Mahony E-Mails Revive ‘Prior Restraint’ Issue

When Cardinal Roger M. Mahony’s attorneys failed to persuade a Los Angeles judge on Thursday night to block media outlets from publishing some of Mahony’s confidential e-mails, the cardinal met the same fate as many powerful interests over the past 70 years.

Since the landmark 1931 U.S. Supreme Court decision in Near vs. Minnesota, it has been very difficult for individuals, large corporations or even the U.S. government to get a “prior restraint” against the press.

That landmark decision, written by Chief Justice Charles Evan Hughes, struck down a Minnesota law seeking to curb so-called “yellow journalists” of the era. The ruling, a ringing endorsement against state censorship, has grown in power over the years.

By 1976, the Supreme Court said that prior restraints constitute “the most serious and least tolerable infringement on 1st Amendment rights” and are “presumptively unconstitutional.”

But that hasn’t stopped efforts to obtain court orders blocking the press from publishing sensitive material, said Jane Kirtley, professor of media, ethics and law at the University of Minnesota.

“Lots of people think their claim is different, unique,” only to be disabused of that notion, Kirtley said. She acknowledged that trial judges sometimes order such restraints and on rare occasions those restraints are upheld by appellate courts.

On Thursday, at a hearing that started at 10:30 p.m. after urgent pleas from the Los Angeles Archdiocese, attorney Donald H. Steier expressed anguish at the prospect that the Los Angeles Times would publish previously confidential e-mails between Mahony and an archdiocese lawyer about the sexual abuse scandal engulfing the church. Steier cited a California statute that prohibits “use” of material that was illegally obtained.

But Kelli Sager, the attorney representing The Times, countered that a 2001 Supreme Court decision held that news media have a free-speech right to publish lawfully obtained information of public concern even if the media’s source illegally intercepted phone calls or electronic transmissions.

Steier then conceded that he could cite no case to trump the one Sager relied on and Superior Court Judge David Yaffe did what hundreds of others have done over the past seven decades--denied the request for a prior restraint.

Indeed, media organizations prevail in the overwhelming majority of cases where prior restraints are sought. In the landmark 1971 Pentagon Papers decision, for instance, the Supreme Court rejected the government’s contention that U.S. “national security” would be gravely endangered if a secret history of the Vietnam War were published by the New York Times.

Still, the court cautioned, as had Hughes 40 years earlier, that there could be situations where a prior restraint was justified--citing the possible publication of troop movements in wartime. The court never has been confronted with that set of facts, though.

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Conflict of Free Press vs. Fair Trial

Prior restraints frequently are sought in situations where an individual charged with a crime asserts that publication or broadcast of certain information will endanger his 6th Amendment right to a fair trial.

The seminal case on the “free press-fair trial battle” arena came to the Supreme Court in 1976. A Nebraska trial judge had issued an order forbidding the press from publishing a murder defendant’s confession that had been discussed in an arraignment attended by reporters in a small town. The judge said the order was necessary to protect the defendant’s 6th Amendment right to a fair trial.

Although the justices acknowledged that publicity about the confession “might impair the defendant’s right to a fair trial,” the Supreme Court, in Nebraska Press Assn. vs. Stuart, overturned the prior restraint, saying that such orders violate the 1st Amendment.

The court said that a party seeking to restrict what could be published would have a “heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial will be denied.”

The justices also said “pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial.”

Over the past quarter-century, the Supreme Court and many appellate courts have rejected prior restraints in a variety of situations.

The degree of protection afforded the press in situations where it has lawfully obtained information--regardless of how a source obtained the material--was vividly illustrated in the celebrated narcotics case involving auto mogul John Z. DeLorean.

In 1983, CBS obtained a copy of a key tape that federal prosecutors planned to use at trial, in which DeLorean was inspecting a suitcase full of cocaine and proclaimed it “better than gold.” A federal trial judge in Los Angeles issued a temporary restraining order barring CBS from airing the tape. But the U.S. 9th Circuit Court of Appeals overturned him, saying the order violated the prior restraint doctrine first enunciated in the Near case and refined in the Nebraska Press decision.

Both DeLorean’s attorneys and the prosecutors contended that CBS should be barred from showing the videotape. But Judge William Norris said they had failed to establish that “further publicity, unchecked, would so distort the views of potential jurors that 12 could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court.” Ultimately, DeLorean was acquitted.

Nonetheless, several media experts emphasized that defendants in criminal cases have a slightly better chance than parties in civil cases to obtain a prior restraint because there are instances where courts decide that a defendant’s 6th Amendment right trumps the 1st Amendment rights of the press.

For example, in 1990, U.S. District Judge William Hoeveler in Miami ordered CNN not to broadcast tape recordings it had obtained of conversations between deposed Panamanian dictator Manuel Noriega and his attorney in a prison where Noriega was awaiting trial on drug-trafficking charges. CNN refused to turn the tapes over to the judge so he could review them, and it broadcast one of the tapes. But it eventually paid a price for this action.

The network had contended that under the Nebraska Press decision, no prior restraint could be issued unless two conditions were met: a finding that broadcasting the information would threaten Noriega’s right to a fair trial and that prohibiting the broadcast was the only means of protecting that right.

However, the U.S. 11th Circuit Court of Appeals ruled CNN could not insist that the trial judge make these findings while denying him access to the tapes. CNN asked the Supreme Court to review the decision, but the high court declined.

Hoeveler eventually held CNN in contempt for broadcasting the first tape and threatened to impose a “substantial” fine on the network. To avoid that outcome, CNN broadcast an apology and paid $85,000 to cover the government’s legal fees for prosecuting the contempt case.

“The Noriega decision is an extraordinary exception” to the general pattern, Floyd Abrams, the noted 1st Amendment attorney who filed CNN’s brief in the Supreme Court, said Saturday.

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Judge Bars Photos of Accused Officer

Just a few days before Mahony was spurned in his bid for a prior restraint, a San Bernardino police officer obtained one in another situation where 6th Amendment rights were raised.

On March 29, San Bernardino County Superior Court Judge Robert Fawke ordered the Los Angeles Times and other newspapers not to publish photographs of officer Ronald A. VanRossum, who is accused of assaulting 11 women while on duty.

Earlier that day--one day after VanRossum was arrested--Fawke initially granted requests from several media organizations, including The Times and the Riverside Press-Enterprise, to take still photographs or film in the courtroom.

Then, after meeting in chambers with VanRossum’s attorney and the prosecutor in the case, Fawke changed his mind, according to statements he made in a subsequent proceeding. But before Fawke took any formal action, photographers from The Times and the Press-Enterprise took pictures of VanRossum as he entered the courtroom. The judge then ordered the papers not to publish the photographs or risk being held in contempt of court.

The judge said the order would remain in effect until April 19, when VanRossum is scheduled to be formally arraigned. He said that if VanRossum’s photograph appeared in a newspaper before investigation of the case was completed, it could compromise the investigation and VanRossum’s right to a fair trial.

Attorneys for The Times and the Press-Enterprise asked the judge to reconsider his decision. The newspapers, citing state and federal cases, maintain that because the judge’s order granting permission to photograph was in effect at the time the pictures were taken, he had no authority to restrain their use.

Fawke declined on Thursday, saying VanRossum’s “picture adds nothing to the story.” However, the judge said he would be hard pressed to continue the restraint after April 19.

On Friday, the newspapers filed an emergency appeal with the state Court of Appeal in Riverside asking that the judge’s prohibition be lifted as soon as possible.