Colorado Journalist Says Fuck Prior Restraint, Dares Court To Keep Violating The 1st Amendment

Most courts recognize prior restraint as a First Amendment violation. Most courts. Not all. And the lower you go on the judicial organization chart, the more likely you are to run into a judge who doesn't seem to realize the Constitution exists.

The problem for people being sued in state and county courts is that it's not a whole lot cheaper to get sued there. It's definitely more of a hassle, especially when judges at this level are, generally speaking, seemingly less informed about [re-reads article] decades of precedent that renders their orders unconstitutional.

A Colorado journalist recently found himself on the receiving end of an unconstitutional gag order. But rather than play by the court's unconstitutional rules/rulings (and waste his own time/money in the process), the journalist continued to gather documents and report on them, daring the court to continue ignoring the First Amendment. Here's Seth Stern, reporting for the Columbia Journalism Review.

One Colorado journalist, Justin Wingerter of the Denver business-news outletBusinessDen, isn't standing for it. He'srefusingto comply with a prior restraint ordering him to return records that the court itself released.

The ordeal arose from a case between the founders of a college-sports site calledCaptainUand a company that bought the site and allegedly hadn't made good on the purchase price. Judge Kandace Cecilia Gerdes of the District Court of Denver Countygrantedthe plaintiffs' request to suppress filings that they said contained confidential and proprietary information.

Wingerter submitted an open-records request for the documents, and the court clerk's office complied. That prompted Judge Gerdes to issue anorder on Nov. 30 demanding that Wingerter return the documents and destroy electronic copies. She also threatened to hold him in contempt if he disobeyed. Contempt of court is punishable by fines or jail time-though it's questionable whether a judge has authority to hold in contempt a journalist who isn't in their courtroom or a party to a case before the judge.

First off: lol. You can certainly order someone to destroy their own copies of digital documents. But you cannot (logically and legally) order someone to return" PDFs, nor expect that they won't be shared by others who have downloaded/shared these documents. An order like this is performative: it won't change anything but it lets the person targeted by them know the judge is (ineffectually) angry and willing to cross even more constitutional lines.

The order issued by Judge Gerdes is even stupider than what's shown above. As Stern reports, the order also bans Wingerter from obtaining copies of filings from this case without her explicit permission - an order that says public access to court filings and/or the state's public records laws are not considered legal in her specific court.

Wingerter could have taken the easier (but more expensive!) way out. He could have filed motions to have the gag order lifted and engaged in further litigation to ensure he could continue to gather documents and report on them. But Wingerter went the other way: he decided the court was so wrong there was no reason to stop doing what he was doing.

Instead of pleading with the court to reverse course, Wingerterfileda notice of reason for noncompliance" on Dec. 1.BusinessDenthenpublishedhis report on the sealed records three days later.

We don't feel that the judge has the power of prior restraint," Wingertersaid. So we didn't see any reason to stop the reporting process. We just continued doing our jobs."

Wingerter is correct. From what's been observed here, prior restraint is unconstitutional. And courts are not supposed to hand down unconstitutional orders. The end result was Wingerter informing [PDF] the court it could go fuck itself. He would not stop gathering documents and/or reporting on them. The ball is in the court's... um... court. And that means the court must now say something constitutional that justifies this intrusion on his First Amendment rights.

Wingerter and his legal reps give Judge Gerdes far more respect than she deserves in this motion:

Movants respectfully request that Your Honor reconsider the Order Re: Requests for Suppressed Filings entered on November 30, 2023 (Order"). The Order requires that all documents obtained by any media outlet, including but not limited to those obtained by Justin
Wingerter of BusinessDen, shall be returned to the Court by hand-delivery, specifically Courtroom 275 (1437 Bannock St., Denver, CO 80202), by 4:00 p.m., on November 30, 2023." It further states that [a]ll electronic copies of said documents shall be permanently deleted from servers as well. Failure to do so will be considered contempt of this Court's order." And it further states that it is ordered that any future attempt by any person/entity to obtain copies of filings in this case without the Court's prior written order so authorizing disclosure will be considered a contempt of court."

The order does not purport to prohibit publication of the information Mr. Wingerter lawfully obtained from the Court, nor could it do so consistent with the Constitution. Nevertheless, the Order, by requiring imminent return of physical documents and destruction of the information in its electronic form, appears designed to inhibit the media from reporting on that information. It also restricts the media (and everyone else) from engaging in lawful information-gathering activities. It is therefore unconstitutional under both the First Amendment to the United States Constitution and article II, section 10 of the Colorado Constitution. Accordingly, Movants respectfully decline to comply with the Order and urge the Court to vacate it.

IANAL, but I would have opened with This order is unconstitutional and we refuse to comply with it. Your move, your honor." I probably would have closed with that as well, serving Judge Gerdes' court with a two-sentence motion. Then again, I'm not a lawyer. And my own money/time/freedom isn't on the line here.

If the court system has a problem with Wingerter obtaining this information, it's the court system violating the order, rather than the journalist. If Judge Gerdes wants to reshape the state court system via an unconstitutional order, she's going to swiftly find out that's not within her purview.

Mr. Wingerter obtained access to these court records simply by asking the Court for them. He submitted an open records request to the Court through an online form. This is ordinary, lawful, news-gathering activity. The Order purports to elevate such lawful activity, should it occur again by him or anyone else, to an offense punishable by contempt. But when the government makes information publicly available, whether on purpose or by mistake, it gives implied representations of the lawfulness of dissemination."

This is not a close case." This is not an unexplored margin of First Amendment law. This is not a novel set of circumstances where the court must make a ruling on first impressions. This is a violation of long-held and long-established law, court precedent, and the US Constitution itself. And, since it's such a flagrant violation of all these things, Wingerter is completely in the right and fully justified telling the court (respectfully) he won't be complying with its unconstitutional demands.

As CJR sees it, there's no reason to play litigation footsie with judges who are clearly in the wrong. Sure, journalists and others should understand they do face the risk of being fined or jailed no matter how wrong the court is, but they also should feel free to blow off obviously unconstitutional orders to avail themselves of their rights. And the word rights" is key: these are guaranteed. A court's inability to respect them is secondary.

They say it's better to ask for forgiveness than permission. But journalists don't need either to publish government records. Outlets likeBusinessDenshould be commended for not stooping to ask. And the next censored news outlet should seriously consider doing the same.

That's the lesson here. When you're clearly in the right, there's no reason to pretend courts and judges are worthy of deference. State your case clearly and dare them to make the next move. That's the only way they're going to learn from these mistakes. And the sooner you expose a judge who thinks the Constitution only applies to people who've never been charged with crimes or had a civil suit brought against them, the sooner that judge can be spotlighted, shamed, and (hopefully) encouraged to exit the judiciary.