🚫 Judge & attorney general try to stop Denver Gazette from publishing a story. Paper fights back.
The news behind the news in Colorado this week
‘Went about it the way I did’
UPDATE, 5:15 p.m. Friday, April 29: The attorney general’s office says it will not appeal a judge’s late-Friday ruling that allows the newspaper to (eventually) publish a story about documents its reporter obtained that were supposed to be secret.
UPDATE, 12:30 p.m., Monday, May 2: The Denver Gazette published its story after holding it until the judge’s stay on her prior restraint order expired.
Earlier this week, Julia Cardi, a reporter for The Denver Gazette, was ready to publish a story. Things did not go as planned.
Her latest piece focused on a criminal case against a police officer who was charged in connection with the 2019 death of Elijah McClain after Aurora police manhandled the Black 23-year-old and drugged him with ketamine.
But on Monday, a judge “issued an order to stop us from publishing the story,” said Cardi, who has been with The Denver Gazette since the fall of 2020.
If that order stands, it would be quite unusual.
The prevailing ideology in the United States is that government only tries to stop someone from publishing something in extremely limited circumstances — a doctrine known as prior restraint. Typically, the view is that Americans are often free to publish what they please and deal with fallout after something hits the page, airwaves, or news feed.
Days later, after hearing pleadings from the newspaper’s First Amendment attorney and the Reporters Committee for Freedom of the Press, the judge changed her mind, saying she would lift her order. (For now. The paper is still blocked from reporting until Monday, May 2; we’ll get to that part later.) The multi-day drama in Colorado this week shows once again how government and lower-court judges might sometimes be quick to try and crimp a media outlet’s First Amendment rights to publish and how a news organization with the means and ability to fight back in court can change that outcome.
What happened in this case is that the reporter, by no fault of her own, mistakenly wound up in possession of information that shouldn’t have been public. According to Cardi and court filings, a clerk handed her a stack of records that included filings in the officer’s case that were meant to be suppressed. Some of what she obtained included quotes and discussion about testimony before a grand jury — information the court wanted to keep secret. Grand jury proceedings are tightly controlled and are typically kept under wraps for a variety of reasons.
“My editors determined we could run a story based on the records because I had gotten them legally,” Cardi said on social media. As a courtesy, the reporter, who formerly worked at Law Week Colorado, said she alerted the state attorney general’s office and the officer’s attorney so the piece wouldn’t blindside them.
The court finds that disclosure of these materials would endanger the state’s interest in 1) grand jury secrecy, and 2) Defendants’ rights to a fair trial and impartial jury
Colorado Democratic Attorney General Phil Weiser, who previously served as dean of the University of Colorado Law School, backed up the judge’s prior restraint order.
In doing so, Colorado’s top law enforcement official argued that Colorado has an interest “of the highest order” in keeping grand jury proceedings secret. Weiser argued:
For example, witnesses before future grand juries who are hesitant about coming forward in the first place, despite promises of secrecy, might reasonably Google “Colorado Grand Jury Secrecy” and quickly learn that a simple administrative error by a court clerk could lead to their name, information, and testimony becoming national news.
The public’s “interest in information about this case,” Weiser went on, will be satisfied during an open trial. He also argued the officer might not be able to get a fair trial if The Denver Gazette publishes information that was supposed to be secret and might be “misleading, incomplete, inflammatory, and mostly irrelevant to the public evidence that would be produced at trial.”
Fighting back on behalf of The Denver Gazette, Steve Zansberg, the paper’s lawyer, pointed out in a motion that more than a century ago, in a different Colorado case (Patterson v. Colorado), the U.S. Supreme Court declared that the “main purpose” of the First Amendment is “to prevent all such previous restraints upon publications as had been practiced by other governments.”
The presumption against blocking someone publishing news “is so strong,” Zansberg wrote to the court, “that the Supreme Court has not ever affirmed the imposition of a prior restraint.” (Yes, he bolded that font in his legal brief.)
Zansberg further cited a “well established body of law” to essentially argue that the court goofed and the judge can’t blame the reporter for it; she got the docs legally, she has a right to publish them — especially because they deal with a matter of legitimate public concern.
Weiser answered Zansberg with a 24-page response sticking to his guns. On Thursday, the Reporters Committee for Freedom of the Press weighed in on behalf of the news organization.
“We strongly urge the court to vacate its order that not only bars The Denver Gazette from reporting on lawfully obtained court records about a criminal case of significant public interest, but also requires the news outlet to destroy them,” said Rachael Johnson, the group’s Local Legal Initiative Attorney for Colorado. “This is undoubtedly an unconstitutional prior restraint, which is among the most serious threats to a free press. Reporting on judicial records — even those a court unintentionally makes public — is clearly protected by the First Amendment.”
By Friday, Judge Loew agreed to lift her order — she acknowledged it was indeed “prior restraint” — but still offered the attorney general the option to appeal to the Colorado Supreme Court by Monday, May 2 before her latest legal move would go into effect. That effectively blocks The Denver Gazette from publishing until then. In her order, the judge said she had to “balance the first amendment rights of The Denver Gazette with the state’s interest in preserving the confidentiality of grand jury proceedings.”
She also wrote:
“Consequently, after the opportunity for further briefing, and the more in-depth review of the complicated constitutional issues that further time to research allowed, the Court concludes that the state’s remaining interest in protecting grand jury secrecy in this case, where the grand jury has completed its deliberations, does not outweigh The Denver Gazette’s First Amendment right to publish truthful and lawfully-attained information to the extent that a prior restraint may be put on such speech.”
By Friday, April 29, as the back-and-forth went on, The Denver Gazette had held its story. If they published, they could face contempt sanctions by violating an order of the court. Before noon on Friday, Gazette Editor Vince Bzdek, who had just spoken to a class of Colorado College students on a field trip to the paper’s newsroom in the Springs, offered a statement.
“I think newspapers across the state should call upon Phil Weiser to stop being an enemy of freedom of the press and the people’s right to know, and to announce he will not appeal this well-reasoned ruling that is consistent with centuries of Supreme Court precedent,” Bzdek said.
UPDATE: Bzdek said after hearing the AG’s office wouldn’t appeal that he’s glad Weiser recognized the decision as the “right one.” He said the AG has been a champion of free speech in the past and “continued that dedication with this decision.”
Around 1 p.m. Friday, Lawrence Pacheco, a spokesperson for the AG’s office, said he’d work on getting a response to Bzdek’s comment as this newsletter was headed to inboxes later in the afternoon. By 3:45 p.m. I hadn’t gotten one other than to say the AG’s office was reviewing the judge’s ruling and determining their next steps. (I’ll update this newsletter’s published online version if I wind up hearing more. I’ll also update it if the AG’s office makes a decision before Monday.)
UPDATE, 5:15 p.m. Friday: AG spokesperson Lawrence Pacheco passed along this statement:
“A reporter obtained documents with confidential information about the grand jury proceedings from the Adams County District Court clerk’s office as a result of an inadvertent disclosure by a staff member. As a court order protected these documents as confidential, they should not have been released.
After we alerted the Court to this breach of confidentiality that threatened the integrity of the grand jury process and the right to a fair trial, the court issued a protective order so that it could consider the impact of public reporting on the protected documents.
After considering the matter carefully, the court concluded that it could still conduct a fair trial even with the release of the protected information. We respect the court’s thoughtful decision and will not appeal.”
The Denver Gazette reported late Friday afternoon the outlet was “waiting to hear what our next step will be.”
As for Cardi, the reporter at the heart of it all who wrote a first-person piece for the paper about it, she told me over email Thursday that she felt like she “crash-landed into the situation” and has been trying to take it in stride as part of what she does each day for her job — to be fair, transparent, and a “responsible steward of information.”
But one thing has nagged at her.
“Over the past few days since we received the order, my mind has been gnawing quite a bit at my decision to alert the case’s lawyers ahead of time about my story, mainly because since then I’ve learned that publishing it without advance notice actually would have shielded us against prior restraint — we couldn’t have been made to take down a story already published,” she says. “I’ve reminded myself that I do the same thing for any other touchy story, so it’s been reassuring to see on social media that people generally understand why I went about it the way I did.”
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Springs alt-weekly digs into big city contract
The alternative weekly newspaper in Colorado Springs last week published a big news package illuminating for the many what was known by a few about a major broadband deal in the state’s second-largest city.
Relying on open records and interviews, journalists Greta Anderson and Pam Zubeck wrote that their reporting found “scant competitive bidding” and “questionable procurement practices” involving a large-scale fiber optic buildout deal between the Springs and a Las Vegas company called The Broadband Group.
About this plan from the Indy’s package titled “Gone Dark”:
The goal of the project is to improve existing fiber lines used by Utilities to manage electric, gas and water utilities and add excess capacity to be leased to internet service providers (ISPs) to deliver high-speed broadband capabies citywide.
The entire project, which will cost $600 million, according to a report in Broadband Communities magazine, has progressed under a cloud of secrecy. The consultant’s reports the Indy received are heavily redacted and detailed briefings have been held in Utilities Board closed executive sessions that exclude the public.
In one of the stories, Anderson laid out how the city-owned public utility had “promised a competitive internet environment” but added that’s “not what happened in other cities” relying on “this model.” In another, Zubeck questioned whether a public vote should have been required on the deal.
In the ‘ole one-two-punch of news and opinion, the Indy also published a scathing editorial about what its reporters uncovered. From the Indy’s “Voice of Reason” page:
It’s kind of freakish, really.
In 2011, Colorado Springs Utilities awarded a $73.5 million, no-bid contract to a company for a project that was designed to be a partnership of sorts. The project would meet Utilities’ needs, but also promised to bring CSU some bonus money through sales of the technology to other entities.
That project was Neumann Systems Group’s scrubber, NeuStream, designed to bring emissions from Drake Power Plant’s coal-fired units into EPA compliance. Those whose memories go back that far will remember it as a partnership that ended in tears, with costs creeping up to $170 million, high-volume public debate, disagreement among Utilities Board members, and the plan eventually cut short. All along the project’s trajectory, however, there was plenty of public Utilities Board/City Council discussion and sufficient transparency on CSU’s part so that ratepayers felt informed enough to complain about it.
Zip forward a decade.
In 2021, Springs Utilities awarded another $73.5 million contract — with just a whisper of a competitive process — to a company for a project that was designed to be a partnership of sorts. The project would meet Utilities’ needs, but also promised to bring CSU some bonus money through leases of the technology to other entities.
What the Indy’s editorial board finds “vaguely insane about all of this,” it wrote, is that Springs Utilities claims their “lack of transparency gives them a competitive edge over others entering the Springs’ gig-speed market, thereby protecting ratepayers’ investment in the fiber project. And that brand of civic ‘logic’ scares the living hell out of us.”
As if the news stories and editorial weren’t enough, the Indy launched its first podcast from a new recording booth at the Colorado Publishing House — and featured a behind-the-scenes interview with the reporters about their multi-story investigation.
As Anderson said in a teaser for the podcast: “We delve into the big themes of our investigation — lack of transparency, Utilities’ noncompetitive practices and a fiber network design that’s up for debate — and talk about the role of the Colorado Open Records Act and expert sourcing.”
No open records law reform this year?
Speaking of the Open Records Act, lawmakers apparently won’t be plugging holes in Colorado’s Swiss cheese open records laws this year. The Denver Post’s Alex Burness reported this week that attempts by a Democratic and Republican lawmaker to make government more transparent have “fizzled.”
In 2015, when grading parts of Colorado government for their risk for corruption, the Center for Public Integrity gave an ‘F’ to Colorado for its access to public information. (I wrote the report.) In the past seven years, lawmakers have tinkered around with our open records laws to varying degrees, and sometimes they’ve made government more transparent.
But there’s still plenty more to do. From the story:
The bill [the lawmakers] were set to introduce had been whittled significantly from its original form, but still proposed several substantial changes. It would have:
Required records custodians to provide itemized receipts — including number of hours spent on the request and a description of the work process — to people requesting records
Eliminated per-page fees for electronic records
Required records to be returned in searchable, digital formats when possible
Brought the Colorado Criminal Justice Records Act in line, on some fronts, with CORA; among other inconsistencies, CCJRA records custodians do not need to provide a response to a request in any set amount of time
Forced the state to convene a work group to set new rules for records retention, specifically concerning emails
That slate of changes would have represented the biggest open-records law change in years in Colorado, but it still wouldn’t have solved one of the biggest barriers to accessing records: cost.
Governments can charge $33.58 per hour they spend fulfilling a records request. But a simple requirement to show itemized receipts that prove they actually spent or would spend that time was apparently a “difficult sell,” Burness reported. One lawmaker wants to create a task force to study open records policy after the session ends next month. In other words: Better luck next year.
Responding publicly to the story, Denver Post Editor Lee Ann Colacioppo had this to say:
Misinformation, Colorado newsrooms, and you
Wan to learn how local communities and newsrooms can address “growing concerns” about misinformation? There’s a panel for that. May 12 from 3 p.m. to 5.
From Editor Eric Larsen at the Coloradoan in Fort Collins:
The Zoom webinar will feature a presentation from Colorado State University Associate Professor of Political Science Dominik Stecula, along with a panel discussion and audience question-and-answer session.
Panelists include: Katherine Knobloch, associate professor of communication studies and associate director of the CSU Center for Public Deliberation; Silvia Solis, community engagement director for the Colorado News Collaborative; David Wolfgang, CSU Journalism and Media Communication associate professor; Annaclaire Crumpton with Poudre River Public Library District; Michael Humphrey, CSU Journalism and Media Communication associate professor; and Fort Collins Coloradoan Content Strategist Rebecca Powell.
Spanish interpretation will be available.
More Colorado media odds & ends
🦅 The Crestone Eagle in Saguache County is looking for an editor. Email Peter Anderson for details at pilgrimage[at]fairpoint[dot]net. “It’s an exciting time for the Eagle, as it is transitioning from a private owner to nonprofit ownership,” Anderson says of the as-of-now monthly print paper. I’m told it’s 3/4 time and will pay $30k. The job begins Aug. 1
🎵 KUVO announced “programming updates” this week.
🎉 IRE2022 in Denver, the June 23-26 conference by Investigative Reporters & Editors, has announced its schedule. (Are you going? I’ll be there. Come say hi.) We’re looking for those who will be there to sign up as mentors, so if you’re willing, click here. And if your Colorado organization would like to hire Henk van Ess, formerly of Bellingcat, for trainings while he’s here for the conference, email me.
🔎 After leaving KUSA 9News, Nicole Vap will still be the vice president of the Colorado Freedom of Information Coalition.
❌ Last week I wrote that Julie Marshall didn’t say in her column what she’d be doing after she left as opinion editor of the Boulder Daily Camera. But she did. She’ll be the national communications coordinator and Colorado state director for the Center for a Humane Economy out of Washington, D.C. I regret having missed that and not including it.
💨 Xandra McMahon is leaving City Cast Denver to become the lead producer for the “soon-to-be-launched” City Cast Philly. “It’s very bittersweet,” she said. Esteban Hernandez is leaving Denverite to join Axios Denver. “Grateful for the experience, the people who trusted me with their stories, and the colleagues I learned from,” he said.
📢 There’s been lots of talk about free speech these days as the world’s richest man attempts to buy Twitter. Here’s my recommendation for boning up on the First Amendment.
⌛ Longtime University of Northern Colorado journalism professor Dale Edwards “is retiring at the end of the semester,” The Mirror reported. “I would not want to go back to working live in the business again,” he said. “I’m past that. It’s a stage in your life and I’m too old.”
🎬 Colorado “looks to add $2 million in film incentives,” Axios Denver reported.
👀 The Boulder Daily Camera’s Mitchell Byars offered a very honest pitch for a reporter position at the Alden Global Capital-controlled newspaper. “No, it does not pay well,” he wrote. “Yes, the hours are not great. There is, frankly, a chance we won't have a physical newsroom at the end of the year. So while this listing asks for an experienced reporter, I doubt we’re going to lure someone like that.” But he also makes the case for a recent college graduate or young emerging journalist to “learn from some great journalism people and cover a great news area.”
📺 Megan Doyle will be the new morning executive producer at KUSA 9News. Denver became “home, and I can’t wait to see what the future holds here,” she said.
🪓 Nine years later, the Colorado Springs Indy alt-weekly is pausing its “In Good Faith” column. “After lots of consideration, John and I agree it’s time for change,” Ahriana Platten wrote about the Indy’s owner John Weiss. “We’re taking a break until September to consider how we can best serve the spiritual community of Colorado Springs.”
🖨️ The new Pueblo Star Journal nonprofit newspaper said in an email this week that it is “printing more than double the copies we did just a month ago.” Founding member Regan Foster this week thanked readers for supporting it.
🧠 A Colorado journalist says “therapy has changed my life.”
🆕 Logan M. Davis, who has run political operations, crafted progressive messaging campaigns, and conducted opposition research, is joining the progressive Colorado Times Recorder as a writer and researcher. “For years, I’ve worked to channel my best research to local outlets, now I'll write it myself,” he said.
👀 On Facebook, a Republican state lawmaker had quite some words about an editorial page editor.
💨 Jessica Gibbs, a.k.a JessTheJourno, who you might remember from recent extensive coverage of the Douglas County superintendent SNAFU, is leaving Colorado Community Media after six years “to spend time on freelancing work and some personal writing projects.”
🏆 Student Grace Holst from Durango won second place in the Society of Professional Journalists and Journalism Education Association’s high-school essay content.
📸 The West Slope Photojournalism Workshop in Paonia, Colorado is “back for another summer of programming” from May 30 to June 24. It’s a four-week curriculum “featuring instruction by a group of hand picked photographers from around the country.”
I’m Corey Hutchins, interim director of Colorado College’s Journalism Institute. For nearly a decade I’ve reported on the U.S. local media scene for Columbia Journalism Review, and I’ve been a journalist for longer at multiple news organizations. The Colorado Media Project, where I write case studies, is underwriting this newsletter, and my “Inside the News” column appears at COLab, both of which I sometimes write about here. If you want to help underwrite this newsletter, hit me up. Follow me on Twitter, reply or subscribe to this weekly newsletter here, or e-mail me at CoreyHutchins [at] gmail [dot] com.
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