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Mahony E-Mails Revive 'Prior Restraint' Issue


When Cardinal Roger M. Mahony's attorneys failed to persuade a Los Angeles judge on Thursday night to block media outlets from publishing some of Mahony's confidential e-mails, the cardinal met the same fate as many powerful interests over the past 70 years.

Since the landmark 1931 U.S. Supreme Court decision in Near vs. Minnesota, it has been very difficult for individuals, large corporations or even the U.S. government to get a "prior restraint" against the press.

That landmark decision, written by Chief Justice Charles Evan Hughes, struck down a Minnesota law seeking to curb so-called "yellow journalists" of the era. The ruling, a ringing endorsement against state censorship, has grown in power over the years.

By 1976, the Supreme Court said that prior restraints constitute "the most serious and least tolerable infringement on 1st Amendment rights" and are "presumptively unconstitutional."

But that hasn't stopped efforts to obtain court orders blocking the press from publishing sensitive material, said Jane Kirtley, professor of media, ethics and law at the University of Minnesota.

"Lots of people think their claim is different, unique," only to be disabused of that notion, Kirtley said. She acknowledged that trial judges sometimes order such restraints and on rare occasions those restraints are upheld by appellate courts.

On Thursday, at a hearing that started at 10:30 p.m. after urgent pleas from the Los Angeles Archdiocese, attorney Donald H. Steier expressed anguish at the prospect that the Los Angeles Times would publish previously confidential e-mails between Mahony and an archdiocese lawyer about the sexual abuse scandal engulfing the church. Steier cited a California statute that prohibits "use" of material that was illegally obtained.

But Kelli Sager, the attorney representing The Times, countered that a 2001 Supreme Court decision held that news media have a free-speech right to publish lawfully obtained information of public concern even if the media's source illegally intercepted phone calls or electronic transmissions.

Steier then conceded that he could cite no case to trump the one Sager relied on and Superior Court Judge David Yaffe did what hundreds of others have done over the past seven decades--denied the request for a prior restraint.

Indeed, media organizations prevail in the overwhelming majority of cases where prior restraints are sought. In the landmark 1971 Pentagon Papers decision, for instance, the Supreme Court rejected the government's contention that U.S. "national security" would be gravely endangered if a secret history of the Vietnam War were published by the New York Times.

Still, the court cautioned, as had Hughes 40 years earlier, that there could be situations where a prior restraint was justified--citing the possible publication of troop movements in wartime. The court never has been confronted with that set of facts, though.


Conflict of Free Press vs. Fair Trial

Prior restraints frequently are sought in situations where an individual charged with a crime asserts that publication or broadcast of certain information will endanger his 6th Amendment right to a fair trial.

The seminal case on the "free press-fair trial battle" arena came to the Supreme Court in 1976. A Nebraska trial judge had issued an order forbidding the press from publishing a murder defendant's confession that had been discussed in an arraignment attended by reporters in a small town. The judge said the order was necessary to protect the defendant's 6th Amendment right to a fair trial.

Although the justices acknowledged that publicity about the confession "might impair the defendant's right to a fair trial," the Supreme Court, in Nebraska Press Assn. vs. Stuart, overturned the prior restraint, saying that such orders violate the 1st Amendment.

The court said that a party seeking to restrict what could be published would have a "heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial will be denied."

The justices also said "pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial."

Over the past quarter-century, the Supreme Court and many appellate courts have rejected prior restraints in a variety of situations.

The degree of protection afforded the press in situations where it has lawfully obtained information--regardless of how a source obtained the material--was vividly illustrated in the celebrated narcotics case involving auto mogul John Z. DeLorean.

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