from the your-decision-is-bad-and-you-should-feel-bad dept
Prior restraint gets another thumping in court following a truly lousy injunction issued against a Las Vegas newspaper. The Las Vegas Review-Journal requested autopsy reports on victims of the Las Vegas shooting that left 58 dead. The coroner’s office refused and was sued by the newspaper. The judge ruled the paper had a right to access copies of the reports after they were stripped of identifying info.
All went according to the First Amendment until a family of one of the victims went to court seeking to prevent the publication of Las Vegas police officer Charleston Hartfield’s report. The family argued the report was “confidential” and not subject to disclosure under Nevada’s public record laws.
This led to a bizarre ruling by the Las Vegas court. First, the court decided there was “no public interest” in the publication of the reports, which was obviously not true. Then it decided just to block the publication of Hartfield’s autopsy. Given the fact the reports were stripped of identifying info before the paper received them, the Las Vegas Review-Journal had no way of knowing which report belonged to the Las Vegas cop. No problem, said the court, we’ll just send the government and the suing family into your offices to retrieve it.
The district court dismissed the Review-Journal’s concern that, because the autopsy reports were anonymized and redacted, it could not identify which report was Mr. Hartfield’s. As a solution, it directed the Review-Journal to allow the Coroner and the Hartfield Parties to inspect the reports at the Review-Journal’s offices, so that Mr. Hartfield’s autopsy report could be identified and all copies of it returned or destroyed.
In short, the court said the paper’s offices could be raided to take a single document from a batch of coroner’s reports out of public circulation. The paper filed an emergency petition with the Nevada Supreme Court, asking WTF is this.
The Supreme Court has delivered its ruling [PDF], undoing all the stupid, rights-infringing orders issued by the lower court. The following summary comes from Marc Randazza, who represented the paper (and the Associated Press) in this case.
The Nevada Supreme Court agreed with the RJ [Review-Journal] and AP, finding that the district court’s order was an unconstitutional prior restraint. It found that the order prevented a news agency from reporting on a matter of significant public concern, and thus there had to be a compelling reason to censor the RJ and AP, and the injunction had to be the least restrictive means of accomplishing it.
The Court found that, even if the victim’s family had a privacy interest in preventing dissemination of the autopsy report, the RJ and AP obtained the redacted report pursuant to a valid court order, and several other media outlets had already reported on it. While the RJ and AP may have been prevented from disseminating the autopsy report, they and others had already done so. Since the cat was out of the bag by the time the victim’s family sued, there was not a strong privacy interest in play. And since the district court’s injunction only restrained the RJ and AP’s reporting, it clearly did not do a good job of protecting any privacy interests. The Supreme Court thus vacated the district court’s order, meaning the RJ and AP are free to continue reporting on this issue of significant public concern.
The Nevada Supreme Court makes it clear the lower court screwed this one up.
The district court’s order enjoining the Review-Journal from reporting on the anonymized, redacted autopsy report it obtained from the Coroner pursuant to the order in the NPRA case constitutes an invalid prior restraint that violates the First Amendment.
This is something the Supreme Court of the United States has “roundly rejected,” as anyone who’s done nothing more than watch “The Big Lebowski” can attest. Furthermore, the target of any litigation following an alleged privacy violation of this type should be the government office that released the files, not the newspaper that obtained the records via a valid court order.
The Hartfield Parties see it as unfair to hold the Review-Journal’s possession of the redacted autopsy reports against them because they were not parties to and did not know about the NPRA case until the judge in that case ordered the reports produced. Mandatory Supreme Court precedent teaches, however, that where the press obtains private information from the state—even where the state should have protected the information—damages or criminal punishment may not be imposed for its subsequent publication, absent extraordinary circumstances.
It goes on to point out that violating RJ and AP’s Constitutional rights doesn’t undo the privacy violation alleged by the Hartfields. Two wrongs don’t make a right, especially when other news agencies had also published the same documents but weren’t targeted by the Hartfields in their lawsuit.
While the district court directed the Coroner to write letters advising other news organizations of its order, its order only restrained the Review-Journal and the Associated Press, requiring them to destroy or return Mr. Hartfield’s redacted autopsy report and enjoining them from reporting on it. Leaving other news organizations free to report on Mr. Hartfield’s redacted autopsy report while restraining the ReviewJournal and the Associated Press from doing so does not accomplish the stated goal of protecting the Hartfield Parties’ privacy interests.
Because the anonymized and redacted autopsy reports were already in the public domain, “[t] he harm that could have been prevented by the prior restraint has already occurred, and, because this harm has occurred, the heavy presumption against the constitutionality of a prior restraint has not been overcome.” Bryant, 94 P.3d at 642 (Bender, J., dissenting). In other words, any damage to the Hartfields’ privacy interests had already been done and the district court’s subsequent order could not remedy that damage.
It’s not that the government can’t engage in prior restraint. It can, but only under very extreme circumstances. The plaintiffs have to reach a very high bar to obtain this and the Hartfields’ case — given the fact that the documents were obtained lawfully and were already widely-disseminated — doesn’t even come close.