U.S. Press Freedom Tracker

Colorado reporter ignores order to return, destroy legally obtained court filings

Incident Details

Date of Incident
November 30, 2023
Denver, Colorado

Prior Restraint

Status of Prior Restraint
Mistakenly Released Materials?

A portion of the Nov. 30, 2023, court order requiring BusinessDen reporter Justin Wingerter to return or permanently delete filings he legally obtained through a records request. His attorney asserts the order is “a classic prior restraint.”

November 30, 2023

BusinessDen reporter Justin Wingerter, who covers courts and white-collar crime for the local business news site, was ordered on Nov. 30, 2023, to return or delete all copies of legal filings he had obtained from a court in Denver, Colorado. He ignored the order and on Dec. 4 published an article with details about the underlying case containing information he obtained from the court filings.

Wingerter told the U.S. Press Freedom Tracker that he had been reviewing recently filed lawsuits on Nov. 28 when he noticed something unusual: a civil case with a pending motion for it to be “suppressed,” more commonly referred to as sealed. He then requested records from the case.

“I wasn’t sure if I’d be able to get the documents,” Wingerter said. “The nature of a records request is you don’t know exactly what you’re going to get back, but you make the request because you’d rather be told ‘no’ than to not file it at all.”

A clerk of the court later called to notify him that the request had been granted, and, after paying 25 cents per page over the phone, Wingerter received the files via email the following morning, Nov. 29.

That same evening, however, District Judge Kandace Cecilia Gerdes granted the plaintiff’s motion to suppress. When Gerdes learned that Wingerter had obtained the records before they were sealed, she issued a second order on Nov. 30 that read:

“The Court hereby orders that all documents obtained by any media outlet, including by not limited to those obtained by Justin Wingerter of BusinessDen, shall be returned to the Court by hand-delivery, specifically Courtroom 275 … 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.”

The order further stipulated that any subsequent attempts to access copies of the filings without Gerdes’ written permission would also be considered contempt of court.

Shortly after the order was issued, Wingerter said the clerk of the court alerted him to the order and told him that he was expected to comply.

Ashley Kissinger, an attorney representing Wingerter and BusinessDen, filed a motion on Dec. 1 notifying the court that her clients would not be complying and arguing that the order constituted a “classic prior restraint.”

“Mr. Wingerter obtained access to these court records simply by asking the Court for them. He submitted an open records request to the Court through an online form,” Kissinger wrote. “This is ordinary, lawful, newsgathering activity.”

Wingerter told the Tracker that, after discussing it internally, BusinessDen decided to push ahead with his coverage.

“We don’t feel that the judge has the power of prior restraint,” Wingerter said. “So we didn’t see any reason to stop the reporting process. We just continued doing our jobs.”

The Reporters Committee for Freedom of the Press and a coalition of Colorado media organizations sent a letter on Dec. 11 to Gerdes in support of Kissinger’s motion.

“Because each minute an unconstitutional prior restraint remains in place constitutes a separate and distinct First Amendment violation causing ‘irreparable harm’ to BusinessDen and its readers, we urge the Court to lift its prior restraint order immediately,” the letter read.

Kissinger told the Tracker that nothing has been filed in the case since, but that she believes the parties to the underlying case have until Dec. 22 to respond to her motion to vacate the prior restraint.

The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected].