District court should drop the ban on publication

July 27, 2004

Although U.S. Supreme Court Justice Stephen Breyer declined Monday to lift the order by Colorado courts barring seven news organizations from reporting on the contents of transcripts they possess of closed hearings in the Kobe Bryant case, he did at least confirm that he recognized "the importance of the constitutional interests at issue." And he held out hope that "a brief delay will permit the state courts to clarify, perhaps avoid, the controversy at issue here."

Breyer is undoubtedly correct on that last point. There is a straightforward way for Eagle District Judge Terry Ruckriegle to "avoid the controversy": Release the transcripts in their entirety and drop the attempt to tell the news media in advance what they can report. A partial release of the transcripts, with the rest of the material redacted, would still amount to an alarming departure from traditional press freedom in this nation.

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Was Breyer implicitly urging Ruckriegle to end the confrontation in this fashion? We can't say - although the Supreme Court justice did note in his ruling that his "reading of the transcripts leads me to believe that the trial court's determination as to the relevancy of the rape shield material will significantly change the circumstances that have led to this application." He was referring, of course, to Ruckriegle's ruling Friday that the Bryant trial may hear evidence regarding the alleged victim's sexual activity near the time of her reported assault. Ruckriegle had reviewed this sensitive evidence in closed hearings and found it qualifies for trial under exceptions in the rape shield law created to protect the rights of the accused. These hearings were the same ones whose transcripts were inadvertently e-mailed by the court to various news outlets.

Ever since Friday's ruling we've wondered why Ruckriegle had been willing to turn constitutional law on its head regarding the First Amendment if he was going to allow much of the pertinent information on the transcripts to be introduced anyway at trial. And why had the state Supreme Court been so eager to back his attempt at prior restraint of the media, which that court did in a 4-3 decision?

Even Americans who disdain the news media usually recognize why it is important that government not tell the press in advance what it can publish. The United States may be the only country in the world whose highest court has never endorsed a prior restraint on the publication of news, even when the information was leaked to reporters illegally.

We have no idea what prompted four Colorado justices to ignore this overwhelming body of precedent. Perhaps they were bewitched by the same spell affecting CBS News legal analyst Andrew Cohen, who defended their radical departure from established doctrine on prior restraint as a perfectly reasonable form of judicial free-lancing. Indeed, at News4Colorado.com, Cohen professes in a column to see no difference between executive-branch agencies classifying sensitive material so it won't be released in the first place and government threatening to jail editors who publish material they already have. Moreover, says Cohen, the media "should never have had \[the material] in their hands to begin with."

We can only imagine how many government officials wish they could offer such a self-serving, authoritarian argument in the expectation that a court would bar publication of a sensitive document that has ended up in a reporter's possession. Life without a First Amendment would be so much simpler for such officials, but that's hardly sufficient reason to dispense with it.

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