A generation ago, media lawyers could invoke the words “1st Amendment” and “prior restraint” confident that judges would agree that their news organizations had a constitutional right to publish truthful information about newsworthy matters, says the Los Angeles Times. These days, media lawyers say the same words, but they are not so confident that judges will agree with them. The Kobe Bryant case is only the latest in which judges did what was once nearly unthinkable. When a court clerk mistakenly e-mailed seven news organizations the transcript of a closed-door hearing, Judge Terry Ruckriegle issued an order forbidding the news media from disclosing the information–an order upheld by the Colorado Supreme Court.
Courts “are chipping away at the prior-restraint doctrine,” said Lucy Dalglish of the Reporters Committee for Freedom of the Press in Arlington, Va. “It seems like when it involves the courts, the judges are willing to take a different view. They always say, ‘Yes, the 1st Amendment is very important, but….’ ” She cited recent examples, such as when publishing the names of jurors in a case was prohibited. “There is a move toward secrecy,” said Los Angeles media lawyer Gary Bostwick. “We see it in the courts.” Jane Kirtley, a media-law expert at the University of Minnesota said that, “Many judges are taking a pragmatic approach.” Rather than apply a clear rule of law against “prior restraints,” they are inclined to balance the freedom of the press against the rights to privacy and a fair trial, she said. Sometimes, the balance favors the press, and sometimes it does not.