The Denver Post

Muzzle on media upheld
By Sean Kelly and Howard Pankratz
Denver Post Staff Writers

Tuesday, July 20, 2004 - The Colorado Supreme Court on Monday ordered that the transcript of a closed hearing in the Kobe Bryant case not be published, saying that the privacy of the alleged victim and the importance of preserving the state's rape-shield law outweigh the media's First Amendment rights.

The 4-3 opinion upheld a prior-restraint order issued after the transcripts, which included the woman's sexual history, were mistakenly e-mailed last month to media outlets, including The Denver Post.

The decision likewise divided analysts, with media and First Amendment lawyers declaring it unconstitutional and virtually unprecedented while women's advocates and privacy experts hailed the ruling as an important step to preserve privacy.

The state Supreme Court ruled that prior restraint, blocking the publication of information lawfully obtained by the media, is needed to protect the alleged victim and accusers protected by the rape-shield law in other cases.

The Post is considering an appeal of the decision to the U.S. Supreme Court. Post editor Greg Moore said the paper may appeal on principle because it opposes prior restraint.

Whether the transcript is newsworthy and whether The Post would publish it is a separate issue, he said.

Claudia Bayliff, an attorney for Legal Momentum, a national legal advocacy group for women's rights, said publication of the transcript would "eviscerate" Colorado's rape-shield law.

"It would be an absolute travesty of justice if the court had allowed the press to publish those transcripts," Bayliff said. "The First Amendment is not absolute."

Yet noted First Amendment attorney Floyd Abrams said the Colorado court's decision appears to violate well-established legal precedent.

"It's disturbing. One of the clearest bodies of law we've had is the law that says prior restraints on the press are all but totally unconstitutional," said Abrams, a visiting professor at the Graduate School of Journalism at Columbia University in New York City. "In reality, prior restraints are not allowed."

Abrams and other legal experts said the decision could be overturned by the U.S. Supreme Court if it agrees to hear the case. They said the state court appears to be favoring a Colorado statute over the Constitution.

University of Colorado law professor Phil Weiser noted that the U.S. Supreme Court in the 1971 Pentagon Papers case rejected government arguments that national security was a justification for prior restraint. He said Monday's decision, if unchallenged, would set precedent in Colorado rape cases and could influence courts elsewhere.

Moore said senior editors at The Post were "surprised and disappointed by the state Supreme Court's decision. We believed precedent was on our side; it is rare for a court to dictate what a newspaper can and cannot publish. We are considering an appeal to the U.S. Supreme Court based on the principle of journalistic independence."

"However," Moore continued, "it is important to understand that whether to publish what is contained in those documents is a separate issue, one we continue to discuss. Our right to publish, without prior restraint, is what this case is all about."

The Colorado court's opinion, written by Justice Gregory Hobbs, said prior restraint is an extraordinary step. But here, Hobbs said, the media's constitutional rights to publish are outweighed by the state's interest.

"The state has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the rape-shield statute because such hearings protect victims' privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault."

The ruling came three weeks after state District Judge Terry Ruckriegle ordered news organizations not to publish the transcript.

The Colorado Supreme Court, however, reversed Ruckriegle's order that the media destroy their copies of the information. It also ordered the judge to quickly determine whether the accuser's sexual history will be allowed at trial and to see whether the transcript might be released in redacted form.

The full transcript of the hearing was mistakenly e-mailed to seven media outlets by a veteran court reporter. In addition to The Post, the Los Angeles Times, The Associated Press, CBS, ESPN, Fox News and Warner Bros. received it.

The 206 pages include the transcript of hearings on June 21 and 22, including 1 1/2 days of hearings to determine whether a jury will hear anything about the woman's sexual history.

In a strongly worded dissent, Justice Michael Bender and two concurring justices said the order amounted to censorship in violation of the freedom of the press guarantee of the First Amendment.

Bender said that most of the details of the alleged victim's sexual conduct around the time of the alleged rape last summer have already been made available through public documents. Secondly, the media did nothing wrong in obtaining the transcripts.

"These two factors alone require this court to direct the district court to vacate its order immediately," Bender wrote.

Bender also pointedly noted that the release of the transcript was a mistake by the state judicial department.

"Having failed, we, the judiciary - the government - cannot now order the media to perform the role that we were obligated, but failed, to do - to protect the privacy interests of the alleged victim," Bender said.

The Colorado court used a 1989 U.S. Supreme Court case in making its argument to uphold the prior restraint order. The lawyer who successfully tried the case, Florida Star vs. BJF, said the Bryant case is based on similar facts. In the Florida Star case, a newspaper published the name of a rape victim after a sheriff's office mistakenly released it. The U.S. Supreme Court in that case struck down a Florida law that prohibited publication of a victim's name as unconstitutional prior restraint.

The Florida Star lawyer, George Rahdert, said he believes the Colorado court misinterpreted that decision, finding justification for prior restraint where none exists.

"It does not stand for the proposition that some prior restraint is acceptable," Rahdert said. "I certainly wouldn't read it that way."

Daniel Solove, a George Washington University law professor and privacy law expert, said the privacy of an individual's sex life outweighs the press' right to publish it.

"I think that neither is absolute, privacy and free speech, so it's a matter of balancing," Solove said. "I think in this case, the court got it right."

Staff writer Sean Kelly can be reached at 303-820-1858 or skelly@denverpost.com . Staffwriter Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com .