The Arizona Court of Appeals Division One holds that a court’s prohibition on media publication of the lead prosecutor’s name during a death penalty trial is an impermissible prior restraint in violation of the First Amendment.

The prosecutor in a high-profile death penalty case was simultaneously participating in an unrelated criminal trial as a victim.  During the death penalty trial, a newspaper requested to use a still camera in court.  The judge granted the request, but ordered the newspaper not to disclose the prosecutor’s name until further notice, out of concern that the information could influence the juries in one or both cases. 

The newspaper filed a special action seeking a declaration that the superior court’s ruling was an unlawful prior restraint on its right to cover the death penalty trial.  The Court of Appeals accepted jurisdiction and granted relief.

A prior restraint on speech or publication—that is, an order prohibiting publication of certain information—is subject to a heavy presumption against its constitutionality.  Although the judge’s order here was temporary, the short-lived nature of the restraint did not lessen the government’s burden to justify it.  Applying the three-factor test for assessing the validity of a prior restraint adopted in KPNX Broad. Co. v. Superior Court, 139 Ariz. 246, 249 (1984), the Court concluded that the restraint on publication was not warranted because (1) the potential harm was “simply too speculative”; (2) the trial court could have explored less-restrictive measures; and (3) the restraint was unlikely to be effective.  Accordingly, the Court granted the newspaper’s request for a declaration that the superior court’s ruling violated its First Amendment rights.

Presiding Judge Winthrop wrote the opinion; Judges Johnsen and Cruz joined.