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- SUPREME COURT OF THE UNITED STATES
- --------
- No. A-669
- --------
- CBS INC., et al. v. JEFF W. DAVIS, CIRCUIT
- JUDGE, SEVENTH JUDICIAL CIRCUIT, PENNING-
- TON COUNTY, SOUTH DAKOTA et al.
- on application for stay
- [February 9, 1994]
-
- Justice Blackmun, Circuit Justice.
- CBS Inc., CBS News Division, a division of CBS Inc.,
- and the television show 48 Hours (collectively CBS)
- apply for an emergency stay of a preliminary injunction
- entered by the Circuit Court for the Seventh Judicial
- District of South Dakota prohibiting CBS from airing
- videotape footage taken at the factory of Federal Beef
- Processors, Inc. (Federal), a South Dakota meat-packing
- company. CBS seeks to televise the videotape this
- evening on a 48 Hours investigative news program and
- contends that the injunction constitutes an intolerable
- prior restraint on the media. Due to the time pressure
- involved in resolving this emergency application, my
- discussion is necessarily brief.
- As part of an ongoing investigation into unsanitary
- practices in the meat industry, CBS obtained footage of
- Federal's meat-packing operations through the coopera-
- tion of a Federal employee, who voluntarily agreed to
- wear undercover camera equipment during his shift one
- day in Federal's plant. The employee received no
- compensation for his cooperation. CBS represents that
- the investigation was not targeted at Federal but at the
- meat-processing industry generally and that CBS did not
- intend to reveal the company that was the source of the
- material.
- Federal sued to prevent the telecast of the videotape,
- alleging, inter alia, claims of trespass, breach of the
- duty of loyalty and its aiding and abetting, and violation
- of the Uniform Trade Secrets Act, S. D. Comp. Laws
- Ann. 37-29-1 et seq. (Supp. 1993). On January 25,
- 1994, the South Dakota Circuit Court entered a tempo-
- rary restraining order, and on February 7 the court
- preliminarily enjoined CBS from -disseminating, disclos-
- ing, broadcasting, or otherwise revealing- any footage of
- the Federal plant interior. Findings of Fact, Conclusions
- of Law, and Order for Preliminary Injunction, Civ. No.
- 94-590, p. 8. The court found that disclosure of the
- videotape -could result in a significant portion of the
- national chains refusing to purchase beef processed at
- Federal and thereafter the Federal plant's closure,- and
- that -[p]ublic dissemination of Federal's confidential and
- proprietary practices and processes would likely cause
- irreparable injury to Federal.- Id., at 3. The court
- concluded that because the videotape -was obtained by
- CBS, at the very least, through calculated misdeeds,- id.,
- at 4, conventional First Amendment prior restraint
- doctrine was inapplicable, and that any injury to CBS
- resulting from delay was outweighed by the potential
- economic harm to Federal.
- On February 8, 1994, the South Dakota Supreme
- Court denied CBS' application for a stay of the injunc-
- tion and scheduled oral argument on CBS' original
- petition for a writ of mandamus for March 21, 1994.
- The State Supreme Court later amended its order to
- require that the Circuit Judge rescind the injunction or
- show cause on March 21 why a peremptory writ of
- mandamus should not be issued.
- Although a single Justice may stay a lower court order
- only under extraordinary circumstances, such circum-
- stances are presented here. For many years it has been
- clearly established that a -prior restraint on expression
- comes to this Court with a `heavy presumption' against
- its constitutional validity.- Organization for a Better
- Austin v. Keefe, 402 U. S. 415, 419 (1971), quoting
- Carroll v. President and Comm'rs of Princess Anne, 393
- U. S. 175, 181 (1968). -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) (footnote omitted), 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 imme-
- diate 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.-
- Although the prohibition against prior restraints is by
- no means absolute, the gagging of publication has been
- considered acceptable only in -exceptional cases.- Near
- v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931).
- Even where questions of allegedly urgent national
- security, see New York Times Co. v. United States, 403
- U. S. 713 (1971), or competing constitutional interests,
- Nebraska Press Assn., 427 U. S., at 559, are concerned,
- we have imposed this -most extraordinary remed[y]- only
- where the evil that would result from the reportage is
- both great and certain and cannot be mitigated by less
- intrusive measures. Id., at 562.
- Federal has not met this burden here. The Circuit
- Court no doubt is correct that broadcast of the videotape
- -could- result in significant economic harm to Federal.
- Even if economic harm were sufficient in itself to justify
- a prior restraint, however, we previously have refused to
- rely on such speculative predictions as based on -factors
- unknown and unknowable.- Id., at 563; see also New
- York Times Co. v. United States, supra.
- Nor is the prior restraint doctrine inapplicable because
- the videotape was obtained through the -calculated
- misdeeds- of CBS. In New York Times Co., the Court
- refused to suppress publication of papers stolen from the
- Pentagon by a third party. Subsequent civil or criminal
- proceedings, rather than prior restraints, ordinarily are
- the appropriate sanction for calculated defamation or
- other misdeeds in the First Amendment context. Even
- if criminal activity by the broadcaster could justify an
- exception to the prior restraint doctrine under some
- circumstances, the record as developed thus far contains
- no clear evidence of criminal activity on the part of
- CBS, and the court below found none.
- I conclude that the decision below conflicts with the
- prior decisions of this Court, that there is a reasonable
- probability that the case would warrant certiorari, and
- that indefinite delay of the broadcast will cause irrepa-
- rable harm to the news media that is intolerable under
- the First Amendment. Entry of a stay therefore is
- appropriate under the All Writs Act, 28 U. S. C. 1651.
- See INS v. Legalization Assistance Project of Los Angeles
- County Federation of Labor, 501 U. S. ___, ___ (1993)
- (O'Connor, J., in chambers). If CBS has breached its
- state-law obligations, the First Amendment requires that
- Federal remedy its harms through a damages proceeding
- rather than through suppression of protected speech.
- The Circuit Court's injunction is therefore stayed.
-