Friday, September 28, 2018
Here We Go Again…
Judge Sztraicher Displays Ignorance in Issuing Order to the Press Not to Publish Permissibly Taken Photographs
Ignorance of the law, it is said, is no excuse.
It is an excuse, however, for those who should have the keenest knowledge of the law: judges. The California Supreme Court held in the 1999 case of Oberholzer v. Commission on Judicial Performance that “[m]ere legal error, without more…, is insufficient to support a finding that a judge has violated the Code of Judicial Ethics and thus should be disciplined.”
It cannot be imagined that there was “something more”—such as bad faith or bias—behind the order to the press by Los Angeles Superior Court Judge Gus Sztraicher on Wednesday to desist from publishing photographs permissibly taken in his courtroom of a defendant. We must assume that the order was predicated solely on ignorance—ignorance of the well established impotence of a judge to impose a prior restraint on publication absent a “clear and present danger.”
That was Wednesday. Now, however, it seems improbable that “something more” does not exist. It cannot be imagined that colleagues have not tapped Sztraicher on the shoulder and reminded him of some basic constitutional precepts he should not have lost sight of on Wednesday.
He should rescind the order at once, and apologize for his lapse in judgment in issuing it.
SSUMING NO ONE HAS MENTIONED to Sztraicher that he has done what the law does not permit, he will have to realize his error when he sees briefing from media attorneys. He will have to appreciate, unless he is a hopeless ninny, that if a publication which the United States government claimed would present “grave and immediate danger to the security of the United States” could not be barred—as established by the U.S. Supreme Court’s 1971 decision in the Pentagon Papers case—his order to the local media cannot stand.
Sztraicher has forbidden publication of photographs of a man whose photograph, provided by the Texas Department of Public Safety, has already appeared in print, on television, and can be viewed on websites. The order, aside from being unconstitutional, is asinine.
Does he not remember that an order of the same nature, by Los Angeles Superior Court Judge Hilleri Merritt was struck down by the Court of Appeal in 2010? After the invalidity of her order to the Los Angeles Times was pointed out to her by the newspaper’s lawyers, Merritt refused to budge—guided, it was learned, by then-Los Angeles Superior Court Judge Peter Espinoza, rather than by U.S. Supreme Court, California Supreme Court, and California Court of Appeal precedents.
N ASSIGNMENT TO DIV. FIVE of this district’s Court of Appeal, Los Angeles Superior Court Judge Sanjay Kumar wrote:
“[W]e conclude the superior court’s order precluding publication of photographs lawfully taken unconstitutionally violates the prohibition against prior restraint of speech. Although the original order may have been issued to preserve the integrity of eyewitness identification, the record does not demonstrate it is substantially probable that either the integrity of the identifications or the defendant’s due process rights are at risk absent the prior restraint.”
Kumar pointed to the U.S. Supreme Court’s 1976 pronouncement in Nebraska Press Assn. v. Stuart that “barriers to prior restraint remain high and the presumption against its use continues intact” and commented that “appellate courts have uniformly held the barriers identified in Stuart have not been surmounted.”
The Aug. 19, 2010 opinion was not certified for publication. That’s understandable. It was based on principles with deep roots, ones with which any first-year law student should be conversant.
The ignorance displayed by Sztraicher in issuing his order is lamentable. If he refuses to rescind it once the impermissibility of it is pointed out to him, it will be a matter of willful failure to follow the law, in derogation of the Code of Judicial Ethics and the inherent obligations of his office.
In that event, the Commission on Judicial Performance would be remiss if it did not take appropriate action.
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