Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Hilleri G. Merritt, Judge. Writ granted, Super. Ct. No. BA370472
Davis Wright Tremaine, Kelli L. Sager, Alonzo Wickers IV and Jeff Glasser, with Karlene Goller of Los Angeles Times Communications LLC, for Petitioner.
Fredrick R. Bennett, Court Counsel, for Respondent.
Michael P. Judge, Public Defender of Los Angeles County and Albert J. Menaster, for Real Party in Interest Albred Tersargyan.
No appearance for Real Party in Interest The People of the State of California
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Real party in interest, Alberd Tersargyan, is the defendant in a criminal prosecution for murder. Petitioner, Los Angeles Times Communications LLC, has filed a petition for writ of mandate requesting this court order respondent superior court to vacate its order prohibiting petitioner from publishing photographs lawfully taken of defendant during criminal proceedings. We conclude the superior court’s order amounts to an unconstitutional prior restraint on speech.
FACTS AND PROCEDURAL HISTORY
On August 4, 2010, the superior court granted petitioner’s request to have a still camera in the courtroom for proceedings to be conducted that day. Once the proceedings began, petitioner photographed the defendant pursuant to the court’s order. After photographs had been taken, the prosecutor notified the court that a different judge had previously issued an order prohibiting the media from taking photographs of defendant. The prosecutor explained the prior order had issued out of concern that publication of the photographs would improperly affect eyewitness identification issues.
Defendant’s assertion that there was no lawful order permitting cameras in the courtroom is refuted by the superior court’s statement, “I signed an order saying that cameras were allowed.”
The prosecutor’s comments caused the court to reconsider its order. Ultimately, the court engaged in a balancing test and concluded defendant’s due process right to a fair trial outweighed the media’s First Amendment right. Thus, the court ordered petitioner to refrain from publishing any photographs taken of the defendant and to cease all further in-court photography
The following day, the superior court denied petitioner’s request to vacate its order precluding publication of the lawfully taken photographs. The court ruled the release of those photographs would result in “undue prejudice to the defendant’s right to a fair trial.” On August 6, 2010, petitioner filed the instant petition.
On August 9, 2010, we issued an alternative writ of mandate directing the superior court to vacate its orders restraining petitioner from publishing lawfully obtained photographs or show cause why a preemptory writ ordering the court to do so should not issue. The court declined to vacate its orders.
DISCUSSION
We conduct a de novo review to determine the constitutionality of the superior court’s ruling. (L. A. Teachers Union v. L. A. City Bd. of Ed. (1969) 71 Cal.2d 551, 557; Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1242.)
“An order enjoining publication of a photograph of a suspect in a pending court proceeding is classic prior restraint of speech. [Citations.] Prior restraints are ‘one of the most extraordinary remedies known to our jurisprudence’ [citation] and carry a heavy burden against constitutional validity. [Citations.]... The publication of lawfully obtained, truthful information about a matter of public significance cannot be restrained unless it is necessary to protect a state interest of the highest order. [Citation.]” (South Coast Newspapers, Inc. v. Superior Court (DeBoer) (2000) 85 Cal.App.4th 866, 870.) The “barriers to prior restraint remain high and the presumption against its use continues intact.” (Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 570 (Stuart).) A prior restraint is permissible to protect due process only if prejudice to that interest is “substantially probable absent [the prior restraint].” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222.)
After applying these rules to circumstances similar to those in the instant case, appellate courts have uniformly held the barriers identified in Stuart have not been surmounted. (E.g., Oklahoma Publishing Co. v. District Court (1977) 430 U.S. 308, 308-312 [order prohibiting publication of juvenile’s name and photograph unconstitutional]; South Coast Newspapers, Inc. (Deboer) v. Superior Court, supra, 85 Cal.App.4th at pp. 870-874 [order prohibiting publication of lawfully obtained photograph of a defendant’s face due to concern over integrity of identification testimony unconstitutional]; KCST-TV Channel 39 v. Municipal Court (1988) 201 Cal.App.3d 144, 144-148 [order prohibiting lawfully obtained sketch of a defendant unconstitutional].)
Following this blueprint, we conclude the superior court’s order precluding publication of photographs lawfully taken unconstitutionally violates the prohibition against prior restraint of speech. Although the original order may have been issued to preserve the integrity of eyewitness identification, the record does not demonstrate it is substantially probable that either the integrity of the identifications or the defendant’s due process rights are at risk absent the prior restraint. For example, the record is devoid of evidence that eyewitnesses expressed uncertainty over their identification, that they have not already seen photographs of the defendant in the media, or that their ability to accurately identify the perpetrator of the offenses would be threatened by the publication of the photographs. Indeed, given the fact that the media has previously published photographs of the defendant in connection with the charges in this case, it is not probable that defendant’s right to a fair trial would be threatened by the publication of additional photographs.
DISPOSITION
The petition is granted. The superior court is directed to vacate its August 4, 2010 order prohibiting petitioner from publishing lawfully obtained photographs, as well as its August 5, 2010 order denying petitioner’s request to vacate the August 4, 2010 order. Pursuant to California Rules of Court, rule 8.490(b)(3), this opinion will become final after three court days. Each party to bear its own costs.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.