Constitutional rights not used or claimed might not survive from one generation to the next. It’s not good enough to say that because of New York Times Co. v. United States (1971), no prior restraint — meaning no government-imposed censorship or punishment — may exist against anyone’s rights to speak or publish under the First Amendment. Back in the day, even the Imperial Presidency could not stop The New York Times and the Washington Post from publishing the Pentagon Papers. But that was a long time ago. Lately, it hasn’t been unusual to hear reports about this court or that state legislature issuing orders or passing laws to stop the media from publishing or broadcasting this or that. Most of these attempts don’t get very far, but the mere fact that they get considered adds unneeded delay and confusion. The latest example of a party going to court in an apparent claim to never have heard of the Pentagon Papers case is a company called StemExpress, a player in the fetal tissue business in California. The Center for Medical Progress, the activist group targeting Planned Parenthood with all those undercover videos, reportedly has some StemExpress executives on tape, too. StemExpress has wanted California’s Superior Court in Los Angeles to restrain the Center for Medical Progress from disseminating undercover videos starring their executives. And judges are not the only ones being asked to censor undercover videos. The past couple years have seen a half-dozen states turn over to the private property owner or manager the decision about whether or not an undercover video of animal agriculture operations can be seen by the public. These are the so-called “ag-gag” laws that organizations protecting against animal abuse say are specifically written to punish them if they release the evidence they collect when they go undercover. We may have just experienced a moment, however, that may be extremely important for this generation’s fight against prior restraint. Almost at the same time StemExpress was getting national media for its demand for a restraining order to cover up its role in the Planned Parenthood controversy, a federal judge in Boise was striking down Idaho’s ‘ag-gag” law under the First Amendment and the 14th Amendment’s Equal Protection Clause of the U.S. Constitution. It’s never easy, but in considering the issue of prior restraint and government censorship, it’s necessary to put the emotional issues in the background. Certainly animal rights, abortion, fetal tissue research, and marketing body parts are all significant issues. But none of us should want to put the government censor in charge of those debates by being able to dictate what can be said by whom and by what means. Someone who understands this well is Nathan Runkle, the founder and president of Mercy for Animals. His organization and its undercover video investigation of an Idaho dairy farm were at the center of the federal case that took down the Gem State’s “ag-gag” law. The Idaho dairy industry drafted a bill in response to Mercy’s investigation, and they cut it so close that the judge saw it as a retaliatory act. Runkle has penned a defense against prior restraint or censorship of undercover videos. “Those targeted by undercover videos have every right to pursue legal recourse if they feel they are misrepresented,” Runkle writes. “That what anti-defamation laws are for. But the law should not be used to stifle the videos themselves.” While two or three weeks of being under even temporary retraining order when exercising a constitutional right is too long, it’s looking like the Center for Medical Progress is going to clear the California courts. Going into the weekend, StemExpress had lost the effort to block release of some documents on its website, and a state court had ruled that the company has no right to “journalistic material” held by the Center for Medical Progress. Runkle says that, “Piercing the veil of secrecy is vital.” He adds that the only people who’ve had a problem with his group’s undercover videos are “those with something to hide.” Mercy’s undercover videos are usually hard to watch. They’ve led to felony animal abuse convictions. The Center for Medical Progress’ undercover videos, in their own way, are also hard to watch. Public policy ramifications may result. But prior restraint is not allowed. Period. Keeping prior restraint at bay is right up there with protecting sources as the foundation of a free press. And before anyone asks, “What does this have to do with food safety?”, let me take you back to what Judge B. Lynn Winmill decided in the Idaho case: “Nonetheless,” he wrote, “the State would have the property and privacy interests of agricultural production facilities supersede all other interests. But food production is a heavily regulated industry. And agricultural production facilities already must suffer numerous intrusions on their privacy and property because of the extensive regulations that govern food production and the treatment of animals. Given the public’s interest in the safety of the food supply, worker safety, and the humane treatment of animals, it would contravene strong First Amendment values to say the State has a compelling interest in affording these heavily regulated facilities extra protection from public scrutiny.” I think what the judge is saying is that when it comes to food safety, we want public scrutiny without prior restraint and without government censorship. Period. UPDATE: Los Angeles Superior Court Judge Joanne O’Donnell on Aug. 21 lifted the temporary injunction that had prevented the Center for Medical Progress from releasing video showing StemExpress executives talking business with Planned Parenthood. The judge found the First Amendment prohibits such prior restraint.
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