Two newspapers have asked an appeals court to overturn a judge’s ruling that forced the papers to remove articles about an area utility from their Web sites and temporarily barred the papers from publishing the story.
Lawyers for The Kansas City Star, a daily, and The Pitch, a weekly, filed their motion on Monday, saying Friday’s order by Jackson County Circuit Judge Kelly Moorhouse was based “on a total misunderstanding of constitutional law.”
Moorhouse ordered the story’s removal in response to a request from the Board of Public Utilities in Kansas City, Kan. The newspapers’ stories were based on a confidential board document the papers obtained independently about upgrades at the utility’s power plants.
Missouri Court of Appeals Judge Patricia Breckenridge gave the utility until noon Tuesday to respond to the newspapers’ motion that Moorhouse’s order be dismissed.
The Star and The Pitch argued in their motions that Moorhouse’s order violated the constitutional prohibition against prior restraints against publications in any but the most extraordinary situations.
They said the utility’s situation didn’t rise to that level. Instead, they said the removal of the stories was being used “solely to protect a municipal agency’s three-year-old memo concerning its possible legal and regulatory difficulties.”
Moorhouse said in her order that allowing the newspapers to publish their stories on their Web sites would cause the utility to be “irreparably harmed.” She said “monetary damages which might result from a publication of such information would be difficult or impossible to measure in money.”
The Star’s attorney, Sam Colville, said First Amendment rights must be preserved.
“Confidentiality is an important consideration, but it is up to a party to keep things confidential, and it is certainly not paramount to the U.S. Constitution,” Colville said.
Constitutional scholars and media law experts said the judge’s ruling runs counter to more than 70 years of legal precedent and that the judge sought to pull information from cyberspace was even more unusual.
“Once something is out there, you can’t pretend it didn’t happen,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.
Dalglish said the U.S. Supreme Court has never upheld a prior restraint ruling from its 1931 decision presuming such actions as unconstitutional to the 1971 Pentagon Papers case that upheld the right to publish information, even against claims of national security.
She said the only time the court has upheld the right to censor information was an order barring information about wartime movement of a troop ship. She also said instances where a court pulled information from a news organization’s Web site involved information already the focus of a protective court order.
“You don’t get to say, ‘Off with it,'” Dalglish said. “That is not the way our democracy works.”