George Kochaniec Jr. © News Kobe Bryant leaves the Justice Center in Eagle on Monday during a lunch break in a pretrial hearing on his sexual assault charge. Court TV has asked for permission to televise Bryant's trial.

Justices uphold order after e-mail is sent to media accidentally

By Karen Abbott, Rocky Mountain News
July 20, 2004

Colorado's "rape shield" law trumps the press freedom guaranteed by the First Amendment to the U.S. Constitution, the Colorado Supreme Court ruled in the Kobe Bryant case Monday.

The state's high court decided 4-3 that news organizations cannot publish transcripts of closed-door court hearings on the sexual activities of an Eagle County woman who has accused the basketball star of rape.

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The ruling upheld a do-not-publish order - known as a "prior restraint" and rarely allowed in the United States - by Chief District Judge Terry Ruckriegle after a court reporter accidentally e-mailed the transcripts to seven news organizations.

Justice Greg Hobbs, writing for the majority, acknowledged that the U.S. Supreme Court, although indicating in its rulings that privacy rights might in some circumstances overcome the First Amendment, never has approved such an exception.

The rape shield law was designed to protect the privacy of rape victims who might be questioned publicly about their sexual histories in a defense effort to show they were more likely to consent to sex. One result of the fear of public humiliation is that most rapes are never reported, the Colorado Supreme Court said.

Colorado's rape shield law requires a judge to privately review information about an alleged victim's sexual history to determine if any of it should be admitted as evidence.

Bryant's defense team has charged that his accuser had sex with one or more other men during the days surrounding the alleged rape, raising the possibility that any injuries attributed to the encounter with Bryant could have been caused by someone else.

Bryant, who is married, has admitted having sex with the woman on June 30, 2003, but said she consented.

Transcripts of June 21-22 rape shield hearings in the Bryant case were accidentally e-mailed to seven news organizations: The Associated Press, CBS, the Denver Post, ESPN, Fox, the Los Angeles Times and Warner Brothers. The Rocky Mountain News did not receive the transcripts.

Attorney Floyd Abrams, the First Amendment specialist who represented The New York Times in the Pentagon Papers case, said the U.S. Supreme Court probably would overturn the Colorado Supreme Court's ruling.

"The potential impact on journalism of the Colorado Supreme Court affirming the entry of this prior restraint is very real and genuinely grave," Abrams said.

News chiefs and First Amendment lawyers didn't expect the Colorado Supreme Court to uphold a prior restraint on publication.

"We were surprised and disappointed by the ruling," Denver Post Editor Greg Moore said. "It's unusual for courts to find cause to endorse prior restraint, so we were really taken aback by that."

Steve Zansberg, one of the lawyers for the news organizations and a First Amendment specialist, said "our clients are carefully considering taking an appeal to the United States Supreme Court."

News 4 News Director Tim Wieland said the CBS affiliate will join in an appeal if one is filed.

"In the meantime, we do plan to abide by the judge's order," Wieland said.

Moore said the Post had not decided whether to publish information from the transcripts if the Colorado Supreme Court had ruled for the news organizations.

Also still unaddressed, Moore said, was the question of publishing despite the do-not-publish order, as the Washington Post did when the Pentagon Papers were leaked in 1971. The U.S. Supreme Court later ruled that a lower court's do-not-publish order in that case was unconstitutional despite Nixon administration arguments that the publication of the government's secret history of the Vietnam War jeopardized national security.

"Prior restraints are as disfavored as any legal orders ever conceived of, and the U.S. Supreme Court, while not ruling that the ban on prior restraints is absolute, has enforced a nearly total ban on such orders," Abrams said.

"So while this case has some painful characteristics to it and there is a genuine possibility of some harm coming about if the information is revealed, I do not believe that the extremely high barrier that the U.S. Supreme Court has created can be overcome or has been overcome in this case."

Abrams said the ruling's potential harm is immense.

"It's a disturbing result, less because of the impact on reporting about the Kobe Bryant case than the impact on all reporting in the future," he said.

"One thing journalists and editors and the public could count on, until now, was that if the press lawfully obtained information it was basically free to print it. This decision goes a long way toward imperiling that notion."

Abrams acknowledged the sensitivity of the information about the woman's sexual history.

"On the other hand, the U.S. Supreme Court has already held that the publication of the name of a rape victim cannot in the ordinary course be made illegal," he said.

But the Colorado Supreme Court said a victim's sexual conduct is even more private than a victim's identity, and that the state has a vital interest in protecting the privacy of rape victims in order to encourage the reporting of rapes and to deter rapes.

It said the Bryant case transcripts are different from the Pentagon Papers because they don't implicate suppression of public policy debate or criticism of public officials.

"To the contrary, the testimony concerns conduct that is intensely private and personal," the court said.

Citing nonstop news coverage of the Bryant case, Hobbs wrote, "Under the circumstances and context of this case, any details of the victim's sexual conduct reported from the . . . transcripts will be instantaneously available world-wide and will irretrievably affect the victim and her reputation."

The majority ordered Ruckriegle to decide as soon as possible if any of the closed-door testimony about the woman's sexual activities can be admitted at trial. It said Ruckriegle also may make that information public while keeping the rest secret.

Justice Michael Bender, writing for the three dissenting justices, said much of the information in the transcripts already has been made public, including reports that the woman's underwear contained semen that wasn't Bryant's.

It was the court's responsibility to keep the transcripts private and, having failed, the judicial system can't now order news organizations to do its job, Bender said.

"The power the majority authorizes is the power of the government to censor the media, which is precisely the power the First Amendment forbids," Bender wrote.

The decision

• Voting to uphold the do-not-publish order: Chief Justice Mary Mullarkey, and justices Greg Hobbs, Rebecca Kourlis and Nathan Coats.

• Voting to overturn the do-not-publish order: Justices Alex Martinez, Nancy Rice and Michael Bender.

abbottk@RockyMountainNews.com or 303-892-5188

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