A Westchester County Supreme Court judge issued an order on Nov. 18, 2021, barring The New York Times from soliciting, acquiring or further disseminating leaked internal documents from conservative group Project Veritas.

The prior restraint was issued as part of a pending libel suit Project Veritas filed against the Times in 2020, which accuses the newspaper of defaming the group in its reporting on a Project Veritas video that made unverified claims of voter fraud in Minnesota, the Times reported.

The judge’s order specifically references a Nov. 11, 2021 article about the Department of Justice’s investigation into the alleged theft of a diary belonging to President Joe Biden’s daughter, Ashley. The article also contained excerpts from memos prepared by a Project Veritas lawyer advising members of the group how to avoid breaking federal law while using questionable reporting methods.

In issuing the prior restraint, Justice Charles Wood ordered the Times to appear before the state’s Supreme Court on Nov. 23 to “show cause” — to explain or prove why the court shouldn’t grant Project Veritas’s motion for an order directing the newspaper to “remove all references to or descriptions of Plaintiff Project Veritas’s privileged attorney-client information” and “return and/or immediately delete all copies.” Until it does so, the order directs the newspaper to “cease further efforts to solicit or acquire” any materials prepared by the Project Veritas lawyer, effectively preventing the outlet from reporting on the group.

“This ruling is unconstitutional and sets a dangerous precedent,” Dean Baquet, the executive editor of the Times, wrote in a statement published by the outlet. “The Supreme Court made that clear in the Pentagon Papers case, a landmark ruling against prior restraint blocking the publication of newsworthy journalism. That principle clearly applies here. We are seeking an immediate review of this decision.”

In a statement published by The Washington Post, Elizabeth Locke, an attorney representing Project Veritas in its suit against the Times, denied that the order amounted to a prior restraint, citing the fact that some of the materials had already been published.

Press freedom advocacy groups quickly refuted the assertion that the order was not prior restraint. Advocacy Director Parker Higgins of Freedom of the Press Foundation, where the Tracker is housed, noted the order not only restricts the Times from publishing further and requests that what has been published be pulled from circulation, but also bars the newspaper from engaging in routine newsgathering activities.

Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, also raised immediate concerns with the order.

“Prior restraints — which are orders not to publish — are among the most serious threats to press freedom,” Brown said in a statement. “The trial court should have never entered this order. If it doesn’t immediately vacate the prior restraint, an appellate court must step in and do so.”

On Jan. 11, 2019, journalist Davin Eldridge was found guilty of criminal contempt; sentenced to a year-long probation; and required to write an essay about respect for the court, submit it for court approval, publish it online and censor negative comments.

Eldridge, publisher of the news site and Facebook page Trappalachia, recorded and livestreamed a criminal proceeding in the Macon County Courthouse in Franklin, North Carolina, in November 2018 despite posted signs stating that recording was not permitted in the courtroom and a warning from a bailiff, the News & Observer reported.

The presiding judge, William Coward, reiterated his rule against recording and, after viewing Eldridge’s Facebook posts, ordered the journalist to return to the courtroom later that day. Eldridge did not comply with that order.

Eldridge did not respond to requests for comment.

Eldridge was later charged with criminal contempt by Coward, who ordered the journalist to appear for a hearing on Jan. 11, 2019. That day, Eldridge objected to Coward overseeing his case and asked for his recusal, which Coward denied.

Coward found Eldridge guilty of criminal contempt and sentenced him to 30 days in jail. The sentence was suspended, and the trial court placed Eldridge on probation for one year with certain conditions, which included writing a 2,000-to-3,000-word essay on the subject “Respect for the Court System is Essential to the Fair Administration of Justice” and not attending “any court session in Judicial District 30A unless and until his essay has been approved and posted.”

Eldridge immediately appealed the ruling, but in December 2019, the North Carolina Court of Appeals upheld the trial court’s decision. A dissenting opinion was entered by Judge Christopher Brook, who agreed that Coward had the right to restrict recording in the courtroom and find Eldridge guilty of contempt but found that the conditions of his probation had “deeply troubling constitutional problems.”

“Although we generally do not review constitutional questions that have not first been raised in the trial court … suffice it to say that the sentencing judge has not only compelled Defendant [Eldridge] to speak within the meaning of the First Amendment, he has compelled Defendant to then continue speaking by censoring the viewpoints of other expressed in response to speech compelled by the court,” Judge Brook wrote in his dissent. “This compelled speech silencing third-party viewpoints expressed in response to compelled speech raises serious First Amendment concerns.”

On March 12, 2021, the North Carolina Supreme Court affirmed the Appeals Court’s decision without any explanation.

A New York Supreme Court judge granted temporary restraining orders on June 30, 2020, barring President Donald Trump’s niece and publisher Simon & Schuster, Inc. from moving forward with printing and distributing a tell-all book about the Trump family. Both orders were subsequently vacated.

The book — “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man” and scheduled for release in July — details Mary L. Trump’s relationships with the president, family members and her father, Fred Trump Jr.

Judge Hal B. Greenwald granted the temporary restraining order at the request of President Trump’s younger brother Robert, who alleged that the book violates a non-disclosure agreement signed by members of the family as part of the settlement of Fred Trump Sr.’s estate following his death in 1999.

According to court filings, the agreement included a pledge not to indirectly or directly publish any memoir. Robert Trump asserted that her book may “contain material that could harm him” or members of the family “by divulging private or disparaging information about their relationship to the public.”

Attorneys for Mary Trump and Simon & Schuster filed appeals the same day, arguing that the order constituted a prior restraint on core political speech in violation of the First Amendment, Politico reported. The attorneys also noted the impropriety of granting an injunction without allowing the author and publisher to provide a legal briefing to the court.

Mary Trump’s attorney, Ted Boutrous Jr., said in a statement, “This book, which addresses matters of great public concern and importance about a sitting president in an election year, should not be suppressed even for one day.”

The Reporter’s Committee for Freedom of the Press, the Association of American Publishers and PEN America submitted an amicus brief highlighting the unprecedented nature of the order and the unenforceability of such a non-disclosure agreement.

“There can be no doubt that the Book’s subject matter is of immense public interest,” RCFP’s Legal Director Katie Townsend wrote. “Simply put, whatever embarrassment [Robert Trump] speculates he or the President may experience from the publication or dissemination of a Book ‘divulging private or disparaging information’ to the public cannot remotely approach the type of extraordinary harm that could justify a prior restraint against either Defendant.” RCFP is a partner of the U.S. Press Freedom Tracker.

Judge Alan D. Scheinkman of the New York Supreme Court’s appellate division lifted the restraining order against Simon & Schuster the following day, July 1, leaving the one against Mary Trump in place. The Washington Post reported that the decision allows the publisher to proceed with the distribution of the book ahead of the planned release.

Scheinkman wrote, “Whatever legitimate public interest there may have been in the family disputes of a real estate developer and his relatives may be considerably heightened by that real estate developer now being President of the United States and a current candidate for reelection.”

Simon & Schuster said in a statement to the Associated Press that the ruling was a victory.

The book, it said, was of “great interest and importance to the national discourse that fully deserves to be published for the benefit of the American public.”

Robert Trump’s lawyer, Charles Harder, argued in a reply filed on July 7 that the book consists solely of Mary Trump’s “personal observations, not political commentary,” and is therefore not entitled to the same protections and scrutiny as other materials, like the Pentagon Papers.

Harder, who did not respond to an emailed request for comment, called for the judge to uphold restraining orders against both Mary Trump and Simon & Schuster, adding that at its core, the case is not about the First Amendment.

“The ‘prior restraint’ doctrine Defendants invoke applies to a completely different type of injunction against speech and has no application where a party has contracted away her right to speak in exchange for valid consideration,” he wrote.

Boutrous said in a statement to the Tracker that “Robert Trump’s brief defies the First Amendment, ignores basic contract law and fails completely to justify a prior restraint muzzling Mary Trump.”

Attorneys for Simon & Schuster did not respond to emailed requests for comment.

In a decision on July 13 — one day before the book was set to be published — Greenwald vacated the temporary restraining order against Mary Trump. In that order, he also denied Robert Trump’s requests for injunctions against both Mary Trump and Simon & Schuster.

“In the matter before this Court, Plaintiff [Robert Trump] has failed to meet his burden of demonstrating imminent, irreparable harm, to him,” Greenwald wrote. “There is no doubt that the Book is out in the public eye in significant quantities and has reached millions of people by the tremendous attention it has gained by the media.”

“In the vernacular of First year law students, ‘Con[stitutional] law trumps Contracts.’”

The city of Fullerton, California, can pursue its lawsuit against local blog Friends for Fullerton’s Future and two of its reporters, a judge ruled on March 12, 2020. Superior Court Judge James Crandall also granted the city’s motion for a preliminary injunction to bar the blog from publishing, sharing or destroying a number of city documents.

Two weeks later, on March 26, an appellate judge stayed, or paused, portions of the prior restraint, allowing the blog to publish but not destroy records.

The city alleges that the blog FFFF and journalists Joshua Ferguson and David Curlee violated state and federal anti-hacking laws by illegally accessing and downloading city files uploaded to Dropbox, a file hosting and sharing service.

Both Ferguson and Curlee told the U.S. Press Freedom Tracker that they had been provided a link to the city’s Dropbox account in response to their previous public records requests. The folder was not password protected, and anyone could access it via the web address in the link.

A previous temporary restraining order was rendered moot when this injunction was granted.

In his ruling, Crandall also denied FFFF’s motion to dismiss the suit under California’s anti-SLAPP provision, which permits courts to dismiss lawsuits that are intended to censor public speech.

Kelly Aviles, attorney for FFFF, told the Tracker they have already filed an appeal of the judge’s decision.

“The court’s denial of the anti-SLAPP motion is a big problem because it’s the only opportunity for the client to get the money that they had to expend in this case in terms of trying to get their costs back,” Aviles said. She noted that responding to dozens of declarations and briefs have driven up FFFF’s attorney’s fees and costs.

Kimberly Hall Barlow, attorney for the City of Fullerton, told the Tracker, “The city’s goal here is not to be punitive, it is to retrieve files containing confidential documents that were stolen from the Dropbox account.”

“We’re under an obligation to protect the privacy interests of the numerous individuals whose private information is included in those documents,” she said. “This is not about trying to suppress the press.”

The city also filed three deposition orders for testimony and documents from FFFF, Ferguson and Curlee, all captured in the Tracker’s subpoena category. Aviles said they were all filed after she had filed their appeal and are therefore invalid.

Hall Barlow told the Tracker the orders were filed properly and that they will continue to pursue the depositions as part of the discovery process.

Fourth Appellate District Judge Raymond Ikola, who granted the stay on the preliminary injunction on March 26, granted a writ of supersedeas on April 2, which lifts the restraint on publishing throughout the appellate hearings.

Curlee told the Tracker that he is hopeful that the appellate court will understand the conditions of the case more clearly.

“My hope is that they understand this better and realize that no crime occurred, no theft occurred,” he said. “We’re hopeful that the appeals court will see this for what it is and not by the city’s argument about it.”

Aviles said that she hopes all filings on their appeals will be completed in the next two to three months.

In a complaint filed in the California Superior Court of Orange County on Oct. 24, 2019, the City of Fullerton, California, accused a community blog and two contributors of violating anti-hacking laws for accessing confidential files city employees posted online, according to their lawyer Kelly Aviles and court documents reviewed by the Committee to Protect Journalists. Aviles told CPJ in December that the suit could go to a jury trial in early 2020. The press freedom and legal advocacy group Reporters Committee for Freedom of the Press called the case the “first … we’re aware of where the computer crime laws have been misused so brazenly against members of the news media.”

The City of Fullerton claims that the blog, Friends for Fullerton’s Future, and two of its journalists, Joshua Ferguson and David Curlee, accessed more than a dozen internal documents stored on the file hosting and sharing service Dropbox without permission, according to CPJ’s review. The blog publishes original articles and commentary on the city government and the local police department.

Aviles alleged, in a phone interview with CPJ, that the case is designed to retaliate against her clients for reporting and to block future publication. She told CPJ she has filed an anti-Strategic Lawsuit Against Public Participation motion, or SLAPP, which permits courts to dismiss lawsuits that are intended to censor public speech.

“The City’s suit was not in retaliation for anything,” Fullerton’s lawyer Kimberly Hall Barlow wrote in an email to CPJ. The blog was not a factor in the decision to bring the case, she said.

“If the argument is that a reporter can steal information him or herself and then be allowed to publish it at will, that is neither consistent with the first amendment law nor the ethical tenets of professional journalists,” she said.

Ferguson routinely requested public records, and the city had provided him with a link to the Dropbox folder in the past, he told CPJ. The city acknowledges sending a link to access the folder in response to records requests, according to court filings reviewed by CPJ. The folder was not password protected, and anyone could access it via the web address in the link. Files that were approved for public release were kept in the same folder as others that had not been, some of which were password protected, according to those documents.

The complaint said Ferguson and Curlee accessed files in the folder that had not been approved for release, thereby violating the Computer Fraud and Abuse Act, a federal law intended to combat hacking, and a similar state law, the California Comprehensive Computer Data Access and Fraud Act. CPJ has reported concerns that the CFAA’s broad wording could be used to punish routine online journalistic activity.

The complaint said the journalists had intentionally obscured their activity using a virtual private network and the Tor browser — digital security tools that CPJ and others routinely recommend that journalists use online. The City also requested a forensic analysis of the reporters’ computers and sought prior restraint to block future publication based on the files — a request that RCFP called “concerning” and Aviles called unconstitutional in court documents.

In November, a trial court in Orange County did not allow that forensic examination, according to Aviles, while an appeals court stayed the attempt to block future publication in December. But the anti-hacking lawsuit against the blog is ongoing, Aviles told CPJ.

“The city is calling me a hacker and a thief,” Ferguson told CPJ in December. Yet, he said, “the idea they are presenting — that hacking is just clicking a link — that idea would literally break the internet if broadly applied.”

“The conduct that the City complains of is no more criminal than clicking through the City’s website, finding confidential information, and downloading it,” Aviles wrote in court filings reviewed by CPJ. The city’s lawsuit is in “retaliation for Mr. Ferguson’s CPRA lawsuit and to silence the Blog,” she wrote. Immediately before the city launched its lawsuit, Ferguson had filed a California Public Records Act lawsuit requesting the release of documents related to alleged police misconduct, he told CPJ.

Kimberly Hall Barlow told CPJ that the city decided to file their suit before Ferguson filed his.

Ferguson told CPJ that the city’s complaint included Christopher Tennyson, his former co-worker at a local camera store where they sometimes shared the same computer, in order to damage Ferguson’s professional relationships. Kimberly Hall Barlow denied this, noting to CPJ that the city later dropped Tennyson from the suit.

Aviles said the case was draining her clients’ financial resources and impeding their ability to continue reporting.

“It would be hard for a large newspaper to deal with this,” Aviles told CPJ in November. “But for a blog of concerned citizen journalists — who felt like there was no voice in their community — it’s an outrageous thing to face.”

RCFP filed an amicus brief in support of the bloggers, as did the Electronic Frontier Foundation, a leading U.S. digital rights group. The editorial board of the local Orange County Register newspaper published an editorial in November asking the city to drop the case and “get some professional advice on how to password-protect its files.”

A North Carolina judge granted a temporary restraining order on Nov. 13, 2019, barring David Hodges, a reporter at WBTV, from airing his investigation into a Charlotte-based towing company.

The order was lifted at a hearing the following day, and Hodges' story — about an Army National Guard soldier whose car was towed and sold while she was deployed — aired as planned that evening.

In the motion for the temporary restraining order filed with the court, the lawyer for the towing company, SL Recovery LLC, argued that Hodges' story was false. "Hodges has not produced any evidence to substantiate his claims that Plaintiff has engaged in predatory towing practices, and thus far, Defendant Gray Television, Inc., has refused to pull the story which will air on November 14 if temporary and/or permanent injunctive relief is not granted to Plaintiff," attorney Cedric Rainey wrote in his motion.

Previews of the story had already ran on WBTV, and as a result of those previews, Rainey’s motion alleges, SL Recovery had received a death threat. “The person making the threats specifically stated he would cause harm to Plaintiff if the targeting of veterans continued,” Rainey wrote.

Mecklenburg County Judge Lisa Bell granted the temporary restraining order on the evening of Nov. 13, a day before the story was slated to run.

The next day, Jonathan Buchan, the lawyer representing WBTV and Hodges, filed a motion to dissolve the temporary restraining order, arguing that it amounted to "an impermissible prior restraint on speech which violates the First Amendment to the United States Constitution and Article I, Section 14 of the Constitution of North Carolina."

Buchan continued, "If this form of prior restraint were permissible under the First Amendment, then every subject of a planned news story could prohibit its publication for indefinite periods and litigate the truth or falsity of the unpublished article prior to its publication. It would essentially require, in Alice and Wonderland fashion, a 'libel trial' prior to the publication of an article. Such a process would eviscerate the First Amendment's prohibition of prior restraints on publication."

Buchan made these arguments at a hearing before judge Bell on the afternoon of Nov. 14. “You don’t keep the news media in this country from publishing truthful—or what they believe to be truthful—information in this country,” Buchan told the court, according to WBTV.

Rainey, the attorney for SL Recovery, told the judge that this was not a case of prior restraint. “There hasn’t been a prior restraint at any level,” he said in court. If the restraining order were lifted, Rainey continued, “The court would be tacitly permitting them to make ongoing libelous statements."

Buchan countered at the hearing that the law affords injured parties the opportunity to file a lawsuit for defamation, should that occur, but restraining speech by blocking publication would set a dangerous precedent. “That’s not how the First Amendment was designed to work or has ever worked,” Buchan said. “When he says this is not a prior restraint, this is the definition of a prior restraint.”

Bell granted Buchan’s motion to dissolve the restraining order. “I conclude that the court was in error in granting a temporary restraining order,” Bell said as she announced her ruling.

“At the time she signed the restraining order, Bell said, she thought the potential significant harm to SL Recovery outweighed the potential harm to WBTV by having to hold its story,” WBTV reported.

“At that point alone, I stand corrected,” Bell said.

In a statement emailed to the U.S. Press Freedom Tracker, Hodges said the experience was a shocking one. “It paralyzed me, but only for a minute before the news team at WBTV went to work defending the first amendment to make sure our story would air on-time,” he wrote. “Time and money are in short supply for any newsroom and are better spent reporting for our community than fighting legal battles already decided by the Supreme Court.”

A North Carolina judge granted a temporary restraining order on Nov. 13, 2019, barring David Hodges, a reporter at WBTV, from airing his investigation into a Charlotte-based towing company.

The order was lifted at a hearing the following day, and Hodges' story — about an Army National Guard soldier whose car was towed and sold while she was deployed — aired as planned that evening.

In the motion for the temporary restraining order filed with the court, the lawyer for the towing company, SL Recovery LLC, argued that Hodges' story was false. "Hodges has not produced any evidence to substantiate his claims that Plaintiff has engaged in predatory towing practices, and thus far, Defendant Gray Television, Inc., has refused to pull the story which will air on November 14 if temporary and/or permanent injunctive relief is not granted to Plaintiff," attorney Cedric Rainey wrote in his motion.

Previews of the story had already ran on WBTV, and as a result of those previews, Rainey’s motion alleges, SL Recovery had received a death threat. “The person making the threats specifically stated he would cause harm to Plaintiff if the targeting of veterans continued,” Rainey wrote.

Mecklenburg County Judge Lisa Bell granted the temporary restraining order on the evening of Nov. 13, a day before the story was slated to run.

The next day, Jonathan Buchan, the lawyer representing WBTV and Hodges, filed a motion to dissolve the temporary restraining order, arguing that it amounted to "an impermissible prior restraint on speech which violates the First Amendment to the United States Constitution and Article I, Section 14 of the Constitution of North Carolina."

Buchan continued, "If this form of prior restraint were permissible under the First Amendment, then every subject of a planned news story could prohibit its publication for indefinite periods and litigate the truth or falsity of the unpublished article prior to its publication. It would essentially require, in Alice and Wonderland fashion, a 'libel trial' prior to the publication of an article. Such a process would eviscerate the First Amendment's prohibition of prior restraints on publication."

Buchan made these arguments at a hearing before judge Bell on the afternoon of Nov. 14. “You don’t keep the news media in this country from publishing truthful—or what they believe to be truthful—information in this country,” Buchan told the court, according to WBTV.

Rainey, the attorney for SL Recovery, told the judge that this was not a case of prior restraint. “There hasn’t been a prior restraint at any level,” he said in court. If the restraining order were lifted, Rainey continued, “The court would be tacitly permitting them to make ongoing libelous statements."

Buchan countered at the hearing that the law affords injured parties the opportunity to file a lawsuit for defamation, should that occur, but restraining speech by blocking publication would set a dangerous precedent. “That’s not how the First Amendment was designed to work or has ever worked,” Buchan said. “When he says this is not a prior restraint, this is the definition of a prior restraint.”

Bell granted Buchan’s motion to dissolve the restraining order. “I conclude that the court was in error in granting a temporary restraining order,” Bell said as she announced her ruling.

“At the time she signed the restraining order, Bell said, she thought the potential significant harm to SL Recovery outweighed the potential harm to WBTV by having to hold its story,” WBTV reported.

“At that point alone, I stand corrected,” Bell said.

In a statement emailed to the U.S. Press Freedom Tracker, Hodges said the experience was a shocking one. “It paralyzed me, but only for a minute before the news team at WBTV went to work defending the first amendment to make sure our story would air on-time,” he wrote. “Time and money are in short supply for any newsroom and are better spent reporting for our community than fighting legal battles already decided by the Supreme Court.”

A Pittsburgh-based reporter was ordered on May 30, 2019, not to publish details of a sealed settlement that he was mistakenly able to access. At a hearing on June 4, the order was vacated by Washington County Common Pleas President Judge Katherine Emery.

Range Resources Appalachia LLC had reached a settlement in August 2018 with families who alleged they had experienced serious health problems due to exposure to leaks, spills and air pollution emanating from a nearby Range well.

The settlement was sealed, only coming to the attention of the Pittsburgh Post-Gazette in January while reporting on a related story. Upon learning of the confidential settlement, the Post-Gazette filed a court action seeking to unseal it.

A hearing on the newspaper’s petition to intervene was scheduled for May 28, Post-Gazette reporter Don Hopey told the U.S. Press Freedom Tracker. “[Judge Emery] deferred ruling,” he said, “instead taking the case under advisement.”

Reid Frazier, a reporter for The Allegheny Front, StateImpact Pennsylvania and WESA 90.5, was in Washington, Pennsylvania, that day to cover the hearing. Hopey told the Tracker that in the course of conducting background research on the case, Frazier discovered the sealed settlement in the Washington County Prothonotary’s Public Case File Database.

County prothonotary Joy Ranko later told the Washington Observer-Reporter that the document was available due to a software glitch.

When Range lawyers became aware that Frazier had obtained the settlement and planned to air a story about it on May 30, they sent him a cease-and-desist letter and alerted the judge, the StateImpact reported. Emery issued an injunction barring Frazier, The Allegheny Front or StateImpact from “directly or indirectly publishing, circulating, disseminating, disclosing, describing, duplicating, or otherwise sharing in any way contents of the Sealed Documents.”

Frazier reported that at the June 4 hearing for the injunction, Range did not ask for a continuation of the order and told Emery it would publicly release the settlement terms. Emery vacated the injunction order.

On March 14, 2019, a Cook County Juvenile Court judge ordered ProPublica Illinois and other news organizations not to publish certain details about an ongoing child welfare case in the Chicago-based juvenile court.

In the course of reporting on child welfare issues, a ProPublica Illinois reporter had learned about the case. On March 7, after the reporter tried to attend a hearing in the case, the hearing was closed to the public and press.

Bruce Boyer — a Loyola University law professor whose legal clinic represents the foster children in the case — then requested that the court issue an order prohibiting news outlets from publishing details about the case. On March 14, Patricia Martin, the presiding judge of the juvenile court’s child protection division, granted the request and issued a prior restraint order.

Documents related to the juvenile court case, including Martin’s prior restraint order, have not been made public. But on March 19, ProPublica Illinois reported on the existence of the prior restraint order, describing it as an order “forbidding news organizations from publishing the names, addresses or any demographic information that would identify the children or the foster parents in a case ProPublica Illinois has been investigating.”

ProPublica Illinois was not initially a party to the case, but it asked the court to intervene in order to oppose the prior restraint order. On March 19, the court granted ProPublica Illinois’ motion to intervene, and on March 22, the news organization filed its opposition to the prior restraint order. A court hearing on the prior restraint order is now scheduled for April 5.

Prior restraint orders are relatively unusual and should not be confused with sealing orders, which are far more commonly employed by courts. A sealing order is used when a court needs to allow attorneys and parties to a case access to sensitive information; the sealing order just prohibits the attorneys and parties from turning around and disclosing that information to the public. A prior restraint order is much more serious, since it prohibits a third party with no connection to the case (often a news organization) from publishing information that they learned on their own.

ProPublica Illinois is opposing Martin’s prior restraint order because it sees it as an unconstitutional attempt by the government to interfere in its editorial process.

“The Supreme Court has made it very clear that courts are not supposed to be editors,” ProPublica President Richard Tofel told the U.S. Press Freedom Tracker. “One of the Constitution’s guarantees is that editors should be editors.”

Tofel is correct that legal precedent is on ProPublica Illinois’ side. In 1971, the Supreme Court famously ruled that the government’s attempts to prevent The New York Times and the Washington Post from publishing a classified history of the Vietnam War violated the news organizations’ First Amendment rights. This “Pentagon Papers” case established the precedent that, except in extreme circumstances, prior restraints on the press are unconstitutional.

The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to tips@pressfreedomtracker.us.

A Jefferson County, Colorado, sheriff and county attorney obtained an order prohibiting local CBS station, CBS4, from publishing a story on the grounds that an affidavit used in the report should not have been released.

A Jefferson County District Court Judge struck the order down on Jan. 27, 2019, finding it an unconstitutional case of prior restraint.

According to its own report, CBS4 requested a court file in the case of a sheriff’s deputy that had been charged for an alleged relationship with an inmate at a local jail. On Jan. 22, it received both the file and a copy of an affidavit.

The affidavit, according to the report, outlines how Myriah Lovato, a deputy working in the jail as part of the gang unit, had struck up a relationship an inmate, a “known gang member.”

On Jan. 23, a Jefferson county sheriff and the county attorney obtained a signed order from a judge that the affidavit had been disclosed inadvertently and should have been sealed.

“The Sheriff is deeply concerned that the release of this information, as well as additional details contained in the affidavit but not yet released by CBS, will compromise related criminal investigations throughout the State of Colorado, the prosecution of Lovato’s case, and the safety of individuals involved in these investigations,” reads the order.

The newsroom initially complied with the order and removed the report while CBS attorneys fought to challenge it. It re-published following the judge’s order to vacate.

U.S. Supreme Court precedent has held that prior restraint — in which government officials seek to block information from becoming public — is unconstitutional in all but the most extreme circumstances.

— The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to tips@pressfreedomtracker.us.

A Cook County judge ordered the the Better Government Association, an Illinois investigative government watchdog, not to publish records released by Chicago Public School lawyers during a lawsuit brought by the BGA. BGA detailed the context of this order in an article published on Feb. 7, 2019.

The article reported that a CPS lawyer supplied BGA with requested investigative files and internal records on Jan. 24. Four days later, the school’s lawyers asked for their return and the destruction of any copies that had been made, claiming that their release had been a mistake.

The lawsuit and files pertained to a 2017 BGA and Chicago Sun-Times investigation which revealed that a 14-year-old boy with autism was permitted to enter a school pool with neither direct supervision nor a life vest. They reported that the boy drowned within minutes.

When BGA refused to return the released files, CPS attorney Mara Warman asked Circuit Court Judge Peter Flynn during a hearing on Feb. 4 to “claw back” the records. Flynn ruled in their favor, ordering that BGA delay publishing the records until at least Feb. 20. Following an emergency request from BGA to vacate that order, Flynn reaffirmed his ruling on Feb 6.

“Just hold your horses,” Flynn said during the second hearing, BGA reported. “There is no emergency here in any meaningful way… I don’t think it’s a prior restraint. I think it’s efficient management of a case.”

BGA attorney Matt Topic disagreed. “You have the press, which has a highly relevant, important document that they obtained through nothing illegal and you are restraining them from publishing that document where they have an ethical and professional obligation,” Topic said.

Bob Secter, senior editor for BGA, told the U.S. Press Freedom Tracker that Topic reached out to the deceased child’s parents to have them sign a paper authorizing the release of the materials. Based on that release, Flynn vacated his order to delay publication. Some of the documents did have the names of child witnesses to the incident redacted, as well as their social security numbers and other private information.

BGA published an article on Feb. 8 about the judge vacating the original order and what was in the documents.

“This started as a simple FOIA case,” Secter told the Tracker about BGA’s use of the Freedom of Information Act. “We wrote a story with the Chicago Sun-Times reconstructing that incident and how it came about and who might have been responsible and who made mistakes. As part of the reporting on that, we issued a FOIA… As the Chicago Public School does, they basically blanket deny everything, so we filed a lawsuit, and they fought us for well over a year.”

The child’s parents had also sued CPS for wrongful death, reaching a $4 million settlement which was approved by the Illinois Board of Education the day before the documents requested in the FOIA were released to BGA.

“[The prior restraint] was entirely out of the ordinary. Outside of national security cases this doesn’t happen, and, not to minimize what we did, but it was an everyday case about a tragic accident and the subsequent legal case,” Secter said.

U.S. Supreme Court precedent has held that prior restraint—in which government officials seek to block information from becoming public—is unconstitutional in all but the most extreme circumstances.

— The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to tips@pressfreedomtracker.us.

A federal judge reportedly ordered the Chicago Sun-Times not to publish the details of a court document, which the newsroom downloaded when it was mistakenly made public. The Sun-Times used this information in a story published on Jan. 29, 2019.

The Sun-Times article revealed that the FBI had secretly recorded Illinois House Speaker Michael Madigan pitching the use of his own private law firm’s services to a developer, in a questionable practice of merging personal and political business. The meeting was arranged by Alderman Danny Solis, who chairs the Chicago City Council Zoning Committee.

The story cites a federal court affidavit: “The details of the allegations against Solis are contained in a 2016 search warrant application filed by federal prosecutors seeking to search Solis’ City Hall office, campaign and ward office, homes and a North Side massage parlor where Solis allegedly received free sex acts.”

A week after the Sun-Times article, the business news site Chicago Business published a story behind the story. Citing anonymous sources, Chicago Business outlines how the affidavit was filed as part of an FBI request for a search warrant on Solis, a request that should have been sealed. Instead, it was mistakenly posted on PACER, a site through which the public can access federal court records. While it was temporarily available, the Sun-Times seemingly downloaded the document after it was published on PACER.

Chicago Business reports that Magistrate Judge Young Kim ordered the Sun-Times not to publish the details of the document, “presumably on grounds that premature publicity could undermine what appears to be an extremely wide-ranging federal probe into City Hall that has been underway for four years or longer.”

The Sun-Times reportedly defied this court order, and published the information contained in the document anyway. The Sun-Times declined to comment on the Chicago Business report.

Chicago Business added that “whether [Magistrate Judge] Kim will take further action” in response to the Sun-Times publishing the details of the affidavit is not known.

Courts have generally found cases of prior restraint — in which government officials seek to block information from becoming public — to be unconstitutional.

— The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to tips@pressfreedomtracker.us.

On Oct. 10, 2018, Los Angeles County Superior Court Judge Gustavo N. Sztraicher ordered The Los Angeles Times not to publish “descriptors” of a defendant charged with murder — even though journalists watched his proceedings in an open courtroom.

According to The Times, an attorney for Dejone Wright, the defendant charged with the July shooting of anti-gang activist Garry Dorton, objected during a pre-trial hearing to a media request issued by The Times to photograph or describe his client to the public. Wright’s attorney argued that any information about his client’s appearance, if published, “would affect the outcome of a jury trial."

Court documents state Sztraicher agreed with the lawyer’s request and ordered “no descriptors” of Wright be published, citing an “identification issue.”

A sworn declaration by Times reporter Cindy Chang, who was present for the hearing, states no further elaboration of the order was given and that the order was not mentioned in the hearing’s official minutes.

“My understanding is that the Court has prohibited me from publishing any information that visually describes Mr. Wright or Mr. Dixon that I obtained from observing them in open court,” Chang wrote. “However, given the brief exchange in court on Oct. 10 and the lack of any reference to it in the Minute Order, I am uncertain and confused about what the ruling requires.”

On Oct. 12, Dan Laidman, an attorney for The Times, challenged the order, requesting clarification and that the order be vacated as an unconstitutional prior restraint on free speech.

“The Times respectfully requests that this Court clarify the scope of the Order, particularly whether it restricts the publication of any information,” Laidman wrote. “If the Order prohibits The Times from publishing information about Defendants that is obtained through a journalist’s observations in open court (or any lawful source), then it is an unconstitutional prior restraint.”

Laidman also challenged the order on the grounds it was unconstitutionally vague.

“Without further clarification from this Court, the media will be required to steer wide of describing Defendants, who were lawfully observed in open court, and the Oct. 10 Order therefore imposes an unconstitutionally vague prior restraint,” he argued.

Laidman went on to note that Wright’s name and birthdate were released by the Los Angeles Police Department on Oct. 3, and no California court has ever upheld a prior restraint “on publication of lawfully obtained information about criminal court proceedings.”

Sztraicher reversed his ruling on Oct. 12 after acknowledging even he did not fully comprehend the scope of order, according to The Times.

“Any observations made by a reporter who is lawfully in court… may be reported and disseminated,” Sztraicher said in his reversal.

In September, Sztraicher also prohibited reporters from The Times and other outlets from publishing information in a criminal court proceeding over an “identification issue.” That ruling was also reversed.

On Oct. 16 The Times Editorial Board responded to the ruling and its reversal:

On Sept. 26, 2018, Los Angeles County Superior Court Judge Gustavo N. Sztraicher ordered journalists not to publish images taken during the arraignment hearing of Ramon Escobar, who was charged with the murders of multiple homeless people in Southern California.

According to court documents, Sztraicher gave permission to journalists from The Los Angeles Times, The Associated Press and a television news station to document the proceedings after hearing no objections. However, once reporters began taking photographs, an attorney for Escobar raised an objection, citing an “identification issue.”

Although photographs of Escobar had already been released and published by media outlets, the objection was sustained by Sztraicher, who then ordered reporters to stop taking photos and video. He also ordered a sketch artist to stop drawing.

Dan Laidman, an attorney representing The Times and the AP, provided documents that show the journalists were unsure if the court had simply halted further photography or had prohibited publishing images already taken. Journalists, including Times reporters Gina Ferazzi and James Queally, asked the judge for further instruction.

“When journalists pressed for clarification, the judge ruled that the publication of any images, videos or sketches of Escobar from the court hearing would be considered a violation of a court order,” The Times reported.

At a hearing the following day, Laidman argued the order was “flatly unconstitutional” and asked that it be vacated, noting the Supreme Court has never upheld a prior restraint.

“The Times understands that this Court issued its prior restraint because of concerns about an unspecified ‘identification’ issue concerning Defendant, and out of concern for his Sixth Amendment right to a fair trial. But these interests simply do not justify a prior restraint here,” Laidman wrote in the court brief. “The September 26 Order is at odds with the basic purpose of the First Amendment - namely, to prevent the government from imposing prior restraints against the press. […] The Times, therefore, respectfully requests that the Court vacate the Order immediately.”

Escobar’s attorney argued that because Sztraicher’s permission was granted verbally and not through written order, the photographs were obtained unlawfully.

Sztraicher denied this argument, acknowledging journalists had obtained prior verbal approval, and vacated his order.

“Defense attorneys often argue that publishing their client’s image before trial could improperly sway witnesses, … Once photographs have been taken legally, however, a judgeccccccjfk typically can’t bar news outlets from publishing them,” The Times reported following the hearing.

The AP also published on the successful free speech defense.

“The order should never have been issued in the first place,” David Snyder, executive director of the First Amendment Coalition, told the AP. “I’m glad the court saw the light of day.”

In a statement emailed to the Freedom of the Press Foundation about the decision, The Times’ Executive Editor Norman Pearlstine noted how the judge’s courtroom ruling put the news outlet in a difficult position.

“It is distressing that once again the Los Angeles Times needs to resort to litigation to preserve our rights under the 1st Amendment,” Pearlstine said.

Earlier in the year, The Times filed an emergency petition with the U.S. Court of Appeals to rescind a restraining order against publishing information made public in the criminal case of former narcotics detective John Balian. That order was also reversed after a day.

— The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to tips@pressfreedomtracker.us.

On Oct. 17, 2018, Orange County Superior Court judge Gregory Jones ordered members of the media not to report on a sealed search warrant that had previously been made available to the public—an unconstitutional prior restraint. Four days later, he rescinded the order and unsealed the search warrant materials.

The search warrant was executed in January 2018 against Grant Robicheaux, a prominent surgeon suspected of sexually assaulting multiple women. Like most search warrants in California, it was initially filed under seal but was automatically unsealed and made available to the public shortly after it was carried out.

Eight months later, in September 2018, police arrested Robicheaux and his girlfriend, Cerissa Riley, and the Orange County district attorney Tony Rackauckas charged them with sexually assaulting two women. After the arrests were announced, a number of journalists found the January search warrant materials (which were now available to the public) and reported on their contents. In response, both prosecutors and Robicheaux’s defense team asked a judge to re-seal the search warrant materials, which he did.

The next month, as the Associated Press reported, Rackauckas announced that five more women had accused Robicheaux and Riley of sexual assault. At a court hearing on Oct. 17, Rackauckas’ office formally filed additional charges against Robicheaux and Riley, who pleaded not guilty.

According to the OC Register, outside the hearing, Orange County supervisor Todd Spitzer — who is challenging Rackauckas in the election for Orange County district attorney — held a press conference to criticize Rackauckas for taking so long to arrest Robicheaux and RIley. Speaking to a group of reporters, Spitzer said Rackauckas should have had Robicheaux and Riley arrested back in January 2018, right after the search warrant was executed. To prove his point, Spitzer and his assistant handed out copies of the January 2018 search warrant materials to reporters.

Rackauckas objected to Spitzer’s stunt, since the search warrant materials were supposed to be sealed from the public, and the district attorney’s office asked judge Jones do something about it. (Jones was not the judge who originally ordered the search warrant sealed, but he was the judge presiding over the hearing.)

Jones called reporters back into the courtroom and told them to return the copies of the search warrants that they had received. He then told them to remind their news organizations that the search warrant was sealed and they should not publish it.

The Orange County Register and the AP challenged judge Jones’ order, arguing that it amounted to an unconstitutional prior restraint on the press. On Oct. 21, Jones unsealed the search warrant, finding that it could not be re-sealed once it had already been made available to the public.

On July 14, 2018, a federal judge in California ordered the Los Angeles Times to remove certain information from an article that the paper had published about a corrupt police officer accepting a plea deal. The newspaper had published details of the plea deal after a document spelling out the deal was inadvertently made publicly available, rather than being filed under seal.

On the morning of July 14, the Times reported that John Balian, a narcotics detective accused of working with the Mexican Mafia, had accepted a plea deal and agreed to cooperate with federal prosecutors. The article was based on a copy of the sealed plea agreement — which had been inadvertently made available to the public through the online court records database PACER — and included specific details included in the plea agreement: