Even though according to their policy, the Daily Press of Victorville, California was not going to print the name of a victim of sexual abuse, they were alarmed at the judge’s order to withhold the name which they saw as an attempt to impose censorship on the free press. -DB
Daily Press
March 30, 2009
By Natasha Lindstrom
VICTORVILLE, Calif. – A local judge on Monday ordered a Daily Press reporter not to print the name of a witness who testified in open court – a move that legal experts said is patently against the law.
During a preliminary hearing for Richard Jay Swank, a former substitute teacher charged with repeatedly sexually abusing his son, Judge Bridgid McCann called a Daily Press reporter and the defense and prosecution attorneys to the bench. She then told reporter Patrick Thatcher not to print the last name of Swank’s son, the victim that testified.
Several First Amendment experts say ordering a news publication not to print information obtained legally is unconstitutional prior restraint.
“Because of the First Amendment, a judge has no power to tell a news organization what it may or may not print,” said Peter Scheer, executive director of California First Amendment Coalition. “Only in the most extraordinary circumstances can a judge forbid a newspaper from printing information that it has in hand and didn’t break any law to get.”
In this case, the Daily Press obtained the last name by simply being present in court.
The court did not mention the victim’s last name on record; however, the victim, a U.S. Army soldier, wore a name badge with his last name plainly printed and visible to the audience in the Victorville courtroom.
“The U.S. Supreme Court has ruled that any order attempting to stop a courtroom bystander from repeating what he or she sees and hears in open court violates the First Amendment,” said First Amendment Attorney John Bussian of The Bussian Law Firm, PLLC.
If the judge felt compelled to protect the victim’s privacy, she could have taken alternative legal approaches, such as having the victim testify in a separate room with a digitized image in court, or placing duct tape over the victim’s name badge, said Jim Ewert, legal counsel for California Newspaper Publishers Association.
“No court has ever upheld prior restraint for this type of a limitation on media under these types of circumstances,” said Ewert, adding that prior restraint would require the judge to convene a separate hearing to address compelling reasons for the censorship.
McCann’s secretary said the judge declined to listen to an alternative proposed by Daily Press Editor Don Holland.
The Daily Press has a long-standing policy to not publish the names of sex crimes victims. Holland said the paper did not plan to publish the name of the victim in this case, but was alarmed at the judge’s order and attempt to constrain a free press.
The newspaper plans to file a complaint with Commission on Judicial Performance.
Judges do have the right to make non-binding requests that publications not print certain material, Scheer said. But the final decision is up to the publication’s editorial discretion.
“A judge could appeal to the newspaper’s editorial judgment and simply urge it to withhold certain information, Scheer said. “There’s nothing wrong with that – as long as fundamentally everybody understands that at the end of the day, editors decide what goes into the newspaper, not judges.”
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