STATE OF MICHIGAN
IN THE COURT OF APPEALS
In re Milan Kapp, a Protected Individual,

Court of Appeals Case No.
Oakland County Probate Court Civil
Action Nos. 2016-373277-CA,
2016-373276-GA

AND

Hon. Daniel A. O’Brien

In re Janet Kapp, a Protected Individual

Oakland County Probate Court Civil
Action Nos. 2009-326971-GA,
2016-373275-CA
EMERGENCY APPLICATION
FOR LEAVE TO APPEAL
ACTION NEEDED BEFORE
OCTOBER 30, 2017 TRIAL
/

/
EMERGENCY APPLICATION FOR LEAVE TO APPEAL
ACTION NEEDED BEFORE OCTOBER 30, 2017 TRIAL

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James E. Stewart, (P23254)
Leonard M. Niehoff, (P36695)
Andrew M. Pauwels, (P79167)
Honigman Miller Schwartz and Cohn LLP
315 East Eisenhower Parkway
Suite 100
Ann Arbor, MI 48108-3330
(734) 418-4256
Attorneys for Scripps Media, Inc. d/b/a WXYZTV and Heather Catallo

 TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
EMERGENCY APPLICATION FOR LEAVE TO APPEAL ........................................................1
STATEMENT OF JURISDICTION................................................................................................3
STATEMENT OF ORDER APPEALED ........................................................................................4
STATEMENT REGARDING TRANSCRIPT ................................................................................6
STATEMENT OF QUESTION PRESENTED ...............................................................................7
STATEMENT OF HARM IF REQUIRED TO AWAIT FINAL JUDGMENT .............................8
I.

ALLEGATIONS OF ERROR AND RELIEF SOUGHT ....................................................9

II.

STATEMENT OF FACTS ................................................................................................11

III.

STANDARD OF REVIEW ...............................................................................................14

IV.

ARGUMENT .....................................................................................................................14

V.

REQUEST FOR RELIEF ..................................................................................................18

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 TABLE OF AUTHORITIES
Page(s)
CASES
Bartnicki v Vopper,
532 US 514; 121 S Ct 1753; 149 L Ed 2d 787 (2001).............................................................17
Elrod v Burns,
427 US 347; 96 S Ct 2673; 49 L Ed 2d 547 (1976).............................................................8, 18
Near v Minnesota,
283 US 697; 51 S Ct 625; 75 L Ed 1357 (1931)..................................................................9, 14
Nebraska Press Ass’n v Stuart,
427 US 539; 96 S Ct 2791; 49 L Ed 2d 683 (1976).......................................................9, 14, 18
NY Times v Sullivan,
403 US 713; 91 S Ct 2140; 29 L Ed 2d 822 (1971).................................................9, 10, 15, 16
Organization for Better Austin v Keefe,
402 US 415; 91 S Ct 1575; 29 L Ed 2d 1 (1971).....................................................................15
People v Custer,
465 Mich 319; 630 NW2d 870 (2001).....................................................................................14
People v Sledge,
312 Mich App 516; 879 NW2d 884 (2015) .................................................................10, 16, 17

Reno v American Civil Liberties Union,
521 U S 844; 117 S Ct 2329; 138 L Ed 2d 874 (1997)............................................................15
Sable Communications of Cal, Inc v FCC,
492 US 115; 109 S Ct 2829; 106 L Ed 2d 93 (1989)...............................................................15
OTHER AUTHORITIES
MCR 5.801(B) .................................................................................................................................3
MCR 7.205...................................................................................................................................3, 6

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Procter & Gamble Co v Bankers Trust Co,
78 F3d 219 (CA6, 1996) ..........................................................................................................10

 EMERGENCY APPLICATION FOR LEAVE TO APPEAL
October 12, 2017, WXYZ and Ms. Catallo received notice that the Probate Court had
issued an Ex-Parte Temporary Restraining Order ordering that WXYZ and Ms. Catallo:
are immediately enjoined and restrained, directly or indirectly,
whether alone or in concert with others, including any officer, agent,
servant, employee, or attorney, from displaying photographs and/or
videos of either Janet Kapp and/or Milan Kapp during their
projected broadcast scheduled for October 12, 2017 at 11:00 p.m.
Ex Parte Temporary Restraining Order at 2. The order further compelled “All parties and counsel
. . . to appear at a hearing scheduled for October 17, 2017 at 10:00 a.m. to show cause as to why
they should not be held in contempt of court for violating this Court’s November 23, 2016
Visitation Order.” Id.
To avoid further unwarranted sanction, and to respect the Court’s Order despite its
presumptive unconstitutionality, WXYZ pulled promotional materials for the news report and
broadcast a version of the news report that did not include images of either Janet Kapp or Milan
Kapp. On Monday, October 16, 2017, WXYZ and Ms. Catallo submitted a Response to the

Parte Temporary Restraining Order be dissolved. Appellants pointed out to the Probate Court, as
they do here, that the Order was a plainly unconstitutional prior restraint.
On October 17, 2017, the Probate Court held a hearing on the issue of whether the Ex Parte
Temporary Restraining Order should be converted into a Preliminary Injunction and continued
indefinitely. Following oral argument, the Probate Court acknowledged the First Amendment
prohibition against prior restraints but determined that “common sense” dictates that some
exceptions to the rule must exist. Based on the argument of counsel, the Probate Court determined
that Janet and Milan Kapp made “absolutely clear” that they did not want their pictures in the
media. The Probate Court ruled that safeguarding the mental and emotional health of cognitively
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Court’s Ex Parte Temporary Restraining Order and Order to Show Cause, requesting that the Ex

 compromised individuals constituted a compelling government interest sufficient to overcome the
First Amendment’s prohibition.

Accordingly, the Probate Court converted its TRO into a

Preliminary Injunction and ordered that WXYZ and Ms. Catallo be enjoined from airing any
videos or photographs of Janet and Milan Kapp in any broadcast. In so ruling, the Probate Court
acknowledged that the order constituted “a prior restraint.” This prior restraint on speech clearly
violates established First Amendment precedent and should be reversed and dissolved
immediately.

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 STATEMENT OF JURISDICTION
Appellants file this Application for leave to Appeal in accordance with MCR 7.205. This
Court has jurisdiction to grant leave to appeal pursuant to MCR 5.801(B), which states that “All
orders of the probate court not listed in subrule (A) are appealable to the Court of Appeals by leave
of that court.”

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 STATEMENT OF ORDER APPEALED
The Probate Court ruled on the record on October 17, 2017, entering the prior restraint in
the form of a preliminary injunction enjoining WXYZ and Ms. Catallo from showing any video
or photograph of Janet and Milan Kapp in any broadcast but did not issue a written order at that
time. On the following day, the Probate Court through its clerk directed counsel for appellants to
file a written order. Counsel for Appellants attempted to submit an order with the stipulation as to
form by all parties pursuant to MCR 2.602(B)(2). Counsel for Lorrie and Sandy Kapp, the
movants below, and counsel for Janet and Milan Kapp, the persons whose alleged privacy interests
are at issue here, agreed to the entry of the order. However, counsel did not receive a timely
response from the remaining parties and, given the exigencies, Appellants submitted an order,
attached hereto as Exhibit 1, under the 7 day rule. See MCR 2.602(B)(3). Given the exigencies
involved in this Emergency Application for Leave to Appeal, WXYZ and Ms. Catallo submit this
Application without a written order. Counsel expects that the remaining parties will not object to
the order and that the order can be filed promptly. There is no dispute that the Court entered an

WXYZ and Ms. Catallo from displaying photographs and video of Milan and Janet Kapp. WXYZ
and Ms. Catallo will supplement the record and submit a written order as soon as one is entered
by the Court, but respectfully request that this Court rule without a written order.
Appellants WXYZ and Ms. Catallo are non-parties to the underlying dispute and have only
been involved for the purposes of responding to the Ex Parte Restraining Order and Order to Show
Cause. It is Appellants understanding that there are four cases that, though not formally
consolidated, are handled as consolidated cases. The case numbers are as follows: 2016-373277CA; 2016-373276-GA; 2009-326971-GA; and 2016-373275-CA. At the hearing on October 17,
2017, the Probate Court called all four case numbers for oral argument and issued a single order
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order on the record as described herein, continuing its temporary restraining order and enjoining

 on the record enjoining WXYZ and Ms. Catallo. Appellants respectfully seek the immediate
reversal and vacation of the order in each related and/or consolidated case. Appellants, in an
abundance of caution, have filed separate appeals regarding each underlying case number.

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 STATEMENT REGARDING TRANSCRIPT
In compliance with MCR 7.205(B)(4)(g), the undersigned counsel certifies that the
transcript of the October 17, 2017 hearing was ordered on October 18, 2017, and a request was
made that the transcript be expedited as quickly as possible.

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 STATEMENT OF QUESTION PRESENTED
Did the Probate Court’s preliminary injunction prohibiting WXYZ and Ms. Catallo from
displaying any photographs or videos of Milan and Janet Kapp constitute a prior restraint of speech
in violation of the First Amendment where it fails strict scrutiny because it is not based on a
compelling government interest and, even if it were, it is not narrowly tailored to serve such an
interest?
Appellants answer:

Yes

Appellees Lorrie Kapp and Sandy Kapp would answer:

No

The Probate Court would answer:

No

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 STATEMENT OF HARM IF REQUIRED TO AWAIT FINAL JUDGMENT
WXYZ and Ms. Catallo are non-parties to the underlying dispute, dragged into the Probate
Court only to contest the unconstitutional prior restraint issued on the use of certain photographs
and video in ongoing news coverage.

The underlying dispute proceeds toward resolution,

including a trial on the merits on at least one claim on October 30, 2017, yet WXYZ and Ms.
Catallo have no other opportunity to challenge the preliminary injunction before the conclusion of
this matter. Accordingly, WXYZ and Ms. Catallo’s First Amendment rights are being violated
every day this restriction on speech continues. See Elrod v Burns, 427 US 347, 373; 96 S Ct 2673;
49 L Ed 2d 547 (1976) (“The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.”).

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 I.

ALLEGATIONS OF ERROR AND RELIEF SOUGHT

Longstanding and controlling authority from the Supreme Court of the United States holds
that prior restraints on speech bear a heavy presumption of unconstitutionality. The Court has
repeatedly declared that such restraints—the very essence of what the First Amendment forbids—
are unconstitutional except in the most extreme circumstances, where a compelling governmental
interest is at stake, and where a prior restraint is the least restrictive means for protecting that
interest. In this case, the Probate Court below issued what it candidly described as a “prior
restraint” against speech against a nonparty television station which is reporting on matters of
intense public concern. It did so, even though this is not such an extreme case, there is no
compelling governmental interest supporting such an order, and the Probate Court had numerous
other means to address its concerns. The Supreme Court has held that such unconstitutional prior
restraints cause ongoing and irreparable harm to those who wish to exercise the rights the First
Amendment affords them. The Probate Court’s prior restraint should therefore be vacated swiftly
and immediately.

principle of First Amendment jurisprudence: “It has been generally, if not universally, considered
that it is the chief purpose of the guaranty [of the freedom of the press] to prevent previous
restraints upon publication.” Near v Minnesota, 283 US 697, 713; 51 S Ct 625; 75 L Ed 1357
(1931) (emphasis added). As such, prior restraints “are the most serious and least tolerable
infringement on First Amendment Rights and have been historically viewed as “presumptively
unconstitutional.” Nebraska Press Ass’n v Stuart, 427 US 539, 559; 96 S Ct 2791; 49 L Ed 2d
683 (1976); NY Times v Sullivan, 403 US 713, 714; 91 S Ct 2140; 29 L Ed 2d 822 (1971). In fact,
controlling United States Supreme Court cases suggest that such restraints are subject to strict
scrutiny and only permissible in the most extreme of circumstances, such as disclosing secret troop
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The United States Supreme Court, in 1931, articulated what has become a bedrock

 movements during wartime. See NY Times, 403 US at 714 (refusing to enjoin publication of a
classified study of United States involvement in the Vietnam War and holding that, despite
ongoing war effort, the government failed to carry the “heavy burden of showing justification for
the imposition of such a restraint”); see also People v Sledge, 312 Mich App 516, 530-531; 879
NW2d 884 (2015) (applying strict scrutiny standard to strike down gag order and emphasizing
presumptive unconstitutionality of prior restraints on speech).
Despite being presented with this overwhelming controlling authority, the Probate Court
in this matter—an emotionally charged familial dispute involving the guardianship and
conservatorship of Milan and Janet Kapp that sheds light into the significant issues involving the
adult guardianship process in the State of Michigan—issued an Ex Parte Temporary Restraining
Order and then a preliminary injunction prohibiting Scripps Median, Inc. d/b/a WXYZ-TV
(“WXYZ”) and Heather Catallo (“Ms. Catallo”) from showing any videos or photos of Milan and
Janet Kapp in any broadcast.
In attempting to justify this prior restraint, the Probate Court cited as a “compelling

individuals. Appellants are certainly sympathetic with the desire to protect elderly people who are
vulnerable to victimization; indeed (and ironically), that was the subject matter of the broadcast in
question here. But that interest is simply not of the type or magnitude that courts have held justifies
the extreme and presumptively unconstitutional measure of a prior restraint. As the Sixth Circuit
has held, “a publication must threaten an interest more fundamental than the First Amendment
itself” to justify the issuance of a prior restraint. Procter & Gamble Co v Bankers Trust Co, 78
F3d 219, 227 (CA6, 1996) (emphasis added). The Probate Court erred in finding that such an

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state interest” the protection of the mental and emotional health of cognitively compromised

 interest was present in this case, an interfamilial dispute involving the sort of allegations and
counter-allegations that are, unfortunately, the everyday stuff of probate courts.
Furthermore, even if the interest identified by the Probate Court qualified as the sort of
extreme and compelling one that justifies a prior restraint (which it does not), the court below
made no effort to narrowly tailor its order to address its concerns. Every day across the country,
probate courts enter orders intended to protect compromised individuals from victimization or
exploitation by family members and others. They manage to do so without issuing broadly framed
and presumptively unconstitutional gag orders against the media.
A single statement at the conclusion of the Probate Court’s oral opinion on the record says
it all. Describing the preliminary injunction, the lower court stated: “it is a prior restraint.” The
Probate Court admitted that the preliminary injunction constituted a presumptively
unconstitutional order, and yet issued the order regardless. The issue before this Court is simple:
should this prior restraint of speech be permitted to stand despite clear and overwhelming binding
precedent holding that such prior restraints are unconstitutional? The Probate Court’s order plainly

continued, unrestricted media coverage of this ongoing litigation.
II.

STATEMENT OF FACTS

For an extended period, WXYZ and Ms. Catallo have been reporting on issues related to
probate court proceedings in Michigan. These reports have focused on matters of substantial public
interest, such as the potential for abuse of the conservatorship and guardianship system. The news
report in question addressed this subject.1

1

See generally Heather Catallo, Metro Detroit woman says probate guardianship case is tearing
family apart, WXYZ.com, http://www.wxyz.com/news/local-news/investigations/metro-detroitwoman-says-probate-guardianship-case-is-tearing-family-apart (last updated Oct 12, 2017, 11:28
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violates the First Amendment, and it should be immediately reversed and vacated to permit

 The case before the Probate Court that is at issue here was described by Lorrie and Sandy
Kapp in their Ex-Parte Motion for Temporary Restraining Order below as a “contentious dispute”
between family members that involves conservatorships and guardianships for Janet and Milan
Kapp. Although Lorrie and Sandy declined to speak with Ms. Catallo, she did interview another
of the daughters, Mila Kapusta, to help frame the issues. In the morning of October 12, 2017,
WXYZ then promoted the report by posting a short summary of it and brief clips from news
broadcast it planned for the 11:00 p.m. news that day. The clips include old family photographs
of Janet and Milan Kapp when they were in good health, which family members provided to Ms.
Catallo. In short, Appellants planned to do nothing more than the completely benign act of showing
harmless family photographs in the course of a report on a matter of significant public concern.
In the late afternoon of that same day, October 12, 2017, WXYZ and Ms. Catallo received
notice that the Probate Court had issued an Ex-Parte Temporary Restraining Order ordering that
WXYZ and Ms. Catallo:

Exhibit 2, Ex Parte Temporary Restraining Order at 2. The order further compelled “All parties
and counsel . . . to appear at a hearing scheduled for October 17, 2017 at 10:00 a.m. to show cause
as to why they should not be held in contempt of court for violating this Court’s November 23,
2016 Visitation Order.” Id.

pm). Indeed this issue of guardianship proceedings involving aged citizens is subject of national
concern. See, e.g., Debra Cassens Weiss, Cases raise questions about adult guardianship and
lawyer-hospital relationships, ABA JOURNAL (October 10, 2017), available at
http://www.abajournal.com/authors/4/; Rachel Aviv, How the Elderly Lose Their Rights, THE NEW
YORKER (October 9, 2017), available at https://www.newyorker.com/magazine/2017/10/09/howthe-elderly-lose-their-rights.
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are immediately enjoined and restrained, directly or indirectly,
whether alone or in concert with others, including any officer, agent,
servant, employee, or attorney, from displaying photographs and/or
videos of either Janet Kapp and/or Milan Kapp during their
projected broadcast scheduled for October 12, 2017 at 11:00 p.m.

 To avoid further unwarranted sanction, and to respect the Court’s Order despite its
presumptive unconstitutionality, WXYZ pulled promotional materials for the news report and
broadcast a version of the news report that did not include images of either Janet Kapp or Milan
Kapp.

The story as it aired may be viewed at http://www.wxyz.com/news/local-

news/investigations/metro-detroit-woman-says-probate-guardianship-case-is-tearing-familyapart. On Monday, October 16, 2017, WXYZ and Ms. Catallo submitted a Response to the Court’s
Ex Parte Temporary Restraining Order and Order to Show Cause, requesting that the Ex Parte
Temporary Restraining Order be dissolved. Appellants pointed out to the Probate Court, as they
do here, that the Order was a plainly unconstitutional prior restraint.
On October 17, 2017, the Probate Court held a hearing on the issue of whether the Ex Parte
Temporary Restraining Order should be converted into a Preliminary Injunction and continued
indefinitely. Following oral argument, the Probate Court acknowledged the First Amendment
prohibition against prior restraints but determined that “common sense” dictates that some
exceptions to the rule must exist. Based on the argument of counsel, the Probate Court determined

media. The Probate Court ruled that safeguarding the mental and emotional health of cognitively
compromised individuals constituted a compelling government interest sufficient to overcome the
First Amendment’s prohibition.

Accordingly, the Probate Court converted its TRO into a

Preliminary Injunction and ordered that WXYZ and Ms. Catallo be enjoined from airing any
videos or photographs of Janet and Milan Kapp in any broadcast.2 In so ruling, the Probate Court

2

As stated in the Statement of Order Appealed, Appellants WXYZ and Ms. Catallo are non-parties
to the underlying dispute and have only been involved for the purposes of responding to the Ex
Parte Restraining Order and Order to Show Cause. It is Appellants understanding that there are
four cases that, though not formally consolidated, are handled as consolidated cases. The case
numbers are as follows: 2016-373277-CA; 2016-373276-GA; 2009-326971-GA; and 201613
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that Janet and Milan Kapp made “absolutely clear” that they did not want their pictures in the

 acknowledged that the order constituted “a prior restraint.” This prior restraint on speech clearly
violates established First Amendment precedent and should be reversed and dissolved
immediately.
III.

STANDARD OF REVIEW

The Court reviews de novo the trial court’s application of constitutional standards. See
People v Custer, 465 Mich 319, 325-326; 630 NW2d 870 (2001).
IV.

ARGUMENT

Peremptory reversal is warranted here because the Probate Court clearly and inarguably
violated one of the fundamental principles of First Amendment law: that a prior restraint on speech
is presumptively unconstitutional and may only issue in an extremely narrow class of cases. The
preliminary injunction issued here constitutes an unconstitutional restraint on speech that dictates
to a citizen what it may or may not do in reporting on a matter of ongoing public concern. It should
be reversed and vacated immediately.
In 1931, the United States Supreme Court clearly articulated what has come to be one of

considered that it is the chief purpose of the guaranty [of freedom of the press] to prevent previous
restraints upon publication.” Near v Minnesota, 283 US 697, 713; 51 S Ct 625; 75 L Ed 1357
(1931) (emphasis added). Prior restraints “are the most serious and the least tolerable infringement
on First Amendment rights,” and as such have been historically viewed as “presumptively
unconstitutional.” Nebraska Press Ass’n v Stuart, 427 US 539, 559 (1976). “If it can be said that

373275-CA. At the hearing on October 17, 2017, the Probate Court called all four case numbers
for oral argument and issued a single order on the record enjoining WXYZ and Ms. Catallo.
Appellants respectfully seek the immediate reversal and vacation of the order in each related and/or
consolidated case. In abundance of caution, WXYZ and Ms. Catallo have filed separate appeals
in each dispute.
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the fundamental principles of the First Amendment: “It has been generally, if not universally,

 a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at
least for the time.” Id. Accordingly, a party seeking a prior restraint must overcome a “heavy
presumption against its constitutional validity.” Organization for Better Austin v Keefe, 402 US
415, 419; 91 S Ct 1575; 29 L Ed 2d 1 (1971) (internal quotation marks omitted). To satisfy strict
scrutiny, a restriction on speech must be narrowly tailored to serve a compelling state interest. See
Sable Communications of Cal, Inc v FCC, 492 US 115, 126; 109 S Ct 2829; 106 L Ed 2d 93
(1989). If a less restrictive alternative exists, the alternative must be used and the restriction fails
strict scrutiny. See Reno v American Civil Liberties Union, 521 U S 844, 874; 117 S Ct 2329; 138
L Ed 2d 874 (1997).
In fact, Supreme Court jurisprudence has “indicated that there is a single, extremely narrow
class of cases in which the First Amendment’s ban on prior judicial restraint may be overridden.”
NY Times, 403 US at 726 (Brennan, J. concurring). As articulated in NY Times, a case considering
a prior restraint on the publication of the “Pentagon Papers,” a classified study of the Vietnam war,
“Such cases may arise only when the Nation is at war, during which times no one would question

of the sailing dates of transports or the number and location of troops. Id. (emphasis added)
(internal quotations and citations omitted). “Thus, only governmental allegation and proof that
publication must inevitably, directly, and immediately cause the occurrence of an event kindred
to imperiling the safety of a transport already at sea can support even the issuance of an interim
restraining order.” Id. at 726-727. Applying these principles, the Supreme Court in NY Times held
that the publication of these classified documents, even in a time of war, did not arise to the level
necessary to justify the extraordinary remedy of a prior restraint.

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but that a government might prevent actual obstruction to its recruiting service or the publication

 A panel of this Court recently reaffirmed these principles in People v Sledge, 312 Mich
App 516; 879 NW2d 884 (2015). There, this Court struck down a gag order, on parties to a
criminal case challenged by the Detroit Free Press, a non-party to the underlying dispute. The trial
court justified the gag order on an assertion that press coverage would interfere with a criminal
defendant’s right to a fair trial, as protected by the Sixth Amendment. Even in the face of
potentially competing constitutional principles, this Court determined that the gag order
constituted a prior restraint and in strong terms emphasized the heightened burden that must be
satisfied to justify a prior restraint and struck down the gag order as unconstitutional. This Court
stated that “a prior restraint on speech is subject to the closest scrutiny, and there is a heavy
presumption that a prior restraint on speech is unconstitutional” and that “prior restraints constitute
the most serious and the least tolerable of First Amendment rights.” Id. at 528.
The Probate Court’s preliminary injunction fails both aspects of strict scrutiny. Most
obviously, the interests at issue here—while not unimportant—do not rise to the level of the kind
of interests identified in NY Times and elsewhere as sufficient to justify the issuance of a prior

emotional health of Janet and Milan Kapp. In a series of rulings that quickly devolved into the
wildest kind of speculation, the Court found that Janet and Milan Kapp3 had expressed to their
attorney that they do not wish to have their pictures in the media, that the fact that their daughters
had started this underlying case upset them as did the fact that the litigation was being reported on
by the media. The Court then literally jumped to the speculative conclusion that such emotional
stress could lead to negative physical health effects and even death. Appellants obviously care

3

It bears emphasizing that Janet and Milan Kapp are legally incapacitated and did not testify at
the hearing as to their wishes or otherwise.
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restraint. The Probate Court described this interest as one in safeguarding the mental and

 about the well-being of the Kapps—indeed, whether the guardianship / conservatorship system
was doing anything good for their well-being was the focus of the broadcast. But to “find” that
the showing a benign old family photograph of the Kapps in good health might kill them is to lose
all track of the “common sense” that the Probate Court said informed its decision.
Further, even if the Probate Court is correct that the protection of Milan and Janet Kapp’s
emotional and mental health constitutes a compelling interest sufficient to justify a prior restraint—
it does not—the Probate Court’s order fails strict scrutiny because it is not narrowly tailored. A
law is not narrowly tailored if there are less speech-restrictive means available that would serve
the compelling interest. Here, the Probate Court failed to consider on the record any alternatives
to the broad, prior restraint it issued. But such alternatives are readily apparent. Most notably, the
Probate Court could restrict the parties—as it has already done—from actively making or taking
photographs or video recordings of Janet and Milan Kapp without their consent, and the Probate
Court could enforce such an order with the contempt power.4 In fact, not only is the order not
narrowly tailored but it is incredibly broad: it prohibits the display of any photograph or video of

scrutiny.
In a case that did not involve an unconstitutional prior restraint, it might be appropriate for
this court to remand this case to allow the Probate Court to flesh out its findings. In this case,
however, summary reversal is required for several reasons: First, it is clear as a matter of law that

4

Whether such a gag order on the parties would survive scrutiny under People v. Sledge, is far
from clear and beyond the scope of this brief. In any event, such an order could not be used to
restrict WXYZ or Ms. Catallo from publishing photographs, even if obtained from a third party
who violated the order. See Bartnicki v Vopper, 532 US 514, 535; 121 S Ct 1753; 149 L Ed 2d
787 (2001) (holding that if a media entity obtains material from a third party who had obtained
that material through some illegal method, the First Amendment nevertheless protects the media
publication of that material).
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the Kapps ever taken. Such a broad order clearly fails the narrow tailoring requirement of strict

 the Probate Court has not and cannot articulate a compelling interest that rises to the level the
Supreme Court has identified as necessary to justify a prior restraint. Second, it is clear as a matter
of law that less restrictive means exist to protect the Kapps than issuing a gag order against the
media.5 And, finally, it is clear as a matter of law that prior restraints result in immediate and
irreparable harm to the First Amendment rights of those who are gagged by them and that allowing
them to stand for any sustained period is a grave constitutional offense. See Elrod v Burns, 427 US
347, 373; 96 S Ct 2673; 49 L Ed 2d 547 (1976) (“The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.”).
V.

REQUEST FOR RELIEF

WHEREFORE, WXYZ and Ms. Catallo respectfully request that the Court immediately:
(a)

Grant their Emergency Application for Leave to Appeal;

(b)

Grant their Motion for Immediate Consideration;

(c)

Grant their Emergency Motion for Peremptory Reversal of and to Vacate the

Unconstitutional Prior Restraint on Speech and order that the preliminary injunction be dissolved;

(d)

Award such other relief as the Court deems proper and just.

5

Indeed the Supreme Court has also emphasized the danger of judges deciding what a news
organization may publish or not publish. “[T]he press may be arrogant, tyrannical, abusive, and
sensationalist, just as it may be incisive, probing, and informative. But at least in the context of
prior restraints on publication, the decision of what, when, and how to publish is for editors, not
judges.” Nebraska Press Ass’n v Stuart, 427 US 539, 613 (1976) (Brennan, J., concurring)
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and

 Respectfully submitted,
HONIGMAN MILLER SCHWARTZ AND COHN LLP
Attorneys for Scripps Media, Inc. d/b/a WXYZ-TV and
Heather Catallo

By: /s/ James E. Stewart
James E. Stewart, (P23254)
Leonard M. Niehoff, (P36695)
Andrew M. Pauwels, (P79167)
315 East Eisenhower Parkway
Suite 100
Ann Arbor, MI 48108-3330
(734) 418-4256
Dated: October 18, 2017

RECEIVED by MCOA 10/18/2017 4:44:56 PM

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