Prior Restraint Battles in L.A.

DWT Media Law December 17, 2013 Comments Off on Prior Restraint Battles in L.A.
Prior Restraint Battles in L.A.
By Rochelle L. Wilcox and Kelli L. Sager

Legal victories at the Ninth Circuit Court of Appeals and the Los Angeles Superior Court cleared the way for the Los Angeles Times to publish two important stories about California peace officers.

  • In one case, the State of California sought to retroactively strike the names of inmates and prison guards from the record in order to bar the press from publishing them.  The Ninth Circuit granted an emergency writ and vacated the district court’s order gagging the Times.
  • In a second case, the union representing Los Angeles County Sheriff’s Deputies tried to enjoin The Times from printing information it obtained showing that many Deputies hired in 2010 had records of misconduct.  The Superior Court rejected the injunction requested by the Deputies’ union and struck the union’s claims against The Times.  (They have now appealed.)

Videotapes of inmates:  As part of a long-running class action lawsuit focused on the treatment of mentally ill inmates in California prisons, an evidentiary hearing was set this fall to address the plaintiffs’ motion to enforce a 1995 court order by requiring the state to alter its prisoner disciplinary system.  Leading up to that hearing, the state sought to exclude, or at least file under seal for in camera review, a set of video clips that showed prison guards using force against inmates. The district court denied the motion, but announced that the clips would be viewable in open court subject to a set of conditions, including that the press and public were prohibited from “disclosing the names, identification numbers, or other personally-identifying information” of any inmate or guard depicted in the videos.

The plaintiffs filed a memorandum expressing concern that the order was an improper prior restraint and noting that privacy concerns could be addressed by redacting identifying information from the videotapes, but the district court refused to modify its order.  The Times responded by filing a motion to intervene for the purpose of objecting to the court’s order.  Although the court allowed The Times to intervene, the judge refused to withdraw the prior restraint.  Instead, he invited the parties to request a new order purporting to retroactively strike from the record all names of inmates and guards that had been identified in open court and in litigation records to date.  The court threatened The Times and other media entities with a contempt finding if they published any of the “stricken” names.  The court later issued two orders clarifying the scope of its prior restraint, although it refused to withdraw it.

The Times sought emergency relief in the Ninth Circuit, pointing out that the order striking materials from a public file and prohibiting its publication was a classic prior restraint, and arguing that the order effectively closed the evidentiary hearing by conditioning the paper’s right of access on its willingness to compromise its constitutional rights.  The opposition argued that the decision was simply a judicial sealing order and that the court’s order satisfied the (still heavy) burden for closing court proceedings.  The Times countered by pointing out that the order prohibited the paper from publishing information already in its possession – a classic prior restraint – and also argued that the order raised the novel question of whether a court can restrict speech by retroactively declaring information disclosed in open court proceedings or public court records “stricken” from the record.

The Ninth Circuit agreed with The Times.  It vacated the portions of the orders that struck from the record any identifying information shown when the clips played at the evidentiary hearing, and that barred the press from publishing names that already had been put into the record.  A few days later, the district court issued orders granting the public access to the videotapes.  The Times obtained and published portions of the clips, which contain graphic and sometimes disturbing images of the forcible removal of inmates from their cell blocks.

Sheriff’s Deputies:  When the Los Angeles County Office of Public Safety was absorbed into the County Sheriff’s Department in 2010, 500 officers were offered newly sworn positions as Deputies.  In the summer of 2013, The Times began investigating the backgrounds of many of the new Deputies, and contacted many of the Deputies concerning the information The Times had obtained.  On September 10, 2013, the union representing the Deputies went into court on an emergency basis, seeking a temporary restraining order, as well as preliminary and permanent injunctions.  The union asked the court to restrain the paper from publishing any confidential information The Times had received, and demanded that The Times be required to turn over to the Sheriff’s Department all confidential information in The Times’ possession.

The Times prevailed on the union’s application for a temporary restraining order.  The court refused to restrain the paper on the basis of the union’s vague assertions that The Times intended to soon publish an article regarding the background investigations – especially when the union had known about the paper’s investigation for months and had not acted.  That same day, The Times filed a Special Motion to Strike the Complaint under California’s SLAPP statute, pointing out that the union sought an unconstitutional prior restraint that could not be justified either by the union’s claims that the records were confidential and private, or that their release would jeopardize officers’ safety.

At a later hearing on the SLAPP motion, the court ruled in favor of The Times.  The court rejected the argument that the paper’s conduct, which the union claimed amounted to unlawful possession of stolen records, precluded The Times from invoking the SLAPP statute, because the union failed to present any evidence that The Times had engaged in any illegal conduct.  Turning to the merits, the court found that the union sought a content-based restriction on the paper’s speech that amounted to a prior restraint, and that the union had failed to meet its weighty burden to justify that prior restraint.  The court also rejected the union’s request that The Times be required to turn over to the Sheriff’s Departments all confidential information in The Times’ possession, finding that the union did not establish its standing to make such a demand.  The court ordered the union’s claims against The Times stricken.

On December 1, 2013, The Times published its exposé revealing the fact that many Deputies hired by the Sheriff’s Department had previously engaged in serious misconduct.  The Sheriff has announced an investigation into the hiring practices, following a demand for an inquiry by the County Board of Supervisors.  The Times has filed a motion to recover its fees as the prevailing party on the SLAPP motion, and the union has appealed the trial court’s order.

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