"Prior restraints": A little understood legal trick for silencing the press

Once again, the news media faces a “prior restraint against publication” imposed by the courts, yet few in that industry or elsewhere seem to understand the nature and impact of prior restraints and the true threat they pose. Contrary to common belief, prior restraints pose a more serious threat to Sixth Amendment rights (i.e., the right to a jury trial in a criminal cases) than to First Amendment press freedoms. Here’s why.

First, a basic definition: a prior restraint is a court order prohibiting a news reporter or media organization from reporting a particular story or publishing a certain document and, in the process, disclosing information deemed private or classified. In a typical case, publication of the information is prohibited by law (classified national security information, for example, may be protected from disclosure by the espionage laws); in theory, reporters and editors understand that, if they decide to publish, they risk breaking the law. But when the news organization accepts the risk and seeks to publish anyway–either because it believes the statute does not prevent it from publishing the information, or because it believes it has a duty to indulge the public’s right to know–some party may decide to seek a court order preventing publication. That party is often the government, or in some instances a private party, such as the fireman’s union in the imbroglio I describe below.

If the court issues the order, the court essentially says that it has (1) reviewed the statute, (2) reviewed the document about to be published, and (3) decided that, not only is the document covered by the statute, but also that publication would have a seriously deleterious effect on a vital, indeed overriding, public interest. Only if these conditions are met would the court be logically justified in issuing an injunction preventing the news organization from publishing or broadcasting the information.

This does not mean that, in the absence of a prior restraint order issued by the court, the news organization would be free of risk in publishing the information in dispute; instead, publishing it could still constitute a crime and expose the news organization, editors, and reporters to indictment, followed by a criminal jury trial. But the media, in the absence of a prior restraint injunction, would not be in violation of a judge’s order and hence would not be committing the additional crime of “contempt of court” by going ahead and publishing the information. It would be up to a prosecutor to decide whether to indict the media. The judge would have no control over whether a criminal charge is brought, and a jury, not a judge, would sit in judgment of the media at such a trial.

I am always suspicious about gag orders and prior restraints, since there is a great incentive for those with something to hide to use them to silence potentially embarrassing press coverage. In the latest installment of this farcical anti-free-speech campaign, Suffolk Superior Court Judge Merita Hopkins prohibited local television Channel 7–NBC affiliate WHDH-TV–from reporting the autopsy reports concerning two Boston firemen who died in an August blaze at a Chinese restaurant. According to the story recounted in The Boston Globe, and two reports in the Boston Herald, there are indications that one was drunk while the other tested positive for cocaine.

Prior restraints on publications–like the one Judge Hopkins ordered–are constitutional only when imposed for the most urgent of reasons: where there is solid evidence that publication would have an immediate and catastrophic affect on national security, for example. (There are also some limited circumstances where such injunctions are allowed, such as where a copyright violation is about to occur, since the copyright protection is, like the First Amendment, written into the Constitution.) The law on prior restraints is ably set out by a media writer and blogger who understands these things better than most judges and lawyers, Dan Kennedy.

But no media analysts have identified the most pressing concern about Judge Hopkins’ unconstitutional and ill-considered prior restraint injunction, which was properly and predictably overturned by an Appeals Court judge within hours. This abusive use of judicial power would have deprived the news media not only of First Amendment protection, but also of the right to a jury trial as guaranteed by the Sixth Amendment.

A newspaper editor, television producer, or reporter who possesses a document that is not supposed to be publicly available but yet has obtained it through lawful means (in other words, the newspaper was given it by a whistle-blower–who himself might have committed a crime by obtaining and disseminating it–rather than having stolen it) has committed no crime. If the document was clearly and explicitly illegal to publish, however, the newspaper or television station can presumably be criminally charged for violation of a statute prohibiting the publication of medical records, including autopsy reports. That would be done after the fact of publication or airing, when the district attorney could decide whether the action warranted a criminal prosecution. As a result, the news outlet, editor, or reporter would be entitled to a jury trial for the alleged crime. It would be up to the people, as represented by the jury, to decide whether the invasion of privacy outweighed the public's right to know and that the publication therefore merited criminal sanctions. The trial judge would instruct the jury as to the meaning of the statute, but the ultimate verdict would be the jury's.

As John Ellement reports in The Boston Globe, the District Attorney believes that this particular statute does not carry criminal penalties for violators. Accordingly, the news station and other media outlets that have published the autopsy information appear to be in the clear, insofar as a criminal charge is concerned. But assuming for the sake of argument that the district attorney were to bring charges, it is unlikely that 12 out of 12 jurors could be convinced to convict a reporter or editor for publishing a report that is so clearly in the public interest. Since a conviction would require the jury to unanimously agree on a guilty finding, the state would be unlikely to obtain a conviction no matter how many times it tried the case to a jury. Chances are there would be a "hung jury"–a jury that was unable to arrive at a unanimous verdict–nearly every time such a case were tried. And as soon as a jury was unanimous in acquitting, then the "double jeopardy" provision of the Constitution would kick in, and the case could not again be re-tried. In effect, there would likely be "jury nullification" of a silly law that serves to bury an autopsy report showing that firefighters may have died because they were intoxicated while on duty. That sort of information is self-evidently and unequivocally within the public’s right to know, and any law shielding its publication is clearly against the public interest and would not be sympathetically viewed by a jury.

This is how the criminal justice system should normally work. Judge Hopkins, however, circumvented this route, issuing an injunction against broadcast. So if WHDH disobeyed her and published the report, Judge Hopkins could hold the station (and the relevant producer and reporter) in criminal contempt. Under the law of criminal contempt, as enunciated by the United States Supreme Court, a defendant may be tried by a judge, instead of a jury, for criminal contempt provided that the judge imposes a sentence of no more than six months. (See, for example, the Supreme Court cases Lewis v. United States (1996), Duncan v. Louisiana (1968), and Blanton v. North Las Vegas (1989).)

Thus, by proceeding via a prior restraint order, Judge Hopkins made an end-run around the media’s right to a jury trial for its publication of a document that might violate the statute but the publication of which is clearly in the public interest. Judges tend to punish perceived violations of the dignity and power of courts, while citizens tend to focus instead on the public interest. (It’s an interesting aspect not only of separation of powers concepts, but also of human nature.)

A newspaper should have the option to decide, as a matter of civil disobedience, to publish a document that the law deems private, if the newspaper believes that publication is in the public interest and is willing to take the risk. The newspaper and its staffers would then have a right to a jury trial in the event they are charged criminally with violation of the statute. It is an improper violation of the media’s right to a jury trial for a judge to impose a prior restraint in order to usurp the power to convict the reporters and editors, and then to sentence them to up to six months in prison without a jury’s playing any role whatsoever.

Prior restraint injunctions, in other words, are not only an end-run around the First Amendment’s free press provision, but around the Sixth Amendment’s right to a jury trial as well. The profound decision to punish the news media for blowing the whistle on some story or document that the government would rather keep the people from learning about, should reside with the public whose interests are, ultimately, the ones at stake. History has shown that juries are far more reliable in making such judgments in the public interest than are prosecutors or judges–or self-interested public sector unions, for that matter. It is time to abolish the prior restraint injunction in all cases except the most obvious and dangerous national security instances.

The best example of an appropriate exception to the legal presumption against prior restraints was set forth by the Supreme Court in the 1931 case of Near v. Minnesota. As I recount in my book The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999), J. M. Near and his cohorts published a newspaper, the Saturday Press, which in an ongoing series charged that various political and law enforcement officials and power brokers in Minneapolis were part of a conspiracy to protect, rather than to investigate and prosecute, a Jewish racketeer. The state charged that the allegations were “malicious, scandalous and defamatory,” and it sought to “perpetually” stop the publication of future issues of the paper. Minnesota sought this result by enforcement of a state statute that established a procedure to prohibit, as a “public nuisance,” the publication of a “malicious, scandalous and defamatory newspaper, magazine or other periodical.”

The Supreme Court in Near established an almost insuperable obstacle to the issuance of prior injunctions against publication. It provided an example of a situation that might warrant a prior restraint: “in time of war a government might prevent actual obstruction of its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” This came to be called the “troop ship exception” to the rule against prior restraints.

Judge Hopkins apparently did not understand that a television news disclosure that two firefighters might have died because they were under the influence (one of alcohol, the other of cocaine), while on duty at the site of a raging fire, does not fall within the “troop ship exception” to the heavy constitutional presumption against prior restraints. Judge Hopkins, perhaps not trusting a jury to see it her way, decided to short circuit the station’s right to have a jury decide the question, by issuing a prior restraint. In the event the station decided to violate Judge Hopkins’ order, she could have imposed up to a six-month jail sentence for “contempt of court” without ever submitting the criminal contempt charge to a jury. Fortunately, the Appeals Court judge vacated Judge Hopkins’ order, thus protecting not only of the people’s right to know, but the station’s right to have a jury rather than a judge decide the ultimate question of guilt or innocence, were the district attorney to prosecute the station for violating a statute classifying autopsy reports as private medical records.

Will Judge Hopkins now be sent for remedial education in her duties and obligations to defend and protect the Constitution? Probably not. Being a judge, it seems, means never having to say you’re sorry.

(James F. Tierney assisted in researching and preparing this piece. His expert help is gratefully acknowledged.)

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