State high court calls restrictions on newspaper ‘unlawful prior restraint’

Monday, November 9, 1998

A state judge's order restricting the press from fully reporting on a case involving juveniles violated free-press rights and amounted to an “unlawful prior restraint,” the Supreme Judicial Court of Massachusetts ruled recently.

The controversy began when representatives of Quincy's The Patriot Ledger sought access to court proceedings and related court records in the case of Robert and Andrea L. Berkowitz. The two were charged with contributing to the delinquency of minors and furnishing liquor to minors.

After being told the proceedings were closed and court records were sealed, George W. Prescott Publishing Company, publisher of the daily newspaper, intervened in the Berkowitz cases to assert its free-press rights.

Trial judge Mary McCallum allowed the newspaper access to the cases but issued an order restricting it from publishing the name or address of any juvenile who allegedly engaged in delinquent conduct or testified in any court hearing. The judge's order also barred The Patriot Ledger from photographing the face of any child who testified during the court hearings.

Following state law, the paper first appealed to a single member of the Massachusetts appeals court, Justice Roderick Ireland, who denied relief and upheld McCallum's order.

On appeal, the state high court reversed, ruling last week in George W. Prescott Publishing Company v. Stoughton Division of the District Court Department of the Trial Court that “the judge's order was, and is, an unlawful prior restraint on the press.”

The court first noted that “prior restraints on media reports about criminal proceedings have long been held presumptively unconstitutional.” The court reasoned that any judicial order limiting speech must identify a “compelling interest” and show that “no reasonable, less restrictive alternative to the order is available.”

Because McCallum had opened the case and related court documents, the trial judge had a “particularly high burden of justification” for limiting the press from “reporting fully on the cases,” the high court found.

The high court wrote that McCallum failed to meet this high burden in part because there was an “absence of detailed findings of fact” clearly showing the compelling state interest in limiting the press.

Sarah Chapin Columbia, attorney for the newspaper, said: “The significance of this case is that the Supreme Judicial Court of Massachusetts started from the presumption that juvenile court proceedings against adults should be open.”