California appeals court strikes down judge’s photo ban

Tuesday, December 26, 2000

A California trial judge violated the First Amendment rights of the
media when he banned them from publishing photographs of criminal defendants
obtained from sources outside the courtroom, an appeals court has ruled.

On Dec. 21, the Court of Appeals of California, Fourth Appellate
District, reversed Superior Court Judge Geary D. Cortes’ order in
South Coast Newspapers, Inc. v. Superior Court of
San Diego County
, finding it to be unconstitutional.

“An order enjoining publication of a photograph of a suspect in a
pending court proceeding is classic prior restraint of speech,” the
appeals court wrote.

The case stemmed from the July 16 arrests of several juveniles who
were charged as adults with assault, robbery and elder abuse in an attack on
older migrant workers in San Diego. At that time, Cortes issued an order
allowing the media to cover court proceedings with the proviso that the
defendants’ faces be obscured.

Several media outlets, including the North
County Times
and the San Diego
, published photographs of the defendants obtained
from such lawful sources as school yearbooks.

At least one of the defendants, known in court papers only as Michael
R., filed a motion asking the judge to expand the July order to prevent the
media from published any photos of the defendants’ faces.

On Aug. 25, Cortes agreed and modified his order to accommodate the
defendants’ requests.

Several media entities — including South Coast Newspapers Inc.,
the Copley Press Inc. and two television news stations — then challenged
the constitutionality of the order. After the trial judge refused to reconsider
his ruling, they appealed to the higher court.

In its ruling, the appeals court cited the U.S. Supreme Court’s 1989
decision Florida Star v. B.J.F. for
the proposition that “the publication of lawfully obtained, truthful
information about a matter of public significance cannot be restrained unless
it is necessary to protect a state interest of the highest order.”

The appeals court analyzed the constitutionality of the prior
restraint under a test established by the high court in its 1976 decision
Nebraska Press Assn v. Stuart. In
Nebraska Press, the high court wrote
that “prior restraints on speech are the most serious and least tolerable
infringement on First Amendment rights.”

The high court determined that courts must consider alternatives to a
prior restraint when concerned about the effects of pretrial publicity on
criminal defendants’ fair-trial rights. The listed alternatives included change
of venue, intensive examination of potential jurors during jury selection,
sequestration of jurors and jury instructions.

Michael R. had argued that the publication of the photographs would
violate his fair-trial rights by tainting the testimony of witness’ in-court
identifications of the defendants.

However, the appeals court rejected this argument, writing: “The
record is devoid of any evidence that publishing these photographs creates a
substantial probability the migrant worker-victims’ identifications of the
perpetrators were either tentative or in danger of being altered by the
published photographs.”

The appeals court also determined there were “less restrictive
means of achieving the competing interest.” The court reasoned that the
trial court could hold hearings outside the presence of the jury to determine
whether a witness’ in-court identification was tainted by pre-trial newspaper

The court concluded: “These procedures provide adequate and
less-restrictive means to achieve the competing interest of avoiding tainted
in-court identifications without infringing on the important interests
protected by the First Amendment to the United States Constitution” and
the California Constitution.

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