Judge Bars News Station From Showing Pictures In News Story, Admits It's Prior Restraint, Shrugs

from the you-kinda-can't-do-that dept

Amid an uptick in stories about courts issuing restraining orders that amount to prior restraint on speech, it's worth remembering that prior restraint is generally viewed as plainly unconstitutional except if it is applied narrowly and for dire reasons such as national security concerns. Despite that, prior restraint has come up quite a bit as of late, in cases ranging from trademark disputes between comic conventions to mattress review sites to anti-abortion activism. These expansions of prior restraint should concern anyone interested in free speech, of course, but it takes a special kind of judge to not only issue a prior restraint order against a news organization, but to admit it and say he doesn't care.

Michigan's WXYZ Channel 7 news team were contacted by Mila Kapusta and several other families asking that attention be paid to issues in the probate guardianship system. These families were frustrated with outcomes and procedures in the probate court as family's battle over custody of loved ones amid family disputes. Kapusta, for instance, had sought guardianship over her parents, which is currently held by Kapusta's sisters, Sandy and Lorrie. As part of its reporting on the story, WXYZ was going to include photos of the parents, Janet and Milan Kapp, provided by Mila Kapusta.

That is, until a judge stepped in and issued a restraining order preventing the footage from airing.

Just hours before the story was supposed to air last Thursday, Lorrie and Sandy Kapp got a judge to issue a Temporary Restraining Order, preventing us from showing you old family pictures that had been provided to us by their other sister, Mila. Tuesday during a show cause hearing, Judge Daniel A. O'Brien continued that restraining order, saying his job was to protect Mr. and Mrs. Kapp, who are now in their 90s.

Perhaps you are thinking that Judge O'Brien didn't realize how grossly he had overstepped his legal authority. Perhaps, you may be thinking, even judges have bad days, make mistakes, perhaps with the best of intentions in mind. Perhaps, however, you should have a look at Judge O'Brien's comments on the matter.

"I am granting the injunction against Channel 7 and they are restrained. It is in fact a prior restraint I gotta admit, but they are not to use any photos or video of Milan and Janet Kapp in any broadcast," said Judge O’Brien.

Whatever the narrow scope for prior restraint you might think is acceptable, this situation simply doesn't fit the bill. Preventing a news organization, of all entities, from airing pictures of two key subjects in a story that absolutely is of the public interest, all in the name of protecting two elderly people, is without any legal justification that I can think of.

For its part, WXYZ isn't simply going to take this laying down.

WXYZ's attorney Jim Stewart argued that Judge O'Brien's initial restraining order was unconstitutional. “A court cannot order someone not to publish something. It’s called a prior restraint of speech and it’s been held to be presumptively unconstitutional,” said Stewart. “You can’t have the government telling somebody what they can and can’t say when they’re covering a newsworthy event,” said Stewart. Because WXYZ cannot allow Judge O’Brien’s order to set a precedent for other government officials limiting our news coverage – as protected by the First Amendment – we are appealing his order.

For the sake of our most basic freedoms, here's to that appeal (embedded below) succeeding with speed.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: daniel a. o'brien, family court, first amendment, free speech, janet kapp, milan kapp, prior restraint

Companies: wxyz