HOW HE SEES IT Muzzling warrants a challenge by media

By PAUL CAMPOS
SCRIPPS HOWARD NEWS SERVICE
Can the government stop the media from publishing truthful information they have obtained legally, on the grounds that publication of the information would be harmful? Until quite recently, any student of constitutional law would have said the answer to this question was, almost without exception, "No."
It has long been assumed that, if the First Amendment means anything, it means that the government can't issue a so-called "prior restraint" that forbids the publication of information the media already possess.
This principle is absolutely fundamental to American law. For example, in the famous Pentagon Papers case, all nine justices of the Supreme Court agreed that the government could not stop The New York Times from publishing excerpts from classified government documents, despite the fact that those documents had been stolen, and even though the government claimed their publication would endanger national security. Indeed, the Supreme Court has never upheld a prior restraint.
Indifference
Given such precedents, it's a sign of how indifferent we are becoming to the preservation of our most basic liberties that the extraordinary events surrounding the government's censorship of the Kobe Bryant trial have drawn so little attention.
More than six weeks have passed since an Eagle County clerk mistakenly e-mailed a transcript of a closed-door hearing from the Bryant trial to seven media organizations. Within hours, Judge Terry Ruckriegle issued an order barring these organizations from revealing any part of the contents of the transcript, and further ordering them to destroy their copies of the transcript itself.
Confident that no higher court would tolerate such an egregious prior restraint, the organizations filed an emergency appeal to the Colorado Supreme Court. Shockingly, in one of the most dubious opinions ever issued by that body, four of the court's seven justices upheld the judge's decision.
Even more shockingly, U.S. Supreme Court Justice Stephen Breyer then refused to reverse the Colorado court's ruling, choosing instead to dodge the constitutional issue by giving Judge Ruckriegle more time to decide, in the wake of the judge's subsequent evidentiary rulings, whether to lift part or all of the prior restraint.
Judge Ruckriegle then instructed attorneys for the prosecution and defense to advise him regarding which portions of the transcript he ought to allow the media to publish, and which parts he should continue to censor.
Defeat for the press
This state of affairs constitutes a serious defeat for freedom of the press. When a judge chooses to lift a prior restraint because of subsequent developments, he leaves the apparent legitimacy of his initial act of censorship intact. This is especially true if, as seems likely in the Bryant case, portions of the prior restraint remain in force.
Rather than continuing to litigate the issue, the media organizations subject to the prior restraint should immediately publish whatever information from the transcript they believe ought to be published. By doing so, these organizations would make a powerful statement -- a statement that they are under no obligation to submit to illegal government censorship. At the very least, such an act would give the Supreme Court as a whole an opportunity to reaffirm the most basic principles of free speech.
In doing so, the nation's highest court ought to take into consideration that the media have on the whole done a far better job of protecting the privacy interests of Kobe Bryant's accuser than has the judicial system itself. It's one of the grim ironies of this case that the media are being asked to ignore the First Amendment because the legal system finds it too difficult to follow its own rules.