On Wednesday, a judge in Los Angeles told LA Times photographer Al Seib not to publish photographs that he had taken– with the courts permission- during an arraignment.
According to the Times, the paper had made a written request following to court procedure, and Judge Hilleri G. Merrit, had approved the request. During the hearing, after Seib had begun taking the pictures, the judge was reminded by the district attorney of an agreement not to allow photography and video.
At issue is what Seib and the Times can legally do with the photographs already taken. The judge initially order Seib not to publish the images, and upheld that order in a subsequent hearing. The court is apparently concerned that photographs of the defendant in his orange jumpsuit will impact potential jurors.
While it is not a First Amendment violation for a judge in many circumstances to ban photography from a court hearing, case law is clear that it is a violation of the First Amendment for the government- including a judge- to order a newspaper to not publish information, and photographs that it already has. There is a strong line of Supreme Court case law indicating that such prior restraint is not permissible.
Even when the government mistakenly allows a newspaper to access information or photographs that it was not supposed to allow, they cannot fix their mistake by blocking publication of the information accessed. Several Supreme court cases have addressed this issue in regard to information, and in the 1970s an appeals in California struck down a judicial order banning the media from publishing the names and photographs of witnesses in a case, after that court had allowed access. The U.S. Supreme Court has declined to allow prior restraint even in cases of national security.
The Times is appealing the order. NPPA is in touch with the newspaper’s attorneys and is working on supporting their effort. For more information about NPPA’s involvement, contact Mickey Osterreicher at [email protected]