As Near v. Minnesota–the case we’ve all been studying–made clear, prior restraints on publication infringe on the freedom of the press protected by the First Amendment. Despite the fact that the Near case set this legal precedent nearly 90 years ago, that hasn’t stopped the issue of prior restraint from making headlines or from threatening the free press.
Just last week, prior restraint became an issue in an L.A. trial for a Houston man accused of murdering several homeless people in the L.A. area. Journalists had originally been granted the ability to photograph an arraignment hearing for the defendant, Ramon Escobar. However, during the hearing, Escobar’s attorney objected and told the judge that the dissemination of photographs, film, or sketches from the hearing could cause an “identification issue.” Superior Court Judge Sztraicher then ordered the journalists to not publish any courtroom photographs. When the journalists asked for a clarification, Judge Sztraicher ruled that publishing courtroom photographs, film, or sketches would be considered a violation of a court order. The L.A. Times and the Associated Press challenged the order, and Judge Sztraicher reversed it one day later.
This situation is not an isolated one. According to Dan Laidman, a representative of the Times and Associated Press who challenged the order in a hearing, the U.S. Supreme Court has been overturning prior restraint court orders for decades. One of the most well-known of these cases, Nebraska Press Association v. Stuart, led to a landmark ruling that found prior restraints on media coverage during criminal trials to be unconstitutional. The judge in this case, Hugh Stuart, made an order restraining journalists from publishing the confessions that the defendant had made to the police, reasoning that the pre-trial publicity could get in the way of the defendant’s right to a fair trial. After the Supreme Court of Nebraska upheld the judge’s order, the case was brought to the U.S. Supreme Court. In the opinion of the court, Justice Berger wrote, “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights,” and characterized the press as “the handmaiden of effective judicial administration, especially in the criminal process.” The ruling ultimately decided that it was unacceptable to restrain journalists from reporting on a criminal case before the trial, unless a clear and present danger was present that would impede a fair trial for the accused.
This case of the Houston man on trial is no different. In both cases, concerned attorneys convinced a judge to bar journalists from reporting on an ongoing criminal trial, and in both cases, the journalists fought back to defend the free press–as they should have.
When we hear “prior restraint” or “censorship,” it’s easy to conjure up images of cases involving controversial newspapers, the government quashing citizen dissent, or journalists disseminating political secrets. It’s also all too easy to think of censorship cases as having a good guy and a bad guy; something along the lines of a courageous journalist standing up to an Orwellian government. Sometimes, however, issues that deal with the First Amendment can be as seemingly innocuous as journalists taking pictures in a courtroom, and can involve two parties that simply want to do the right thing in situations where the line between freedom and protection is so often blurred. But regardless of whether a case takes place on a local or national stage, whether it’s a courtroom sketch or an entire newspaper being restrained, prior restraint has no place among the free press. And in both 1976’s Nebraska Press Association v. Stuart and last week’s arraignment for Ramon Escobar, journalists did the right thing in standing up for their rights and those of the free press.