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Rare single-justice ruling pleases press

By Tony Mauro
Special to First Amendment Center Online
04.19.05

WASHINGTON — In an unusual, little-noticed decision late last week, Supreme Court Justice Anthony Kennedy turned down the request of a Florida broadcast news organization that was challenging what it viewed as an unconstitutional prior restraint on its First Amendment rights.

But in so doing, Kennedy’s reputation as a strong advocate for freedom of speech and of the press remained more or less intact.

Kennedy issued a rare single-justice opinion on April 15 in the case Multimedia Holdings Corp. v. Circuit Court of Florida, rejecting the media company’s challenge of two lower court injunctions.

The injunctions were issued last year to keep the company, which operates under the name of First Coast News, from airing the transcript of grand-jury testimony it obtained from an unnamed source in the case of an accused killer.

After a judge issued the first injunction barring release of the information last July, First Coast objected, claiming the injunction amounted to a prior restraint on the press. The judge then issued a second order in August stressing that the parties to the case — not the news media — were the targets of the injunction, though the judge cryptically added that airing the grand jury testimony “might constitute further violations of criminal law.”

After a Florida appeals court refused to review the injunctions, thereby leaving them in place, First Coast appealed to Kennedy, who handles emergency appeals from Florida and other states in the 11th U.S. Circuit Court of Appeals.

Kennedy could have referred the case to the full Supreme Court, but decided to issue a one-justice opinion, also called an in-chambers opinion. There are no clear rules governing when a justice would dispose of a case in this way, but sometimes it is done when a justice thinks the case warrants a judicial statement, but not full-blown review by the high court.

Kennedy allowed the injunctions to remain in effect, mainly because it now appears that First Coast will never be punished for its broadcasts. The judge who issued the injunctions is now retired, Kennedy noted, and the state attorney general’s office has said it would not prosecute First Coast, because the broadcaster was not responsible for violating the law that protects grand-jury secrecy.

But Kennedy pleased First Amendment advocates by including language critical of prior restraints. “A threat of prosecution or criminal contempt against a specific publication raises special First Amendment concerns, for it may chill protected speech much like an injunction against speech by putting that party at an added risk of liability,” Kennedy wrote.

The judge’s first injunction, Kennedy added, “bears many of the marks of a prior restraint.”

Kennedy also wrote that “informal procedures undertaken by officials and designed to chill expression can constitute a prior restraint.”

Because of this language, media lawyers involved in the case saw Kennedy’s ruling as a victory, not a defeat. George Gabel, lawyer for First Coast, told the Reporters Committee for Freedom of the Press, “With this ruling, the station can now air the material, and we have a U.S. Supreme Court opinion of lasting value on the prior restraint issue.”


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