The St. Louis Post-Dispatch is the latest newspaper to be hit with an unconstitutional "prior restraint" prohibiting it from publishing information the government accidentally made public.
A St. Louis judge issued an unconstitutional “prior restraint” last week, prohibiting the St. Louis Post-Dispatch from reporting on a mental health evaluation of a man accused of killing a police officer. It appears the paper was able to access the evaluation after it was accidentally filed as a public document. This news came the same week a judge rejected the City of Los Angeles’s efforts to force journalist Ben Comacho to return photographs of undercover police officers released to him pursuant to a records request.
Both cases ignore that, on the rare occasion when the government has a legitimate basis to withhold records from the public, the onus is on the government, not the press, to ensure that they’re withheld. The Supreme Court has explained that “a contrary rule … would force upon the media the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication.”
That’s why the Court has held at least four times that once the government releases records to the press, even accidentally, it cannot claw them back or prohibit or punish their publication, regardless of how sensitive the records may be. It’s quite unusual for the Supreme Court to accept so many cases involving essentially the same legal issue, but apparently the justices wanted to make sure trial judges got the point.
Well, they didn’t. The St. Louis judge, Elizabeth Hogan, reportedly thinks her case is different from the others because she needs to protect the fair trial rights of the man who was the subject of the evaluation. But the Supreme Court has not wavered from its position even in a case where the inadvertently released records identified victims of sex crimes.
That case involved whether journalists who disclosed victims’ identities could be punished after-the-fact but Hogan went even further by prohibiting the Post-Dispatch from publishing the evaluation in the first place. That’s a prior restraint, “the most serious and the least tolerable infringement on First Amendment rights.” It’s unconstitutional even when national security is allegedly threatened. Every judge studied the Pentagon Papers case in law school but somehow they continue issuing prior restraints for even less compelling reasons.
That’s not to say that Sixth Amendment fair trial rights aren’t important. Of course they are – and the press protects those rights by informing the public of the workings of the criminal justice system. The Supreme Court instructs trial judges to deal with potential prejudice to defendants’ fair trial rights arising from media publicity through the jury selection process, or even by moving the trial elsewhere, rather than censoring journalism. And studies have shown that jurors are able to remain objective despite pretrial publicity.
But judges continue to panic about publicity and issue unlawful orders like Hogan’s. Just last year, for example, a Sarasota, Florida, judge barred a newspaper from publishing the names of deputies involved in a fatal shooting. Also last year, a judge in Colorado prohibited the Denver Gazette from publishing court documents mistakenly released to a journalist. These orders and many others were eventually lifted but only after media outlets incurred legal fees and, more significantly, important news was delayed by rogue judges’ unconstitutional antics.
Camacho, the Los Angeles journalist sued for not returning records police gave him, filed a motion under California’s anti-SLAPP (short for Strategic Lawsuits Against Public Participation) law. Hopefully the City will be sanctioned and forced to pay Camacho’s attorney’s fees for defending its frivolous lawsuit. Unfortunately, there is no similar remedy when the frivolousness comes from the bench. Maybe the Supreme Court needs to revisit this issue a fifth time. Or maybe bar associations and other power brokers in local judicial elections, in St. Louis and elsewhere, need to stop endorsing judges who don’t understand the basics of the Constitution.
