Late last month, a Colorado judge made the remarkable decision to order Justin Wingerter of BusinessDen to return documents the reporter legally obtained through an open records request and to destroy any electronic copies he might have.
But the journalist, who reports on white collar crime and litigation, wasn’t having it. And he’s fighting back in court, arguing through an attorney that the judge’s request is unconstitutional under the First Amendment. Furthermore, he has published a story relying on the documents in question.
So, how did this all go down? At least once a day, Wingerter reads through lawsuits filed in Denver District Court looking for potential story ideas. He came across a case involving two businesses, and he noticed the case was “suppressed.”
Colorado’s courts are notoriously opaque, and, despite recent reforms, the press and public are still blocked from viewing some court records — sometimes without explanation. But the paper curtains typically fall over details of criminal cases; the story on Wingerter’s radar was a civil suit.
“It’s unusual to see a civil case in Colorado filed as suppressed (or sealed, in more common parlance) and the case caption made it sound like a fairly ordinary business dispute over money,” Wingerter said over email this week.
So he filed a standard records request with the court in hopes of learning more about the case. Back came an invoice for $61.75, which he paid over the phone, and by the following morning he had the documents in hand.
They weren’t exactly the Pentagon Papers. It turned out the case was a dispute between two companies — one of them is based in Denver, the other in Texas — over the sale of a popular high school sports recruiting app. The Texas company said it would pay $21 million for the app, documents showed; the Denver-based company was suing, saying it hadn’t gotten all of the money.
The following day, though, the reporter got an email from the clerk of court that included a copy of a judge’s order.
The order was troubling to say the least. It mentioned Wingerter and his news outlet by name. Denver District Court Judge Kandace C. Gerdes had filed it after Wingerter obtained his material, saying she had been “made aware that the media obtained copies of suppressed documents” in the case file.
This is what the judge wrote in an official order from the court:
The Court hereby orders that all documents obtained by any media outlet, including but not limited to those obtained by Justin Wingerter of BusinessDen, shall be returned to the Court by hand-delivery, specifically Courtroom 275 (1437 Bannock St., Denver, CO 80202), by 4:00 p.m., on November 30, 2023. All electronic copies of said documents shall be permanently deleted from servers as well. Failure to do so will be considered contempt of this Court’s Order.
Wingerter got in touch with his editor. “I think we need a lawyer,” he recalls saying.
Enter Colorado-based First Amendment attorney Ashley Kissinger, who filed a Dec. 1 motion to vacate the judge’s order and asked the court to reconsider its position.
“The order does not purport to prohibit publication of the information Mr. Wingerter lawfully obtained from the Court, nor could it do so consistent with the Constitution,” she wrote. Here’s more:
Nevertheless, the Order, by requiring imminent return of physical documents and destruction of the information in its electronic form, appears designed to inhibit the media from reporting on that information. It also restricts the media (and everyone else) from engaging in lawful information-gathering activities. It is therefore unconstitutional under both the First Amendment to the United States Constitution and article II, section 10 of the Colorado Constitution.
In her 10-page motion, Kissinger relied on decades of precedents going back to the 1970s, including some cases about top-level national security issues, arguing that the First Amendment protects Wingerter — and others. For what it’s worth, “the Clerk of Court apparently erred in releasing the requested records,” Kissinger wrote in the brief. (The Colorado Freedom of Information Coalition has the judge’s order digitized here, and Kissinger’s response to it here.)
In the United States, the prevailing ideology is that the 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.
“More than 50 years ago, the Supreme Court held that a newspaper could not be enjoined from publishing the Pentagon Papers,” Kissinger wrote, “even where the papers had been provided to the newspaper by a third-party who stole them and even where disclosure of the papers could threaten the security of the country. … In light of the extraordinary burden imposed on those seeking to impose a prior restraint, the Supreme Court has never permitted such a restraint to stand.”
The ”apparent purpose” of forcing a reporter to return documents and destroy them, she went on, “is to prevent the press from disseminating the information contained in them, or at least to convey to the press that it should not do so” and “runs counter to the law protecting the press from prior restraints imposed by courts and other government actors.”
More from Kissinger:
Finally, subjecting BusinessDen, Mr. Wingerter, and other members of the public to a threat of contempt for any “attempt . . . to obtain copies of filings in this case without the Court’s prior written order so authorizing disclosure”—which is exactly what Mr. Wingerter did here—is similarly unconstitutional.
Attempts by governments and judges to block the press from publishing are rare, and when they arise they tend to generate blowback from media. Judges typically relent when educated about what Kissinger described in her own brief as an “unbroken line of precedent rejecting prior restraints in all but the most ‘exceptional cases’.”
Last year, a judge, along with Colorado Democratic Attorney General Phil Weiser, tried to stop Denver Gazette reporter Julia Cardi from publishing a story. They eventually relented after a lawyer got involved, but the “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.”
As for Wingerter, he declined to follow the judge’s order.
What’s more, on Dec. 4, he published a story about the lawsuit. So far, he has not been slapped with handcuffs. As of this writing, neither he nor Kissinger had yet heard back from the court.
“We took the order very seriously — it is a court order, after all — but decided that it was unconstitutional and would constrain my ability to do my job,” Wingerter said via email this week. “Remember, I obtained these documents legally from the court while doing ordinary journalism.”
Chalkbeat’s new national editor will stay in Denver
Erica Meltzer, who has spent nearly six years as Colorado bureau chief for the education-focused nonprofit newsroom, is taking on a new role as Chalkbeat’s national editor, the outlet announced this week. She’ll stay in Denver.
Senior reporter Melanie Asmar will take over as Colorado bureau chief.
“We strive to be a place where people have opportunities to grow and stretch, and I couldn’t be more thrilled for these gifted journalists and great people,” said Eric Gorski, Chalkbeat’s managing editor for local news, who is also based in Denver.
“Erica has distinguished herself at Chalkbeat in her nearly six years as our Colorado bureau chief. She has shaped that team’s top-quality work while doing significant reporting herself on the state education beat, including high-impact stories like last year’s look at attempts to change the state’s history standards,” said Chalkbeat editor Sarah Darville in a note to staff. “She has also championed efforts to make Chalkbeat’s work more responsive to everyone who calls Colorado home, including Spanish-speaking residents and people who live beyond Denver and the Front Range.”
About Asmar, Darville said, “her eye for detail and talent for capturing scenes — aka ‘The Asmar Touch’ — bring her stories to life. She has incredible passion for telling the stories of people who have been denied the educational opportunities they deserve, in harmony with our mission.”
Updates on the Denver Post’s downtown building
Last week’s news that the City of Denver wants to buy the building that houses the Denver Post’s name (but no longer its newsroom), is still making headlines.
This week, BusinessDen’s Thomas Gounley, who broke the news, published a story putting this latest development into broader context.
From the story, headlined “Denver’s rival newspapers see their real estate swallowed by the city”:
Denver’s planned purchase of the former Denver Post building won’t be the first time the city has bought a dominant daily newspaper’s signature real estate.
In 2002, the city bought the building used by the Rocky Mountain News, the Post’s main rival for decades. The structure sat at 400 W. Colfax Ave., just west of Denver city hall and the Denver Mint.
In both cases, however, the deals were intended to allow for expansion of the court system.
Meanwhile, a separate story this week dealt with City Councilwoman Shontel Lewis’s opposition to the city’s planned purchase of the Denver Post building.
“With our city facing a shortage of affordable housing units, the ongoing project on the 16th Street Mall, and the need to address too-few public libraries and recreation centers in neighborhoods like East Colfax, it would be inappropriate to allocate such a large sum of money to the purchase of a building for 2030 with more pressing needs in our city right now,” Gounley quoted Lewis as saying.
There was also some talk about whether the price the city wants to pay for the Post building, owned by a subsidiary of New York-based American Properties, is too high. And also whether council members will ever be able to see an official appraisal before they vote. (The city’s real estate developer said no; BusinessDen also was not able to obtain it.)
And if you were wondering what might happen to the Denver Post lettering on the building, this appeared at the end of the story:
As for The Denver Post signage that still tops the building, expect it to stay in place even if the city purchases the property.
“The city expects that the Denver Post signage will remain in place while the DP Media Network maintains its master lease to the building,” said Swartz, the city spokeswoman. “There have not been any discussions on future signage at this point.”
That could be as late as 2029.
9NEWS gets text messages after lawsuit against Denver
This week, 9NEWS reported on text messages that revealed the way city leaders responded to a scary hailstorm that pelted concertgoers at the outdoor music venue Red Rocks.
“The text messages show little concern for people who were actually injured,” 9NEWS journalist Steve Staeger wrote. “There is concern however about public perception.”
Getting a hold of those texts wasn’t easy. Staeger had to sue for them.
Colorado First Amendment attorney Steve Zansberg outlined why the ultimately successful case matters.
“Judge Stephanie Scoville’s ruling joined numerous other state courts in finding that text messages of public employees housed on personal cellphones are not outside the statutory definition of ‘public records’ merely because they were never transferred to any government entity’s servers for storage and retrieval,” he wrote for the Colorado of Freedom of Information Coalition of which he is president.
Read his rundown of the court drama here.
As for Staeger, he had this to say: “Would these messages have been newsworthy back in July? Not sure. They don’t really show much about policy. Did the city make them more newsworthy by withholding them and making us fight? Yes. Did this case create precedent for other journalists? I hope so.”
Gov. Polis honored a local weather caster and gave him his day
Colorado’s Democratic governor, Jared Polis, declared Nov. 30, 2023 as “Mike Daniels Day.” That’s in honor of the Pueblo native who spent five decades as a weather caster and is retiring from KOAA following a 40-year run at the Colorado Springs TV station.
“Weather forecasting in the state of Colorado is better now because of Mike Daniels’ legacy,” Polis said in a video tribute to Daniels, according to Josué Perez at the Pueblo Chieftain. “I hereby proclaim Nov. 30, 2023, as Mike Daniels Day. Congratulations Mike, and a happy retirement. Thank you for all of your great journalism in the state of Colorado.”
From the Chieftain:
Daniels told the Chieftain that he didn’t expect such a gesture but that it was “really humbling.” He’s received dozens of emails and comments since his announcement and said he feels an “overwhelming sense of love and appreciation.”
He told the paper he plans to remain in Pueblo during retirement, saying, “I have no plans of leaving. I love this city.”
Colorado GOP compels social media speech?
Florida GOP Gov. Ron DeSantis, who is running for president, will not win Colorado if he is on the general election ballot. Neither will any Republican.
The governor probably knows that, which is why a post he made on the platform formerly known as Twitter earned him some headlines.
Here’s what DeSantis posted this week:
To qualify for the CO primary ballot, the state party requires that candidates post something on social media that announces their excitement while encouraging their followers to follow the state party’s social media accounts for updates about the state party primary and events.
I’m excited to officially be on the ballot for the Colorado primary! Coloradans, it’s time for Republicans to start winning again. As your nominee, I will run Biden ragged across this country and help Republicans up and down the ballot WIN. Stay informed with @cologop for updates!
While some thought the candidate’s team might have mistakenly added the first part, a DeSantis spokesperson said it was “on purpose.”
More Colorado media odds & ends
🇪🇺 This newsletter is in out-of-the-country mode, meaning content might be lighter than usual and I might not be as quick to respond to emails, voicemails, or DMs.
📺 After 30 years at CBS Colorado in Denver, veteran TV journalist Rick Sallinger said: “it is time to leave the screen due to health reasons.” Marc Sallinger, Rick’s son, who is a reporter for the rival Denver station 9NEWS, said, “one of the coolest experiences I’ve had was sharing the screen with my dad, albeit on different channels.” (Marco Cummings has a tribute to Rick at the Denver Gazette.)
☀️ The Colorado Sun officially became a nonprofit.
❌ The emailed version of last week’s newsletter mistakenly flipped the timeline of events surrounding Denver Post layoffs and journalists moving out of the building. The mass layoff came after they had already moved into the Adams County printing plant.
💥 The bombing of Mindanao State University in the southern Philippines “hits close to home” for Luige Del Puerto, editor of Colorado Politics. “MSU is the refuge of poor students like me who couldn’t afford to go to the Philippines’ more prominent universities in the capital region,” he wrote in a first-person essay. “Its faculty and students take pride in molding many of the country’s best minds.” He added: “My heart is broken for the victims of Sunday’s attack. I don’t know who died, whether they were students or staffers. I don’t know if there are friends or acquaintances among the injured.”
🇨🇳 Jason Salzman of the Colorado Times Recorder couldn’t get Safeway to talk about why it offers a “fringe newspaper that promotes far-right conspiracies and Trump.” (Spoiler: it’s the Epoch Times.)
“A Newtown publishing business has been acquired by a Boulder, Colorado-based company that specializes in niche enthusiast magazines,” the Hartford Business Journal reported. “The Taunton Press, a consumer media and book business, has been acquired by Active Interest Media.”
🪦 Justin Rush, a longtime photographer for KDVR/FOX31 in Denver, died, the station reported.
⬆️ Conor Cahill has replaced Maria De Cambra as the communications director for Democratic Gov. Jared Polis. De Cambra is now executive director of the Department of Local Affairs. Shelby Wieman will take over Cahill’s former role as press secretary.
🗳 “Colorado’s highest court on Wednesday heard oral arguments in a landmark case seeking to bar former President Donald Trump from Colorado’s 2024 ballot under a Civil War-era insurrection clause,” Chase Woodruff reported for Colorado Newsline. Among the issues Trump’s attorneys raised was “whether Trump’s speech was protected by the First Amendment.”
🔫 Jan Wondra, editor and publisher of the nonprofit Ark Valley Voice digital site in Salida, wrote this week that she has to watch from her window as a man with an AR-15 rifle stands in the street and yells at her news outlet. “Well — AVV is exercising our First Amendment rights,” she wrote. “We object strongly to the proliferation of guns, the gun lobby’s resistance to common sense gun laws, and the absolute refusal of some local governments to understand their duty to acknowledge the ‘alarm’ — the threats to our personal safety and sense of well-being — being perpetrated on our being and our businesses.” The column quoted a local city council member, Dominique Naccarato, saying, “I am not anti-gun, but I am anti-people creating fear in our downtown.” The piece also came with this editor’s note: “Most AVV staff, like Naccarato, come from families of hunters. We are not anti-gun. We agree with Naccarato.”
⚰️ The “Denver PR community lost our friend Larry Holdren,” Denver PR pro Jeremy Story wrote for his Denver Public Relations Blog.
🗞💸 A reader wrote me this week to say why she planned to unsubscribe from her local newspaper: “I noticed my monthly Boulder Daily Camera subscription amount more than doubled from $13.89/month to $28.15/month,” she said. “The quality of the Daily Camera has not doubly improved nor the quantity of articles.” (How much are you paying for subscriptions to your local newspaper?)
📺 “Our three lowest-raising weekly microgiving campaigns in 2023 all benefit largely Spanish-speaking communities,” said Denver’s 9NEWS “Next” anchor Kyle Clark. “That doesn’t sit right with me.”
⚖️ “In a victory for the Aurora Sentinel, the Colorado Court of Appeals reversed a district court ruling Thursday and ordered Aurora to publicly release the recording of an executive session in which city council members ended censure proceedings against a fellow councilor,” Jeff Roberts reported for the Colorado Freedom of Information Coalition.
I’m Corey Hutchins, co-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. Colorado Media Project is underwriting this newsletter, and my “Inside the News” column appears at COLab, both of which I sometimes write about here. Follow me on Threads, reply or subscribe to this weekly newsletter here, or e-mail me at CoreyHutchins [at] gmail [dot] com.