By Steven Zansberg
August 14, 2004

With his On the Media column of Aug. 7, "The press's great cause? Panties," News media critic Michael Tracey has now devoted his second full column to attacking the press for challenging a prior restraint order, and has concluded that it was not a fight the Founding Fathers would have condoned.

In his first column on this topic, Tracey accused the press of wishing to publish lurid sexual details only in order to sell more papers and boost ratings. In fact, his first column concluded that the principle against prior restraints was worth fighting for, but the press, once it wins the fight (which was expected at the time), should exercise self-restraint and not publish such prurient details.

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Now, apparently, Tracey has concluded that the principle itself is not worth fighting for unless the information being suppressed is the stuff of the Pentagon Papers.

First of all, despite Tracey's opinion to the contrary, the information contained in the leaked transcripts is unquestionably "newsworthy" because it contains testimony and evidence that sheds considerable light on how government officials - prosecutors and the judge - discharge their official duties, including administering a Crime Victim Compensation fund and deciding to proceed with a prosecution in the face of substantial evidence that casts doubt on the strength of the case. All of this is newsworthy even if the evidence in the transcript had not been deemed admissible in a felony sexual assault trial that might result in one of the world's most widely recognized professional athletes being sent to prison for the rest of his natural life. For Tracey to suggest otherwise demonstrates his credibility on what is newsworthy.

But the even bigger flaw in Tracey's argument is his suggestion that principles, such as the First Amendment's disdain for government censorship of the press, are "worth fighting for" only if the information being censored is truly breathtaking in its public significance. Quite plainly, Tracey does not understand either what a "principle" is or what the First Amendment stands for.

He claims to have reviewed the basic texts and foundational documents that gave rise to the First Amendment and concludes that our Founding Fathers would be spinning in their graves if they knew what the press had done here. Apparently Tracey did not read these texts very carefully. Blackstone, the great legal commentator who summarized the state of the law at the time of the adoption of our Constitution and the First Amendment, stated "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications . . . To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government."

The Supreme Court of the United States later summarized this history as follows: ". . . it is the chief purpose of the \[free press] guaranty to prevent previous restraints upon publication. The struggle in England, directed against the legislative power of the licenser, resulted in renunciation of the censorship of the press." And Justice William Brennan put it even more plainly: ". . . in the context of prior restraints on publication, the decision of what, when and how to publish belongs to editors, not judges."

What is truly remarkable is that Tracey, a professor of journalism, actually believes that this bedrock principle - one that serves as the very foundation of our system of government and its free press guarantee - is not worth fighting for.

Denver attorney Steven Zansberg was among those who represented seven media companies in their challenge of Judge Terry Ruckriegle's prior restraint order in the Kobe Bryant sexual assault case.

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