The Denver Posteditorial
State court trying to rewrite Constitution
Wednesday, July 21, 2004 -
The Colorado Supreme Court must have been blinded by the bright lights of the Kobe Bryant case in its decision to prohibit the news media from publishing information inadvertently circulated by the Eagle County district court.
The U.S. Constitution and subsequent court rulings bar the government from exercising "prior restraint" on what the press can publish. Exceptions are few and far between. Monday's narrow, 4-3 court decision is an impermissible encroachment on the First Amendment. It was an effort to balance First Amendment and privacy concerns, a delicate task. But the decision was one of flawed logic that would set a bad precedent. Based on previous decisions by the nation's highest court, prior restraint is allowed under only the severest circumstances. Courts have been consistent on this - even national security concerns do not typically override the prohibition. The Pentagon Papers was a case in point. Comes the Colorado Supreme Court, ignoring past precedent, galloping into the legal abyss. In dissent, Justice Michael Bender noted that the decision authorizes the government "to censor the media, which is precisely the power the First Amendment forbids." And he correctly notes that the privacy interests raised in this case is ephemeral or less. The Denver Post was among seven news outlets which sought a ruling, and editor Gregory Moore said the organizations plan to ask U.S. Supreme Court Justice Stephen Breyer for a stay of the order. A stay would remove the risk of being cited for contempt for publishing any of the material in the transcript. The ruling came on an appeal by news organizations after District Judge Terry Ruckriegle forbade publication of the transcript of an in camera hearing June 21 and 22 to determine whether any of the sexual history of the woman who accused Bryant of rape last summer may be admitted at trial. The 206-page document was mistakenly transmitted by a court reporter to seven media outlets. When the court reporter discovered the error and informed Ruckriegle, he issued an order to bar publishing the material. Freedom of the press has constitutional protection in the United States, giving publishers and editors the right to decide what to publish, and barring the government from interfering. To be sure, editors weigh considerations such as security and privacy in making their decisions, and in this case The Post has not determined its course. "If the Post determines that releasing excerpts of the material is appropriate, and in the public interest, it will do so," said Publisher Dean Singleton. In its ruling, the state Supreme Court held that under Colorado's rape-shield law, the state has an interest of "the highest order" to protect the woman's privacy, which it said makes its order constitutional. The court conceded that Ruckriegle's order is prior restraint but called his action a "narrowly tailored" order that was needed to protect the alleged victim and accusers covered by the rape-shield law in other cases. Incredibly, the majority opinion, written by Justice Gregory J. Hobbs Jr., cites Florida Star vs. B.J.F., a 1989 U.S. Supreme Court case that struck down a Florida law that prohibited publication of a rape victim's name as unconstitutional to justify prior restraint. But George Rahdert, the Florida Star's lawyer, disputed the Colorado court's citation, saying the 1989 decision "does not stand for the proposition that some prior restraint is acceptable." In dissenting, Justice Bender noted that the judiciary failed to protect the confidentiality of the closed hearing and "cannot now order the media to perform the role that we were obligated, but failed, to do." Bender noted that the U.S. Supreme Court has never found a threat to the state interest sufficient to justify prior restraint. He also took issue with the decision's stated purpose of protecting the privacy of Bryant's accuser, noting much of the information presented at the hearing already has been widely circulated in the mainstream and other media. If allowed to stand, the Colorado court's ruling would set the state down a chilling path. It could be used to muzzle news coverage involving high-profile figures who aren't sex-assault victims, but are merely involved in shady or embarrassing activities. The state Supreme Court seems to believe it has the power to rewrite the U.S. Constitution. It does not. |