July 19, 2004.
Original Proceeding Pursuant to C.A.R. 21 Eagle County District Court, Case No. 03CR204 Honorable W. Terry Ruckriegle, Judge.
RULE MADE ABSOLUTE IN PART, DISCHARGED IN PART, AND REMANDED WITH DIRECTIONS.
No. 04SA200, In re: The People of the State of Colorado v. Kobe Bean Bryant — First Amendment — Prior Restraint — Rape Shield Statute — § 18-3-407, 6 C.R.S. (2003) — In Camera Hearing Transcripts Mistakenly Transmitted — State Interest of Highest Order — Victims' Privacy and Safety, Encouraging Victims to Report Sexual Assault, and Prosecuting and Deterring Sexual Assault — Great and Certain Harm — Remedy Narrowest Available
In an original proceeding, the Supreme Court upholds an order by the District Court for Eagle County in a criminal prosecution against Defendant Kobe Bean Bryant for allegedly sexually assaulting a woman. The order prohibits revealing publicly the contents of in camera rape shield hearing transcripts of June 21 and June 22, 2004. The court reporter mistakenly sent the transcripts by electronic transmission to seven media entities, by using an electronic mailing list intended only for transmission of the District Court's public proceedings.
The Supreme Court holds that the District Court's order against revealing the contents of the June 21 and 22 in camera proceeding transcripts is a prior restraint, but it is constitutional under the specific facts and context of the case. The Supreme Court determines that the State has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the rape shield statute, because such hearings protect victims' privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault.
The Supreme Court narrows the District Court's order by striking that portion of the order that required recipients of the transmission to delete the electronic transmission and destroy any copies. The Supreme Court further orders the District Court to: (1) make its rape shield rulings as expeditiously as possible and promptly enter its findings of facts and conclusions of law thereon; (2) determine if some or all portions of the June 21 and June 22 transcripts are relevant and material and, therefore, admissible under the rape shield statute at trial; and (3) enter an appropriate order, which may include releasing to the recipients of the original transmission and the public a redacted version of the June 21 and June 22 transcripts that contains those portions that are relevant and material in the case, if any, and maintains the ongoing confidentiality of portions that are irrelevant and immaterial, if any.
Faegre Benson, L.L.P., Thomas B. Kelley, Steven D. Zansberg, Christopher P. Beall, Eileen Kiernan-Johnson, Denver, Colorado, Attorneys for Petitioners, The Associated Press; CBS Broadcasting, Inc.; Denver Post Corporation; ESPN, Inc.; FOX News Network, L.L.P.; Los Angeles Times; and Warner Brothers Domestic Television.
Ken Salazar, Attorney General, Matthew D. Grove, Assistant Attorney General Denver, Colorado, Attorneys for Respondent, District Court for Eagle County.
Mark Hurlbert, District Attorney, Matthew S. Holman, First Assistant Attorney General and Special Deputy District Attorney, Eagle, Colorado, Attorneys for District Attorney, Fifth Judicial District.
Pursuant to C.A.R. 21, we accepted jurisdiction in this original proceeding to review an order by the District Court for Eagle County in a criminal prosecution against Kobe B. Bryant for allegedly sexually assaulting a woman.
In accordance with section 18-3-407(2), 6 C.R.S. (2003), ("rape shield statute") the District Court, on June 21 and 22, 2004, held in camera proceedings regarding the "relevancy and materiality of evidence of specific instances of the victim's . . . prior or subsequent sexual conduct, or opinion evidence of the victim's . . . sexual conduct." § 18-3-407(2)(a).
In this opinion, we use the term "victim" as it is used under the rape shield statute. It implies nothing with respect to the veracity of the charges.
On June 24, 2004, the court reporter mistakenly sent the transcripts of the in camera proceedings by electronic transmission to seven media entities ("Recipients") via an electronic mailing list for subscribers to public proceeding transcripts in the case, instead of using only the electronic mailing list for persons authorized to receive transcripts of in camera proceedings. There is no dispute that this was an error, and no dispute that the Recipients would otherwise not have received the transcripts.
The District Court's October 31, 2003, order previously entered in this case prohibits court personnel from disclosing to any unauthorized person information that is not part of the court's public records:
Court personnel shall not disclose to any unauthorized person information relating to a pending criminal case that is not part of the public records of the court and that is likely to create a grave danger of imminent and substantial harm to the fairness of the trial proceedings.
Upon discovering the transmission mistake, the court reporter immediately notified the District Court, which promptly issued its June 24th order to the Recipients:
It has come to the Court's attention that the in camera portions of the hearings in this matter on the 21st and 22nd were erroneously distributed. These transcripts are not for public dissemination. Anyone who has received these transcripts is ordered to delete and destroy any copies and not reveal any contents thereof, or be subject to contempt of Court.
So Ordered this 24th day of June 2004.
Four days later, the Recipients filed their original proceeding petition, asking that we exercise jurisdiction to review the District Court's order and set it aside as an unconstitutional prior restraint against publication, in violation of the First Amendment to the United States Constitution and article II, section 10 of the Colorado Constitution. Keeping the District Court's order in effect for purposes of our accelerated review, we have received answer briefs from the Colorado Attorney General on behalf of the District Court and from the District Attorney for Eagle County. The Recipients filed their reply brief. We now enter our decision.
We determine that the District Court's order is a prior restraint against publishing the contents of the transcripts. We also determine that, narrowly tailored, the prior restraint is constitutional under both the United States and the Colorado Constitutions. The state has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the rape shield statute, because such hearings protect victims' privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault.
For purposes of this opinion we assume that the District Court could rule that some of the contents of the June 21 and June 22 in camera hearings may be relevant and material and therefore admissible at the public trial. The state's interest will be served by preventing the further dissemination and any reporting of all or any portion of the contents of the in camera transcripts that are not relevant and material under the rape shield statute. We strike that portion of the District Court's order that requires Recipients to delete the electronic transmission and destroy any and all copies of the in camera transcripts. Consistent with the First Amendment and the state's interest, we therefore order the District Court to: (1) make its rape shield rulings as expeditiously as possible and promptly enter its findings of facts and conclusions of law thereon; (2) determine if some or all portions of the June 21 and June 22 transcripts are relevant and material and, therefore, admissible under the rape shield statute at trial; and (3) enter an appropriate order, which may include releasing to the Recipients and the public a redacted version of the June 21 and June 22 transcripts that contains those portions that are relevant and material in the case, if any, and maintains the ongoing confidentiality of portions that are irrelevant and immaterial, if any.
Although we believe the District Court's order is also sufficiently clear and narrow on this point, we emphasize that our judgment applies only to the contents of the June 21 and June 22 in camera transcripts. Publication of information the media has obtained or obtains by its own investigative capacities is not limited by the District Court's order or our judgment, even though such information may also be spoken of or referred to in the transcripts.
I. Facts and Procedural Background
By its Complaint/Information dated July 18, 2003, the state of Colorado alleges that Defendant Bryant, on June 30, 2003, committed forcible sexual penetration of a woman in Eagle County, Colorado, against her will, in violation of sections 18-3-402(1)(a), -402(4)(a), 6 C.R.S. (2002) a class 3 felony. The District Court has scheduled the trial to begin on August 27, 2004.
This criminal prosecution has received extraordinary media attention from the outset, fueled by Defendant Bryant's international reputation as an all-star professional basketball player and the sexual assault charge made against him. In order to facilitate public access to the proceedings in this case, the Eagle County District Court — through the State Court Administrator's Office — has maintained an electronic scheduling archive on the Colorado Courts' webpage that contains links to publicly accessible documents.
Colorado Judicial Branch, People v. Bryant Media Information, at http://www.courts.state.co.us.
Among these publicly accessible documents is the June 17, 2004, memorandum addressed by the District Court to "Members of the Media." It states that the District Court will hold hearings at the Eagle County Justice Center on the Bryant case on Monday, June 21, and Tuesday, June 22, 2004, a portion of which will be open to the public and a portion closed: "The courtroom will be open for the opening portions of this proceeding . . . the remainder of the proceeding will be conducted in closed court." June 17, 2004 Memorandum to Members of the Media, at http://www.courts.state.co.us/exec/media/eagle/seating/june_21-22_memo.doc.
The June 18, 2004 "Amended Scheduling Order For June 21st and 22nd Hearing" lists eight items that will be held in open court and five items that will be held in camera after completion of the open matters. The in camera items are listed as:
1. Oral argument re: Defense Motion to Strike Testimony of Dr. Baden.
2. Other issues with regard to endorsed expert witnesses.
3. Continuation and Completion of Rape Shield Evidence.
4. Further proceedings concerning Crime Victim Compensation Records, including Defense Motion for Use at Trial.
5. Any other outstanding issues.
As the scheduling order intimates, the District Court has held prior in camera proceedings involving rape shield evidence, and transcripts of them have not been available except to the parties and persons authorized by the District Court to have and review them. The court reporter mistakenly transmitted the transcribed in camera proceedings for June 21 and 22, along with the transcribed public proceedings for June 21, to the Recipients. The notation "** IN CAMERA PROCEEDINGS **" is marked on every page of the transcript containing information from the closed portions of the proceedings. The mistake occurred because the court reporter maintained an electronic list for media entities subscribing to transcripts of the public proceedings in the case.
Our review of the transcripts under seal demonstrates that the pages bearing the label "** IN CAMERA PROCEEDINGS **" are concerned with evidence and arguments relating to the victim's sexual conduct before and after her sexual encounter with the Defendant Bryant.
As recited in their "Emergency Petition for Immediate Relief in the Nature of Prohibition or Mandamus and for Issuance of a Rule to Show Cause Pursuant to C.A.R. 21" filed with us on June 28, 2004, Recipients were preparing stories about the in camera proceedings when they received notification of the District Court's June 24, 2004, signed order preventing further release of the contents of the in camera transcripts.
We exercised our original jurisdiction on June 29, 2004, and ordered expedited briefing. Recipients contend that the District Court's order is an unconstitutional prior restraint violating the First Amendment. The Attorney General and the District Attorney for Eagle County contend that the order is not a prior restraint, or alternatively, that it is a constitutional prior restraint.
The District Court's order and the original proceeding before us involve only the in camera proceeding transcripts for June 21 and June 22, and do not concern any information the media may have obtained through its investigative capacities.
We determine that the District Court's order prohibiting further release of the contents of the in camera proceeding transcripts is a prior restraint, but properly narrowed, is not unconstitutional. In conducting our analysis, we first examine the applicable First Amendment law; then, we turn to the state's interest of the highest order in protecting the transcribed in camera proceedings from public dissemination, as set forth in Colorado's rape shield statute.
II. First Amendment Prior Restraint Law
The First Amendment limits the choices the government may make in its efforts to regulate or prohibit speech, but it does not bar all government attempts to regulate speech, and it does not absolutely prohibit prior restraints against publication. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 570 (1976); Hill v. Thomas, 973 P.2d 1246, 1252 (Colo. 1999), aff'd, 530 U.S. 703 (2000).
The term "prior restraint" describes "administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur."Alexander v. United States, 509 U.S. 544, 550 (1993). Prior restraint of publication is an extraordinary remedy attended by a heavy presumption against its constitutional validity. CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers); N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971). "The thread running through [the prior restraint cases] is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Neb. Press, 427 U.S. at 559.
To justify a prior restraint, the state must have an interest of the "highest order" it seeks to protect. Fla. Star v. B.J.F., 491 U.S. 524, 533 (1989); the restraint must be the narrowest available to protect that interest; and the restraint must be necessary to protect against an evil that is great and certain, would result from the reportage, and cannot be mitigated by less intrusive measures. CBS, Inc., 510 U.S. at 1317 (citingNeb. Press, 427 U.S. at 562).
The decisions of the United States Supreme Court teach that free discussion of public policy issues and criticism of public officials cannot be restrained. See Near v. Minnesota, 283 U.S. 697, 717, 722 (1931). Accordingly, the courts cannot enjoin newspapers from publishing contents of a classified federal government study on United States war policy. N.Y. Times, 403 U.S. at 714. Nor can a speculative concern about the impact of pre-trial publicity on prospective jurors justify a prior restraint. Neb. Press, 427 U.S. at 563, 570. Nor can a judge who allowed reporters to attend the trial of a juvenile — notwithstanding a state statute closing such trials — prohibit the news media from publishing the juvenile's name or photograph.Okla. Publ'g Co. v. Dist. Court, 430 U.S. 308, 311-12 (1977). Additionally, potential harm to an economic interest is not sufficient to justify a prior restraint.CBS, Inc., 510 U.S. at 1318.
In cases dealing with the conflict between truthful reporting and state-protected privacy interests, the Supreme Court — when reviewing the validity of sanctions following publication — has held unconstitutional a civil damages award entered against a television station for broadcasting the name of a rape-murder victim it had obtained from publicly available courthouse records. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 472-73, 496-97 (1975). Likewise, two newspapers learned the name of a juvenile offender from talking to witnesses and subsequently published the name, despite a state statute forbidding such publication. Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 99-100 (1979). The Supreme Court held that the indictment of the two newspapers for violating the statute was unconstitutional. Daily Mail, 443 U.S. at 105-06. The Supreme Court also invalidated a sanction imposed for publication of an article identifying judges whose conduct was being investigated, despite the state's provision for confidentiality in judicial discipline proceedings. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 831, 845-46 (1978).
Nevertheless, the Supreme Court has recognized that protecting the privacy of rape victims is a highly significant state interest, requiring courts to consider both the First Amendment and the compelling privacy interests in the particular factual context of the case in reaching their decisions. Fla. Star, 491 U.S. at 530, 537. "We continue to believe that the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case." Id. at 533.
In Florida Star, the Sheriff's Department publicly posted a police report containing a sexual assault victim's name. Id. at 527. Under the circumstances, the Supreme Court determined that a civil damages award against the newspaper for revealing the name violated the First Amendment. Id. at 541. But the Court said it was not holding that "truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the state may protect the individual from intrusion by the press, or even that a state may never punish publication of the name of a victim of a sexual offense." Id. at 541.
We therefore turn to Colorado's rape shield statute, which serves purposes the Supreme Court identified in Florida Star as being of the highest order.
III. Colorado's Rape Shield Statute
Rape is among the most intimate and personally-devastating invasions a person may experience in his or her lifetime. It typically produces emotionally-destructive reverberations for the victim and the victim's family long after its occurrence. It can destroy the ability of a person to enjoy his or her sexuality with another.
The crime formerly described as rape, from which the rape shield statute obtained its name, is now defined by statute as various forms of sexual assault.
The price of making a sexual assault victim's testimony available to courts of law historically exposed the victim to detailed questioning about his or her sexual relationships with others on the theory that a person who consented to a sexual relationship in the past was more likely to have consented in the case at hand This tactic of "putting the victim on trial" attempts to characterize the accuser as a person who consented to the alleged unlawful sexual conduct. See People v. McKenna, 196 Colo. 367, 371-72, 585 P.2d 275, 277-78 (1978). Due to the likelihood or possibility that this defense will be invoked, exposing the victim's most intimate life history to public view, victims often are deterred from reporting the crime, or having reported it, from following through in the role of complaining witness.Id. at 372, 585 P.2d at 278.
At the time the Colorado General Assembly enacted the rape shield statute, many sexual assaults were never reported because victims of rape were often ashamed, humiliated, or terrified about the specter of their most private hurt being publicly revealed. Therefore, the offenses could not be prosecuted under the state's criminal laws. In 1975, the FBI reported that forcible sexual assault was one of the most under-reported crimes, with the estimated actual rate of occurrence ranging from 80% to 350% more than the number reported. M. Ireland, Reform Rape Legislation: A New Standard of Sexual Responsibility, 49 U. Colo. L. Rev. 185, 186 n. 4 (1978) (citing Fed. Bureau of Investigation, Uniform Crime Reports 22-24, 37, 42 (1975)). "Rape crisis centers tend[ed] to support . . . that at least 90 percent of actual rapes [were] never reported." N. Gager C. Schurr, Sexual Assault: Confronting Rape in America 91 (1976).
In People v. McKenna, 196 Colo. 367, 372, 585 P.2d 275, 278 (1978), we cited the following works that support the Colorado General Assembly's legislative public policy basis for the rape shield statute: M. Ireland, Reform Rape Legislation: A New Standard of Sexual Responsibility, 49 U. Colo. L. Rev. 185 (1978); N. Gager C. Schurr, Sexual Assault: Confronting Rape in America 145 (1976); National Institute of Law Enforcement and Criminal Justice, U.S. Dept. of Justice, Forcible Rape p. ix (March 1978); G. Delsohn, Police are Baffled by Rape Increase, Rocky Mountain News, June 18, 1978, at 5.
In an article written in 1978, the Rocky Mountain News reported that Denver, Colorado had one of the highest sexual assault rates in the nation. Delsohn, supra, at 5. The article also stated that "most women still are fearful of being ridiculed and persecuted for reporting a rape." Id. The police and counselors stressed that "[w]omen must overcome their reluctance and report rapes. . . ." Id. at 58.
The FBI acknowledged in its Uniform Crime Reports that law enforcement administrators recognize that their sexual assault statistics are low because "fear and/or embarrassment on the part of victims" deter them from reporting the crime. N. Gager C. Schurr, supra, at 1 (citing excerpt from a Uniform Crime Report from 1968-1973). One of the main reasons why so few sexual assaults were reported was fear of court harassment and embarrassing publicity. Id. at 93; National Institute of Law Enforcement and Criminal Justice, U.S. Dept. of Justice,Forcible Rape 21 (March 1978) ("National Institute") ("The victim who fears that her past sexual activities may be exposed in public is less likely to report her rape and pursue prosecution."). In addition, many victims have reported that "involvement with the criminal justice system has been almost as bad as the sexual assault itself." National Institute, supra, at 34.
Today, the issues of underreporting are still present. The United States Department of Justice reported in 2002 that "[m]ost rapes and sexual assaults [are] not reported to the police. . . . Sixty-three percent of completed rapes, 65% of attempted rapes, and 74% of completed and attempted sexual assaults against females [are] not reported to the police." U.S. Department of Justice, Bureau of Justice Statistics, Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000 (Aug. 2002). Yet, to prosecute perpetrators of sexual assault and deter others from committing this crime, the state usually requires the victim's testimony to prove its case beyond a reasonable doubt.
Because a defendant may seek to inject irrelevant details about the victim's personal sexual conduct into the case, the Colorado General Assembly has enacted a carefully-crafted judicial mechanism that allows the prosecution and defense — in private, that is, " in camera" — to explore and argue about the relevancy and materiality of evidence tendered to the trial judge for admission at the public trial of the case. McKenna, 196 Colo. at 373, 585 P.2d at 279; see § 18-3-407, 6 C.R.S. (2003).
Victim's and witness' prior history — evidentiary hearing. (1) Evidence of specific instances of the victim's or a witness' prior or subsequent sexual conduct, opinion evidence of the victim's or a witness' sexual conduct, and reputation evidence of the victim's or a witness' sexual conduct shall be presumed to be irrelevant except:
(a) Evidence of the victim's or witness' prior or subsequent sexual conduct with the actor;
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant.
(2) In any criminal prosecution under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, or for attempt or conspiracy to commit any crime under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim's or a witness' prior or subsequent sexual conduct, or opinion evidence of the victim's or a witness' sexual conduct, or reputation evidence of the victim's or a witness' sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial, the following procedure shall be followed:
(a) A written motion shall be made at least thirty days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof of the relevancy and materiality of evidence of specific instances of the victim's or witness' prior or subsequent sexual conduct, or opinion evidence of the victim's or witness' sexual conduct, or reputation evidence of the victim's or witness' sexual conduct, or evidence that the victim or witness has a history of false reporting of sexual assaults that is proposed to be presented.
(b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
(c) If the court finds that the offer of proof is sufficient, the court shall notify the other party of such and set a hearing to be held in camera prior to trial. In such hearing, the court shall allow the questioning of the victim or witness regarding the offer of proof made by the moving party and shall otherwise allow a full presentation of the offer of proof including, but not limited to, the presentation of witnesses.
(d) An in camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown.
(e) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered regarding the sexual conduct of the victim or witness is relevant to a material issue to the case, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court.
This statute deems the prior or subsequent sexual conduct of any victim to be presumptively irrelevant to the criminal trial.See People v. Murphy, 919 P.2d 191, 195, 197 (Colo. 1996). It sets forth a detailed procedure by which a defendant may request that a court make an exception to this general rule. According to this procedure, the defendant must submit a written motion stating that the defendant "has an offer of proof of the relevancy and materiality of evidence of specific instances of the victim's . . . sexual conduct." § 18-3-407(2)(a). The motion must be accompanied by an "affidavit in which the offer of proof shall be stated." § 18-3-407(2)(b).
If the court finds the offer of proof sufficient, it must hold an in camera hearing to determine whether the prior sexual conduct is "relevant to a material issue to the case." During the in camera hearing, the parties may call witnesses, including the victim. To the extent that the court deems the sexual conduct relevant to the case, this evidence will be admissible at the public trial. McKenna, 196 Colo. at 370-71, 585 P.2d at 276. However, the statute contemplates that contents of the in camera hearing and any transcripts
thereof will remain confidential and under seal in the future, with the possible exception of use at the trial to impeach a witness' credibility or for some other admissible purpose.
In summary, Colorado's rape shield statute: (1) protects the sexual assault victim's privacy; (2) allows the accused person to explore facts, examine witnesses, present testimony, and challenge expert opinion to uncover material evidence potentially helpful to the defendant; (3) enables the trial judge in pre-trial proceedings to determine what shall be admitted or excluded at the public trial; (4) shelters all evidence in the in camera proceeding from being reported publicly; (5) keeps the evidence that is not material and relevant from being publicly reported in the future; and (6) serves the state's interest in prosecuting those accused of sexual assault and protecting the victims of sexual assault while affording defendants a fair opportunity to confront their accusers and hold prosecutors to the burden of proof at the public trial. See People v. Murphy, 919 P.2d at 194-95; McKenna, 196 Colo. at 372-73, 585 P.2d at 278-79.
IV. Application to This Case
We determine that the District Court's order is a prior restraint because it prohibits specific entities possessing the in camera June 21 and June 22, 2004, transcripts from revealing the contents. See Alexander v. United States, 509 U.S. 544, 550 (1993).
We also determine that, narrowly tailored, the prior restraint is constitutional. The state has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the rape shield statute, because such hearings protect victims' privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault.
We further determine that a narrowly tailored order can be fashioned in this case, and it is necessary to protect against an evil that is great and certain and would result from the reportage. CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994).
1. The District Court's Order is a Prior Restraint on Publication of Lawfully Obtained Information
The Recipients contend that the District Court's order forbidding publication of the information contained in the in camera transcripts constitutes a prior restraint. In this respect, we agree with Recipients, and they are entitled to the heavy presumption against the constitutionality of a prior restraint. An accidental leak of privileged information does not necessarily entitle a court to punish or impose a secrecy order upon the media. See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978); Procter Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996).
We also agree with Recipients that their acquisition of the transcripts was not illegal. Absent the prior court order, the statute, and the subsequent court order, Recipients would be free to publish the contents. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 528 (2001) (emphasizing and citing N.Y. Times Co. v. United States, 403 U.S. 713 (1971), for the proposition that a court must focus on the document's character and the consequences of public disclosure rather than the origin of the documents).
2. Facts and Context of This Case
The Supreme Court's precedent requires us to base our review on the specific facts and context of this case. Here, we ground our decision on uncontested facts derived from the following parts of the record: (1) the briefs filed with us; (2) the Colorado Courts' webpage entries; and (3) the sealed in camera transcripts that we rely upon but do not publish in this opinion. Additionally, we take notice of matters of common knowledge in this jurisdiction.
The pre-trial proceedings in this case are constantly monitored and reported by the press. Such media-intense activity has befallen a small mountain courthouse and has prompted a sizeable commitment of Colorado judicial resources. Among these is the constant updating of the Colorado Courts' webpage to provide the press and the public with contemporaneous and archive-accessible electronic documents and scheduling dates for pre-trial and trial activities.
The electronic technology being utilized helps to facilitate for Coloradans and the world a high-degree of access to the public proceedings in this case. Yet, while most aspects of the judicial role in proceedings are highly visible and responsive to the media's First Amendment-protected right to report news to the public, the District Court closed the in camera rape shield hearings held on June 21 and June 22, 2004, following public announcement on June 17 and June 18 of their closure.
The District Court placed into effect reasonable procedures, in advance, to prevent the media from attending and reporting these proceedings. By a standing order entered in the case dated October 31, 2003, the District Court prohibited the parties, attorneys, and court personnel — including the court reporter — from publicly revealing the hearing contents. The District Court allowed only authorized persons, including witnesses, to attend the in camera hearings. To make the in camera evidence and arguments accessible to the court and the parties, so that the District Court could make its rape shield statute determinations, the court reporter transcribed the in camera proceedings, marking every page of the in camera transcripts with highly visible lettering: "** IN CAMERA PROCEEDINGS **." The court reporter then transmitted the contents of the in camera proceedings mistakenly by utilizing the wrong e-mail list.
Recipients, the few media entities on whose computer screens the electronic document appeared, obtained a private transmission placed under seal by the District Court. The District Court did not intend to make these transcripts publicly available, nor did the court reporter. The private and protected nature of these transcripts was manifest to the Recipients from the bold notation on each page and the District Court's prior orders and actions.
Recipients were in a position to receive this transmission from the court reporter only because the District Court's accommodation allowed them to contract for the court reporter's electronic delivery to them of public court proceedings in the case as soon as they were available.
When the court reporter realized the transmission mistake, she notified the District Court Judge who had presided over the in camera proceedings. The District Court Judge then ordered the Recipients not to reveal the contents of those transcripts and to destroy them. Such order preceded any publication of the transcripts. The in camera transcripts continue to remain under seal. Recipients were and are amply apprised of this.
The District Court's order pertains only to the contents of these transcripts. The District Court took the only remaining action available to uphold the protections afforded by the rape shield statute, which embraces all of the state interests at stake in this case. It ordered the Recipients not to reveal the contents of the transcribed in camera proceedings. Were the District Court to allow publication of the mistakenly transmitted transcripts, it would abrogate all of its duties under the rape shield statute, and its own prior orders.
3. Prior Restraint Necessary; Harm Great and Certain
Recipients do not dispute the constitutionality of excluding the public and press from the in camera hearings, nor do they challenge the requirement that the parties, witnesses, and court personnel must maintain the secrecy of the proceedings. Rather, the Recipients argue in this case that at the moment the transcript arrived at their computers, they lawfully acquired the information and were entitled to publish it.
In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 601 (1982), the United States Supreme Court stated that "there is an unbroken tradition of openness in criminal trials," but one major exception involves sexual assaults.
In conducting our analysis of whether the prior restraint is necessary to protect against an evil that is great and certain, would result from the reportage, and cannot be mitigated by less intrusive measures, we recognize that the Supreme Court has hypothesized that a valid restraint might occur in the intersection of First Amendment and privacy rights, but has not yet decided a case approving one.
A. Florida Star and Other Applicable Cases
We reason from Supreme Court case examples that reject the argued basis for sanctions or prior restraint. These include the posited-but-rejected justifications of: removing incentives for parties to intercept private conversations,Bartnicki v. Vopper, 532 U.S. 514, 529 (2001); minimizing the harm to persons whose conversations have been illegally intercepted, Id.; protecting anonymity of juvenile offenders and encouraging their rehabilitation, Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 104 (1979); and protecting the reputation of state judges and maintaining the institutional integrity of the court system, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 833, 842 (1978).
We recognize that many of these examples arose in cases involving after-the-fact punishment of speech rather than prior restraints. Nonetheless, they are instructive because if these reasons are not compelling enough to justify an after-the-fact restraint, they are certainly not sufficient to justify a prior restraint.
In many of these cases, the Court pointed to the strength of the interest asserted but held that it did not satisfy the high standard required by First Amendment law, or was not supported by empirical evidence. Nevertheless, the facts and context of this case justify the District Court's prior restraint against revealing the contents of the in camera transcripts.
In Michigan v. Lucas, 500 U.S. 145 (1991), the United States Supreme Court acknowledged the widespread adoption of rape shield statutes, and noted that the purpose behind them is "to protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior."Id. at 146. The Court held that this state interest was sufficient to warrant excluding even relevant evidence of the victim's sexual history, if the defendant failed to follow the procedures outlined in the statute. The Court reached this holding after acknowledging that precluding this evidence limited the ability of the defendant to confront witnesses. Id. at 149. Nonetheless, the Court held that the state interest in protecting the victim was sufficient to justify the resulting imposition on the defendant's rights. The Court reasoned that "rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy." Id. at 150. In subsequent cases, the Court has been explicit in addressing the privacy interest of sexual assault victims. In Coker v. Georgia, 433 U.S. 584 (1977), the Court stated that "short of homicide, [rape] is the `ultimate violation of self'." Id. at 597.
Likewise, in Florida Star v. B.J.F., 491 U.S. 524 (1989), the Supreme Court acknowledged the compelling interest of protecting a sexual assault victim's privacy. In that case, a reporter obtained the name of a rape victim from a police report in a pressroom. Id. at 527. The name was not supposed to be in the pressroom, Id. at 528, and posted signs warned reporters not to copy or print the names of rape victims. Id. at 546 (Scalia, J. dissenting). Moreover, the newspaper had a policy not to print these names. Id. at 528. Nonetheless, the newspaper printed the name of the victim in a small blurb about the sexual assault in a police blotter. The victim sued, alleging that the newspaper was negligent per se in that it violated a statute making it a misdemeanor to publish the name of a sexual assault victim. Id. at 528-29.
We acknowledge that Florida Star involved penal sanctions for speech rather than a prior restraint. However, in Smith v. Daily Mail, the Court stated that "whether we view the statute as a prior restraint or as a penal sanction for publishing lawfully obtained, truthful information is not dispositive because even the latter action requires the highest form of state interest to sustain its validity." Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 101 (1979). Thus, the court's discussion necessitates the "highest form" of state interest — the identical requirement as a prior restraint.
The Supreme Court addressed whether the privacy of the sexual assault victim warranted the after-the-fact restraint on publication of lawfully acquired information. Id. at 526. The Court emphasized that the case involved a clash between privacy rights and First Amendment rights — both very important — and that this clash required a careful, case-by-case, fact-specific analysis. Id. at 530. The Court went on to say that the interests advanced by the statute in that case — the privacy of victims, the safety of victims, and encouraging victims to report crimes — were interests of the highest public order. The Court said that "[i]t is undeniable that these are highly significant interests." Id. at 537, 109 S.Ct. 2603.
The Court also discussed that, given the choice of whether to hold the state liable for inadvertently releasing the information or holding the newspaper liable for printing the information, the better choice was to hold the state liable. This is because the state should implement policies and procedures for keeping the information secret and bear the punishment for disclosing the information. To punish the newspapers would cause self-censorship, which is disfavored by the First Amendment.Fla. Star, 491 U.S. at 535. Although one might note the similarity to the facts in the present case, in that in both cases the government inadvertently disclosed the information, the reasoning in Florida Star does not require us to invalidate the prior restraint simply because government error caused the problem. The fact that this information has not yet become public and is still sensitive and private leads to the conclusion that constitutionally permissible measures may be taken to maintain the secrecy of the transcribed in camera information.
While the Court acknowledged that the privacy interests involved were highly significant, it held that imposing damages on the newspaper for publishing the victim's name violated the First Amendment. The Court left open the possibility that "in a proper case, imposing civil sanctions for publication of the name of a rape victim might be so overwhelmingly necessary to advance these interests as to satisfy the Daily Mail standard." Id.
This standard is that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." Daily Mail, 443 U.S. at 103.
In the case before us, the state's interest in protecting the victim's privacy is even stronger than in Florida Star. The Defendant Bryant is an internationally-recognized professional basketball player. The press has been covering every minute detail of this case, and most of this coverage has been published or broadcast nationwide. In addition, the reported news is typically posted on the Internet, and thus available to computer users world-wide. The in camera transcribed proceedings of June 21 and 22 address the prior and subsequent sexual conduct of the victim apart from her encounter with Defendant Bryant. A victim's sexual conduct is even more private than a victim's identity, which the Court held was of utmost importance in Florida Star.
Moreover, in contrast to Florida Star, the contents of the in camera transcribed proceedings were not publicly available, there was no burden on the press to determine whether it should risk publication and sanctions in light of the District Court's prior restraint order, and the specter of the press having to impose self-censorship was not an issue, as the transcripts were clearly marked private by the "In Camera" notation. In addition, this case is distinguishable from Near, Landmark, and New York Times because the contents of these transcripts do not implicate suppression of public policy debate or criticism of public officials. To the contrary, the testimony concerns conduct that is intensely private and personal.
In Florida Star, as the Supreme Court explored the tension between First Amendment rights and statutory rights to privacy, the Court noted that First Amendment rights are not absolute. Under the proper circumstances, the scale may tip in favor of the state's interest that protects the victim's privacy. Fla. Star, 491 U.S. at 530, 532-33. For the reasons discussed in this opinion, we hold that this is just such a case. In his dissent inFlorida Star, id. at 542, Justice White emphasized the severity of sexual assault as compared to other crimes, as well as the fact that the ensuing publicity often multiplies the harm to the victim. He explained that even when the government attempts to protect the victim, "mistakes happen" and sometimes rape victims' personal information is inadvertently disclosed.Id. at 542, 547.
As Justice White observed: "The Court's concern for a free press is appropriate, but such concerns should be balanced against rival interests in a civilized and humane society. An absolutist view of the former leads to insensitivity as to the latter." Id. at 547 n. 2. Here, where the mistake was caught before the in camera information was further disseminated, the balance must tip in favor of keeping the information private.
B. Our Determinations Regarding the Harms in this Case
Under the circumstances and context of this case, any details of the victim's sexual conduct reported from the in camera transcripts will be instantaneously available world-wide and will irretrievably affect the victim and her reputation. She is entitled to rely on the protective provisions of the rape shield statute, which the state affords her in her capacity as complaining witness in a sexual assault prosecution. This includes the District Court's prohibition against the further release of the contents of the transcribed in camera proceedings.
Recipients have presented to us an affidavit attaching many press articles containing information about the victim's purported sexual activity before and after her encounter with Defendant Bryant. In addition, the probable cause order made public in this case contains hearsay references to DNA testing, the victim's clothing, and evidence that the victim had engaged in sexual activity with other persons. The argument is that the victim's privacy is already hugely compromised and publication of the in camera proceedings will not result in graver infringement on the victim's privacy.
We have reviewed the transcripts of these hearings and disagree. The applicable United States Supreme Court standard of review does not require us to disclose what is in the in camera proceedings versus what is already in the public domain. Doing this would contravene the rape shield statute by revealing what is in the transcripts and destroying the confidentiality of that information, before the trial court determines whether the information is relevant and material.
Rather, the applicable standard of review requires us to determine whether publication of these transcripts would cause great and certain harm to a state interest of the highest order. We conclude that it would.
First, the evidence and the opinion testimony presented at these in camera proceedings were taken under oath in a court of law. Reporting these court proceedings will add a level of official legitimacy and detail to the information that does not attend press reports — the ring of authenticity, the stamp of authority. Because sworn testimony is viewed by the law and the public as having greater value and credibility than press reports of unsworn statements, this will cause great and certain harm to the victim's privacy interest. Unsworn statements often contain a mix of fact, conjecture, rumor, and unconfirmed assertions that a person might not make under oath, or that lack evidentiary value or relevance.
We do not accept the proposition that the greater the press attention to a case the less important it becomes to keep in camera rape shield transcripts from being published. If the contents of these transcripts are reported, the world will have access to graphic detail of sworn evidence and opinion testimony about the victim's sexual conduct that the public trial of the case may not reveal, because the District Court may determine it to be irrelevant and immaterial under the rape shield statute. The very damage that the rape shield statute is designed to prevent — confirming through in camera court proceedings the details of this victim's sexual conduct that are not relevant or material — would thereby occur.
We also note that the victim's physical safety has apparently been jeopardized by the publicity in this case. In a pleading filed with the District Court on July 12, 2004, the victim's counsel stated that he had "met with the Los Angeles Federal Bureau of Investigations and Los Angeles County Sheriff's Office regarding what those agencies considered to be a credible [threat of a] plan to kill the victim in the Bryant case for financial gain."
Second, the state's interests of the highest order in this case not only involve the victim's privacy interest, but also the reporting and prosecution of this and other sexual assault cases. Revealing the in camera rape shield evidence will not only destroy the utility of this very important legal mechanism in this case, but will demonstrate to other sexual assault victims that they cannot rely on the rape shield statute to prevent public airing of sexual conduct testimony the law deems inadmissible. This would directly undercut the reporting and prosecution of sexual assault cases, in contravention of the General Assembly's legislative purposes.
Third, it is absolutely essential to our analysis that these transcripts are still private. Reportage of their contents would make all matters contained therein public. The court reporter's mistake handed to only a few media entities contains material that was plainly marked and intended to be kept private. The very purpose of such a marking is to make authorized readers aware that the information contained therein is restricted to use only in and for the proceedings in which the evidence and argument thereon was taken. In this case, the confidentiality markings served to notify the non-authorized readers, Recipients, that this document remained under seal. Reportage of these transcripts would greatly and certainly magnify the harm of the mistaken transmission, to the immediate detriment of the victim and the state.
Taken together, the harms in making these in camera judicial proceedings public would be great, certain, and devastating to the victim and to the state. These harms justify the remedy we fashion in this case. "For even though the broad sweep of the First Amendment seems to prohibit all restraints on free expression, this Court has observed that freedom of speech . . . does not comprehend the right to speak on any subject at any time." Seattle Times, Co. v. Rhinehart, 467 U.S. 20, 31 (1984) (citations and quotations omitted).
If the District Court cannot prevent the release of the contents of the in camera transcripts while it expeditiously proceeds to make its relevancy and materiality determinations, as contemplated in the rape shield statute, the state will be unable to implement its interest of the highest order in providing a confidential evidentiary proceeding under the rape shield statute, because such hearings protect victims' privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault.
Accordingly, upon reviewing de novo the record in this case, including the in camera transcripts, we determine that indeed the District Court's order is a prior restraint against publication, which is presumptively unconstitutional under the First Amendment. However, given the circumstances of this case, the state's interest in keeping the in camera proceedings confidential is sufficiently weighty to overcome the presumption in favor of dissemination at this time. We also determine that this prior restraint is necessary to protect against an evil that is great and certain and would result from the reportage.
Specifically: (1) the transcribed in camera proceedings concern the relevancy and materiality of evidence of specific instances of the victim's sexual conduct prior to and after the alleged sexual assault, and opinion evidence related thereto; (2) the state of Colorado has not made these transcribed proceedings publicly available; (3) the District Court has not yet determined whether all or any portion of the matters reported therein consist of relevant and material evidence potentially admissible at trial in this case; (4) the Colorado rape shield statute presumptively declares inadmissible all evidence of a victim's prior or subsequent sexual conduct and related opinion evidence, unless the defendant proves at an in camera hearing that such evidence is relevant and material; (5) the transcripts of in camera rape shield hearings do not become public unless and until they are introduced at trial; (6) reporting publicly the contents of the in camera transcripts would cause great and certain harm to the state's interest in providing the rape shield hearing in this case, including the victim's privacy and safety interest, encouraging victims to report sexual assault, and prosecuting and deterring sexual assault; and (7) the District Court's order, properly narrowed, is the only means available to protect this interest.
4. Narrowing the District Court's Order and Our Judgment
We have a duty under First Amendment law to narrow the District's Court order as much as possible.
In Seattle Times, a media entity was a party to the case and was prohibited by court order, as were all other parties, from publishing information it had gathered through use of discovery rules; the Supreme Court held that this form of restraint was not "the kind of classic prior restraint that requires exacting First Amendment scrutiny" and was not unconstitutional. Seattle Times, 467 U.S. at 33.
Although Recipients are not parties to this case, Seattle Times is somewhat analogous. Recipients have obtained transcripts that the state in no way intended to make public, and they received these transcripts under a confidentiality notice. Moreover, analogous to the pre-trial proceedings in Seattle Times, rape shield hearings are not "public components" of a trial. Id.
The facts of this case do not involve placing the transcripts in a "media bin" analogous to a publicly available police bulletin board or broadcast that could be publicly monitored. Recipients have no stake in the transcripts as a result of their investigative efforts. Due to the state's mistake, the transcripts appeared on their computer.
Yet, the state cannot undo the transmission; it has occurred. Ordinarily, the transcripts of an in camera rape shield hearing would remain under seal at all times, with the possible exception of actual use at trial to impeach a witness or for some other limited purpose. Here, although released by mistake and Recipients were not entitled to have them, Recipients do have possession of these transcripts.
The District Court ordered Recipients to delete the electronic transmission they received and destroy any copies made of them. We strike that portion of the District Court's order that required Recipients to delete the electronic transmission and destroy any and all copies of the in camera transcripts. We determine under the facts and context of this case that we must narrow the District Court's order and fashion a remedy that otherwise would not be applicable to a transcript of an in camera rape shield hearing. The government's interest of the highest order will be served by preventing the further dissemination and any reporting of all or any portion of the contents of the in camera transcripts that are not relevant and material under the rape shield statute.
Consistent with the First Amendment and the state's interest of the highest order, we order the District Court to: (1) make its rape shield rulings as expeditiously as possible and promptly enter its findings of facts and conclusions of law thereon; (2) determine if some or all portions of the June 21 and June 22 transcripts are relevant and material and, therefore, admissible under the rape shield statute at trial; and (3) enter an appropriate order, which may include releasing to the Recipients and the public a redacted version of the June 21 and June 22 transcripts that contains those portions that are relevant and material in the case, if any, and maintains the ongoing confidentiality of portions that are irrelevant and immaterial, if any.
Finally, although we believe the District Court's order is also sufficiently clear and narrow on this point, we emphasize that our judgment applies only to the contents of the June 21 and June 22 in camera transcripts. Publication of information the media has obtained or obtains by its own investigative capacities is not limited by the District Court's order or our judgment, even though such information may also be spoken of or referred to in the transcripts.
V. Order and Judgment
Accordingly, we uphold the prohibition against revealing the contents of the transcribed in camera proceedings of June 21 and 22, 2004, and affirm the District Court's order to that extent. We strike that portion of the District Court's order that requires Recipients to delete the electronic transmission and destroy any and all copies of the in camera transcripts. We further order the District Court to make its relevancy and materiality determinations under the rape shield statute as expeditiously as reasonably possible regarding the evidence it heard in the rape shield in camera proceedings, and promptly enter its findings of facts and conclusions of law thereon. In connection therewith, the District Court shall address whether any or all of the transcribed in camera proceedings of June 21 and 22 shall be made public or shall remain private, and enter appropriate orders.
Therefore, we uphold the prohibition against revealing the contents of the transcribed in camera proceedings of June 21 and 22, 2004, and discharge our rule to show cause, in part. We make our rule to show cause absolute, in part, by striking the provision for immediate deletion and destruction of the transcripts. We remand this case to the District Court for further proceedings consistent with this opinion.
JUSTICE BENDER dissents, and JUSTICE MARTINEZ and JUSTICE RICE join in the dissent.