Rape shield law doesn't trump Bill of Rights

July 20, 2004

In one of the most remarkable legal decisions ever issued in this state, the Colorado Supreme Court has come out in favor of government censorship of the news media. This is not an exaggerated charge. Censorship in its purest form is nothing more than government telling the press in advance what it cannot publish - and yet that is precisely what the high court did Monday in the Kobe Bryant case.

In a 4-3 ruling, the court upheld an Eagle County judge's order barring news organizations from reporting the contents of transcripts they received of closed hearings in the Bryant case. Those hearings had been closed to the public under Colorado's rape shield law because they involved the alleged victim's sexual behavior before and after her encounter with Bryant, and the transcripts were later e-mailed by accident to several news outlets (although not to this one).

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The issue here is not whether those hearings should have been closed or whether the rape shield law is good public policy. The media didn't breach the sanctity of the hearings and for the most part don't object to the rape shield law. What the media do protest and resist - and have since the founding of this nation - is the government telling them how to report information that comes into their hands through legal means.

Thankfully, attempts at censorship are rare in the United States and usually involve misguided reasoning by a lower court that is later reversed by a higher judicial body. You must beat the legal bushes far and wide to find an example in which censorship actually survived an appeal, such as an edict in 1990 in which CNN was told it could not broadcast tapes of conversations between former Panamanian dictator Gen. Manuel Noriega and his defense attorney. Even that case, however, usually has an asterisk beside it because of its special circumstances.

True, the U.S. Supreme Court has developed a complex test under which "prior restraint," as censorship is known to the courts, might be justified. But as Colorado Justice Michael Bender noted Monday in his dissent, "Under this standard, the Supreme Court has never found a threat to a state interest of the highest order sufficient, in and of itself, to justify a prior restraint."

No wonder the Colorado high court cannot cite a single instance of prior restraint even remotely analogous to the Bryant case in reaching its decision. There are simply no such cases. Indeed, the court is reduced to citing one case after another in which the U.S. Supreme Court repudiated damage awards or other sanctions against the news media for publishing or broadcasting material in apparent disregard of government statute. "We reason from Supreme Court case examples that reject the argued basis for sanctions or prior restraint," the majority says in what should be, but apparently isn't, a sheepish admission.

We sympathize with the aims of the rape shield law and recognize the court's interest in protecting the privacy of an alleged victim's sexual history. But the majority's decision in the Bryant case is not only dangerous law that gives Colorado courts unprecedented power, it's also gratuitous because of what already has been reported concerning the alleged victim's past.

As Bender notes in his dissent, "Much of the information presented at the rape shield hearing, and most of the legal theories argued at the hearing, are already available to the public and have been reported in the mainstream and electronic media."

Even if that weren't true, Bender pointedly adds, the duty to protect the confidentiality of closed hearings "was our responsibility, which we unfortunately failed to carry out. 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."

Then Bender delivers his broadside: "The power the majority authorizes is the power of the government to censor the media, which is precisely the power the First Amendment forbids."

The four justices who believe Colorado's rape shield law trumps the First Amendment of the Constitution of the United States are Gregory Hobbs, who wrote the decision, Mary Mullarkey, Rebecca Kourlis and Nathan Coats. If they'd truly understood the import of what they were doing, they'd have published their opinion with borders in black.

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