Censor Slip

Embarrassing prior restraint

The law is unambiguous. As an unbroken line, of U.S. Supreme Court decisions since 1931 makes clear, the constitutional ban on prior restraint of publication is all but absolute. An exception might be made if there was a grave and immediate threat to the national security, but no such case has ever arisen.

Constitutional scholars and civil libertarians therefore reacted with outrage last week when it was disclosed that the U.S. had gone to court to limit the publication of a federal district judge's opinion that officials claimed "slandered" three Government prosecutors. What was even more surprising was that a panel of the Tenth Circuit U.S. Court of Appeals in Oklahoma had granted a temporary injunction. The appeals court rescinded its order last Tuesday, but constitutional experts were still shocked that the court had agreed, however briefly, to the prior restraint. "For 21 days there was a censorship order outstanding against an absolutely trivial publication," said First Amendment Attorney James Goodale indignantly.

The controversy leading to the censorship order began last August. While calling for a new trial for a defendant, Denver U.S. District Judge Fred Winner accused three Justice Department tax attorneys of "repeated excesses" in the course of the investigation, including having "browbeaten and ridiculed" one grand jury witness and "threatened" another. Following standard practice, the judge's ruling was published in paperbound form and was set for a hardcover edition by West Publishing Co., the private concern that issues volumes of federal and state court opinions. But the Government lawyers charged that Winner's opinion contained "defamatory and scandalous" accusations, and West Publishing did not challenge the resulting censorship order. Three weeks later, after the press noticed the order, the court dropped the ban, saying, "We are not convinced that the Government has shown a justification for delay of publication."

To be sure, the issue was never one of total suppression, since both court records and the paperbound publications remained readily available. Still, the Government did end up having second thoughts. Tax Division Chief Glenn Archer's signature was on the censorship petition, and at first he defended it to reporters. But after the storm of criticism, the department contended Archer had not known what his assistants were asking for. "This doesn't represent the policy of the Justice Department," said Deputy Attorney General Edward Schmults. "It was a mistake, and it won't happen again." qed