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Media appeal ruling on Bryant closed-door hearing

Supreme Court justice asked to rule on closed-door transcript


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(CNN) -- A group of news organizations has appealed to a Supreme Court justice to overturn a court ruling this week denying the right to publish information in the Kobe Bryant sexual assault case mistakenly sent to the media.

The filing, made to Justice Stephen Breyer asks for an expedited response.

"We invoke a body of prior-restraint law that says each day a prior restraint remains in place is a separate cognizable infringement of our clients' rights," said Steven Zansberg, an attorney for the Denver law firm of Faegre & Benson.

Zansberg said the application was filed Wednesday evening.

On Monday, the Colorado Supreme Court upheld by 4-3 a lower-court ruling that said the recipients could not publish a transcript of a closed-door rape shield hearing accidentally released to members of the news media. (Background)

The media consortium contends that the order is an unconstitutional prior restraint that violates the First Amendment.

If Breyer agrees, he could lift the prior restraint without getting the agreement of the other justices. If Breyer denies the application for a stay, the media companies could then either go forward with an ordinary petition to the U.S. Supreme Court to hear the case, or drop it.

The state high court acknowledged that its order does indeed represent prior restraint, but argued -- by the narrowest of margins -- that the circumstances of the case supported its decision.

"The state has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the rape-shield statute, because such hearings protect victims' privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault," said Justice Gregory Hobbs, writing for the majority.

The proceedings took place June 21 and 22 and regarded claims about the alleged victim's sexual conduct before and after the encounter with Bryant. The defense has argued that the information is germane to the case because it could show that someone other than the defendant might have caused injuries suffered by the accuser.

On June 24, the Eagle County court reporter sent the transcripts of the meetings to seven members of the media by mistake. Those news groups were The Associated Press, CBS, the Denver Post, ESPN, Fox News Network, the Los Angeles Times and TTT West Coast Inc., the producers of Celebrity Justice and part of Time Warner, the parent company of CNN.

Later that day, the district court sent the same recipients an order not to reveal the transcripts' contents.

In a dissent joined by two other justices, Justice Michael Bender wrote: "The power the majority authorizes is the power of the government to censor the media, which is precisely the power the First Amendment forbids."

"We've asked Justice Breyer to adopt the position set forth by Justice Bender and find that the prior restraint is unconstitutional," Zansberg said.

At least 10 news organizations and professional associations have agreed to file a friend of the court brief Thursday or Friday in support of the appeal, said Alonzo Wickers, a partner in the Los Angeles office of the law firm Davis Wright Tremaine.

Bryant, a 25-year-old NBA All-Star, is scheduled to go on trial August 27 on a charge of sexual assault against the woman at a Colorado resort where she worked.

The guard for the Los Angeles Lakers has pleaded not guilty, saying he had consensual sex with the now-20-year-old woman in June 2003.

If convicted Bryant faces four years to life in prison or 20 years to life on probation, and a fine up to $750,000.


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