Informal Court Action Can Be Prior Restraint, Kennedy Says

Article excerpt

First Amendment lawyers predict an April opinion by U.S. Supreme Court Justice Anthony M. Kennedy in a case brought by a Florida broadcaster is likely to be cited favorably in future cases involving do-not-publish orders.

Although Kennedy denied a request by First Coast News for a stay of trial court orders that threatened criminal prosecution if the media re-published grand jury testimony by accused killer Justin M. Barber, he acknowledged that "informal procedures undertaken by officials and designed to chill expression can constitute a prior restraint." Warnings from a court have even more weight, he added, which also bears on whether an order is a prior restraint.

"A threat of prosecution or criminal contempt against specific publication raises special First Amendment concerns, for it may chill protected speech much like an injunction against speech by putting that party at an added risk of liability," Kennedy wrote in his April 15 opinion in Multimedia Holdings Corp. d/b/a First Coast News v. Circuit Court of Florida.

After a Florida appeals court refused in March to review the case, First Coast appealed to Kennedy, the circuit justice for the geographic area that includes Florida. The broadcast outlet argued that the orders issued by Judge Robert Mathis last summer constituted a prior restraint in violation of the First Amendment.

But because Mathis is now retired, and because the state's attorney "suggested" that further publication would not be prosecuted, Kennedy found no reasonable probability that four U.S. Supreme Court justices likely would agree to take the case - the standard for granting a stay application. Kennedy's ruling essentially freed First Coast News to re-publish the grand jury transcript. Barber's trial is expected to start in June.

"With this ruling the station can now air the material, and we have a U.S. Supreme Court opinion of lasting value on the prior restraint issue," said First Coast attorney George Gabel of Holland & Knight in Jacksonville, Fla.

Ronald K.L. Collins of the First Amendment Center in Arlington, Va., agreed, saying Kennedy "came up with a way of allowing the press to have their cake and eat it too."

"I think that opinion is going to be quoted a lot in prior restraint cases," Collins said.

Attorney Nathan Siegel of Levine Sullivan Koch & Schulz in Washington, D.C., said Kennedy's opinion in no way diminishes constitutional protection against prior restraints. …