Bryant Case Latest to Show Tighter Rein on the Media

A generation ago, media lawyers could invoke the words “1st Amendment” and “prior restraint” confident that judges would agree that their news organizations had a constitutional right to publish truthful information about newsworthy matters.

These days, media lawyers say the same words, but they are not so confident that judges will agree with them.

The Kobe Bryant case in Colorado is only the latest in which judges did what was once nearly unthinkable.

When a court clerk mistakenly e-mailed seven news organizations the transcript of a closed-door hearing involving Bryant’s accuser, District Judge Terry Ruckriegle issued an order forbidding the news media from disclosing the information.

When news media lawyers challenged his ruling as a violation of the 1st Amendment guarantee of freedom of the press, the Colorado Supreme Court upheld the judge’s “prior restraint” order on a 4-3 vote. Protecting the privacy of an alleged rape victim is “a state interest of the highest order,” the Colorado judges said, one that is “sufficiently weighty to overcome the presumption in favor” of the media’s right to publish.

This is decidedly not the Pentagon Papers case, added the Colorado judges, referring to the landmark Supreme Court ruling in 1971 that cleared the way for the New York Times to publish the secret history of U.S. involvement in Vietnam.

“The contents of these transcripts [in the Bryant rape case] do not implicate the suppression of public policy debate or criticism of public officials. To the contrary, the testimony concerns conduct that is intensely private and personal,” Colorado’s high court said.

Besides the Los Angeles Times, the protesting news organizations included Associated Press, CBS, the Denver Post, ESPN, Fox News and the television show “Celebrity Justice.” They appealed to Supreme Court Justice Stephen G. Breyer, but he refused last week to lift the order.

“I recognize the importance of the constitutional issues at issue,” he wrote. “But a brief delay will permit the state courts to clarify, perhaps avoid, the controversy at issue.” His short, solo opinion suggested that he expected Ruckriegle would release most, if not all, of the transcript.

Though the news media may yet prevail in this skirmish, the back-and-forth dispute shows that when matters of personal privacy and fair trials are at issue, judges are increasingly willing to limit what the media can reveal.

It’s a trend that free-press advocates find troubling.

“They are chipping away at the prior-restraint doctrine,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Arlington, Va. “It seems like when it involves the courts, the judges are willing to take a different view. They always say, ‘Yes, the 1st Amendment is very important, but....’ ”

She cited recent examples, such as when publishing the names of jurors in a case was prohibited.

“There is a move toward secrecy,” said Los Angeles media lawyer Gary Bostwick. “We see it in the courts.”

For its part, the U.S. Supreme Court has never formally upheld a court order that prohibits the media from publishing accurate and newsworthy information. However, the justices have been willing to stand back and allow lower courts to issue such orders.

In 1990, for example, Cable News Network obtained tape-recorded phone conversations between jailed former Panamanian dictator Manuel Noriega and his lawyer. CNN planned to broadcast the tapes to reveal that U.S. authorities had wrongly snooped on Noriega as he and his lawyer prepared for his trial.

But a federal judge issued an order barring CNN from airing the tapes. “The 1st Amendment simply does not permit the [judge] to act as censor and review in advance an upcoming telecast,” CNN’s lawyers said in an emergency appeal to the Supreme Court.

In a 7-2 vote, the justices surprised media lawyers and refused to intervene.

In 1995, reporters for Business Week obtained sealed documents in a civil fraud case involving Bankers Trust Co. But before the magazine could go to press, the judge issued an order barring publication of anything from the sealed documents. Business Week’s lawyers cried “prior restraint” and asked Supreme Court Justice John Paul Stevens to lift the order. Without comment, he refused.

In 1998, the South Carolina Supreme Court upheld a judge’s order that barred the media in Columbia from revealing the contents of a secretly taped conversation between a murder suspect and his lawyer. The state judges said this “prior restraint” order was needed to protect the defendant’s right to a fair trial.

The State Record, the newspaper serving the state capital, appealed to the Supreme Court, calling the order a classic violation of the 1st Amendment, but without comment, the justices dismissed the appeal.

These recent nondecisions contrast with the 1960s and ‘70s, when the justices stressed -- particularly in the Pentagon Papers case -- that “any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”

Although those words are still cited by judges today, they are often followed by reasons that call for exception. In the Bryant case, for example, the Colorado judges said that the state’s rape-shield law was intended to protect the privacy of victims and that that in turn meant private details discussed during the closed-door court hearing must not be disclosed.

“Many judges are taking a pragmatic approach,” said Jane Kirtley, a media-law expert at the University of Minnesota. Rather than apply a clear rule of law against “prior restraints,” they are inclined to balance the freedom of the press against the rights to privacy and a fair trial, she said. Sometimes, the balance favors the press, and sometimes it does not, she said.

Prosecutors in the Bryant case urged Breyer and the Supreme Court to stand back and allow the trial judge to work out an arrangement for releasing parts of the transcripts that would not reveal personal details about the alleged rape victim. The hearing was properly closed to the public, they said, and the “inadvertent, brief disclosure of a sealed court record” does not give the media an absolute right to reveal all, they argued.

Moreover, the rule against prior restraints has never been absolute, they noted.

In an often-cited 1976 Nebraska murder case, the U.S. Supreme Court lifted a gag order that had barred the media from reporting anything from a preliminary hearing in which the suspect was first brought before a judge. Nonetheless, Justice Harry A. Blackmun said the need to protect the defendant’s right to a fair trial sometimes may outweigh the news media’s right to report what was heard in court.

“Certain facts that strongly implicate an accused may be restrained from publication by the media prior to his trial,” Blackmun said. For example, if the suspect’s confession is cited in an open preliminary hearing, that fact may be suppressed, he said. Otherwise, the jury pool in a small town would be hopelessly biased before the trial, he said.

Still, many media lawyers say it is important to fight for the principle of press freedom, even if the dispute arises in a case involving an alleged rape victim and a basketball star.

The 1st Amendment’s protection for the rights of a free press “is a unique gemstone of American law,” Bostwick said. “It would be better if this were a case about the West Nile virus and the hiding of public documents about it. But if the [news media] are going to preserve the concept of the rule against a prior restraint, they really should take this further even if the facts aren’t perfect.”

On Thursday, lawyers for The Times and the six other news organizations filed a second motion with Breyer urging him to lift Ruckriegle’s order. Rather than move quickly to release the transcript, the judge has shown a “continued lethargy,” they said.

On Friday, the U.S. Supreme Court took no action and said it had given the prosecutors until Tuesday to file a response to the media’s second motion.

Meanwhile, in Eagle, Colo., on Friday, Ruckriegle apologized in court for mistakes that resulted in the name of the woman in the case and some of the evidence being inadvertently made public.