Gag the Press   

It’s hard to see why transcripts in the Kobe Bryant case that were mistakenly e-mailed to news organizations were kept sealed in the first place.

Under the best of circumstances, it would have been difficult, if not impossible, for Colorado District Court Judge W. Terry Ruckriegle to keep the high-profile Kobe Bryant rape case from turning into a media circus.

But the fates seemed to conspire against Ruckriegle--or at least, some gremlins in the court clerk's office did. In September 2003, a document disclosing the name of Bryant's accuser was posted on the Internet. Then in June 2004, transcripts of pretrial hearings held in secret were accidentally e-mailed to seven media organizations.

Within a few hours, those same news outlets received an order from the court directing them to "delete and destroy any copies and not reveal any contents thereof, or be subject to contempt of Court."

If you are a journalist, them's fightin' words. How dare a judge tell you that you can't publish sealed documents in a contentious criminal case that fell into your lap through no fault of your own? Surely that violates the First Amendment.

Most journalists and media lawyers would argue that it does. But although the U.S. Supreme Court has not yet upheld a prior restraint on the news media, the high court has never ruled out the possibility that it might, if the case were compelling enough. And the federal circuits have split on whether a news organization may violate even a transparently unconstitutional gag order with impunity, or whether it must wait for an appellate court to strike it down or face contempt.

Rather than take a chance, the media asked the Colorado Supreme Court to set aside Ruckriegle's order. And less than a month later--lightning quick by judicial standards, an eternity in the current 24/7 news environment--the state's highest court, in a split decision, declined to do so.

Although acknowledging that prior restraints are presumed unconstitutional, the majority opinion nevertheless struggled to distinguish a string of U.S. Supreme Court cases, especially Florida Star vs. B.J.F., that involved the inadvertent disclosure of the identity of a sexual assault victim in a press release. In that case, the Supreme Court ruled that the media could not be punished for publishing information they had lawfully obtained. But unlike in that case, the Colorado majority wrote, the transcripts here were "clearly marked private." Furthermore, the majority said, the need to protect the accuser's privacy under the state's rape shield law, as well as the prosecution of sexual assault cases in the future, constituted very significant state interests. Three dissenting judges disagreed, joining in an opinion that pointed out that, "It is the responsibility of the government, not the media, to protect information that lies within its control."

Nevertheless, the majority did throw one crumb to the press. Surmising that Ruckriegle would shortly review the transcript to decide whether any part could be released to the public, the court said that the media could hang onto their copies in the interim.

News organizations filed a petition with Justice Stephen Breyer, the U.S. Supreme Court justice assigned to the federal 10th Circuit, where Colorado is located. He, too, acted swiftly--in a week--but also declined to give the media the relief they sought. Predicting that the release of the redacted transcript was "imminent," Breyer bounced the ball back into Ruckriegle's court, with the proviso that, if the media weren't satisfied with the result, they could petition Breyer again in a couple of days.

While Ruckriegle was deliberating, even more sealed court information, this time including the last name of the accuser as well as some details about Bryant's DNA tests, was accidentally posted on the Internet. At this point, the trial judge released most of the transcripts. And the media dropped their petition for further review.

It is probably just as well. There is no way to predict what the Supreme Court would have done with this case. Unlike in other attempts to restrain the press, such as the Pentagon Papers, these transcripts did not appear to reveal government misconduct or problems in the judicial system.

Yet, in light of Ruckriegle's decision to unseal the bulk of the transcripts, it is hard to see why they needed to be sealed in the first place. The court proceeded in secrecy, presumably at the request of the parties involved, but apparently without fully considering the countervailing right of the public to know. Compounding that mistake, the judge then forbade the press to publish. Although the subsequent release of the transcripts effectively nullified that order, the power of the judge to restrain the media was upheld.

As the Colorado dissenters wrote, prior restraints should be issued only to prevent "great, grave and certain harm." But when judges get away with gagging the press, it is the First Amendment that suffers the harm.