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The sheer weight of the State’s efforts to beat us down at any cost—including brazenly reshaping legal statutes expecting we might overlook such mundanities—did nothing to douse our speculation as to their overriding motivating factors. To that point, the questions posed throughout this book—Why would the State go to such lengths, even taking such obvious legal risks?—must now be obvious.
For readers drawn to legal machinations, following is a slightly more elaborate account of how Kansas attempted to suppress our constitutional rights to publish Harold Nye’s personal archives of the Clutter murder investigation.
On September 27, 2012, Kansas Attorney General Derek Schmidt paved the way for the adventures to come by filing an ex parte restraining order that prevented Ron Nye and his family, along with me and my company, Vintage Memorabilia, from selling, replicating, or publishing any portion of the personal journals or copies of Harold Nye’s case files. The State claimed that everything in the Nye archives were “highly confidential criminal investigation files” that Nye had “misappropriated,” and that Ron and I were engaged in a civil “conspiracy” involving his father’s personal records. According to the State, a preliminary injunction was essential to protect the State’s paramount interest in the “confidentiality” of its “criminal investigation files” and the “privacy of the victims and their surviving family members.”
Then, in an unprecedented and extraordinarily aggressive defense of its gag order, Kansas refused our obviously relevant discovery requests and shamelessly claimed that (a) because the Nye journals were misappropriated “criminal investigation” files, none of our constitutional arguments were valid; (b) the Clutter murder investigation records were off-limits because the investigation had been reopened (for exhumation of the killers’ bodies in Florida’s Walker murder cold case); (c) the requirements of the Kansas Open Records Act trumped civil discovery rules; (d) the preliminary injunction was proper; (e) the preliminary injunction was the law of the case; (f) our motion to vacate was premature; (g) our motion to vacate was an impermissible attempt to introduce impermissible evidence; and (h) our motion to vacate was an improper attempt to secure prompt appellate review of the preliminary injunction.
Feeling at times like marks in a game of three-card monte, Kansas persistently blustered its way through the very legal process it initiated. But after two years of contentious, time-consuming and expensive discovery—including legal briefings and oral arguments that gave the Court an eye-opening view of the State’s shenanigans—the Court ordered Kansas to provide all discovery it had objected to on the basis of the Kansas Open Records Act, and awarded a discovery sanction against Kansas, and Derek Schmidt personally, in the amount of $3,986.80.
Then, on November 26, 2014, in an extensive Memorandum Decision and Order, Kansas District Court presiding Judge Larry Hendricks delivered a thorough, well-reasoned opinion in his final ruling on our First Amendment rights, one firmly grounded in the facts of our case as well as controlling U.S. and Kansas Supreme Court decisions, declaring that the legal and factual premises of the State’s preliminary injunction request were misleading. It vacated the preliminary injunction and granted summary judgment against the permanent injunction Kansas had requested:
The Court finds that the restraint in this case is, on its face, neither content or speaker neutral. It unconditionally enjoins four private citizens by name from publishing precisely identified material. Any prior restraint or constitutionally protected speech bears a heavy presumption of unconstitutionality. Prior restraints on speech and publication are considered "the most serious and the least tolerable infringements on First Amendment Rights." Here, the plaintiff has sought and received an injunction prohibiting speech prior to its publication and this court finds the state did not meet its burden of showing that as a result of the publication both great and certain harm will result.
The court is sensitive to the plaintiff's concern about publicity and its effect on the Clutters. However, publicity continues to follow this case even fifty-five years after its occurrence. Also, [s]peech remains protected even when it may 'stir people to action,’ ‘move them to tears,' or inflict great pain.
The court finds the stated government interests supporting prior restraint against publication do not satisfy the constitutional standards set out above. The confidentiality of criminal investigative records, The Kansas Historical Society's mission to preserve government records of enduring value, and the Clutter family's privacy interests do not support the prior restraint of the defendants’ First Amendment rights to publish the Nye Material as outlined above.
The Court finds that its prior grant of Injunctive Relief was in Error. After further review the Court finds there is no substantial likelihood of eventual success on the merits on this issue, the State will not suffer irreparable harm and the threat of suffering injury does not outweigh whatever damage the proposed injunction may cause the opposing party.
The Court finds the Nye journals are essentially a collection of facts and personal impressions, observations, conjecture, action plans, lists of suspects, and to-do-lists concerning Harold Nye’s investigation of the Clutter murders. “The creation and dissemination of information are speech within the meaning of the First Amendment.”[222] “The defendants wish to publish information contained in the Nye Journals and because the plaintiff believes that the material belongs to the State this Court initially issued a Temporary Injunction. However, the two issues are not linked together as the plaintiff led the Court to believe.
Even material that is stolen may be subject to First Amendment prohibition against prior restraint.[223] In this case there is no evidence to show that the Nye materials were stolen. At worst Harold Nye maintained material that at the time may or may not have been prohibited by the KBI. The defendants however, are under no such prohibition. Ronald Nye received the material by permission of his mother when she threw them away. He now wishes to use this material in a book to highlight differences in his father’s notes to prior publications and statements. There is no doubt that public interest is high in this murder investigation. There is also no doubt that the case has been closed since the execution of Hickock and Smith almost 50 years ago. The State’s position that a Florida investigation somehow reopens the file is unpersuasive. At best information is being provided to the Florida authorities, but an investigation into the Clutter murders cannot be reopened when the killers have been captured, tried, convicted and executed.[224]
By affirming our First Amendment rights to publish, the Court handed us a major victory in the main battle. The only remaining issue was to determine who actually owned the material. So, while Ron and I savored our triumphant win, the lawyers geared up for the next skirmish.
