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Media Have Weapons in Battles With Courts

August 04, 2004

Re "Bryant Case Latest to Show Tighter Rein on the Media," Aug. 1: Since Supreme Court justices increasingly "have been willing to stand back and allow lower courts to issue" prior restraint orders prohibiting the press from publishing information it lawfully obtained, perhaps media should start fighting back in at least one of three ways.

The first would be to make such information public before a gag order could be obtained and served. This can be done quickly and easily by placing it on a website, even if marked "draft" or "raw feed."

The second would be to immediately e-mail the material to other journalists, located outside the court's jurisdiction, with permission to publish it 24 hours later if it hadn't already been made public. This is perfectly legal for both parties.

A third would be to consider defying blatantly unconstitutional prior restraint orders if that's necessary to obtain judicial review, just as reporters routinely defy orders to disclose sources even when the law clearly requires disclosure. This would ensure that the public's 1st Amendment right to receive the information is protected. It might also force courts to address the constitutionality of prior restraint orders.

John F. Banzhaf III

Professor of Public Interest Law

George Washington University Law School


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