Nevada court ruling on Vegas victim’s autopsy raises prior restraint concerns

The Las Vegas Strip via Pixabay

With the nation focused on another mass shooting event, a legal battle in Clark County, Nevada is playing out in the aftermath of the Las Vegas concert massacre that left 58 dead. The case pits the privacy requests of one of the victim’s widows against the media’s right to report on the autopsies of the victims, raising concerns about government overreach and the invocation of prior restraint.

The slaughter of concert-goers by Stephen Paddock shocked the nation on October 1, 2017, but more than four months after that horrific night on the Las Vegas strip, many questions remain unanswered. In addition to the mystery surrounding Paddock’s motive, media outlets have investigated the response to the shooting, questioning whether proper contingency plans were in place and whether more could have been done to save lives.

For months after the shooting, the Clark County coroner’s office fought to prevent the release of autopsies on Paddock and his victims, but in late January, a District Court judge ruled in favor of the Las Vegas Review-Journal and the Associated Press in an action they brought demanding release of the reports. Last week, however, a different judge ordered the Review-Journal and the AP to destroy their copies of an autopsy report for one of the victims, vindicating the privacy concerns of the victim’s widow.

The ruling by Judge Richard Scotti, agreeing with the argument made by the widow of off-duty police officer Charleston Hartfield, covered only Hartfield’s autopsy report, and barred the Review-Journal and the AP from any further reporting on Hartfield’s autopsy details. But the news outlets had requested and received the autopsies in redacted form, meaning that it was impossible for journalists to determine which autopsy belonged to Hartfield.

This anonymization of records created a problem for the news outlets in following the judge’s order: To comply, they would have to identify which autopsy belonged to Officer Hartfield, thereby stripping him of the privacy his family valued. The following exchange comes from the Review-Journal’s report on the hearing:

The judge went back and forth between the lawyers, trying to seek a solution. He asked the widow’s attorney for a suggestion.

“To me, it’s relatively simple: Destroy everything that they have in their possession currently, and the coroner will send 57—not 58—autopsy reports,” [attorney Anthony] Sgro said. “And if they really don’t know, then they’ll never know which one they did not receive.”

The newspaper’s attorney shook her head.

“Let me proffer another approach,” the judge said. “We can have a representative from the coroner’s office go over there and look at the records that the Review-Journal has or the AP has and locate the particular record that we’re dealing with today, and we can destroy that one record. And the Associated Press, the RJ can maintain possession of the other records.”

In response to the ruling, the Review-Journal and the AP filed an emergency petition to the Nevada Supreme Court, arguing that Judge Scotti’s decision was an unconstitutional prior restraint, the suppression of material that journalists hope to publish or broadcast, on the grounds that it is harmful. “The judge applied absolutely the wrong legal test and essentially ignored the First Amendment issues at hand,” Maggie McLetchie, the attorney representing both news outlets, tells CJR. She acknowledged that going through victims’ autopsies might sound like a grisly undertaking to the public, but said, “Transparency is more important, not less important, in the aftermath of a tragedy.”

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On Wednesday, the Reporters Committee for the Freedom of the Press and the Nevada Press Association filed an amicus brief in support of the appeal, stating that the order violated the First Amendment. “To allow this prior restraint to stand would defy decades of well established US Supreme Court case law, send a chilling message to the press and the public by calling into question the news media’s ability to report on public records, and provide virtually no protection for the asserted privacy interests at stake,” they argued.

“The court’s order has effectively put a gag on the Las Vegas Review-Journal and the AP from reporting on the autopsy report that it actually received pursuant to a Nevada Public Records Act request,” RCPF attorney Caitlin Vogus tells CJR. “Not only is this case concerning because it is a classic prior restraint, but in many ways it’s even worse because here the news media obtained the information in exactly the method that you would expect them to—through a lawful request.”

For decades, the US Supreme Court has consistently held that prior restraints are presumptively invalid. In the 1976 case Nebraska Press Association v. Stuart, the Court called prior restraints “the most serious and the least tolerable infringement on First Amendment rights.” The Oscar-contending movie The Post deals with another landmark prior restraint case, in which the Supreme Court ruled that the government must overcome a “heavy presumption against” such efforts to prevent news outlets from publishing.

Mrs. Hartfield’s attorney said he was sympathetic to the press freedom concerns at play, but argued that the privacy concerns of family members should outweigh the First Amendment rights of the press. “I am 100 percent dedicated to the securing of the freedoms promised within the First Amendment, until they intrude upon the interests of a private individual,” Sgro tells CJR. He argues that the impact of the ruling has been “grossly overstated.”

But Review-Journal Managing Editor Glenn Cook says the First Amendment concerns raised by this case are profound. “In the news business, our industry is full of cynics, and as a coping mechanism we laugh at certain things other people probably wouldn’t laugh at. No one in the newsroom is laughing about this,” Cook says. “Everyone in our newsroom recognizes what a profound threat this is to our constitutional protections, to all the state and federal laws established under the First Amendment that give us the ability to monitor government agencies and report on the public’s business. We are gravely concerned that the longer this ruling is allowed to remain in place, our ability to do our jobs and our press freedoms are going to erode, and that somewhere, another judge could be emboldened to make the same decision and issue the same kind of order that could allow government to invade newsrooms to seize work product.”

The Review-Journal has been at the forefront of reporting on the aftermath of the Vegas shooting, raising concerns about casinos’ emergency plans and emergency services’ response amid the chaos of October 1. Cook argues that the autopsy reports could help answer questions about whether mistakes were made in the aftermath. Noting that the paper has published several stories celebrating Hartfield’s contributions to the community, Cook says that “with him and with every other victim in this case, we have never had an interest in publishing personal medical details that could be embarrassing or hurtful to their families.”

Following the initial ruling in late January, the autopsy reports were released not just to the Review-Journal and the AP, but to dozens of other news outlets. “The reports,” HuffPost wrote after receiving copies, “offer a raw account of the power of civilian weaponry and the damage it inflicts on human bodies, even when the gunman appears to have no particular firearms expertise.”

Until the Nevada Supreme Court responds to the appeal by the Review-Journal and the AP, those organizations are essentially barred from reporting on any details that come from male victims. They also fear that officials from the county or the coroner’s office could come to their workplaces, demanding access to the files, as Judge Scotti suggested.

Cook said that everyone in the Review-Journal’s office, from reporters to security staff, has been briefed on how to respond if government officials obtain a search warrant and show up at the building demanding access. “I never in my wildest dreams thought I would be having conversations with my employees telling them what to do if the police show up to serve a search warrant on our newsroom when I’m not here,” Cook says. “The idea that any judge in the US would suggest that a government entity go into newsroom is flabbergasting.”

Related: Five ideas for more respectful media coverage after mass shootings

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Pete Vernon is a CJR staff writer. Follow him on Twitter @ByPeteVernon.