Clearly Unconstitutional

A month ago, Judge James F. Nelson of the Los Angeles Municipal Court, who is presiding over the preliminary hearing in the Night Stalker case, began telling reporters not to publish the names of certain witnesses who were testifying there, principally rape victims. Nelson had previously ruled that the preliminary hearing would be open to the public. Whether the public has a constitutional right to attend preliminary hearings is an issue now before the United States Supreme Court.

In any event, because news organizations generally do not publish the names of rape victims anyway, no one reacted immediately to the judge’s unconstitutional orders, which were prior restraints on the freedoms of speech and of the press. The Supreme Court has held repeatedly that such prior restraints are legal only in the most extraordinary circumstances--and it hasn’t found such circumstances yet. Not even the Pentagon Papers, whose publication, the government said, would pose grave and irreparable harm to the nation, could be stopped beforehand.

Judge Nelson also refused to let anyone look at the transcript of the proceedings. And he extended his order not to disclose the names of rape victims to include several other witnesses. One of them had been named previously in a press release from the prosecutor’s office.

At this point, several news organizations, including this newspaper, protested the judge’s unconstitutional gag orders. Motions were filed to have him set them aside. When the lawyers went before Judge Nelson and showed him the prior cases in this area, he immediately agreed that they were right and vacated his orders.

We still don’t want to publish the names of the rape victims or other witnesses in special circumstances. But Judge Nelson should have known in the first place that he was exceeding his power by ordering that matters said in open court be kept confidential. The Constitution provides for open court proceedings, which protects defendants and the public’s interest in the fair administration of justice.

Judges shouldn’t issue orders that are unconstitutional on their face. The idea of a prior restraint should have stopped the judge cold. Next time, we trust it will.