Constitutional Prior Restraint in Media Coverage of Sexual Assaults

Prior restraint is one of the most egregious threats to our First Amendment right of freedom of expression. The Constitution's framers intended the doctrine against prior restraint as a reaction to the British licensing system. However, we move into more subjective territory when issues of court orders and injunctions arise. The Supreme Court has established that any effort to restrain publication carries with it a "heavy presumption against . . . constitutional validity" (New York Times Co. v. United States, otherwise known as the Pentagon Papers case). Some members of the press have argued that court injunctions and gag orders that prevent them from publishing the details of a legal case do not meet the "heavy burden" of proof established by the court, especially when dealing with a high-profile case. Supreme Court Justice Brennan has argued against the existence of injunctions: "Commentary and reporting on the criminal justice system is at the core of First Amendment values, he would hold, and secrecy can do so much harm 'that there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by which the information is obtained' (Nebraska Press Ass'n v. Stuart)" (as quoted here). In People v. Bryant, just such a case, the court ordered that transcripts of in camera (in private) proceedings that were accidentally leaked to the press could not be published. The seven media entities involved filed a petition against the injunction, claiming it was an unconstitutional form of prior restraint. The Supreme Court of Colorado upheld the decision, finding that the scope of the order (as they had rewritten it) was narrow enough for it to be constitutional and in the interest of the public and recognizing that "protecting the privacy of rape victims is a highly significant state interest" (Justice Hobbs, Opinion of the Court). The 4-3 decision indicates, however, that this state interest may not be enough to overrule Justice Brennan's earlier opinion.

Jeffrey Matrullo built an argument that the press has a right to complete and accurate information, no matter what, in his Spring 2005 article in the Connecticut Public Interest Law Journal. Part of the function of the press, he writes, is to keep the public informed and to "impose checks on government abuses." He goes on, in what only amounts to a sycophantic attempt to appeal to justices, Matrullo contends that if the public does not receive sufficient information about a trial, they will think that the system has failed or been corrupted. But this is why Supreme Court justices have lifelong terms—they needn't worry about public opinion, only the interpretation of the law.

Matrullo makes a legitimate point when he frames the Bryant ruling in contradiction to several historical precedents. For instance, in Florida Star v. B.J.F., the details of a sexual assault case were accidentally put in the press room at a Florida police department, and the Star published the victim's name. The SCOTUS overturned the lower courts' rulings, stating that the paper had a right to assume that it had lawfully obtained the information. Throughout the case, though, the justices emphasize the importance carefully determining the facts of the case to discern whether the prior restraint could be justified. The court even explicitly states that "in a different case, the results might be different." This decidedly neoliberal attitude in favor of ad hoc judgment ensures that victims' rights will be carefully measured against the First Amendment right of the press.

To continue in the case-by-case tradition, let's consider the Bryant case on its merits. When the victim's name, personal contact information, and other very personal information was made available to the public, her security was put in great danger; in fact, the victim was so negatively affected by the leak that she dropped the charges in an effort to escape the undue public scrutiny forced upon her and her testimony. So, public access to this information made the victim stop cooperating with the prosecution and would act as a deterrent for future victims of sexual assault—a crime that is already drastically underreported.

As for the assertion that releasing this information is in the public interest, I think Paul Grobman of the Boston University Law Review said it best (keep in mind that the leaked information in Bryant contained the same material that would be present in a rape shield hearing, which decides whether a victim's sexual history should be admissible evidence):

It is not clear that access to the rape shield hearing would promote the public perception of fairness or provide an outlet for community hostility and emotion. The rape shield hearing focuses not on the actual events at issue, but only on proof of the victim's prior sexual conduct. Access to a proceeding which examines the victim's conduct rather than the defendant's might actually delegitimize the criminal system and increase rather than lessen community hostility. Exposure to the proceeding would prove especially upsetting to women, the primary victims of rape, by convincing them that the criminal justice system is slanted against them.