When contempt of court is deserved

The case for ignoring prior restraints

January 10, 2024
Avjoska via Wikimedia Commons

Prior restraints—or government orders not to publish information—have long been considered a quintessential First Amendment violation. The Supreme Court has never upheld one against the press, even when the government claimed grave national security threats. The potential for abuse of censorship powers is simply too vast for the First Amendment to tolerate.  

Prior restraints have historically been rare in lower courts as well. Even judges with little First Amendment expertise know better than to cross that line. When they do, appellate courts have expedited journalists’ emergency appeals to restore order.

But that seems to be changing. The Freedom of the Press Foundation’s US Press Freedom Tracker documented eleven prior restraints in 2023—the most since it started recording them, in 2017. Trial courts are ignoring clear-cut precedents when they find them inconvenient. And appellate courts are increasingly content to let prior restraints against the press gradually work their way through the system. As the wheels of justice grind, the news value of the censored content rapidly fades.

One Colorado journalist, Justin Wingerter of the Denver business-news outlet BusinessDen, isn’t standing for it. He’s refusing to comply with a prior restraint ordering him to return records that the court itself released. 

The ordeal arose from a case between the founders of a college-sports site called CaptainU and a company that bought the site and allegedly hadn’t made good on the purchase price. Judge Kandace Cecilia Gerdes of the District Court of Denver County granted the plaintiffs’ request to suppress filings that they said contained confidential and proprietary information. 

Wingerter submitted an open-records request for the documents, and the court clerk’s office complied. That prompted Judge Gerdes to issue an order on Nov. 30 demanding that Wingerter return the documents and destroy electronic copies. She also threatened to hold him in contempt if he disobeyed. Contempt of court is punishable by fines or jail time—though it’s questionable whether a judge has authority to hold in contempt a journalist who isn’t in their courtroom or a party to a case before the judge.

She also said future attempts to obtain copies of filings from the case without her prior written order would constitute contempt—essentially a unilateral declaration that open-records laws don’t apply in her courtroom. Remember, we’re talking about court filings discussing contract terms, not nuclear codes.

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The safest path forward for Wingerter would’ve been to comply with the order, file a motion asking Gerdes to reconsider, and, if that failed, appeal, and ask the appellate court to expedite the case. But the safest path for Wingerter isn’t necessarily the safest path for the First Amendment. Every time a journalist is forced to comply—even temporarily—with a prior restraint, it makes the safeguards that exist on paper less meaningful in practice. 

Journalists shouldn’t have to wait for a lengthy and expensive appellate process to overturn frivolous rulings before they can exercise their right to report the news. Instead of pleading with the court to reverse course, Wingerter filed a “notice of reason for noncompliance” on Dec. 1. BusinessDen then published his report on the sealed records three days later. 

“We don’t feel that the judge has the power of prior restraint,” Wingerter said. “So we didn’t see any reason to stop the reporting process. We just continued doing our jobs.”

That same approach has been used before. In 2022, the Bay Area News Group in California ignored a court’s order to the press not to contact senders of publicly filed letters in support of a teacher accused of sexual abuse. The News Group’s lawyers explained at the time that the First Amendment is “particularly hostile to prior restraints that prohibit the press from reporting information disclosed in court proceedings or government records.”

Like several other prior restraints this year, Gerdes’s order ignored at least four Supreme Court cases dealing with the same scenario—the government releasing records to the press by mistake—and holding that to be the government’s problem. Once the records are in journalists’ hands, courts have ruled consistently, they’re free to report on them. 

In the past, journalists have often taken the safer route—contesting prior restraints in court before publishing, as a way to avoid angering judges. But that logic collapses when trial courts aren’t even attempting to follow the Constitution, and appellate courts aren’t providing an efficient remedy to halt prior restraints.

James Goodale, former general counsel for the New York Times, described this conundrum in 1977: “If the press appealed, it lost the story, because appellate courts typically were not prepared to meet a printing schedule. Hence, the inevitable victory on the merits was Pyrrhic.” His case for treating legally indefensible prior restraints as invalid is even more compelling now, given that the Supreme Court has been making the law even clearer since the 1970s.

The law is useful only if judges respect it. But when the law on press freedom is not useful for them, they often don’t. And in First Amendment cases, even the most egregious violators face no consequences. It seems the only way judges are going to stop is if they learn that the press will disregard their orders, shame them on editorial pages, and dare them to imprison journalists for doing their jobs. Is that contempt of court? Maybe. But censorial judges deserve contempt.

Of course, we’re not suggesting journalists are obligated to risk jail time for contempt. That’s a personal decision. And there may be instances where judges conclude in good (albeit wrong) faith that such a drastic remedy is warranted. In those cases, it might make sense for news outlets to try to educate judges through an appeal or a request to reconsider, rather than flout their orders.

But news organizations should keep in mind a recent case from Missouri. 

Last May, officials accidentally released the mental health evaluation of a man suspected of killing a police officer. Shortly thereafter, Circuit Court Judge Elizabeth Hogan prohibited the St. Louis Post-Dispatch from reporting on it. The Post-Dispatch challenged the ruling, but, after sitting on the case for months, Hogan refused to lift the restraint, issuing an opinion that ignored the Supreme Court’s repeated instructions. A Missouri appellate court has declined to intervene.

This case seems germane to decisions on whether to contest or ignore unconstitutional prior restraints: BusinessDen published its story within days of receiving the court documents, whereas, almost eight months after Hogan’s prior restraint, the Post-Dispatch remains censored.  

They say it’s better to ask for forgiveness than permission. But journalists don’t need either to publish government records. Outlets like BusinessDen should be commended for not stooping to ask. And the next censored news outlet should seriously consider doing the same.

Seth Stern is a First Amendment lawyer and the director of advocacy for the Freedom of the Press Foundation, a nonprofit organization dedicated to protecting public interest journalism.