In March 2007, Presiding Missouri Court of Appeals Judge Patricia Breckenridge overturned a district court order that had required two newspapers to remove articles from their Web sites and prevented them from publishing further information about a confidential attorney-client memo they had obtained regarding the Kansas City ( Mo.) Board of Public Utilities (BPU). In her four-paragraph order, Breckenridge said that the lower court’s restraining order “causes irreparable harm to [the newspapers] from which they have no adequate remedy by appeal.” State v. The Honorable Kelly J. Moorhouse, WD 68104 (Mo. Ct. App. 2007).
The two newspapers involved, the (Kansas City) Pitch and The Kansas City Star, had each published articles on March 2, 2007, on their Web sites covering a confidential memo they had obtained through the mail from an anonymous source. The memo, written by attorney Stanley A. Reigel in 2004, was addressed to the BPU and contained a liability analysis of 73 repair and upgrade projects the Board had undertaken at its three power plants since 1980. Reigel determined that in light of Environmental Protection Agency (EPA) clean air standards, 41 of the projects were “probably defensible,” 15 were “questionable” and 15 were “probably not defensible.” He concluded that “the presence of a single ‘Questionable’ or ‘Probably Not Defensible’ project puts BPU at risk” of an enforcement action by the EPA or the state, or a complaint by a concerned citizens’ group, and could result in having to retrofit equipment or payment of penalties.
After learning that the newspapers obtained copies of the memo, BPU notified each on March 2 of their intent to bring a temporary restraining order against them preventing publication. The alternative weekly Pitch quickly published its first story about the memo that afternoon, before the judge had ruled, and The Star soon followed with its own story. By that evening, Jackson County Circuit Court Judge Kelly Moorhouse had ordered the stories be taken down and barred the papers from distributing the memo, saying the BPU would be “irreparably harmed” if the articles remained available to the public and that “monetary damages which might result from a publication of such information would be difficult or impossible to measure in money.” Kansas City Board of Public Utilities v. The Kansas City Star and The Pitch Newspaper, No. 0716CV04986 (Mo. Dist. Ct. 2007).
By Monday, March 5, attorneys for the two newspapers had filed an appeal arguing that “the order violated the most fundamental principle of constitutional law -- the prohibition against prior restraints against publication in any but the most extraordinary situations.” Among other precedent, they cited New York Times v. United States, 403 U.S. 713 (1971), also known as the “Pentagon Papers” case, Near v. Minnesota, 283 U.S. 697 (1931), and Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), three U.S. Supreme Court cases that held prior restraint on the press to be unconstitutional. In Nebraska Press Association, the Court said prior restraint is “the most serious and the least tolerable infringement on First Amendment rights.”
Reacting to the restraining order, Kansas City Press Club Vice President Jack “Miles” Ventimiglia told The Star, “How Moorhouse can look at the milestone Pentagon Papers case, then rule for prior restraint, is mind-boggling.”
Star attorney Sam Colville was quoted by the paper stating, “Every moment The Star is restrained constitutes further damage to the constitutional rights of each of us.”
The newspapers also argued to the Court of Appeals that “[t]he Circuit Court’s prior restraint and mandatory removal order was based on a total misunderstanding of constitutional law . . . .The order did not even serve its stated purpose because one cannot reconfidentialize information that has already been disclosed beyond the core group.”
Indeed, during the time period that the newspapers were censored, at least one blog, “BradBlog.com,” made both articles available online.
The newspapers further argued that the duty to maintain confidentiality rests with the owner of information and that “[w]here that information has been revealed to the news media, and its confidentiality lost, the prior restraint doctrine prohibits courts from reaching into newsrooms [and] taking back the information that has already lost its confidentiality and prohibiting journalists from publishing newsworthy articles.”
But BPU countered that “[t]he issue in this case is so important that one of the very essential instruments for the administration of justice is at stake; the ability of a client to communicate with her lawyer without fear of disclosure.” It said that the newspapers had “already damaged BPU by their short-term publication about the memorandum. BPU wants to stop any more harm or damage.”
Breckenridge and concurring Judge Paul Spinden sided with the newspapers and ordered Moorhouse to set aside her order. The newspapers then quickly republished their stories.
– Ashley Ewald, Silha Fellow and Bulletin Editor