WXYZ appealing order from Metro Detroit judge in First Amendment battle

WXYZ lawyers: Judge's order is unconstitutional
Posted at 10:18 PM, Oct 17, 2017

It’s the story several lawyers did not want you to see:  The 7 Investigators are looking into allegations of problems in the probate guardianship system.

Last week, a judge stepped in and issued a restraining order, preventing Channel 7 from showing any pictures or videos of two of the people at the center of the story, Janet and Milan Kapp. 

On Tuesday that judge said he’s standing by that decision.  So now WXYZ is heading to the Court of Appeals.

Mila Kapusta and several other local families asked the 7 Investigators to make their stories public.  Those who asked us to investigate say they’ve lost control of their loved ones to court-appointed guardians.

Many of these cases end up in probate court because of family disputes, and the Kapp family fight prompted these two sisters to try to stop the 7 Investigators from using pictures of their parents in our investigation.

Just hours before the story was supposed to air last Thursday, Lorrie and Sandy Kapp got a judge to issue a Temporary Restraining Order, preventing us from showing you old family pictures that had been provided to us by their other sister, Mila.

Tuesday during a show cause hearing, Judge Daniel A. O’Brien continued that restraining order, saying his job was to protect Mr. and Mrs. Kapp, who are now in their 90s.

“I am granting the injunction against Channel 7 and they are restrained.  It is in fact a prior restraint I gotta admit, but they are not to use any photos or video of Milan and Janet Kapp in any broadcast,” said Judge O’Brien.

WXYZ’s attorney Jim Stewart argued that Judge O’Brien’s initial restraining order was unconstitutional. 

“A court cannot order someone not to publish something.  It’s called a prior restraint of speech and it’s been held to be presumptively unconstitutional,” said Stewart.

Legal experts say “prior restraint” is typically only used in cases where there is a threat to national security.

Clearly there is no such threat in this story, and this is now about much more than just pictures.

“You can’t have the government telling somebody what they can and can’t say when they’re covering a newsworthy event,” said Stewart.

Because WXYZ cannot allow Judge O’Brien’s order to set a precedent for other government officials limiting our news coverage – as protected by the First Amendment – we are appealing his order.