Tuesday, October 09, 2007

Text of Ruling in WHDH Prior Restraint Case

[A Massachusetts Appeals Court judge last week lifted an injunction that blocked a Boston TV station from reporting the results of an explosive autopsy report showing that one Boston firefighter killed in the line of duty was intoxicated and another had traces of cocaine in his blood. I posted earlier about this at Law.com's Legal Blog Watch. I have not seen the full text of this ruling posted elsewhere online, so here it is.]

A.C. 2007-J-455



The matter came before the single justice on the petition of the defendant, WHDH TV, Channel 7 (channel 7), pursuant to G.L. c. 231, s. 118 (first par.), seeking interlocutory relief from an order of a Superior Court judge that enjoined the defendant "from the release and/or use of autopsy reports, or the contents of autopsy reports, from the medical examiner's office regarding Paul J. Cahill and Warren J. Payne." In reviewing the entry of a preliminary injunction, a single justice of an appellate court is to focus upon "whether the judge applied proper legal standards and whether there was reasonable support for [her] evaluation of the factual questions." Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640, 642 (1987). A trial court's legal conclusions, however, are subject to broad review and in those cases, the single justice may apply the de novo standard of review if the preliminary injunction order was predicated solely on documentary evidence. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980); Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct. 409, 412, n.4 (1996). Here, I apply the de novo standard of review and conclude that the preliminary injunction was not justified under any criteria which override the heavy presumption against prior restraint on free speech.

Background. The facts are undisputed. On August 29, 2007, two Boston firefighters died in a fire at a West Roxbury restaurant. At some point early in the day on October 3, 2007, the president of Boston Firefighters Union, IAFF Local 718 (the "union" or "plaintiff"), (fn. 1) learned that channel 7 was in possession of information relating to autopsy reports of the deceased firefighters, which it intended to release. The union subsequently filed a complaint for declaratory judgment and injunctive relief and obtained an ex parte temporary restraining order against channel 7, which it served upon channel 7 at 1 p.m. that day. After a hearing at 2 p.m. that day, a judge of the Superior Court granted the union's request for an injunction and, as stated above, enjoined channel 7 from releasing or using the autopsy reports or their contents. Subsequent to that hearing, several other news outlets released the same information that the Superior Court had enjoined channel 7 from releasing. (fn. 2)

Discussion. Prior restraint on the exercise of rights under the First Amendment and Article 16 of the Declaration of Rights. Although generally courts consider constitutional questions only if necessary to the resolution of a case, we may exercise our judicial discretion to consider such questions in limited circumstances. See Commonwealth v. Welch, 444 Mass. 80, 93 (2005) (citations omitted). There are several factors here that motivate us to address the constitutionality of the preliminary injunction order. First, the parties have fully briefed the issue. Id. Further, and more importantly, the statute and regulations, as applied by the judge, implicate "important concerns of free speech and future application of this statute will likely give rise to challenges concerning its scope." id.

As the judge noted in her order, the injunction is without doubt a prior restraint on speech. I must therefore decide whether such prior restraint is justified under the high standards of the federal and state constitution. "It is the chief purpose of the [First Amendment's] guaranty to prevent previous restraints upon publication." Near v. Minnesota ex rel Olson, 283 U.S. 697, 713 (1931). As the Supreme Judicial Court has stated, "Any attempt to restrain speech must be justified by a compelling State interest to protect against a serious threat of harm." Care and Protection of Edith, 421 Mass. 703, 705 (1996). "A general rule" barring publication of information is not sufficient to meet that requirement; rather, "[t]here must be evidence and findings as to what effect the disclosure" will have. Id. at 706. Further, "[a]ny prior restraint on expression comes to [the court] with a heavy presumption against its constitutional validity." Organization For Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (internal quotations omitted). In this case, the plaintiff has not overcome that heavy presumption.

While "the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally," Branzburg v. Hayes, 408 U.S. 665, 684 (1972), channel 7 does not argue that it should be granted official access to the autopsy records; rather, it seeks to broadcast information already in its possession. For this reason, Globe Newspaper Co. v. Chief Med. Examr., 404 Mass. 132, 135-136 (1989), relied upon by the plaintiff, is unavailing, holding as it does that public policies favoring confidentiality make autopsy reports exempt from disclosure as public records under G.L. c. 4, s. 7, Twenty-sixth (c). Simply put, the inability of the press to require the government to disclose information that is not part of the public record does not support a restraint on speech with respect to information already known to the press. Indeed and famously, the presumption against prior restraints on free speech has prevailed even when the materials at issue are stolen and deal with issues of national security. See New York Times v. United States, 403 U.S. 713 (1971). (fn. 3) As the Supreme Court has noted, "[a] prior restraint … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time." Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1974).

In this context, I examine whether the preliminary injunction granted below is "based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available." Care and Protection of Edith, supra, at 705. I conclude that the plaintiff did not, and no longer can, "identify a compelling interest that the restraint will serve." Id. It is undisputed that no other party was made subject to the injunction, and that there has been wide dissemination of the autopsy results in the past twenty-four hours. The plaintiff argues that preventing the emotional distress which will result from continued press coverage (contrasted with the initial public disclosure it first sought to prevent) now constitutes the compelling interest which they must supply. I do not minimize the considerable personal grief that has resulted from rumor and adverse publicity aggravating the vulnerability of bereavement. Even were I to conclude, however, that this is an interest which is recognized by the law as justifying a limitation on free speech, the plaintiffs have not sustained their burden to demonstrate that such an interest is furthered by preventing one additional television station from broadcasting information that all other stations, newspapers, radios and on-line media have disseminated and continue to disseminate. (fn. 4)

For the foregoing reasons, the order of the Superior Court dated October 3, 2007, on docket number SUCV 2007-04341, which granted the plaintiff's request for a preliminary injunction is vacated and the preliminary injunction enjoining channel 7 from broadcasting information relative to the autopsy reports is dissolved.

By the Court (Grainger, J.)
Entered: October 5, 2007


1. The Superior Court judge apparently accepted the representation that the union represented Ann Cahill as surviving spouse of firefighter Paul J. Cahill, and Florence Payne as mother and next of kin of firefighter Warren J. Payne. The plaintiff's counsel also represented at oral argument that the complaint will soon be amended to add Ann Cahill and' Florence Payne as plaintiffs. For ease of reference I refer to the plaintiff in the singular (reflecting its present status) but accept the representation concerning next of kin where pertinent to the issues.

2. Counsel to channel 7 represented to this Court that he was not aware of any additional information in the possession of channel 7 about the autopsies other than that which has already been published.

3. The plaintiffs argue to the contrary, relying on Peckham v. Boston Herald, Inc., 48 Mass. App. Ct. 282, 290 n.9 (1999) for the proposition that illegal acquisition of information creates an exception to the presumption against prior restraint. However, Peckham refers to the possibility of subjecting a media outlet to punishment after publication, not a ban on publishing the information itself.

4. Although we do not need to reach the three prong preliminary injunction test set forth in Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980), we note that the lack of compelling interest in the prior restraint context translates into a lack of irreparable harm in the injunction analysis. Further, even disregarding the constitutional defect here, success on the merits is improbable rather than probable in view of the plaintiff's questionable standing and the fact that the statute is directed at the Chief Medical Examiner's authority to control the release of information rather than the consequences to third parties o f his failure to do so. Finally, a balancing of harms is impacted by the defendant's potential status as the sole news outlet prohibited from carrying a story. In short, the plaintiff would not appear to be entitled to the injunction even if it could overcome the problem of prior restraint.

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