TV station’s lawyer presses Wyoming high court to dismiss contempt order

Wednesday, August 30, 2000

Contending that prior restraint is the most egregious violation of the
First Amendment, the lawyer for a Montana television station has urged the
Wyoming Supreme Court to dismiss a contempt order based on the broadcast of
information obtained in a court hearing that was open to the public.

In a brief filed this week with the Wyoming Supreme Court, lawyer
William O’Connor said Wyoming District Judge Hunter Patrick erred when he held
KTVQ-TV of Billings, Mont., and reporter Janelle Slade in contempt for
violating his order not to identify a young victim of sexual assault.

The judge held Slade and KTVQ — whose broadcast signal reaches
Wyoming — in contempt in October 1998 after Slade attended a sentencing
hearing for James Eric Peterson, who had pleaded guilty to the rape and murder
of a young girl, Christin Lamb of Powell, Wyo. In the course of that hearing,
some information about a second assault victim — including her age and
her relationship to the defendant — was revealed in open court.

Slade included that information in her television broadcast on the
sentencing of Peterson, and Patrick subsequently found her and the television
station in contempt for violating an order that barred reporting on the name of
the minor victim. Although the broadcast did not name the victim, Patrick held
that the reporter had violated the “spirit” of his order and handed the station
a $750 fine.

Billings attorney O’Connor, in the station’s appeal, said that even if
there were not other grounds for throwing out the contempt finding, trying to
impose a fine based on the “intent” of the order rather than the actual
language “is contrary to the strict construction required under Wyoming

O’Connor said Patrick was wrong in two other more substantial areas
when he found the station and the reporter in contempt.

First, O’Connor noted that even the prosecutors who brought the
complaint against Slade could show no evidence that the reporter was aware of
the court order that had been issued by Patrick prior to the sentencing
hearing. In fact, O’Connor said, the reporter had asked court officials whether
there were any orders relating to the case and was told there were none.

“KTVQ-TV, Inc., cannot be held in contempt for violating an order
which was not provided to it, even when requested, (and) about which it had no
knowledge,” the brief said.

A far more serious error, however, was Patrick’s finding of contempt
based on the broadcast of information that was revealed in an open court
hearing and that was readily available to members of the general public who
attended the proceeding, O’Connor said. To try to hold the television station
in contempt for covering proceedings in open court amounts to unconstitutional
prior restraint, the lawyer said.

“The freedom accurately to report the news is not based on tolerance.
It is based on right,” the brief said. “This right is not exercised by virtue
of some governmental indulgence, but instead, it is one of which the government
cannot deprive its citizens. A despot may seek to invade those rights, but
justice will confirm them.”

Quoting part of a 1976 U.S. Supreme Court ruling in
Nebraska Press Association v.
, O’Connor noted that “prior restraints on speech and
publication are the most serious and the least tolerable infringement on the
First Amendment rights.”

“A prior restraint upon the media by a District Court in Wyoming for
publishing what is open to the public is simply not tolerable,” O’Connor told
the Wyoming high court.

“The question before this court is not whether the ordinary citizens
who could not come to the court for the sentencing are permitted to know the
facts just as those people who had time to be in the courtroom,” the brief

“The question becomes whether having learned the facts in open court
in a lawful manner, people can be punished by the court for truthfully
disclosing the public information to fellow citizens; the same fellow citizens
who, had they had time, could have attended the hearing themselves and learned
all that was said. The opportunity to hear and, therefore, report, cannot be
denied to the public. The public includes the press, which derives its right
from its status as a member of the public.

“The issue is a pure freedom-of-speech right,” the brief said. “The
State here seeks to keep reserved to the select few who attended hearing the
information of what transpired in an open court.”

In conclusion, O’Connor said, “Those who see and hear what transpired
in open court can report it with impunity. The court cannot censor events which
transpire in proceedings before it, any more than it could prohibit a community
from discussing a subject intimately affecting life within it.”

The state has 45 days to respond to O’Connor’s brief.

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