A couple of weeks ago, a judge ordered The Gazette not to publish information it had lawfully received from a public court file. Reporter Julia Cardi had asked a court clerk to provide her all publicly available records on file in five related cases arising from the alleged homicide of Elijah McClain. None of the documents she received were stamped “sealed” or “suppressed.” But some of them should have been so labeled and withheld from the public file.

As a professional courtesy, Cardi notified the attorneys in the case that her article summarizing those filings was to be published the next day. That afternoon, the state Attorney General’s Office prevailed upon Judge Priscilla Loew to issue a “prior restraint” commanding The Gazette, upon pain of contempt sanctions, not to publish the information. In the days that followed, both The Gazette’s attorney (me) and the Colorado attorney general filed a series of pleadings marked “urgent,” “immediate,” and “forthwith.”

Why are prior restraints of such profound concern to the news media? Think of the Pentagon Papers case. There, judicial orders commanded the New York Times and The Washington Post not to publish information from leaked Department of Defense records, stamped “Top Secret,” which catalogued America’s descent into the war in Vietnam and the history of government disinformation that contributed to the loss of more than 58,000 American lives. When the case came before the Supreme Court, on expedited emergency review, it ruled (6-3) that the order barring publication was unconstitutional and could not stand. The newspapers were free to publish the “Top Secret” information, despite the government’s claims that national security would be undermined. And the Pentagon Papers were published for the world to see.

That case recognized it is a fundamental breach of the First Amendment for any government official to tell the news media what it can and cannot publish, absent the most dire, certain, and immediate “irreparable injury” to a state interest “of the highest order.” In arguing the case for the New York Times, Yale law professor Alexander Bickel conceded, in response to the Justices’ questioning, that an order barring the publication of the date, time and location where our nation’s troops would be landing on a foreign shore might survive constitutional scrutiny. But only in such hypothetical circumstances, where the imminent death of 100 young American men was “obvious, direct, and immediate,” the First Amendment might tolerate the infringement of press freedom.

Notably, the Supreme Court has not ever upheld an order issued by any government official barring the press from publishing information it had lawfully obtained concerning a matter of legitimate public concern. And, because the Supreme Court has recognized that “each passing day” such an order remains in place causes “irreparable injury,”

The Gazette urged Judge Loew to lift her prior restraint order “forthwith.”

The Attorney General’s Office, in contrast, argued that if The Gazette were to publish Cardi’s article, which would include testimony that had been presented before the grand jury, it would immediately and irreparably destroy the cherished sanctity of grand jury secrecy. In other words, the AG claimed, upon publication of the article, witnesses to crimes would no longer be willing to testify (under subpoena) before a grand jury and future criminals would go unprosecuted.

Four days after she’d ordered The Gazette not to publish, Judge Loew determined that her order was a prior restraint and, consistent with numerous precedents (including cases involving inadvertently disclosed grand jury transcripts) she lifted her prior restraint. The Gazette immediately published its withheld article. And guess what happened: Grand juries continued to hear from witnesses subpoenaed to testify.

And, to my knowledge, not a single grand jury witness is sitting in jail for contempt because (s)he’d rather defy a subpoena than face the possibility that his or her testimony might be inadvertently disclosed to the press and published in the newspaper. Imagine that!

This is no laughing matter. The attorney general’s error cost The Gazette several thousand dollars it was forced to expend to fight a battle of principle and vindicate its right to provide its readers with timely, newsworthy, and truthful information.

I urge this attorney general (and all other government officials) to learn from this mistake and not repeat it. Unless the circumstances you face are akin to the certain and immediate death of 100 or more Americans, do not barge into a courtroom or judge’s chambers and hastily urge her or him to enter another blatantly unconstitutional prior restraint.

Such decisions have real consequences, even when the error is eventually corrected.

Steve Zansberg is a First Amendment attorney in Denver and president of the Colorado Freedom of Information Coalition.