Paper may print name in Commandments case, judge says (ACLU loses in Judge Kopf's ruling

LINCOLN - A federal judge refused Tuesday to prohibit The World-Herald from publishing the name of a Plattsmouth man who has sued the city over a Ten Commandments monument.

U.S. District Judge Richard Kopf directed sharp questions at attorneys for both the ACLU and The World-Herald before deciding not to restrict the newspaper from printing the man's name.

The U.S. Supreme Court has never upheld a court order restraining a newspaper prior to publication. And Kopf said he wasn't about to depart from that standard.

"A prior restraint - if it is ever appropriate - this is not the case," Kopf said.

The case had raised eyebrows among legal experts because the American Civil Liberties Union, one of the foremost advocates of free speech, had sought to restrain a newspaper from publishing information.

When the ACLU filed a lawsuit on the man's behalf three years ago, attorneys argued thathe should be able to proceed under the name John Doe because of threats the man had received over his protest.

A judge allowed the man to proceed anonymously, but that order applied only to the attorneys and the parties in the case.

Kopf eventually ordered Plattsmouth to remove the monument from a city park, saying it violated the constitutional separation between church and state. The city appealed that decision and is awaiting a ruling from the 8th U.S. Circuit Court of Appeals.

The ACLU filed a lawsuit Monday asking Kopf to bar The World-Herald from publishing the man's name. Tuesday, the judge repeatedly interrupted attorneys for the ACLU and the newspaper as they pressed their arguments during a 75-minute hearing.

Kopf applauded the ACLU for upholding its ethical duty to represent its client, even if that seemed to compromise its commitment to free expression.

Kopf sharply questioned whether the "cat already is out of the bag" on who John Doe is. He pointed to several exhibits provided by The World-Herald in which the man espoused his beliefs publicly and indicated that he was the person behind the Ten Commandments lawsuit.

Miller argued that the court's previous order preventing attorneys from disclosing his name had been successful. She said the man has legitimate fears for his family's safety.

"(He) might as well pack up and leave town," Miller said. "He is facing serious harm, even death."

The judge pressed the safety issue with The World-Herald's attorney, asking the same question several times: Hypothetically, what would the newspaper do if it knew "for certain" that publishing a person's name would cause the person to be killed?

The newspaper's attorney, Michael Cox, said the newspaper would have the First Amendment right to make that decision.

But in this case, he said: "Nothing's happened to anybody. Their argument is based solely on speculation."

Cox questioned whether the man truly is in danger. The threats made against him are at least three years old, he noted. The people who threatened him apparently know his identity. And no harm has come to him, he said.

Cox said the newspaper would have a hard time publishing any stories if it always had to allay fears that a person might be harmed.

Miller further argued that because the newspaper's editorial page has criticized the man's lawsuit, The World-Herald would be putting "a target on his back" by naming him.

Kopf rejected that argument. He also disputed the ACLU's contention that the newspaper is behaving like a "supermarket tabloid."

"There isn't anything that shows The World-Herald has malice toward your client," he said. "This is something more than tabloidism. There are statements (by the man) here that are a legitimate matter of public concern, aren't they?"

Miller argued that the newspaper can address those public concerns without naming the man.

"All we are asking them to do is withhold two words - his first and last name," Miller said.

"That is just being a citizen who litigates. As regrettable as it is, there are consequences to taking positions."

Larry King, executive editor of The World-Herald, said the newspaper has not decided whether, or when, it will identify the man. But that decision, he said, should be left to the newspaper - not the ACLU or the government.

"That's where we were before the Nebraska ACLU decided that the First Amendment shouldn't apply in this case," King said.

He said the ACLU, while trying to muzzle The World-Herald, issued inflammatory, hysterical and accusatory statements that defamed not only the newspaper, but also the people of Plattsmouth.

Tim Butz, executive director of the ACLU-Nebraska, said King wasn't at the Plattsmouth City Council meeting where the lawsuit was discussed three years ago.

"The people of Plattsmouth were the ones yelling and screaming, 'Tell me who he is - I'll run him out of town,'" Butz said. "Now, are all the people of Plattsmouth going to behave that way? Of course not."

Butz said the ACLU will consult with the man before deciding whether to appeal. For his part, the man issued a statement after Tuesday's decision.

"I am very disappointed," he said. "I take seriously the threats that have been made. If I am identified, I will have no choice but to consider moving my family from Plattsmouth."

Following up yesterday's story with the actual ruling from Judge Kopf. I'm very surprised he ruled against the ACLU. My opinion is that he ruled correctly. The plaintiff being represented by the ACLU should, at a minimum, demonstrate the courage of his convictions.

I'm sure the guy is already packing his bags and preparing to leave town. As well he should.

You have to love the irony of his fate being a matter of how well his fellow citizens follow the fifth item on the list he sought removed (Thou shalt not kill.).

This guy sounds a little like kerry - proud of what he did in the past but doesn't like the consequences in the present. Personally, I hope they run him and the ACLU horse he rode in on out of town.

When the ACLU filed a lawsuit on the man's behalf three years ago, attorneys argued thathe should be able to proceed under the name John Doe because of threats the man had received over his protest.

Where's the ACLU on Buckhead's identity being revealed? I haven't heard a peep out of them on *that* violation of privacy.

I posted in another thread yesterday, that the ACLU supports your right to free expression, as long as they agree with what you are expressing.

Newspapers hide behind anonymity shields all the time, the Nashville Tennessean published the second of two articles so far on an on-going trial of an out-of-state lawyer-father who took pictures of his bare-bottomed 3-year old son "mooning" the camera where his scrotum was visible and is withholding the names of all involved; stranger yet, in a front-page spread on the Classified section in yesterday's edition concerning bringing pets into a home with small children they have an un-credited picture of a toddler stooped down petting a puppy - the lad's scrotum is clearly visible. Go figure.

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