Last week a Charlotte judge issued an order temporarily blocking WBTV from airing a story. It was dissolved less than 24 hours later, with little real-life impact.
But the constitutional principle at stake was huge.
Decades of court cases have established that the government almost never gets to block dissemination of news. Instead, the First Amendment gives reporters the freedom to publish – or broadcast – but they must take the consequences if they violate libel or other laws.
"At the moment in which a court or society imposes pre-publication sanctions, we are no longer the United States of America," says Victoria Ekstrand, co-director of the UNC Center for Media Law and Policy. "We are China. We are an autocracy. We’re a place that says, 'We’re going to censor before someone publishes.' "
Ekstrand says only the most extreme circumstances justify prior restraint: "There are very narrow exceptions and they mostly deal with publication of information during wartime that would cause imminent harm to the nation."
The matter that triggered a brief prior restraint order in Charlotte was considerably less sweeping: A report on an Army National Guard soldier whose car was towed and sold while she was serving active duty.
WBTV investigative reporter David Hodges started investigating the soldier’s complaint earlier this fall. Last week the station started running promos saying the story would air the evening of Nov. 14.
SL Recovery, the towing company whose practices were being questioned, hired lawyer Cedric Rainey to fight the story.
An Unusual Request
It's not unusual for the subject of a critical news story to try to head it off, using tactics such as complaints to newsroom management or threats to sue.
But Rainey went to Superior Court Judge Lisa Bell on Nov. 13 and asked her to block WBTV from airing the report. Rainey didn’t respond to a WFAE interview request.
WBTV attorney Jon Buchan says such requests are rare because they’re practically guaranteed to fail. Buchan has represented numerous news outlets, including WFAE, over the past four decades, and he says he’s only seen three or four prior restraint requests.
"If any potential story subject could go into court and get an order prohibiting publication because they allege this publication is going to be false about it, think where that would lead us," he says.
Judges would have to hear arguments and rule on whether the public can read – or hear – the news, he says: "That just doesn’t work, and it doesn’t make sense under our First Amendment protections for free speech."
Bell, who has been a judge for 21 years, told WFAE she had never had a request like this. And when Rainey approached her, she says she didn’t think of it as a First Amendment issue. Bell says – and court papers filed by Rainey confirm – that his request for a temporary restraining order was based on business losses and a death threat reportedly prompted by the station’s promos for the story.
The request says SL Recovery got “a racially motivated death threat” from someone saying he would harm the owners “if the targeting of veterans continued.”
'Death Is Irreparable Harm'
Bell says the question she dealt with the evening of Nov. 13 was whether the broadcast could cause irreparable harm. "As I looked at it," she says, "the death of the plaintiff is irreparable harm."
So she issued the restraining order.
At Buchan’s request, Bell held a hearing the following day. Bell agreed with Buchan’s First Amendment argument and dissolved the restraining order.
"The big picture was this is a prior restraint on free speech, and I acknowledged that the temporary restraining order should not have been entered," Bell says, adding that she's glad she had a chance to reverse her decision "in a pretty timely manner."
Bell says the frustrating thing is that in hindsight, the solution is obvious: Instead of granting the temporary restraining order the evening it was requested, she should have just scheduled a hearing as early as possible the next day.
Media Freedom In Flux
Ekstrand, the UNC media law expert, says the WBTV case came amid two trends that are changing the way Americans think about a free press: A changing media landscape and more virulent attacks on the media.
The legal system allows victims of bad reporting to seek remedy after publication – for instance, they can file a libel or invasion of privacy lawsuit. But Ekstrand says digital news and social media can bring harm more swiftly and spread the damage more widely.
"The way we engage in counterspeech now is not through a letter to the editor or a phone call to your radio station," Ekstrand says. "It is literally to go on Twitter and go on Facebook and spew all kinds of hate and death threats in a way that the public has rightly been concerned (about)."
The other trend, Ekstrand says, is the emergence of an anti-media climate fostered by a president who regularly derides “fake news” and urges crowds to heckle reporters.
In the Charlotte case, the WBTV story ran on schedule. Buchan, the longtime media lawyer, and Ekstrand both say it doesn't appear Judge Bell was trying to attack press freedom.
But Ekstrand says it’s important to discuss such cases when they arise, and to be vigilant.
"The attacks on the press are doing a lot to undermine some basic democratic principles, and the way that this happens is really insidious, and it’s almost unnoticeable, virtually unnoticeable to the public," she says. "Slowly the norms around how we conceive of the value of the press change overnight, and new rules get put into effect. Democracy withers in minutes."
Ekstrand notes that freedom to publish without censorship is not the same as freedom to publish without consequences. In fact, she says, lawsuits filed after publication can be an important part of holding news media accountable.
WBTV reports that SL Recovery has sued the station, saying the report was false and defamatory. Because of that lawsuit, station officials declined to comment on the case.