By Marc J. Randazza
A Nevada court previously ordered the censorship of autopsy reports stemming from the Las Vegas massacre. (source) Today, the Nevada Supreme Court reversed that decision as an unlawful prior restraint. (Opinion Here.)
The lower court's order would have forced members of the press to allow government officials to freely rummage through its files to find and destroy an autopsy report connected to the October 1, 2017 mass shooting in Las Vegas. The Reporters Committee for Freedom of the Press and the Nevada Press Association, represented by Randazza Legal Group, PLLC, filed an amicus brief in this case explaining to the Supreme Court why the district court’s order was unconstitutional.
Shortly after the October 1, 2017 mass shooting in Las Vegas, the Las Vegas Review-Journal and the Associated Press requested autopsy reports under the Nevada Public Records Act (“NPRA”), and then sued for disclosure of these reports after the Clark County coroner refused to provide them. The judge in that case ordered the coroner to provide these reports, with personal information redacted, and the coroner sent them to the RJ and AP, as well as several other media outlets, which promptly reported on them.
After the coroner released the autopsy reports, the family of one of the victims of the shooting sued the coroner and the RJ and AP, claiming that the report of that victim was confidential, and sought a temporary restraining order preventing the RJ and AP from disseminating the report. The district court in that case granted the TRO. However, because the RJ and AP only had anonymized autopsy reports, it could not tell which one belonged to the victim in question, and so the judge ordered that the coroner’s office could send government employees to the RJ and AP’s offices, rifle through the RJ and AP’s files, and take or destroy copies of the relevant autopsy report.
The RJ and AP immediately sought relief from this order with the Nevada Supreme Court, arguing that it was an unconstitutional prior restraint because the anonymized details of the report were a matter of public interest and had already been disseminated to the public.
The Nevada Supreme Court agreed with the RJ and AP, finding that the district court’s order was an unconstitutional prior restraint. It found that the order prevented a news agency from reporting on a matter of significant public concern, and thus there had to be a compelling reason to censor the RJ and AP, and the injunction had to be the least restrictive means of accomplishing it.
The Court found that, even if the victim’s family had a privacy interest in preventing dissemination of the autopsy report, the RJ and AP obtained the redacted report pursuant to a valid court order, and several other media outlets had already reported on it. While the RJ and AP may have been prevented from disseminating the autopsy report, they and others had already done so. Since the cat was out of the bag by the time the victim’s family sued, there was not a strong privacy interest in play. And since the district court’s injunction only restrained the RJ and AP’s reporting, it clearly did not do a good job of protecting any privacy interests. The Supreme Court thus vacated the district court’s order, meaning the RJ and AP are free to continue reporting on this issue of significant public concern.
Neither the Court nor I were without sympathy for the family's privacy concerns. We give far too little attention to privacy in this country. But, the fact is that the judge's order was breathtakingly unconstitutional and this aggression could not stand, man.
Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/02/27/randazza-roundly-rejected-prior-restraint-autopsy/
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