Is “Unpublishing” Even Possible?

A Florida judge recently issued an order to the Palm Beach Post newspaper requiring it to “unpublish” transcript of telephone calls made by convicted murderer Frederick Cobia made from prison. According to the Palm Beach Post, the transcripts contained information about how Cobia was able to elicit confessions from fellow inmates and turn that information over to law enforcement.

But those transcripts don’t appear in the online story for now, thanks to Judge Jack Schramm Cox’s order requiring the Post to remove the transcript excerpts. Judge Cox issued the order to protect Cobia’s right to privacy. His order goes on to prohibit the “newspaper, sheriff, public defender, state attorney and any other person” in the possession of the recordings from “publishing or disclosing them in any way to any third party.”

Cobia may have a right to privacy in his conversations. Or he may not. I don’t know the answer to that question. But I am much more confident in my answer to this question:  Is Judge Cox’s order constitutional? And that answer is no. Judge Cox’s order is a prior restraint on speech. Simply put, if the Post is in possession of the tapes it can publish them. And if Mr. Cobia wants relief he can file a lawsuit where a court, after a thorough examination of the evidence, can decide if the Post indeed violated his privacy rights.

But Judge Cox’s order, to use a cliché, puts the cart before the horse.  It imposes a remedy – “unpublication” – before thoroughly reviewing the case.  Which means if it turns out that Judge Cox is wrong, the publication of truthful information was improperly blocked.  And that is the very reason the First Amendment prohibits prior restraints other than in the most dire of circumstances (spoiler alert – this is not a case of dire circumstances).

The Post has appealed and I think very soon the information will be back online. As well it should.

And many thanks to my friend Dan Donnellon for flagging this one for me!