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Colorado became a test case for freedom of the press last week, in a saga that is still not resolved.

We in the media were alerted to the situation in which a Judge and Colorado Attorney General Phil Weiser attempted to prevent a reporter for The Denver Gazette from publishing a story with materials she had legally obtained with a Colorado Open Records Request (CORA).

Reporter Julia Cardi was following up on a criminal case against a police officer who was charged in connection with the 2019 death of Elijah McClain after Aurora police manhandled the Black 23-year-old and drugged him with ketamine. She had documented her story and was ready to publish it a week ago today.

Who Threatens the Press. Image courtesy of Freedom House

The information had been revealed in a Grand Jury hearing and the reporter’s CORA request had been granted. But last Monday, a judge “issued an order to Cardi and The Denver Gazette to stop the story from being published.

A few days later Judge Priscilla Loew reversed her decision, lifting her order after hearing pleadings from the newspaper’s First Amendment attorney and the Reporters Committee for Freedom of the Press Local Legal Initiative Attorney for Colorado Rebecca Johnson.  The Judge said the article couldn’t be published until today, Monday, May 2.

But Weiser, Colorado’s top law enforcement official, countered, arguing that Colorado has an interest “of the highest order” to keep grand jury proceedings secret.

That stance runs counter to the  American interpretation of First Amendment freedom of the press, which accepts that the government has extremely limited reasons for blocking the publishing of information. It’s known as the “prior restraint” doctrine.

Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government or institution, on expression, before that publication or statement has occurred. It is in contrast to censorship which establishes general subject matter restrictions and reviews a particular instance of expression only after the expression has taken place.

Basically, Americans (individuals and the press) are free to publish what they please; something runs in print or digital news, hits the airwaves, or a news feed. As it pertains to the news media, “the issue of prior restraint occurs when the state seeks to prevent a news publication from publishing something”. The liability — dealing with the fallout — is after it is published (for which most credible news media carry media liability insurance).

Clearly, the media has a First Amendment right to publish. In this case, Cardi was handed court documents including quotes and discussion about Grand Jury testimony that was apparently supposed to be suppressed. That it was released to her was not her fault.

Cardi said on social media, “My editors determined we could run a story based on the records because I had gotten them legally.” But as a courtesy, she alerted the state attorney general’s office and the officer’s attorney so the piece wouldn’t blindside them. That turned out not to be a good idea.

She was ordered not to publish. Steve Zansberg, The Denver Gazette’s attorney countered what he termed an “unconstitutional order,” the Judge responded, Weiser weighed in, and Zansberg countered saying  The presumption against blocking someone publishing news “is so strong that the Supreme Court has not ever affirmed the imposition of a prior restraint.”

“We strongly urge the court to vacate its order that not only bars The Denver Gazette from reporting on lawfully obtained court records about a criminal case of significant public interest, but also requires the news outlet to destroy them,” said Johnson. “This is undoubtedly an unconstitutional prior restraint, which is among the most serious threats to a free press. Reporting on judicial records — even those a court unintentionally makes public — is clearly protected by the First Amendment.”

So on Friday, the judge lifted her order, acknowledging it was indeed “prior restraint” — but she offered Weiser the option to appeal to the Colorado Supreme Court by Monday, May 2 before her latest legal move would go into effect. That effectively blocks The Denver Gazette from publishing until today.

In her order, the judge said:

[She had to] “balance the first amendment rights of The Denver Gazette with the state’s interest in preserving the confidentiality of grand jury proceedings … Consequently, after the opportunity for further briefing, and the more in-depth review of the complicated constitutional issues that further time to research allowed, the Court concludes that the state’s remaining interest in protecting grand jury secrecy in this case, where the grand jury has completed its deliberations, does not outweigh The Denver Gazette’s First Amendment right to publish truthful and lawfully-attained information to the extent that a prior restraint may be put on such speech.”

If The Denver Gazette published, they could face contempt sanctions by violating an order of the court. As reported by Colorado College Professor Cory Hutchins, by 12:00 noon on Friday, Gazette Editor Vince Bzdek, who had just spoken to a class of Colorado College students on a field trip to the paper’s newsroom in the Springs, offered a statement:

“I think newspapers across the state should call upon Phil Weiser to stop being an enemy of freedom of the press and the people’s right to know, and to announce he will not appeal this well-reasoned ruling that is consistent with centuries of Supreme Court precedent.”

Colorado Attorney General Weiser has through today to decide whether or not he will appeal the judge’s ruling. News organizations across Colorado are watching this closely.