Judge Hilleri Merritt Fails to Rescind Unconstitutional Order

Friday, August 6, 2010

Page 6

EDITORIAL

Judge Hilleri Merritt Fails to Rescind Unconstitutional Order

Los Angeles Superior Court Judge Hilleri G. Merritt on Wednesday took an action which we would have hoped reflected merely a momentary lapse in judgment, rather than a determination to defy commands of the First Amendment. But at a hearing yesterday, the judge, much to her discredit, refused to budge, leaving in place a prior restraint imposed directly on a newspaper.

On Wednesday, Merritt approved an application of the Los Angeles Times to take pictures at an arraignment. After photographer Al Seib had taken several dozen shots, the judge was reminded of an order by another judge barring such media coverage in the case, and a deputy public defender indicated her preference that her client not be photographed. Merritt told the photographer to stop shooting.

So far, she was on solid ground. California Rules of Court, rule 1.150, provides that “[t]he judge in his or her discretion may permit, refuse, limit, or terminate media coverage.”

While we question the constitutionality of a rule that permits curtailment of media access based on no set standards, but merely on what could be a judge’s predilections or whim, it remains that Merritt did have the power, under the rule, to order that the photographing cease.

She then crossed the line, however, entering the realm of impermissible prior restraint. Her order, as reflected in the minutes, reads:

“Al Seib and the Los Angeles Times are ordered not to publish any photographs of the defendant taken from the proceedings of this date.”

he United States Supreme Court said in the 1976 case of Nebraska Press Assn. v. Stuart:

“[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”

It declared that “a prior restraint on publication” is “one of the most extraordinary remedies known to our jurisprudence.”

In Near v. State of Minnesota, in 1931, the nation’s high court said that prior restraint is permissible “only in exceptional cases.” It provided an example of what was permissible: wartime blocking of “the publication of the sailing dates of transports or the number and location of troops.”

In 1971, the U.S. Supreme Court, in New York Times Co. v. U.S., declared invalid an order proscribing publication of a classified document, “History of U. S. Decision-Making Process on Viet Nam Policy.” The per curiam opinion said the government had failed to meet its “heavy burden of showing justification for the imposition of such a restraint.”

A California Court of Appeal declared in 1988 in KCST-TV Channel 39 v. Municipal Court:

“Prior restraints on media publications, if permissible at all, are permissible only in the most extraordinary of circumstances.”

There are clearly no “extraordinary” circumstances justifying Merritt’s prior restraint on the Times. Indeed, any argument that publication of the photos taken by Seib could jeopardize the defendant’s fair trial rights crumbles when it is realized that the defendant’s likeness has already been published, including publication by the Times yesterday of a KTLA shot of him.

ad the photographs been taken surreptitiously and without judicial consent, the newspaper and its photographer would have committed a contempt, and an order not to publish the photographs would arguably have met the “heavy burden” the Supreme Court has imposed for a prior restraint.

But the Times photographer took the photographs lawfully. To forbid use of lawfully taken photographs is no different from barring a newspaper reporter from writing a story from notes taken during a public session.

Indeed, the lawfulness of the photos clearly points to the unlawfulness of Merritt’s order.

In the KCST-TV case mentioned above, a sketch artist drew the face of the defendant as he was being arraigned. Two days later, the judge ordered that the sketch not be televised. The Court of Appeal granted a peremptory writ of mandate directing the judge to lift his order. Justice Don Work of the Fourth District’s Div. One declared that “once the drawing was lawfully obtained, its dissemination in normal media publication could not be constitutionally restrained.”

Merritt should be able to grasp that if a judge cannot restrain televising (a form of publication) of a drawing lawfully made, a judge may not restrain publication of a photograph lawfully taken.

Work also said:

“We conclude the drawing was lawfully obtained during a public criminal proceeding and long-standing Supreme Court precedent establishes the court’s prohibitory order is an unconstitutional prior restraint violating the First Amendment.”

Merritt should realize that her rash, spur-of-the-moment order on Wednesday was not a trifling gaffe, it was an affront to the First Amendment of serious proportions. She should have scrapped it.

he unlawfulness of Merritt’s order is seen also from the U.S. Supreme Court’s 1977 decision in Oklahoma Publishing Co. v. District Court In and For Oklahoma County. There, a trial court judge, in a pre-trial order, restrained the press from “publishing, broadcasting, or disseminating, in any manner, the name or picture of (a) minor child” who was the subject of a juvenile court proceeding.

Under state law, the judge could have closed the juvenile hearing—but didn’t. The minor’s name came out in the public proceeding. Photographs were taken of the minor after the hearing, outside the courthouse.

The minor’s name and likeness could be used, the court declared in a per curiam opinion. Quoting from Nebraska Press Assn., it said: “once a public hearing had been held, what transpired there could not be subject to prior restraint.”

It found of significance that “[t]here is no evidence that petitioner acquired the information unlawfully.”

Applied to the case in Merritt’s courtroom: Merritt could have turned down the request to take photographs—but didn’t. The defendant’s face was made available for photographing. The photographs were taken lawfully. The judge cannot, after the image has been captured, impose a prior restraint.

Yet, when the invalidity of the order was brought to her attention yesterday by attorneys for the Times, Merritt—whether through intransigence or an inability to comprehend what the cases plainly dictate—would not retreat.

Her order is facially invalid, and we find it disappointing that the Times chose to honor it by not publishing a photo of the defendant, taken by Seib, in yesterday’s issue.

For the order to have been issued in the first place is appalling. For the judge to have failed to rescind that order once lawyers for the Times brought to her attention its constitutional invalidity is unpardonable.