The Denver Post
Supreme Court rules media can't publish mistakenly released transcripts
Monday, July 19, 2004 -
The Colorado Supreme Court today narrowly ruled that transcripts of a closed hearing in the Kobe Bryant sex-assault case that were mistakenly released to the media should not be published.
The high court said that the privacy of the alleged victim and the importance of preserving Colorado's rape-shield law outweigh the media's First Amendment rights to publish the material. The ruling came three weeks after State District Judge Terry Ruckriegle, the judge in Bryant's case, ordered news organizations not to publish a transcript of a closed-door rape-shield hearing in the case. The hearing dealt with aspects of the alleged victim's sexual history. The transcript was mistakenly e-mailed to seven media outlets, including The Denver Post, by a veteran court reporter. None of the organizations has published the material but they had sought permission to do so. In a 4-3 opinion, written by Justice Gregory Hobbs, the court said that to prohibit the media from publishing materials that it legitimately gains - such as the transcripts - is an extraordinary step taken only very rarely. But here, Hobbs said, the media's constitutional rights to publish are outweighed by a state interest of "the highest order." "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 206 pages of documents include full transcripts of hearings on June 21-22, including 1 1/2 days of hearings to determine if a jury will hear anything about the sexual history of the accuser. Under Colorado law, a woman's sexual history is presumed irrelevant in a sex assault case. But that presumption can be overcome if defense lawyers can convince a judge it is relevant and material to their client's defense. If they present sufficient affidavits, the judge can order a closed rape-shield hearing where he will determine what, if any, of the woman's prior sexual history may be heard at trial. Ruckriegle has heard days of testimony on the woman's sexual history but has not yet ruled if a jury, scheduled to start hearing the case in early September, will hear any of it. The media claimed that Ruckriegle's order not to publish is censorship or unconstitutional prior restraint. And the Colorado Supreme Court agreed today that it was. But Hobbs said that not all censorship is prohibited. When a state interest of the "highest order" is involved, the interest the state is trying to protect takes a superior position to First Amendment rights, he said. But three justices, in a dissent written by Justice Michael Bender, said that Ruckriegle's order amounted to prior restraint or censorship in violation of the freedom of the press guarantees 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 have already been made available through public documents. Secondly, he added, the media did nothing wrong in obtaining the transcripts. "Under well established prior restraint doctrine, these two factors alone require this court to direct the district court to vacate its order immediately," Bender wrote. "The majority overemphasized the importance of the state interest at stake here and virtually ignores the First Amendment guarantee that in all but the most extreme circumstances the media must be free to decide what it may or may not publish." Bender also pointedly noted that the release of the transcripts was caused by a mistake of 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. But Hobbs said that despite the mistake, the judiciary now must protect the alleged victim. "Under the circumstances and context of this case, any details of the victim's sexual conduct reported from in-camera transcripts will be (instantly) available world-wide and will irretrievably affect the victim and her reputation," Hobbs said. "She is entitled to rely on the protective provisions of the rape-shield statute, which the state affords her in her capacity as a complaining witness in a sexual assault prosecution." Media lawyers said they will probably appeal to the U.S. Supreme Court. |