Prior Restraint Primer

A recent case in Oregon federal court has generated news headlines about “prior restraint.”

What is a “prior restraint”? In general, it is government action that prohibits speech or other expression before the speech happens; it is, in essence, a form of censorship. Courts are highly skeptical of prior restraints, and have only permitted them in extraordinary cases. Columbia Broad. Sys., Inc. v. United States Dist. Court for Cent. Dist., 729 F.2d 1174, 1183 (9th Cir. 1983). One example of an extraordinary case justifying a prior restraint is the publication of wartime secrets, such as “sailing dates of transports or the number and location of troops.” Near v. Minnesota, 283 U.S. 697, 716 (1931). The Oregon Supreme Court, applying the Oregon constitution’s free speech and freedom of the press guarantees, has ruled that prior restraints are unlawful. State ex rel. Sports Mgmt. News v. Nachtigal, 324 Or. 80, 90 (1996).

In the recent Oregon federal case, the court must decide whether it will restrain the Oregonian newspaper’s access to and use of documents produced in litigation that were inadvertently disclosed to the newspaper. The decision may turn, in part, on whether the Oregonian was a party to the case protective order. If so, the protective order’s restrictions may apply. Seattle Times Co. v. Rhinehart. 467 U.S. 20 (1984) (“A litigant has no First Amendment right of access to information made available only for the purposes of trying his suit.”). If not, a court’s order to return and destroy the inadvertently disclosed documents could be an unlawful prior restraint. In the instant case, the Oregonian maintains it is a non-party intervenor and not subject to the protective order.

LVK has navigated First Amendment and prior restraint issues in litigation involving media organizations and public records. Years ago, LVK attorney John Rake represented shareholders of a Lane County health plan in litigation with the Register-Guard regarding the newspaper’s right to obtain the personal financial information of shareholders involved in a transaction approved by the state.  Following significant motions practice, but before the case could go to trial on the merits, the personal financial information was leaked to the Register-Guard newsroom. Once that occurred, the shareholders who sought to block the release under an exemption to public records disclosure could do nothing, and the case was mooted. The First Amendment and prior restraint principles discussed above applied, trumping the privacy and confidentiality considerations.

That case, and the current federal court case, stand as powerful reminders of freedom of the press protections embedded in federal and state constitutions.