Judge Puts Off Hearing on Order Restraining The Times on Duffy Stories

A San Diego County judge put off until Wednesday a hearing on an extraordinary order he issued barring The Times from publishing information about security measures installed at the home of San Diego County Sheriff John Duffy.

San Diego Superior Court Judge Jeffrey T. Miller refused, after a closed meeting Friday in chambers with lawyers for The Times and for Duffy, to lift the order he issued late Thursday. Miller did, however, make a single but significant change in the order, one that an attorney for The Times said would enable the publication of a broad range of information.

Even with that change, the attorney, Los Angeles lawyer Rex S. Heinke, said Miller’s order remained “an unconstitutional prior restraint” on the freedom of the press.

“I don’t think there’s any basis for enjoining the publication of information about security measures at the sheriff’s home, particularly when what The Los Angeles Times was primarily interested in was how much these measures cost and who was paying for them,” Heinke said.

In seeking the court order late Thursday, a lawyer for Duffy told the judge that she believes any article about security measures at Duffy’s newly built Scripps Ranch house could seriously compromise the personal safety of the sheriff and his wife, Linda.

The lawyer, Janet B. Houts, said Friday that the case “most certainly” involves issues of press freedom.

“But the cases I’ve researched hold that the right to privacy in this particular case, when someone’s safety is at stake . . . will override any type of newsworthiness on an issue such as this, when it’s not newsworthy,” Houts said.

Dale Fetherling, editor of the San Diego County Edition of The Times, characterized Houts’ claim--that the story The Times was pursuing would somehow threaten the lives of Duffy and his wife--as “preposterous.”

Fetherling also suggested that the sheriff, who has announced his intention to run next year for a sixth term, was pursuing court action as a public-relations gambit.

“Duffy has been displeased by other Times stories in recent months, involving him and his department, and there is every indication the court battle is an effort to divert attention from the question of the sheriff’s public accountability,” Fetherling said in a statement released Friday afternoon.

Recent stories in The Times have documented, among other matters, Duffy’s frequent out-of-town travels and outside consulting work. As recently as Wednesday, The Times ran an article detailing how the sheriff has ordered his deputies to respond to emergency calls at his home, even though it is in San Diego and under the jurisdiction of San Diego police.

Duffy was unavailable for comment Friday, said Sheriff’s Sgt. Jim Cooke, a department spokesman. Cooke, however, said the sheriff’s turn to the courts was “not a calculated reaction to generate sympathy or anything else.”

In a sworn statment filed late Friday with court papers, Duffy claimed that media attention has helped make him a “controversial sheriff.” That attention, in turn, has generated “strong feelings of rancor” among some people, including those who are “mentally unbalanced and emotionally unstable,” he said.

Duffy said he had been threatened with harm or death “numerous” times in his 18 years as sheriff, most recently in October. The “internal security measures of our home are not matters of public concern or interest, and disclosing such information poses a threat to us,” he said.

The dispute began Thursday afternoon when a Times reporter, Richard A. Serrano, called the Sheriff’s Department and asked about what Serrano had been told was an “extraordinary” security system at Duffy’s home, Fetherling said.

The purpose of the calls was “not to endanger or allow anyone else to endanger the sheriff,” Fetherling said. “Its purpose was to find out if this super security system exists, and if so, what are the public policy implications.”

Early Thursday afternoon, at the time Serrano made his initial inquiries about the security system to Cooke, no decision had been made to publish or not publish a story, Fetherling said.

But, since the paper would not agree not to publish information about any security measures, Houts said, she had no choice late Thursday but to go to court. Miller issued an order directing The Times not to print information regarding the “nature, layout or configuration of security measures” in Duffy’s home.

After Friday’s hearing, Miller substituted the word “location” for “nature” but let the rest of the order stand.

The change “makes a big difference,” Heinke said, because “nature” is “one of those vague words,” while “location” is much more specific.

With the change, The Times is “certainly entitled to say, for example, he has an electronic security system or he has an electronic fence.”

The Times has had “no plans to publish a layout of Duffy’s house or to reveal his address,” Fetherling said. “No responsible newspaper would.”

Late Friday, Houts filed papers detailing Duffy’s legal claim and arguing that his right to privacy outweighs any public interest in security measures at the sheriff’s house. “Surely the fact that (Duffy) holds public office does not mean he waives all rights to privacy,” Houts said in the brief.

Publishing details about Duffy’s “personal security devices” is “not a constitutionally protected activity,” Houts said.

Legal experts said Friday that the 1st Amendment to the Constitution does not explicitly bar all “prior restraints,” the legal phrase for the blocking of news stories and broadcasts before their dissemination. But in several major cases, the U. S. Supreme Court has held that prior restraint violates the free-press provisions of the Constitution.

“Prior restraints have been tried many times,” San Diego attorney John Allcock said. “Even in severe areas like national security, they haven’t been upheld. And so I don’t see why this would be any different, why (Duffy’s) assertions would justify it.”