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Fall 2008 Bulletin
FOIA and Access
Gag Order Lifted on California Paper Seeking to Cover its Own Trial
A gag order meant to halt a California newspaper from reporting on its own trial lasted 10 days before a state appeals court ordered it vacated, saying the trial court “cannot possibly justify the censorship imposed.”
The Orange County Register’s parent company, Freedom Communications, Inc., is being sued by 6,000 newspaper carriers who filed a $100 million class action lawsuit claiming the company has unfairly classified them as independent contractors rather than employees, denying them overtime pay and other benefits, The Associated Press (AP) reported Sept. 30, 2008.
On September 19, trial court Judge David C. Velasquez issued an order that excluded all non-expert witnesses from the courtroom while other non-expert witnesses were giving testimony, and prohibited all witnesses, including the parties, from discussing or disclosing the testimony of any witness while the trial is pending. The last paragraph of Velasquez’s September 19 order said that the prohibitions on discussing or disclosing witness testimony given in open court “pertains to all means and manner of communication whether in person, electronic, through audio or video recording, or print medium.” The order effectively gagged The Orange County Register from publishing or discussing any witness testimony in its pages or on its Web site.
The Orange County Register filed an emergency stay of the order and was joined shortly thereafter in an amicus brief filed by over two dozen media and First Amendment advocacy organizations, including the AP, the Los Angeles Times, The New York Times, Reuters, CNN, the E.W. Scripps Company, Bloomberg News, the American Society of Newspaper Editors, California Newspaper Publishers Association, and the Reporters Committee for Freedom of the Press.
In Freedom Communications, Inc. v. Superior Court, 167 Cal.App.4th 150 (Cal. 2008), a three-judge panel of the California Court of Appeals Fourth Appellate District issued a per curiam, or unsigned, opinion on September 29 ordering that the gag order be immediately vacated because it “plainly violates the press freedoms guaranteed by the United States and California Constitutions.”
Citing well-known federal cases involving court-ordered prior restraints on media such as Nebraska Press Ass’n v. Stuart 427 U.S. 539 (1976) and CBS, Inc. v. Davis 510 U.S. 1315 (1994), the court explained that a prior restraint such as a gag order is “presumptively invalid” because it is “the most serious and the least tolerable infringement on First Amendment rights.” The few instances when the U.S. Supreme Court has suggested such an infringement might be justified, the court said, include preventing the dissemination of information about troop movements during wartime and avoiding a nuclear holocaust.
“This case law makes clear that the danger the trial court sought to avert by its prior restraint here – the risk that witnesses in a civil trial might be influenced by reading news reports of the testimony of other witnesses – cannot possibly justify the censorship imposed,” the court said.
Moreover, the court pointed out that less restrictive alternatives were available to Velasquez, including admonishing witnesses not to read press accounts of the trial. In CBS, Inc. v. Davis, Justice Blackmun ruled that when “less intrusive measures” are available, other than a prior restraint, the prior restraint is rendered unconstitutional. Admonishing the witnesses might even be more effective, the California Court said, because although the September 19 order might have prohibited The Orange County Register from reporting on the trial, it did not preclude other newspapers from reporting it.
According to the AP on September 30, Daniel Callahan, lead attorney for the newspaper carriers, was critical of The Orange County Register’s coverage of the trial. “The Register has a practice of running articles in its paper that are self-serving,” he said. “It is writing to the subscribers, which are members of our jury pool, and saying that this lawsuit lacks merit.” The AP reported that jury selection began on September 29.
In a separate order on September 23, Velasquez fined Freedom Communications over $23,000 for “willfully and intentionally” suppressing evidence in the case by destroying its e-mails from December 2003 to January 2008.
According to the AP, the company said in a statement that the newspaper had turned over more than 10 million documents and 130,000 e-mails and did not know the e-mails in question were relevant before its computers automatically deleted them.
– Patrick File
Silha Fellow and Bulletin Editor
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