Update: The Reporters Committee for Freedom of the Press filed an amicus letter with the court in support of BusinessDen’s motion to vacate on behalf of the Colorado Freedom of Information Coalition, Colorado Press Association, Colorado Broadcasters Association, Colorado News Collaborative and the National Freedom of Information Coalition.
By Jeffrey A. Roberts
CFOIC Executive Director
BusinessDen and its reporter Justin Wingerter are refusing to comply with a judge’s order to return suppressed court records and permanently delete all electronic copies of them, contending the order violates both the U.S. and Colorado constitutions.
Although the Nov. 30 order from Denver District Court Judge Kandace Gerdes “does not purport to prohibit publication of the information Mr. Wingerter lawfully obtained from the Court,” it nevertheless “appears designed to inhibit the media from reporting on that information” by requiring the return and destruction of the documents, says a Dec. 1 filing that asks Gerdes to reconsider and set aside her directive.
“A court order that prohibits the media from publishing information in its possession is a classic prior restraint,” unconstitutional under the First Amendment and the free press and speech guarantees in the state constitution, it adds.
The dispute centers on records in a lawsuit brought by the co-founders of CaptainU, a college sports recruiting website, against Stack Sports, which bought the site in 2016. The plaintiffs, Michael Farb and ASMF Holdings LLC, claim that Stack Sports still hasn’t paid the full purchase price of $21 million, BusinessDen reported Monday.
In motion submitted Nov. 27, lawyers for Farb and ASMF Holdings asked the judge to suppress the exhibits in the case as well as their complaint for declaratory judgment, which they claimed contains “Confidential and Proprietary Information” covered by the purchase agreement’s confidentiality requirement.
On Nov. 29, Gerdes granted the motion with an order designating the complaint and the accompanying exhibits as suppressed, meaning they wouldn’t be available to the public without a subsequent court order disclosing them. The next day, “upon being made aware that the media obtained copies,” the judge ordered BusinessDen and Wingerter to return the documents and permanently delete electronic copies from servers by 4 p.m.
“Failure to do so will be considered contempt of this Court’s Order,” Gerdes wrote. “It is further ordered that any future attempt by any person/entity to obtain copies of filings in this case without the Court’s prior written order so authorizing disclosure will be considered a contempt of court.”
According to BusinessDen’s filing, drafted by media and First Amendment attorney Ashley Kissinger, Wingerter obtained the court records “simply by asking the Court for them. He submitted an open records request to the Court through an online form. This is ordinary, lawful, newsgathering activity.”
“Even though the Clerk of Court apparently erred in releasing the requested records to Mr. Wingerter,” it adds, “this Court may not, now, take steps designed to prohibit further dissemination of this information.”
Kissinger cited numerous state and federal court rulings concerning unconstitutional prior restraints, including Nebraska Press Association v. Stuart, in which the U.S. Supreme Court wrote that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”
Gerdes’ order “contravenes long-settled federal constitutional law,” Kissinger argued for BusinessDen, and it “does not satisfy the extraordinarily high bar necessary for a prior restraint and cannot stand constitutional scrutiny.”
“The fact that the Order does not expressly order anyone not to publish the information in the documents the Clerk of Clerk provided to Mr. Wingerter does not save it from constitutional infirmity,” she wrote. “Court orders designed to restrict publication of information lawfully obtained by implicit threat or coercion are unlawful forms of prior restraint.”
“Here,” Kissinger added, “the apparent purpose of requiring return and destruction of the documents is to prevent the press from disseminating the information contained in them, or at least to convey to the press that it should not do so. This runs counter to the law protecting the press from prior restraints imposed by courts and other government actors.”
The BusinessDen filing cites case law that “once information has been placed ‘in the public domain,’ whether purposely or accidently, ‘reliance must rest upon the judgment of those who decide what to publish or broadcast.'” It also notes that the Colorado Supreme Court repeatedly has held that Article II, Section 10, of the Colorado Constitution “affords greater protection for individuals’ free speech rights than does the First Amendment to the United States Constitution.”
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