By Karen Abbott, Rocky Mountain News
August 4, 2004

Seven news organizations have dropped their plans to appeal a do-not-publish order issued by the judge in the Kobe Bryant case and upheld by the Colorado Supreme Court.

A Washington, D.C., law firm representing the seven organizations faxed a dismissal request to the U.S. Supreme Court on Tuesday.

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"The parties agree that there is no good reason for the Supreme Court to review this case," said Nathan Siegel of the law firm of Levine Sullivan Koch & Schulz.

That decision came after Eagle County Chief District Judge Terry Ruckriegle on Monday made public most of the transcripts of closed- door hearings held in June on whether some of the sexual history of the woman who has accused Bryant of raping her could be admitted as evidence at his trial.

Dropping the appeal lets stand a Colorado Supreme Court ruling, upholding a rare do-not-publish order despite the U.S. Constitution's guarantee of press freedom, that sets precedent for future cases.

"Certainly everybody understands that concern," Siegel said. "I think, though, in future cases people will be able to point to the fact that, in this particular case, the material was released."

Dropping the appeal also avoids the possibility that the U.S. Supreme Court might uphold Colorado's high court, setting a national precedent in favor of do-not-publish orders.

A court reporter accidentally e-mailed the sealed transcripts last month to seven news organizations. Ruckriegle ordered them not to publish the material.

Such court orders, called prior restraints, are extremely rare in the United States. The U.S. Supreme Court ruled in the early 1970s that even national security concerns raised by the administration of President Nixon could not justify the prior restraint of publication of the Pentagon Papers.

The papers were the government's secret history of the Vietnam War.

In the Bryant case, the seven news organizations that received the sealed transcripts by mistake appealed Ruckriegle's order to the Colorado Supreme Court, which startled news executives and press freedom lawyers by upholding Ruckriegle 4-3.

The state's high court said Colorado's "rape shield law," aimed at protecting the privacy of rape victims, trumps the First Amendment to the U.S. Constitution, which the U.S. Supreme Court has held nearly always prohibits prior restraint of publication.

Under Colorado's rape shield law, evidence of an alleged victim's sexual activity cannot be admitted in a rape trial unless a judge decides - after hearing the evidence in a closed-door hearing - that it is relevant.

In the Bryant case, Ruckriegle ruled that evidence indicating the woman may have had sex with someone else around the time of the alleged rape can be admitted. Such evidence could persuade a jury that the woman's alleged injuries could have been caused by someone other than Bryant.

Transcripts of the closed-door rape shield hearings in the Bryant case were e-mailed to The Associated Press, CBS, The Denver Post, ESPN, Fox, the Los Angeles Times and Warner Bros.

After the state Supreme Court's ruling upholding Ruckriegle's order, the seven news organizations asked U.S. Supreme Court Justice Stephen Breyer to immediately stay the do-not-publish order.

Breyer refused, saying he expected the issue to become moot soon with Ruckriegle's release of the transcripts under orders from the Colorado Supreme Court.

abbottk@RockyMountainNews.com or 303-892-5188

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