacate his gag order recognizes that.
    To order the further delay of publication of the information even two days is simply an authority Judge Riley does not have. The Star is publishing this information not out of disrespect for the court or Judge Riley, but because it is exercising the constitutional right of a free press to publish public information without restraint.

For those interested, here's a Q&A primer on the issue of prior restraints on the press from The CalAware Guide to Journalism Law in California.

Where does the prohibition against prior restraint come from?
The first case concluding that the government could not easily prevent the press from publishing anything, Near v. Minnesota, 283 U.S. 697 (1931), involved a state law that allowed officials to shut down (“abate”), as a “nuisance,” scandal-focused publications that offended those in private prominence or public power.  Minneapolis officials used the law to close a tabloid of just that character. In the words of Justice Charles Evans Hughes for the Supreme Court:

Without attempting to summarize . . . the articles charged in substance that a Jewish gangster was in control of gambling, bootlegging and racketeering in Minneapolis, and that law enforcing officers and agencies were not energetically performing their duties. Most of the charges were directed against the Chief of Police; he was charged with gross neglect of duty, illicit relations with gangsters, and with participation in graft. The County Attorney was charged with knowing the existing conditions and with failure to take adequate measures to remedy them. The Mayor was accused of inefficiency and dereliction. One member of the grand jury was stated to be in sympathy with the gangsters. A special grand jury and a special prosecutor were demanded to deal with the situation in general, and, in particular, to investigate an attempt to assassinate one Guilford, one of the original defendants, who, it appears from the articles, was shot by gangsters after the first issue of the periodical had been published.
    If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter—in particular that the matter consists of charges against public officers of official dereliction—and unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is punishable as a contempt. This is of the essence of censorship.
    . . . the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government . . These limitations are not applicable here . . .

Has prior restraint become more tolerated since Near?
No, on the contrary. Since that landmark case the high court has held unconstitutional measures taken against the press to prevent publication of:

  • the Pentagon’s classified history of the Vietnam War, during that war, because the government was not able to meet its “heavy burden of showing justification for the imposition of such a restraint” on national security grounds. New York Times Co. v. United States, 403 U.S. 713 (1971); and
  • information about a capital murder case that might deny the defendant a fair trial, without making express findings that the no-publish order would be effective in averting the feared prejudice, and that all of the following alternatives are inadequate or unworkable:
  1. change of trial venue to a place less exposed to intense publicity;
  2. postponement of the trial to allow public attention to subside; 
  3. searching questioning of prospective jurors;
  4. emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court.;
  5. sequestration of the jury;
  6. gag orders to participants not to speak to the press.

Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).
The Supreme Court also struck down as a prior restraint an injunction issued by an Oklahoma judge, ordering the media not to publish the name or photograph of an 11-year-old boy. The youth was in juvenile court on charges of second-degree murder. Journalists were permitted to attend a hearing where they learned the name of the accused, and after which a photographer took his picture outside the courtroom. State law presumed such hearings closed to the public, but the media access was nevertheless permitted. The justices ruled that once the court had placed the identity information in the public domain by admitting the press to the proceeding, it could not then forbid its dissemination. Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977).

Has the Supreme Court ever upheld a prior restraint since its 1970s rulings?
Yes, but only once.  In CNN v. Noriega, 498 U.S. 976 (1990), U.S. District Judge William M. Hoeveler ordered CNN not to broadcast audio tapes it had acquired of phone conversations recorded by the government between captured Panamanian General Manuel Noriega, jailed and awaiting trial for drug trafficking, and his defense lawyer. Hoeveler imposed the order until he could review the tapes and determine whether any threat to Noriega's fair trial rights outweighed CNN's right to publish them. Instead of surrendering the tapes, CNN appealed Hoeveler's order to the U.S. Court of Appeals for the Eleventh Circuit, which however backed the district judge and ordered CNN to turn over the tapes, at which point CNN sought Supreme Court review. The cable network asked the Supreme Court to intercede, but the justices refused to do so on a 7-2 vote, with Justices Thurgood Marshall and Sandra Day O’Connor strongly dissenting. (In 2005 Justice O’Connor resigned, and the court was given, as a new Chief Justice replacing the late William Rehnquist, the man who as the Deputy Solicitor General co-wrote the brief for the government opposing CNN’s petition for review—John G. Roberts, Jr.)

Have federal courts in California been any more willing to issue prior restraints?
No. They have been consistently unwilling to uphold orders barring publication or broadcast of news information on any grounds, including fair trial concerns. In a case not all that different from Noriega, the U.S. Ninth Circuit Court of Appeals held that CBS News was wrongly ordered not to air, prior to the trial, a videotape made by the government in a sting operation. The tape showed auto executive John DeLorean in a situation highly compromising to his defense of the cocaine importation charges against him. The court adhered to the Nebraska Press standard, which it called “extraordinarily exacting” and not satisfied by the district court; another factor was the very large jury pool in Los Angeles: “… it is not enough that publicity might prejudice one directly exposed to it. If it is to be restrained, the publicity must threaten to prejudice the entire community so that twelve unbiased jurors can not be found.” CBS v. District Court, 729 F.2d 1174 (1983). 
    Fair trial rights also failed to trump the First Amendment in two entertainment cases in which NBC scheduled the airing of crime docudramas at crucial junctures.  In Goldblum v. NBC, 584 F.2d 904 (1978) the plaintiff was already in prison for the securities fraud depicted in the network’s program, but feared prejudice to his parole prospects and fair trial rights in any future prosecution. While application for the injunction was pending, the district court judge ordered NBC to turn over a copy of the program for review of “inaccuracies.”  The network refused on First Amendment grounds, and NBC’s counsel was ordered jailed. But the Ninth Circuit held that the judge’s orders were unconstitutional and void, as would have been any order barring broadcast, given the “frivolous” weakness of the plaintiff’s case. Eleven years later and after the DeLorean case, the Ninth Circuit upheld a trial court’s denial of a criminal defendant’s motion for an injunction barring NBC from airing a program showing him as planning and committing two murders, for the second of which he was about to stand trial.  The court cited Goldblum and Nebraska Press and, applying the standards of the latter, found the injunction motion inadequately supported. Hunt v. NBC, 872 F.2d 289 (1989). With this uniform appellate case law in view, the U.S. District court, in an unappealed decision, denied a pair of brothers awaiting trial for (and later convicted of) murdering their parents an injunction barring broadcast of a docudrama about the murder. Menendez v. Fox Broadcasting, 1994 WL 525520, 22 Media Law Reporter 1702 (1994).

Have California’s own appellate courts been any more willing to issue prior restraints?
The California Court of Appeal has been as strict as the Ninth Circuit in rejecting prior restraints against the news media. The cases have concerned judges’ efforts to control the publication of information related to a court proceeding but lawfully obtained by the press, and all are consistent with the Nebraska Press Association standards.

  • A judge’s order temporarily prohibiting a San Diego television station from broadcasting an artist's sketch of the face of a defendant being arraigned on multiple charges stemming from a sex crime spree was unconstitutional since “the drawing was lawfully obtained during a public criminal proceeding.” KCST-TV Channel 39 v. Municipal Court, 201 Cal. App. 3d 143 (1988).
  • In the preliminary hearing for the murder of a prominent attorney and his wife, three television broadcasters obtained permission from the judge, pursuant to Rule of Court 980, to videotape the proceedings. But the court appended to the permission form the caveat that any broadcast of recorded statements of witnesses would need separate court permission. While not referring to prior restraint, the appellate court disapproved the lower court’s condition on the basis that nothing in Rule 980 authorizes judicial control over the publishing or broadcast of material once it has been lawfully recorded or photographed. (Note: While Rule 980 has become more restrictive on the media since then, it still does not allow judges to insist on being post-recording editors.) KFMB-TV Channel 8 v. Municipal Court, 221 Cal. App. 3d 1362 (1990).
  • A television station videotaped the arrest of a 17-year old charged with murder, and obtained her name through normal reporting.  When she came to juvenile court for her detention hearing, which the law requires to be open to the public upon murder charges, the judge said he believed the media should be there.  But he also ordered the admitted news organizations not to identify the defendant by her real name in broadcasting scenes or sound from the hearing. The appellate court found this restriction to be an unconstitutional prior restraint.  While under certain circumstances the media can be kept from taking pictures or sound in the courtroom, “the court may not, however, preclude the media from attending an open public hearing and reporting what transpires.” KGTV Channel 10 v. Superior Court, 26 Cal.App.4th 1673 (1994).
  • Television and newspaper representatives were allowed to use their cameras to cover an open court proceeding in which several minors were to be tried as adults for assaulting migrant workers.  The court, in permitting such access, required the media to agree to “tilize”  (blur) the features of the minors in any published or broadcast images captured in the courtroom, and the media agreed to that condition.  But they illustrated their stories not only with courtroom images but also with yearbook and other photographs lawfully obtained elsewhere.  The court then ordered the media to publish no images of the defendants that were not tilized, lest witnesses asked to identify the attackers be influenced by published photos of them. When the media appealed, the court cited Nebraska Press and directed that the restraining order be removed, observing that there was no evidence supporting that asserted risk, and in any case there were other less restrictive procedures to deal with it. South Coast Newspapers, Inc. v. Superior Court, 85 Cal.App.4th 866 (2000).

Most recently, as reported September 29 in the Orange County Register, the California Court of Appeal ruled that a judge  could not bar it from covering trial testimony in a lawsuit against it brought
by newspaper carriers, a decision that rested on the First Amendment
right to freedom of the press.

The five-page unanimous ruling
by a three-judge panel said Orange County Superior Court Judge David C.
Velasquez's order barring only the Register from reporting testimony
during the trial violates both state and federal constitutions. Velasquez
imposed a gag order on the Register last week out of concern that
possible bias in the news coverage could influence witnesses and jurors
in the case.Prior restraint is "the most serious and the least
tolerable infringement on First Amendment rights," said the 4th
District Court of Appeal.