Sotomayor and Open Courts

Noted First Amendment lawyer Floyd Abrams has an op-ed in The Wall Street Journal today recounting two cases he tried before Judge Sonia Sotomayor.

One came after a state court judge issued a gag order forbidding publication of juror names. Abrams, representing a coalition of press groups, appealed to federal court to lift the gag order. Abrams argued that the ruling violated prior restraint, the principle that the government cannot prevent publication of information. But Abrams also argued that the state court judge’s move quashed the press’s right to report information that comes to light in open court.

This was, I said, one of the rare legal rules that were truly absolute.

Judge Sotomayor quickly responded with a series of questions about whether I really meant that the rule was absolute. Yes, I said, I meant it.

What if, she asked, there was some emergency that required a brief halt on publication and to do otherwise would cause grave harm? If the information was already revealed in open court, I said, neither the press nor anyone else could be prevented from revealing it.

Suppose, she said, a hired mob assassin stood up in open court and announced that 20 minutes later a particular person would be killed if the information were made public. Did I really mean that even in that circumstance the courts were without power to act?

Good question. Too good. I paused, concerned that I was wearing out my welcome by taking what increasingly seemed (because of Judge Sotomayor’s questions) a far too extreme position.

I made a last try. If that occurred, I said, you could lock the doors of the courtroom to keep the press and everyone else from leaving, but you could not enter an order barring them from publishing what they had heard in court.

She looked at me in a bemused way. I looked away and started talking about something else.

We won the case a few weeks later. Judge Sotomayor’s opinion concluded that the order barring publication of the juror names was unconstitutional because it was a prior restraint on speech and because the information had been revealed in open court.

But Sotomayor’s decision contained two sentences suggesting that it was possible to envision a situation where the right to report information revealed in court was not absolute, though she noted that such a situation, “if any” would be due to “exceptional circumstances.”

Just what those circumstances might be would be an interesting question for a Senator to ask Sotomayor as her Supreme Court confirmation hearings start on Monday.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.