Judge refuses to lift prior restraint against TV station

NEWS MEDIA UPDATE   ·   KANSAS   ·   Prior Restraints   ·   June 30, 2005

Judge refuses to lift prior restraint against TV station

• A television station may decide to ignore a restraining order while it awaits state high court action and air a story on a plastic surgeon whose computer containing confidential patient records was scavenged from his curbside trash, while a city council member in Washington state dropped the prior restraint she had won against a weekly newspaper.

June 30, 2005  ·   A Kansas City television station Tuesday asked the Kansas Supreme Court to invalidate what it calls an unconstitutional prior restraint censoring a planned story about a plastic surgeon who discarded a computer containing before-and-after patient photos and other confidential files.

KCTV filed an emergency petition with the Kansas Supreme Court after Johnson County District Judge Kevin P. Moriarty reaffirmed a restraining order he issued earlier this month, said Bernard J. Rhodes, a lawyer for the station. The order forbids the station from “using, publishing, disseminating, broadcasting, distributing, or disclosing” any information it retrieved from a computer discarded last month by Mission Hills, Kan., surgeon Daniel P. Bortnick, who had placed it at the curb outside his home for trash pickup.

Dr. Bortnick thought the confidential patient data had been erased from the hard drive, The Kansas City Star reported online, but a scavenger who took the computer before it could be hauled away retrieved the information. According to the petition, the scavenger — identified in news reports as Robert L. Dickerson — voluntarily gave the computer to KCTV.

Rhodes said KCTV plans to air a news report about Dr. Bortnick’s alleged carelessness on Thursday and hopes it will prompt the high court to rule quickly. The station has not decided what it will do if the court — which is in summer recess — has not ruled by then, he added.

“We had to do something,” said Rhodes. “We either have to violate the order, we’ve got to [edit] the story in a way that doesn’t violate it, or we have to say, ‘We’ve got an important story to tell you that the courts won’t let us yet. Stay tuned.'”

Dr. Bortnick’s employer, Monarch Plastic Surgery Group, learned that information had been accessed on the discarded computer from a patient who was contacted by KCTV. Monarch sought a temporary restraining order against the station and its parent, Meredith Corp., on June 17, which Moriarty issued that day.

Lawyers for KCTV tried to remove the case to federal district court, but the federal court concluded it lacked jurisdiction and sent the case back to the state court. At a hearing Monday, Moriarty denied the station’s request to dissolve the prior restraint — although he acknowledged he erred in ordering KCTV not to contact for comment any of the patients named in the files.

“They would . . . have the absolute right to discuss this with Channel 5 if they so chose,” Moriarty said, according to KCTV’s petition.

The judge refused to reconsider the rest of his order because he found the patients’ privacy interests under the Health Insurance Portability and Accountability Act outweigh the station’s First Amendment rights, according to Rhodes. But HIPAA applies to health care providers and insurance companies, not television stations, argued Rhodes.

“We don’t believe it applies at all to media entities,” he said, “and even if it did, so what? My sixth grade civics teacher could tell you that the Constitution trumps a statute.”

Rhodes said Moriarty was “frustrated” by the station’s refusal to promise it would not broadcast photos it had retrieved from Dr. Bortnick’s computer. While he would not negotiate the content of the program, he said, he assured the judge that the station would not violate federal indecency standards and would not disclose confidential patient information.

But “if the only way we can get a prior restraint lifted is by negotiating with the court, we might as well just have the prior restraint order,” Rhodes said.

In an unrelated matter, a small-town politician in Washington state last week dropped a restraining order she had obtained against a weekly newspaper that barred it from publishing further stories about criminal charges against her. The order, issued June 21, also prohibited local officials from releasing police documents about the case.

Anja Alston, a member of the Roy, Wash., City Council who is accused of warning a friend that police were investigating him for possible drug violations, claimed the Nisqually Valley News sought to cause her “immediate, substantial and irreparable damage” to her reputation, and that publication of the charges would not serve the public interest, The Associated Press reported. Pierce County Court Commissioner Daniel Smith, who is a lawyer, defended his decision to issue the 21-day order by pointing out it was “temporary,” The News Tribune of Tacoma reported.

(Meredith Corp. d/b/a KCTV-5 v. Moriarty; Media counsel: Bernard J. Rhodes, Lathrop & Gage, Kansas City, Mo.) — KK

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