Editoral: Prior restraint just a form of censorship

“Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” 

 —John Milton, Areopagitica

It is called prior restraint.

But that doesn’t seem to stop Nevada judges.

This past Friday, the last day of early voting before Tuesday’s primary election, a Reno judge ordered state Senate candidate Gary Schmidt to stop running a television ad that accused his Republican primary opponent, incumbent Ben Kieckhefer, of being a supporter of Harry Reid in the 2010 election, according to press accounts.

Now, that is probably libel per se, if anyone could prove it is not true, but Kieckhefer does have close ties to a number of those infamous Republicans for Reid.

In granting Kieckhefer a preliminary injunction, Judge Patrick Flanagan, wrote, “Ben Kieckhefer is likely to suffer irreparable injury to his career and reputation from defendant’s television advertisements.” Being associated with our senior U.S. senator can do that.

But, if you can’t stand the heat, get out of the political kitchen.

“It is important that at some point, when something is blatantly false, that it should not be tolerated,” the Reno Gazette-Journal quoted Kieckhefer, a former reporter for the paper, as saying. “I am a staunch defender of the first amendment (Yes, the paper published it lower case). I am a former journalist and I believe in it. But it is not universal and it should not protect people’s ability to just make something up.”

Kieckhefer and the judge are both wrong.

Prior restraint is the essence of censorship, which is anathema to the First Amendment right to free speech and press. Yes, even if it is later proven to be utterly false.

Kieckhefer is free to stand up in public and call Schmidt a liar. He can also sue Schmidt for libel. But stopping him from saying whatever he wishes in the middle of an election campaign is unjustifiable, uncalled for and unnecessary. Politicians should be free to lie about their opponents and get caught.

Justice Warren Burger once wrote in a Supreme Court case that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. 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. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative.

“A prior restraint, by contrast and by definition, has an immediate 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.”

The allegation against Kieckhefer was frozen out of the final days of the election, no matter its merit or lack thereof.

Schmidt told the Reno paper that the circumstantial evidence against Kieckhefer is that he has been close to both the late state Sen. Bill Raggio and Reno Mayor Bob Cashell, both of whom supported Reid against Republican Sharron Angle.

“And the biggest secondary evidence I have — because we re-researched this again — is this: There is nothing on the record anywhere where he (Kieckhefer) gave any ounce of support or endorsement to Sharron Angle. So what did he do, vote for the Green Party candidate?” the Reno paper quoted Schmidt.

That is why there is a First Amendment — to let the truth arise from the exchange of allegations and suspicions and not have some judge deny the voters the right to hear what the candidates have to say that reveal their characters and probity or lack thereof.

The judge is stealing information from the voters and usurping their right to determine the outcome of the election.

What one candidate says about another says more about that person than it says about his opponent. If we assume voters are too stupid to figure it out democracy is a failed experiment and a farce. — TM

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