By Jeffrey A. Roberts
CFOIC Executive Director
More than two months after BusinessDen asked a judge to set aside her contempt threat against reporter Justin Wingerter, the judge responded to the motion this week with three words, “NO ACTION TAKEN,” and no further explanation.
Denver District Court Judge Kandace Gerdes still hasn’t directly addressed BusinessDen’s contention that her Nov. 30 order to return suppressed court records and delete all electronic copies of them is a “classic prior restraint” of news media, unconstitutional under the First Amendment and the Colorado Constitution’s free press and speech guarantees.
Meanwhile, Wingerter and BusinessDen still face the possibility of being held in contempt for not complying with Gerdes’ order to give back documents Wingerter obtained by making a records request. To remove the threat, the judge presumably would have to vacate her order or indicate she will not enforce it.
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.
Ruling on a motion brought by Farb and ASMF Holdings, Gerdes on Nov. 29 designated their complaint and the accompanying exhibits as suppressed, meaning they wouldn’t be available to the public without a subsequent court order disclosing them. But Wingerter obtained the court records “simply by asking the Court for them,” according to BusinessDen.
The judge responded Nov. 30 by ordering the immediate return of the documents and the permanent deletion of all electronic copies from servers, adding: “Failure to do will be considered contempt of this Court’s Order.”
“It is further ordered,” she wrote,” 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.”
First Amendment attorney Ashley Kissinger filed a motion the next day on behalf of BusinessDen and Wingerter, asking Gerdes to reconsider her order and providing a justification for Wingerter’s defiance supported by case law. Although the judge’s order “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, she wrote.
“A court order that prohibits the media from publishing information in its possession is a classic prior restraint,” the motion says, citing numerous state and federal court rulings concerning unconstitutional prior restraints, including Nebraska Press Association v. Stuart. In that ruling, the U.S. Supreme Court declared that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”
Wingerter “submitted an open records request to the Court through an online form. This is ordinary, lawful, newsgathering activity,” BusinessDen’s motion says, but the judge’s order “purports to elevate such lawful activity, should it occur again by him or anyone else, to an offense punishable by contempt.” Once information is in the public domain, it adds, the information cannot be “constitutionally restrained.”
On Dec. 11, the Reporters Committee for Freedom of the Press submitted an amicus letter to Gerdes on behalf of the Colorado Freedom of Information Coalition, the Colorado Press Association, the Colorado Broadcasters Association, the Colorado News Collaborative and the National Freedom of Information Coalition.
“A prior restraint barring a news organization from access to newsworthy information poses a grave danger not just to Wingerter and BusinessDen but to all members of the press — and by extension to the public,” the letter says.
The organizations urged the judge to lift her order immediately “because each minute an unconstitutional prior restraint remains in place constitutes a separate and distinct First Amendment violation causing ‘irreparable harm’ to BusinessDen and its readers.”
Columbia Journalism Review recently highlighted Wingerter’s stand against Gerdes’ order in a column by Seth Stern, a First Amendment lawyer and director of advocacy for the Freedom of the Press Foundation.
“They say it’s better to ask for forgiveness than permission. But journalists don’t need either to publish government records,” Stern wrote. “Outlets like BusinessDen should be commended for not stooping to ask. And the next censored news outlet should seriously consider doing the same.”
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