A Times Editorial

Judge's order required a reversal

Although quickly reversing himself on Friday, Hillsborough Circuit Judge Emmett Battles made a serious error when he issued an order Thursday to suppress freedom of the press. Few constitutional principles are more firmly established than the right of the press to disseminate truthful information, lawfully obtained. Yet Battles ordered media outlets not to publish, post or broadcast information from court documents that were accidently released in the Walker Middle School rape case. The ruling was a classic example of prior restraint, a big constitutional no-no.

The controversy arose after WFLA- Ch. 8 journalist Kate Caldwell was inadvertently given court documents that included statements by the defendants in the case involving an alleged sexual assault by four juveniles of a teammate in a school locker room. Those statements were then posted on WFLA's affiliated Web site, tbo.com, where they were publicly available for about 90 minutes until Battles' emergency order forced all publication to cease.

The judge was concerned with the legality of the release of that evidence and how it would impact the fairness of the trial. But Battles did not have the legal authority to reach so far beyond his courtroom. The First Amendment protects the right of the press to inform the public on sensitive matters, even if disclosure potentially would have an adverse impact on a criminal proceeding.

A judge has other tools to protect the fairness of a trial, including restricting what lawyers may say outside the courtroom, conducting vigorous questioning of potential jurors, or if necessary, allowing a trial to move. But our constitutional system has essentially zero tolerance for prior restraint. In the landmark case of New York Times vs. United States, known generally as the Pentagon Papers case, the Supreme Court refused to enjoin publication of a classified study on America's involvement in Vietnam. The court rejected the Nixon administration's claim that prior restraint was necessary to protect national security.

As Justice William Brennan wrote in his concurrence, "The First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result."

Battles is to be commended for quickly reversing himself when media organizations challenged the constitutionality of his order. But the order should never have been issued in the first place.

Judge's order required a reversal 08/01/09 [Last modified: Sunday, August 2, 2009 4:54am]

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