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The Barrier Remains: CBS Inc. v. Davis Reaffirms Supreme Court Rejection Of Prior Restraints Prior to his departure from the United States Supreme Court, Justice Harry Blackmun made one final, and very important, contribution to First Amendment jurisprudence. In CBS Inc. v. Davis,1 an in-chambers opinion issued less than 48 hours after a state trial court enjoined a nationwide broadcast of the CBS network news program 48 Hours, Justice Blackmun granted the network's request for an emergency stay and held that the First Amendment barriers to prior restraints remain high_and that "[s]ubsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for . . . misdeeds in the First Amendment context." Justice Blackmun's opinion came as a welcome reminder of the continuing vitality of fundamental First Amendment prior restraint doctrine. It may also put an end to the troubling tendency (which was amply supported by the record in the CBS Inc. v. Davis case) of some lower courts to fashion various ad hoc exceptions to the rule against prior restraints. Finally, Justice Blackmun's decision gave renewed protection to media litigants simply because it was quick and decisive, in sharp contrast to the delays repeatedly encountered by CBS in its efforts to persuade the South Dakota state courts to lift the prior restraint. The process, indeed, was as noteworthy as the result. Eighteen years ago, the United States Supreme Court issued its Nebraska Press decision, a landmark opinion upholding the First Amendment right of the press to be free of prior restraints.2 This decision, which struck down a trial court's injunction against media dissemination of a criminal defendant's murder confession, characterized the prior restraint as "one of the most extraordinary remedies known to our jurisprudence" and "the most serious and least tolerable infringement on First Amendment rights," carrying a "heavy presumption against constitutional validity" that requires a litigant seeking such a restraint to meet "a heavy burden of showing justification." In Nebraska Press the Court unanimously reaffirmed, as a fundamental principle of First Amendment jurisprudence, what the splintered opinions in the Court's "Pentagon Papers" case3 had promised five years earlier: that American courts would not permit prior restraints, except in very narrowly-defined circumstances. As the Court noted in Nebraska Press, "the barriers to prior restraint remain high and the presumption against its use continues intact." In recent years, however, this barrier has suffered some cracks. In 1990, for example, the Eleventh Circuit upheld a temporary restraining order against Cable News Network issued at the request of a famous criminal defendant, former Panamanian strongman Manuel Noriega.4 The Supreme Court denied certiorari over a strong dissent by Justices Marshall and O'Connor, who noted that the TRO was issued against CNN "without any finding that the suppression of the broadcast was necessary to protect Noriega's right to a fair trial." Given these developments, New York attorney Floyd Abrams, who had represented the New York Times in the "Pentagon Papers" case, has suggested that the Nebraska Press rule against prior restraints is under assault. He noted that while the heavy presumption against prior restraints on publication continues to be fairly well-settled law, an unfortunate trend has arisen, and appears to persist, in which some trial-level judges_and at least one panel of appellate jurists_allow themselves to be swayed by arguments that for many years were considered insufficient to overcome the proscriptions against prior restraints."5 Earlier this year, this "unfortunate trend" was very much in evidence in Rapid City, South Dakota, when Judge Jeff W. Davis ordered the CBS news show 48 Hours not to broadcast a program that contained footage showing the sanitary practices of one of the city's major employers, a meat processing company named Federal Beef Processors, Inc. CBS had obtained the videotape through the cooperation of a Federal Beef employee, who had worn an undercover video camera into the company's boning room. The case neatly illustrates the procedural traps of prior restraint. As soon as the trial court entered its first temporary restraining order against CBS, the network's efforts to obtain prompt relief from a plainly unconstitutional order met repeated obstacles. Until Justice Blackmun issued his emergency stay a few hours before the scheduled broadcast, the state courts had shown no interest in providing timely and effective review of this extraordinary order. Federal Beef filed suit against CBS on January 20, 1994, and immediately moved the South Dakota Seventh Judicial Circuit Court for a temporary restraining order prohibiting 48 Hours from broadcasting the videotape, alleging that Federal Beef's business interests and privacy rights would be breached by such a telecast. A few days later, Federal Beef filed an amended complaint in which it added a trade secret claim. CBS attorneys first learned of the case on January 24. Judge Davis, who was assigned the case, scheduled a January 25 hearing on Federal Beef's TRO motion. At the hearing, CBS argued that the requested order would be presumptively unconstitutional as a prior restraint. Federal Beef asserted that the videotape clearly depicted "Federal's response to an internal abscess which occurred during its processing operations," and argued that "unless enjoined, the CBS Defendants will present the information in the authorized recording in a highly biased, misleading and inaccurate manner." Federal Beef presented affidavits from various South Dakota governmental officials, including an aide to the governor, who asserted that the state's economy would suffer irreparable harm if the public learned about the conditions in the company's boning room. Judge Davis immediately granted the TRO and ruled that the restraint imposed on CBS would remain in effect indefinitely. He offered no basis for the injunction, however, and stated that he was granting the TRO because he did not have sufficient information to rule on the merits of the requested TRO. He also rejected the Supreme Court prior restraint precedents, by ruling that his order did not infringe the network's First Amendment rights. This was because the TRO simply presented a programming problem at this particular point in time . . . . It is not saying they can't show it. It is saying that they can't show it at the time . . . so it is only a programming aspect and not a restrain[t]. When CBS sought a writ of mandamus from the South Dakota Supreme Court, Judge Davis wrote to the court stating that CBS' application was moot because he had set another hearing on Federal's motion for a TRO for February 1, at which time he would "dissolve the order at issue in this proceeding and enter such discretionary relief as is appropriate." Judge Davis also stressed that his TRO "will impose no prior restraint whatsoever" because he would resolve the dispute prior to the scheduled February 9 broadcast date for the 48 Hours program. At the outset of this February 1 TRO hearing, Judge Davis suddenly announced to the parties that the hearing would not be limited to TRO issues but would instead consider Federal Beef's request for a preliminary injunction. CBS objected, because it had received no prior notice of the court's intention to consider a preliminary injunction as opposed to a TRO, but the court overruled this objection. Federal Beef then called several witnesses in its attempt to bolster its claims that it would suffer irreparable harm if CBS were not enjoined from broadcasting the videotape, allegedly of Federal Beef's processing plant. After hearing the witnesses, Judge Davis orally granted the preliminary injunction against CBS, enjoining CBS from telecasting "in any manner, footage obtained from Federal Processing" except "material obtained that is clearly available to the general public from an exterior view of the building or a view outside of the perimeter of the property owned by Federal Beef." Again, he stated that the Supreme Court's prior restraint cases were inapplicable and that he did not "see this as a prior restraint case in that CBS has material which they shouldn't have in the first place." Because CBS had persuaded a Federal Beef employee to use a hidden camera, he said, [i]t would appear that the tape in CBS' possession was obtained, at the very least, by calculated misdeeds6 on the part of CBS, and that they are not entitled to air the material . . . taken within the confines of Federal Beef. Judge Davis delayed entry of his written preliminary injunction until February 7 -- two days before the scheduled 48 Hours broadcast. In his written order, he ruled that there existed a "substantial likelihood" that Federal Beef "will suffer an immediate loss of substantial portions of its business" if the videotape of its facilities is aired in conjunction with CBS' report on "bacterial contamination in meat served to the consuming public" but that [t]he exclusive damage identified by CBS flowing from preliminary injunctive relief is program rescheduling or the deletion of videotape from such a story. He concluded that "the First Amendment is not offended through a restriction on utilization of material obtained through the calculated misdeeds of CBS." The following day, February 8, the South Dakota Supreme Court considered mandamus applications filed by CBS and decided to defer consideration of them until after oral argument, which it scheduled for March 21, 1994. The court also denied the application for a stay by CBS. That evening, CBS filed an emergency application for a stay with Justice Blackmun. The next day - a few hours before the scheduled 48 Hours broadcast - Justice Blackmun granted the stay, agreeing with CBS that "the injunction constitutes an intolerable prior restraint on the media." He stated: Although a single Justice may stay a lower court order only under extraordinary circumstances, such circumstances are presented here . . . . Where . . . a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment. Nebraska Press Assn. v. Stuart, 423 U.S. 1327, 1329 (1975) (Blackmun, J., in chambers). As the Court recognized in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976), prior restraints are particularly disfavored: A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted . . . . A prior restraint, by contrast, . . . has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time. Citing the "Pentagon Papers" and Nebraska Press cases, Justice Blackmun ruled that "[e]ven where questions of allegedly urgent national security, . . . or competing constitutional interests . . . are concerned," this "most extraordinary remed[y]" is permitted only "where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures." Federal Beef, Justice Blackmun concluded, had not satisfied this heavy burden. Although the state court had determined "that broadcast of the videotape 'could' result in significant economic harm to Federal," Justice Blackmun ruled that "such speculative predictions" could not justify issuance of a prior restraint. He also rejected the lower court's view that the prior restraint doctrine was "inapplicable because the videotape was obtained through the 'calculated misdeeds' of CBS," noting that in the "Pentagon Papers" case the Court had "refused to suppress publication of papers stolen from the Pentagon by a third party." Furthermore, he concluded, "the record as developed thus far contains no clear evidence of criminal activity on the part of CBS, and the court below found none."7 Justice Blackmun's opinion in CBS Inc. v. Davis will revitalize American prior restraint doctrine by again reminding the lower federal and state courts that, under the Supreme Court's First Amendment case law, the barriers to prior restraint are and must remain high. The decision shows that the Nebraska Press rule against prior restraints will be enforced by the Supreme Court_by granting emergency stays, if necessary. As Justice Blackmun stressed, speculation of harm_even to a major local employer_does not warrant entry of a prior restraint. Furthermore, as the "Pentagon Papers" case had shown, merely claiming that information was obtained illegally does not entitle the plaintiff to a prior restraint. Of particular significance, however, is how quickly Justice Blackmun ruled. Knowing that the 48 Hours broadcast was scheduled for February 9, he issued a timely and unequivocal decision staying the effect of the state court injunction. Justice Blackmun recognized that, in the case of prior restraints particularly, justice delayed is justice denied. He therefore concluded that the leisurely appellate review offered by the South Dakota Supreme Court was insufficient, given the vital First Amendment principles at stake and the justifications advanced by Federal Beef in support of its injunction. In this regard, CBS Inc. v. Davis may provide a significant precedent to future media litigants confronting time pressures for overturning an unconstitutional prior restraint. 1. CBS Inc. v. Davis, ___ U.S. ___, 114 S. Ct. 912, 127 L. Ed. 2d 358, 22 Med. L. Rptr. 1285 (1994) (Blackmun, J., in chambers). Mr. Johnson was counsel for CBS in the CBS Inc. v. Davis case. 2. Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976). 3. See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam). 4. United States v. Noriega (In re Cable News Network, Inc.), 917 F.2d 1543 (11th Cir.), cert. denied, 498 U.S. 976 (1990). Mr. Johnson was one of the lawyers for CNN on the petition for certiorari. 5. Floyd Abrams, "Prior Restraints," published in 3 Communications Law 1993 799, 805-06 (PLI 1993). 6. Judge Davis had drawn the phrase "calculated misdeeds" from Dietemann v. Time, Inc., 449 F.2d 245, 250 (9th Cir. 1971), which was a damages case that did not involve the issuance of a prior restraint. 7. Several months later, after CBS had removed the case to federal court, United States District Judge Richard H. Battey adopted Justice Blackmun's ruling and vacated the injunction in its entirety. Federal Beef Processors, Inc. v. CBS Inc., 22 Med. L. Rptr. 1833, 1839, 1994 U.S. Dist. LEXIS 6796 (D. S.D. 1994).
Copyright © 1996 Davis Wright Tremaine 
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