A unanimous panel of California's 2nd District Court of Appeal has at last cleaned up a shameful legal mess, ordering L.A. County Superior Court Judge Hilleri G. Merritt to end her prior restraint on the Los Angeles Times.
Earlier this month, after first granting The Times the right to photograph a criminal defendant appearing in her courtroom, Merritt changed her mind and ordered the paper not to publish the lawfully taken picture. The Times, showing more respect for the law than Merritt did, obeyed her order while it appealed, first to her to reconsider and later, when she refused, to the higher court. On Thursday, that court inevitably concluded, as it was required to, that she had violated the 1st Amendment.
Writing for himself and two colleagues, Justice Sanjay T. Kumar produced a stark reminder of just how far Merritt had strayed from well-established law in waging her campaign against open courts and a free press. Riffling through citations, the court noted that "an order enjoining publication of a photograph of a suspect in a pending court proceeding is classic prior restraint of speech." Publishing "lawfully obtained, truthful information about a matter of public significance cannot be restrained unless it is necessary to protect a state interest of the highest order." And the "barriers to prior restraint remain high and the presumption against its use continues intact." Not once, as Kumar made clear, has any appellate court concluded that those barriers could be overcome in a case such as this.
Prior restraints have been ruled invalid when grave ramifications weighed on the other side. Most famously, the U.S. Supreme Court held such restraint to violate the Constitution when the New York Times began publishing the Pentagon Papers and then was forced to stop because the Nixon administration secured an order blocking publication. The paper obeyed but appealed, and it won in the Supreme Court, which found that not even claims of national security outweighed the right of the press to proceed without prior government restraint.
Those are not hard precedents to understand, but Merritt managed to ignore them, whistling past the 1st Amendment in a case she knew she would lose. Thankfully, other, more conscientious judges have overruled her and restored some reason to this episode of judicial arrogance.