What was Boulder judge thinking?

It’s not often that we can say with certainty that a district judge has erred in issuing a ruling.

But it’s not every day that a judge has the temerity to muzzle a newspaper by contradicting centuries of First Amendment jurisprudence.

That’s what happened this week in Boulder, when Chief District Judge Maria Berkenkotter issued a ruling prohibiting the Boulder Daily Camera from publishing information contained in an arrest-warrant affidavit.

As the Daily Camera reported, “Berkenkotter made the ruling during a hearing at which prosecutors formally filed charges against 16-year-old Jeffrey Collins,” who is accused of severely beating a woman in an attempted-murder case.

The prior restraint ruling set off a chain of events that is keeping the paper from publishing the details of the arrest warrant, even though the judge agreed that her ruling didn’t meet the constitutional threshold for prior restraint.

Lawyers for the newspaper argued that prior restraints are presumptively unconstitutional. In their motion to vacate the judge’s order, they cited federal and state case law addressing every mitigating factor the judge may have considered in making an exception to the paper’s First Amendment right to publish “lawfully-acquired, truthful information about a matter of public concern.”

The Supreme Court has set a high bar for enjoining publication of news information. “Even where questions of urgent national security or competing constitutional interests are concerned, we have imposed this ‘most extraordinary remed[y]’ only where the evil that would result from the reportage is both great and certain and cannot be militated by less intrusive measures,” the motion quotes court language established by Nebraska Press Assn. v. Stuart.

Berkenkotter said her prior restaint order cannot stand because the privacy concerns raised by Collins’ lawyer were not “an interest of the highest order.” That should have ended this abuse of freedom of speech, but the judge issued a stay on her order reversing the ruling, giving Collins’ attorney a week to consider appealing the ruling, according to the Daily Camera.

Coloradans may be interested to know that the Colorado Supreme Court has repeatedly held that Article II, Section 10 of the state Constitution affords greater protection for individuals’ free speech rights than does the First Amendment to the United States Constitution. The court has cautioned that this constitutional scheme “expressly prohibits (prior) restraints.”

Obviously the law is only as strong as a judge’s courage to enforce justice equally and blindly. The judge herself concluded there are other less drastic remedies — such as a change of venue — available if Collins felt the publication of the information compromised his right to a fair trial.

Two wrongs don’t make a right. The judge deserves the strongest criticism for restraining the press and then keeping that restraint in place even after she realized she had trampled on both the state and U.S. constitutions.


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