Colorado media closely monitoring First Amendment situation – by Jan Wondra

Colorado became a test for press freedom last week, in a saga that remains unresolved.

We the media have been alerted to the situation in which a Colorado judge and attorney general, Phil Weiser, tried to stop a journalist from The Denver Gazette to publish a story with materials she had legally obtained with a Colorado Open Records Request (CORA).

Reporter Julia Cardi was following a criminal case against a police officer who was charged in connection with the 2019 death of Elijah McClain after Aurora police manhandled the 23-year-old black man and drugged him with pot ketamine. She had her story documented and was ready to post it a week ago today.

Who threatens the press. Image courtesy of Freedom House

The information had been revealed during a Grand Jury hearing and the journalist’s CORA request had been granted. But last Monday, a judge “issued an order to Cardi and The Denver Gazette to prevent the story from being published.

Days later, Judge Priscilla Loew reversed her decision, lifting her order after hearing submissions from the newspaper’s First Amendment attorney and the attorney for the local legal initiative Journalists’ Committee for Freedom of Speech. Colorado press Rebecca Johnson. The judge said the article could not be published until today, Monday May 2.

But Weiser, Colorado’s top law enforcement official, hit back, arguing that Colorado has a “primary” interest in keeping grand jury proceedings secret.

This position goes against the American interpretation of the freedom of the press of the First Amendment, which admits that the government has extremely limited reasons to block the publication of information. It’s known as the doctrine of “prior restraint”.

Prior restriction (also called prior censorship or pre-publication censorship) is censorship imposed, usually by a government or institution, on expression, before such publication or statement has taken place. This contrasts with censorship which sets general restrictions on the subject matter and only reviews a particular instance of expression after the expression has taken place.

Basically, Americans (individuals and the press) are free to publish what they want; something is happening in print or digital news, hitting the airwaves or a news feed. With respect to the news media, “the issue of prior restraint arises when the state seeks to prevent a news publication from publishing something”. Liability – for fallout – is post-publication (for which most credible news outlets carry liability insurance).

Obviously, the media has a right to publish the First Amendment. In this case, Cardi received court documents including quotes and a discussion of Grand Jury testimony that was apparently meant to be suppressed. That it was communicated to him was not his fault.

Cardi said on social media, “My editors determined that we could publish a story based on the recordings because I had obtained them legally.” But out of courtesy, she alerted the state attorney general’s office and the officer’s attorney so the room wouldn’t blind them. It turned out not to be a good idea.

She was ordered not to publish. Steve Zansberg, The Denver Gazette The attorney hit back at what he called an “unconstitutional order,” the judge replied, Weiser weighed in, and Zansberg countered by saying the presumption against blocking someone posting information “is so strong that the Supreme Court never upheld the imposition of a prior restraint”.

“We urge the court to rescind its order which not only prohibits The Denver Gazette to report legally obtained court records on a criminal matter of significant public interest, but also requires the media to destroy them,” Johnson said. “This is undoubtedly an unconstitutional prior restraint, which is among the most serious threats to a free press. Reports of court records — even those that a court unwittingly makes public — are clearly protected by the First Amendment.

So on Friday, the judge lifted her order, acknowledging it was indeed a “prior restraint” – but she offered Weiser the chance to appeal to the Colorado Supreme Court by Monday 2 May before its latest court ruling takes effect. which effectively blocks The Denver Gazette from publishing to today.

In her order, the judge said:

[She had to] “balancing the First Amendment rights of The Denver Gazette with the state’s interest in preserving the secrecy of grand jury proceedings…Therefore, after having had the opportunity to be more informed and to have considered more thoroughly the complicated constitutional questions than additional research time permitted, the Court finds that the remaining interest of the state in protecting grand jury secrecy in this case, where the grand jury has completed its deliberations, does not outweigh The Denver Gazette First Amendment right to publish truthful and lawfully obtained information to the extent that prior restraint may be imposed on such speech.

Yes The Denver Gazette published, they could face contempt penalties for violating a court order. As Colorado College professor Cory Hutchins reported at noon Friday, Gazette editor Vince Bzdek, who had just spoken to a class of Colorado College students during a field trip to the newspaper’s Springs newsroom, issued a statement:

“I think newspapers across the state should call on Phil Weiser to stop being an enemy of freedom of the press and the people’s right to know, and announce that he will not be appealing this a well-reasoned decision that is consistent with centuries of Supreme Court precedent. .”

Colorado Attorney General Weiser has until today to decide whether or not to appeal the judge’s decision. Colorado news agencies are watching this closely.