Judge Bars News Station From Showing Pictures In News Story, Admits It's Prior Restraint, Shrugs
from the you-kinda-can't-do-that dept
Amid an uptick in stories about courts issuing restraining orders that amount to prior restraint on speech, it’s worth remembering that prior restraint is generally viewed as plainly unconstitutional except if it is applied narrowly and for dire reasons such as national security concerns. Despite that, prior restraint has come up quite a bit as of late, in cases ranging from trademark disputes between comic conventions to mattress review sites to anti-abortion activism. These expansions of prior restraint should concern anyone interested in free speech, of course, but it takes a special kind of judge to not only issue a prior restraint order against a news organization, but to admit it and say he doesn’t care.
Michigan’s WXYZ Channel 7 news team were contacted by Mila Kapusta and several other families asking that attention be paid to issues in the probate guardianship system. These families were frustrated with outcomes and procedures in the probate court as family’s battle over custody of loved ones amid family disputes. Kapusta, for instance, had sought guardianship over her parents, which is currently held by Kapusta’s sisters, Sandy and Lorrie. As part of its reporting on the story, WXYZ was going to include photos of the parents, Janet and Milan Kapp, provided by Mila Kapusta.
That is, until a judge stepped in and issued a restraining order preventing the footage from airing.
Just hours before the story was supposed to air last Thursday, Lorrie and Sandy Kapp got a judge to issue a Temporary Restraining Order, preventing us from showing you old family pictures that had been provided to us by their other sister, Mila.
Tuesday during a show cause hearing, Judge Daniel A. O’Brien continued that restraining order, saying his job was to protect Mr. and Mrs. Kapp, who are now in their 90s.
Perhaps you are thinking that Judge O’Brien didn’t realize how grossly he had overstepped his legal authority. Perhaps, you may be thinking, even judges have bad days, make mistakes, perhaps with the best of intentions in mind. Perhaps, however, you should have a look at Judge O’Brien’s comments on the matter.
“I am granting the injunction against Channel 7 and they are restrained. It is in fact a prior restraint I gotta admit, but they are not to use any photos or video of Milan and Janet Kapp in any broadcast,” said Judge O’Brien.
Whatever the narrow scope for prior restraint you might think is acceptable, this situation simply doesn’t fit the bill. Preventing a news organization, of all entities, from airing pictures of two key subjects in a story that absolutely is of the public interest, all in the name of protecting two elderly people, is without any legal justification that I can think of.
For its part, WXYZ isn’t simply going to take this laying down.
WXYZ’s attorney Jim Stewart argued that Judge O’Brien’s initial restraining order was unconstitutional.
“A court cannot order someone not to publish something. It’s called a prior restraint of speech and it’s been held to be presumptively unconstitutional,” said Stewart. “You can’t have the government telling somebody what they can and can’t say when they’re covering a newsworthy event,” said Stewart.
Because WXYZ cannot allow Judge O’Brien’s order to set a precedent for other government officials limiting our news coverage – as protected by the First Amendment – we are appealing his order.
For the sake of our most basic freedoms, here’s to that appeal (embedded below) succeeding with speed.
Filed Under: daniel a. o'brien, family court, first amendment, free speech, janet kapp, milan kapp, prior restraint
Companies: wxyz
Comments on “Judge Bars News Station From Showing Pictures In News Story, Admits It's Prior Restraint, Shrugs”
Well at least the judge did one thing right...
By flat out admitting that even they know it’s prior restraint, and basing their ruling on what looks like very shaky ground(‘it’s justified because having the images shown might stress the individuals shown enough to kill them’, pg 16-17) they all but ensured that the appeals should be over really quick.
Constitution, Constismooshion... Who cares...
“I am in fact violating the constitution, I gotta admit… but it’s the friggin constitution… Who cares… free speech is an annoyance anyway”… Which is basically what his response comes across as. Where do they get these guys from?
Re: Constitution, Constismooshion... Who cares...
“but it’s the friggin constitution… Who cares… “
no one…
You can find plenty of folks here that don’t care about it or even understand it either.
Re: Re: Constitution, Constismooshion... Who cares...
no one with any influence
ftfy
Re: Re: Re: Constitution, Constismooshion... Who cares...
nope, pretty much no one.
I have yet to find a single human other than myself that actually believes the law should follow the constitution to the letter that means 100%. Sure they like “some” parts of it, but are more that willing to destroy other parts for political expediency.
If you are okay with sacrificing just one liberty for expediency then you are okay with sacrificing them all, because… why should you be the only one allowed to sacrifice liberty for your politics?
Re: Re: Re:2 Constitution, Constismooshion... Who cares...
Except you
Re: Re: Re:3 Constitution, Constismooshion... Who cares...
Care to put it to the test? Answer some of these questions.
On the 1st
Can the government put a citizen or contractor in jail for giving the media classified information?
On the 2nd
Does a citizen have the right to own a fully automatic weapon?
On the 4rd
Are the police allowed seize anything without a warrant?
On the 5th
Are the police able to take your property permanently without a trial?
On the 6th
When was the last time you ever heard of a speedy trial? When is speedy? Long enough for you to lose your job but still get out to see your home foreclosed?
On the 7th
Are people still able to constitutionally sign away their right to trial by jury?
8th Amendment
Excessive Bail is set the vast majority of the time. Excessive Fines are used to bilk citizens at all levels of government. Traffic, Court, Regulatory, and Criminal… pretty much all are excessive.
9th…
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” — DAYUM… we totes missed that one.
I guarantee you will fail at least one of these, because you are too afraid to stand for rights, out of fear that someone is going to call you crazy, for actually standing for liberty!
Re: Re: Re:4 Constitution, Constismooshion... Who cares...
Not sure what you are going on about as I was simply commenting on how you are the only one in the known universe who understands all this.
Re: Re: Re:2 Constitution, Constismooshion... Who cares...
The First Amendment says the government cannot make a law that abridges speech. If the law followed the Constitution to the letter, the government could not make a law that punishes someone for what we today would call “illegal speech” (e.g., threats of violence, defamation).
Perhaps you believe that all speech should be legal. Perhaps you believe the government should not have the right to ban or punish any kind of speech. You are free to do so. But you will find few other people who share that view. The laws of the United States—including the Constitution—will often abridge some of our freedoms to protect the rights of all others. Society could not function without that compromise.
Re: Re: Re:3 Constitution, Constismooshion... Who cares...
I personally am of the belief that where a constitution has a process for changing it (hello 27 ratified amendments to the US constitution), then it should be followed to the letter.
If you want to make hate speech illegal, then an amendment should be instituted to make that exception to the 2nd amendment.
Re: Re: Re:4 Constitution, Constismooshion... Who cares...
sigh, that should be “1st amendment”.
Re: Re: Re:4 Constitution, Constismooshion... Who cares...
I did not, nor will I, call for the outlawing of hate speech. Doing so would require me to have as narrow a legal definition of “hate speech” as possible to prevent the prior restraint of or after-the-fact punishment for lawful speech. But no court in the land has yet delivered such a definition, so my doing it is damn near impossible.
And again: If the First Amendment must be followed to the letter, no one could be punished for “illegal” speech, as it would be an illegal government action against “free expression”. The view that all speech—even speech that directly asks people to break the law and possibly even hurt others—must remain legal and protected is an extremist view of the principles of free speech. If you can give me a good reason why a person should not be punished for asking a bloodthirsty mob to kill someone, I would love to hear it.
Re: Re: Re:4 Constitution, Constismooshion... Who cares...
So basically, 2nd Amendment means fully automatic weapons, mortars, bazookas, guided missiles, tanks…
…or maybe, just maybe, there are limits for people not in the Armed Forces or National Guard.
No Amendment can be absolute without society itself being compromised.
By the way, what is your stance on ex-felons voting? Any reason to abridge that right?
While we are at it, how about 10-year-olds voting?
Re: Re: Re:5 Constitution, Constismooshion... Who cares...
I would suspect that many of those things you have listed would not be allowed under the 2nd Amendment even if read literally, as individual words would still need interpretation/definition. E.g, "bear arms" I would interpret to at the very least limit it to individual arms, no crew-served weapons, only those able to be carried and used by a single individual.
But whatever the case, I think it should have been further clarified in actual additional constitutional amendments, rather than left to the courts. The courts are there to interpret the constitution, not to define their own version of it.
I don’t think ex-felons should have their voting rights removed. I can accept an argument, reluctantly, that serving felons shouldn’t have the right to vote. But ex-felons? They should have all their rights re-instated on becoming an ‘ex’.
My understanding is that voting rites are state-specific, not federal. Therefore isn’t it up to each state to decide on that state’s voting criteria (as long as it doesn’t run afoul of the various discrimination clauses/amendments)?
But, since voting is voluntary, I don’t see it likely that allowing 10-year-olds to vote would change much, as I doubt many 10-year-olds would be interested enough to vote.
Those factors aside, I think the voting age should be no higher than the age of legal competence (or whatever it is called, the age when you are legally responsible for your actions and can be tried as an adult), this age is around 14 in many jurisdictions.
e.g.
Re: Re: Re:6 Constitution, Constismooshion... Who cares...
It would have some effect, as their parents would be interested in getting them to vote. The more children you have, the more votes you control as they become old enough to vote.
Re: Re: Re:5 Constitution, Constismooshion... Who cares...
I presume that the "Armed Forces or National Guard" reference is to the "well-regulated Militia" portion of the 2nd Amendment, and to the fact that the courts have held that the National Guard is the militia in question?
I have a somewhat different reading of that aspect of the 2nd Amendment, and one which as far as I know has been adopted by no court, probably in part because if followed to its logical extreme it would require disbanding the standing Armed Forces entirely. And yet, I think there’s an argument to be made that that is the intent underlying the 2nd Amendment, and that if we want to diverge from that intent we should adopt another amendment.
My logic is roughly:
The screams from the right wing at any proposal to do either of those things would be of legendary proportions, and yet I don’t see any way to reconcile a standing military with the assumption that having a well-regulated militia requires that the people be permitted to keep and bear arms.
Re: Constitution, Constismooshion... Who cares...
The reason this (and the previous TD article) is happening is because we are gradually turning into a police state. We don’t want that to happen. The people making it happen probably don’t actually want that to happen. They are just too focused on their short term wants without considering the long term consequences as this gradually slides down the slippery slope.
We probably crossed the slippery slope a long time ago and are already in the process of sliding down right now. We will reach the bottom eventually. At some point everyone (who could change things) will wake up and flail around trying to fix it. But it may be too late. We could end up with a madman in power with no checks and balances. Or mad courts. Or mad legislature.
It’s the three ring circus of government:
1. Legislative ring
2. Judicial ring
3. Executive ring
Re: Re: Constitution, Constismooshion... Who cares...
and I think we all know who the clowns are.
Re: Constitution, Constismooshion... Who cares...
When there’s no penalty for violating it, the Constitution ceases being the supreme law of the land and becomes a mere "suggestion" instead.
Hang the Judge
When a judge clearly makes a bad call, the courts lose the trust of the people and the authority granted to them by people.
Re: Hang the Judge
That happened a long time ago and we need to remind people of this.
Aaron Walker knows a bit about what happens to judges who think it’s fine to give out such blatant prior restraints.
Freedom of speech
“Freedom of Speech… Just Watch What You Say!” – Ice-T
That is the kind of case where I wonder what would have happened if they just ignored the judge and aired the photos. I’m sure the judge would have blown his lid, but then you just go to court and point to the judges own written statement on the matter and walk out.
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That is sadly about what I expected. They can issue an order violating your rights, knowingly doing so, and it stands until you can waste time and money getting that thrown out. In the mean time absolutely noting will happen to the judge who will keep issuing these kinds of orders. Our legal system is really screwed up.
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So, apparently, they have to at least attempt to appeal – but if the courts delay the appeal, they can take their chances and hope it’s found unconstitutional.
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In the First Circuit.
Matter of Providence Journal (1988)
Re: [what would happen if]
Well, the Supreme Court suggested in Gompers v. Buck’s Stove, 221 U.S. 418 (1911) that the outcome would not be good. There, they affirmed contempt for violating a patently unconstitutional prior restraint against saying “we do not patronize this business”.
Yes, it is a shameful case. Yes, it is still the law of the land. So is Korematsu v. US. For that matter, so is Wickard v. Filburn, an incredible overreaching of the commerce clause leading to incredible mischief.
Re: Re: [what would happen if]
O RLY?
Gompers v Buck’s Stove (1911)
(Emphasis added.)
The Supreme Court reversed and remanded with directions to dismiss.
That’s not affirming.
Re: Re: Re: [what would happen if]
You’re right, I forgot that detail. It was sent back for civil contempt because the court had treated it as criminal contempt, which will not lie in such cases. Gompers at 452.
I’m so sick of hearing judges say they have a duty to protect people. They do NOT. Their duty is to UPHOLD THE LAW. Protection for people in a court of law is provided by the law itself, their attorneys and, if necessary, guardians ad litem.
I’m especially sick of hearing presidents say that they have a duty to protect the American people. This is absolutely and unequivocally wrong. The president’s oath of office is to protect and defend the CONSTITUTION. It says nothing of the American people. The American people can protect ourselves. That’s why we have a citizen military and a second amendment right to bear arms.
For reasons like prior restraint being shrugged off with a “meh”; presidents, congresspeople, and judges ignoring their oaths of office; and the fact that concepts like civil asset forfeiture even exist in U.S. law, our founding fathers must be spinning in their graves.
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“Protection for people in a court of law is provided by the law itself, their attorneys and, if necessary, guardians ad litem.”
LOL – and Santa Claus is real, there is an Easter Bunny and the Tooth Fairy is also real – Hahahahahaha
Ok … no duty to protect the people written within their oaths of office – I’ll take your word for it. If there were no people left to represent, because you do not care what happens to them, then you are a president of what?
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When judges ignore the law, and the president ignores protecting the constitution, you have no protection from the government doing whatever they want to you, because the laws, including the constitution, are what protect you from the government.
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So, what you are saying is – that the government has
…. a duty to protect the people.
I agree. Even if it is not included in their oath of office. (as if they keep their oaths)
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The government has a duty to uphold the laws of the land. It does not have a duty to protect every last person in the land. It could neither do so with expedience nor foresee every possible danger from which people need protection.
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Example; If the law says that you should not kill people then the government (AG) has a duty to ensure law enforcement (DA/LEO) does not allow the killing of people.
See how that works?
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I would hold back on using that example. Society gives all people the legal latitude necessary to protect both themselves and others in the face of an imminent violent threat. LEOs require such latitude as well, given how they often act in defense of others. And LEOs can do their best to prevent crime whenever possible, but they cannot ensure prevention of all crime before it happens.
If you want to question whether the government should have the right to execute people, however, I am more than willing to listen. (Fuck the death penalty.)
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And really, I think this very response goes to illustrate the very naive and infantile understanding and expectation that the American people have come to with respect to government as a whole. This just shows how it is becoming more widely accepted that the government should fit the role of a protectionist nanny leaning increasingly towards authoritarianism. Every passing year yields the addition of another group or interest clamoring for their own special protections. The very concept of ‘freedom’ is being twisted and bastardized; where once it was intended and understood to mean personal agency and independence, it seems to be more and more contorted to mean ‘freedom to not have to experience things I don’t like’. It really feels like people are willing to employ government to undercut their own liberty and agency if the immediate aim of avoiding even a modicum of strife is met.
The result? A response argument consisting entirely of a bizarre series of nonsense ‘what ifs’ and references to fairy tale characters presented in the context of upholding government protectionist ideology. Meanwhile, in the real world, this very mindset is precisely what is employed by such as the judge in this story as justification of ends justifying the means.
If I failed at any aspect of my job as grotesquely as this judge did at upholding the law and the Constitution (HIS job), I would be summarily dismissed and escorted from the premises by security.
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Way to miss the point, good job.
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“You don’t need any personal weapons, the police are there to protect you.”
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Works fine in Europe. And don’t quote me Paris – I’ll raise you Vegas… Terrorism is a special and unusual case.
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In fairness, marginalized people should not experience discrimination based on who they are—e.g., because they are gay—so passing laws that punish such discrimination and protect the civil rights of those people does not create a burden for anyone but bigots.
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NO ONE should. Everyone WILL. Gay, straight, black, white, you name a trait and someone has had to contend with discrimination of one form or another. Making assertions that no one is burdened other than bigots is fallacious and absurd. The single biggest flaw in the very concept of passing such laws is that there really is no metric for determining actual discrimination. It all ends up coming down to some person not getting their way and then looking into a mirror to see what attribute they can exploit to paint themselves as some sort of victim so they can cry ‘discrimination’ until they get what they want.
There should only be equality under the law. Yes, that law should apply equally to everyone of ALL clases. Perceived civil injustice should require a much higher burden of proof than it currently does, but here once again that would require actual effort to be made. but apparently it’s much easier, for example, for someone to have a disagreement with a family member and run to a protectionist judge for an injunction than to solve their own bloody problems privately, constitution be damned.
But by all means, continue on with corroding all of our civil rights for the sake of ‘muh special status’.
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If you are refused service, that is discrimination. Anyone who says otherwise must prove that wrong—and they cannot.
If you are discriminated against because of your age, race/ethnicity, sexual orientation, gender identity, biological sex, religious beliefs, or even disability status, that should warrant action from the government. I fail to see how disallowing such discrimination is a burden to anyone but bigots.
You know that bakery out in Colorado that has a case going before the Supreme Court? They flat-out refused to serve a potential customer because they were gay. They do not deny refusing to bake a wedding cake for a same-sex couple; if anything, they have made it a point of pride. In cases of discrimination where no proof exists that it was carried out as an act of overt bigotry, I can understand having reasonable doubts. But when the discriminating party says they did it for bigoted reasons? Take them at their word.
I agree. If gay people should not be discriminated against for being gay, straight people should not be discriminated against for being straight. Same goes for race/ethnicity, gender identity, biological sex, etc. If the law protects the minority from the majority, it must also protect the majority from the minority, no matter how little sense that might make to the minority.
Judges do not hand out injunctions because you disagreed with your cousin Bobby about whether the Cowboys are better than the Patriots.
I will continue to fight for a country that gives to all peoples equal status and treatment under the law. I will continue to champion protections against unjust discrimination for minority populations. Like I said: People do not deserve to face discrimination based on who they are. If you consider that such an undue burden upon your freedoms, ask yourself whether you believe your freedoms should override another person’s civil rights.
What is the difference between a dead deer in the road and a dead lawyer in the road? There are skid marks in front of the deer. And they wonder why Teflon Don is POTUS.
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Not to be confused with the burnout marks leading to the lawyer.
Deeper issues in this case
If you look into the details of this case, you will find out that the laws have been abused to the point that judges are choosing “Special people” over family even when family are unified in asking for guardianship over elderly loved ones.
On top of this the evidence for asking elderly to go into guardianship is often presented with out the elder present in court, and is often shoddy and lacking and would often not pass a deep inspection. Also, wealthy elderly are the primary target of guardianship.
The result is that the courts have been just as involved in this illegal activity as other groups making it highly likely that they will protect themselves.
The problem is probate court
Based on my fortunately limited experience with probate court, it seems judges there have the attitude of "fxxx the law, fxxx the family, here’s your ad litem, fxxx the family again and go away before I get angry". I suspect the ad litem is usually one of their friends or is somehow giving kickbacks to the judge, and is mainly placed there to transfer funds from the bank accounts of those they are supposed to be guarding to their own. They seem to have no accountability and there is no recourse for misbehavior. From the article:
In the case involving my relatives, attempts to get some accountability of the ad litem were met with rebuke, the the point where they are now afraid to complain, and can only hope there’s some funds left in the account when they turn 18. The whole system is a disgrace. I would suspect exaggeration on the part of my relatives, except there are multiple websites dedicated to exposing this problem.
It is a bit confusing how guardianship requests are brought before the court. Is it the DA, social services, family members, … who is petitioning the court? Who is asking for control over the lives of others and why.
The fact that Judge Daniel A. O’Brien is on the probate court obviously has no bearing on his desire to keep a media outlet from reporting on questionable things happening in probate cases, where the courts have handed the care & money of the elderly who stuff them in substandard care & enjoy the cash for themselves.
He admitted what he did was unconstitutional, and somehow we are still going to have to give him his due process. A judge who knowingly does something unconstitutional really should get a time out while people go over his rulings. Hes willing to say what he wants trumps the constiution… much like the drug lab workers who faked tests while getting high on the drugs… everything he’s touched should be reviewed.
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It looks like a conflict of interest.
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Correction: A judge who knowingly does something unconstitutional should no longer be a judge. Whatever must be done to remove him from the bench for violating the Constitution with a blatantly illegal ruling, it should be done immediately. Every day that he retains his position is an additional blight upon the United States legal system.
Daniel A. O'Brien
This so-called judge is why there’s a Father’s Right’s movement across the country. He’s simply a kidnapping facilitator period-the ultimate lowlife..The real reason that there are rules regarding filming in court.