Prior restraint still makes important stories a hassle
Originally published in California Publisher, Winter 2019.
by Jason M. Shepard
When a cop pleads guilty to bribery, obstruction and lying to the FBI in an international organized-crime case, it’s news.
So when Alene Tchekmedyian, a metro reporter for the Los Angeles Times, saw that Glendale police detective John Saro Balian had struck a plea deal with federal prosecutors in an eye-popping corruption case, she did what any journalist would do — report the story.
The reporter would quickly get a crash course in the laws of prior restraint, as a federal judge ordered the Times to remove the story.
The injunction was one of several prior restraints against news organizations in 2018. They serve as a reminder that fundamental principles of American press freedom need vigilant defense, even when it comes to reporting truthful, lawfully obtained information about public affairs.
Balian’s case seemed a particularly egregious example of police corruption — and one that deserved scrutiny by journalists.
The 45-year-old detective and one-time public spokesman for the Glendale Police Department had allegedly lived a double life for years as a crooked cop.
In May 2018, the FBI raided Balian’s Seal Beach home and arrested him after ties with Armenian organized crime and the Mexican Mafia surfaced in a probe by the FBI’s Eurasian Organized Crime Task Force, the Times reported.
Among allegations in the charging document: the FBI accused Balian of helping gang and mafia members with marijuana and cocaine trafficking, a car theft ring, and tipping off criminals about pending police raids.
When the plea deal was posted publicly on PACER, the federal court’s online records system, on Friday, July 13, Tchekmedyian wrote a story for the Times’ website the next morning.
Within hours, Balian’s attorney, Craig Missakian, sought a court order to remove the story. Apparently, the plea deal was supposed filed under seal and was posted publicly by mistake.
Shockingly, U.S. District Judge John F. Walter granted the censorship order, requiring the Times to remove information about the plea deal. Even the motion was filed under seal, according to the Times, and the judge issued the order without notification.
The Times complied, even though it believed the order was unconstitutional. The Times’ lawyer, Kelli Sager of the law firm Davis Wright Tremaine, quickly filed an emergency appeal.
“The judge’s order clearly violates the First Amendment,” Times’ editor Norm Pearlstine said in a statement. “We believe that once material is in the public record, it is proper and appropriate to publish it if is newsworthy.”
Journalism experts and advocates rallied in defense of the Times.
“Censorship is the hallmark of authoritarianism and one of the most extreme measures governments use to control speech,” Alexandra Ellerbeck, program director for the Committee to Protect Journalists, said in a statement. “That is why U.S. courts have long determined that under the First Amendment the ability to impose prior restraint is extraordinarily limited.”
The Reporters Committee for Freedom of the Press, joined by 59 media organizations, filed an amici curiae letter to the Ninth Circuit Court of Appeals in support of an immediate appeal.
“Although courts have the power to enter sealing orders when common law and constitutional standards are met, once information is made public, nearly 90 years of constitutional law stand in the way of using prior restraints to prevent a newspaper from communicating the information to its readers,” the letter said.
Three days after his order, Judge Walter reversed himself, mooting the appeal to the Ninth Circuit. The Times restored the story on its website.
It was the third victory against prior restraints for the Times in 2018. The Times faced two other prior restraints involving orders from Los Angeles Superior Court Judge Gustavo N. Sztraicher barring the Times’ from publishing photos or describing the appearance of murder suspects from open court proceedings. In both cases, the judge reversed himself after Times’ lawyers intervened.
Across the country, journalists have faced similar injunctions recently.
The Las Vegas Review-Journal was barred from publishing information from publicly released autopsy reports from the 58 victims of the deadliest mass shooting in the United States.
The South Florida Sun Sentinel faced an injunction from reporting on a publicly released report about the mass shooting at Marjory Stoneman Douglas High School.
In Wisconsin, the attorney general sought an injunction to prohibit a former student journalist from publishing documents released to him in response to a public records request.
And closer to home, the city of Greenfield in Central California sued to keep the Monterey County Weekly from publishing leaked memos between the city and its attorneys about the firing of its city manager.
The good news is the journalists prevailed in all cases, thanks in part to media lawyers defending core First Amendment principles.
But prior restraint threats abound, and for different reasons.
Legal orders to remove content from the internet are becoming more common internationally, creating headaches for media companies with a global reach.
In December, for example, a gag order from an Australian judge prohibiting reporting about a sexual assault conviction of an Australian priest caused the New York Times to remove content online and halt print distribution in the country.
And the “right to be forgotten” remains a critical flashpoint. In Europe, Google has “de-listed” nearly 1.3 million web pages since 2014 after the Court of Justice for the European Union ruled that individuals have a right to remove information online about them that is “inadequate, irrelevant or no longer relevant, or excessive.”
Such a law in the U.S. would be a gross violation of the First Amendment.
But website content still sparks legal problems here.
For example, in July 2018, the California Supreme Court ruled that the website Yelp was protected from an injunction ordering the removal of a defamatory review based on Section 230 of the Communications Decency Act, which provides websites with broad immunity from liability for user-generated content.
The decision will likely invite scrutiny about the balance between rights and responsibilities of websites hosting unprotected speech and invite questions about the applicability of past prior restraint precedents in the digital era.
Beginning with the landmark 1931 decision in Near v. Minnesota, the Supreme Court has said the “chief purpose” of the First Amendment is to “prevent previous restraints on publication.”
Since then, the U.S. Supreme Court has extended the principle in rejecting prior restraints in cases involving the publication of classified documents, names of rape victims and juvenile defendants, as well as information lawfully obtained by journalists from illegally hacked phone calls.
While the balance certainly weighs in favor of journalists, prior restraints are sometimes upheld. In 2014, for example, a divided Colorado Supreme Court found that protecting the privacy of a private-person sexual assault victim in the high-profile Kobe Bryant rape case was a compelling government interest to prohibit reporting from an accidentally released transcript of a closed hearing.
The Bryant case remains an outlier.
The most significant prior restraint precedent remains the Pentagon Papers case. In rejecting President Richard Nixon’s attempt to stop publication classified documents, the Supreme Court in 1971 said prior restraints have a “heavy presumption against constitutional validity” and can only be justified in rare cases when the government meets its “heavy burden” in justifying the restraint.
In rejecting the prior restraint in New York Times v. United States, Justice William Douglas said “the dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information.”
Justice Hugo Black wrote that under the First Amendment, “the government’s power to censor the press was abolished so that the press would remain forever free to censure the government.”
Jason M. Shepard, Ph.D., is chair of the Department of Communications at CSU Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at jasonmshepard.com or on Twitter at @jasonmshepard.