Judge’s Gag Order Against Paper Lifted

In what legal experts called a clear violation of the 1st Amendment, a Los Angeles Superior Court judge issued a restraining order to prevent a legal newspaper from printing a story about a lawsuit that was mistakenly released to the public.

Although the court removed the gag order against the Los Angeles Daily Journal on Monday afternoon, critics were deeply troubled by Judge Victor E. Chavez’s action.

Editor Katrina Dewey said she was “a little flabbergasted that we have judges who, with no notice, could issue an order of prior restraint, one of the most serious infringements of 1st Amendment rights.”

Dewey said the article, about a lawsuit alleging insurance fraud, would appear in today’s paper, four days after it was scheduled to run. On Thursday evening, hours before the article’s intended publication, a sheriff’s deputy entered the newsroom and handed editors the restraining order, signed by Chavez.

While not unprecedented, an order to stop publication is rare and could bring jail time to anyone who violates it. In numerous cases, the Supreme Court has ruled that so-called prior restraint of the media violates freedom of the press except in a few narrow circumstances: where, for example, the story might be a threat to national security or jeopardize a defendant’s right to a fair trial.

“If it’s lawfully obtained and truthfully reported, then there is indeed a legal right to publish,” said Erwin Chemerinsky, a constitutional law professor at USC.

In this case, the Auto Club of Southern California is suing a string of personal injury lawyers, chiropractors, doctors and others, alleging that they staged accidents and injuries.

Under the state insurance code, such matters are sealed for 60 days so prosecutors can review the lawsuit and decide whether they want to press charges or join in the civil action. While the case is sealed, even the defendants do not know they are named in the lawsuit, giving prosecutors time to get search and arrest warrants.

Publicly releasing the information could jeopardize any criminal investigation and put witnesses in danger, said Dennis Kass, attorney for the plaintiff. “Unless these witnesses get some warning, some of them could be harmed,” he said. “They have testified to very serious information.”

But Kass, speaking before the order was lifted, also said the 1st Amendment must be upheld, and that his law firm would not seek to keep the restraining order that had been sought by the district attorney’s office. On Friday, attorneys for the Daily Journal failed to get the restraining order overruled and were planning to take their case to the state appeals court.

“I’ve never seen this happen,” Dewey said. “This is like law school 101. . . . It’s a classic prior restraint. When a sheriff’s deputy walked into our office with a gun and an order not to publish, this was appalling.”

Prior restraint is one of the more settled areas of constitutional law, “with an unbroken line of [Supreme Court] cases spanning a half-century,” said Jon Kotler, director of USC’s graduate school and a media lawyer. He said the judge’s decision would not likely have stood up on appeal because the case does not meet the extreme circumstances in which the 1st Amendment can be outweighed.

The Auto Club lawsuit was filed June 8 and sealed for 60 days, according to the Daily Journal. Then on July 29, responding to a request by the district attorney’s office, Judge Reginald Dunn extended the seal for 90 days. But because of a clerical error, the suit was placed in a basket of recent case filings open to the public, where a Daily Journal reporter found it Wednesday.

The district attorney’s office heard of the impending news story and requested the restraining order. Judge Dunn was not available, so Chavez issued the order.

Although he overruled the newspaper’s attempts to remove the order Friday, Judge Dunn lifted the restraint Monday.