Is the "most extraordinary remedy" becoming more common?

Feature
Page Number: 
26

From the Fall 2010 issue of The News Media & The Law, page 26.

Veteran newspaper reporter Billie Hobbs has attended a lot of court hearings. A staff reporter for The McDuffie Mirror in Georgia for more than 30 years, Hobbs estimates that he has reported on more than 1,000 court proceedings. But Hobbs said that what happened to him at the end of a September McDuffie Superior Court pretrial hearing in a murder case was a first for him: He was ordered by the sitting judge not to report on the hearing that he had just attended.

“It was like having a bombshell dropped on us,” Hobbs said of the court’s order. Hobbs, who was reporting on the trial for the Mirror, had just sat through nearly two hours of testimony and argument by potential witnesses at the public hearing. Another reporter, Donna Branch of WTHO radio, based in Thomson, Ga., was also present.

As the hearing drew to a close, the prosecutor requested the judge order that no information about the hearing’s testimony be disseminated to the public, Hobbs said. The defense counsel agreed to the request and the judge orally granted the order.

No record of the order, which was delivered from the bench, is available from the court clerk. But according to Hobbs, who along with Branch asked the judge to clarify his ruling after the hearing, the court’s order was unmistakable: It prohibited reporting or discussing publicly facts about the witnesses who testified — not only the specific testimony, but also the number of witnesses and their identities.

In other words, the judge placed a gag order on the parties involved in the case and a prior restraint on reporting by the press. The prohibitions remained in effect until the witnesses testified at the trial the following week. 

Although the Georgia court’s order came as a surprise to Hobbs, judicial prior restraints on the media are nothing new. And while firmly established U.S. Supreme Court precedent provides reporters with strong grounds to challenge court orders that restrain the publication of information, that precedent has not stopped such orders from occurring — particularly when judges feel that release of information would interfere with a fair trial.

U.S. Supreme Court precedent protects reporters’ speech rights

Thirty-five years ago, Nebraska state courts issued a series of orders similar to the one recently issued in Georgia, also in preparation for a murder trial in a small town. The Nebraska courts’ orders, in various forms, prohibited the media from disclosing certain information prior to the trial and specifically prevented anyone attending pre-trial hearings from releasing particular details to the public about evidence and testimony adduced at the pre-trial hearings. The general rationale for the orders was that the pre-trial publicity could affect the defendant’s right to a fair trial.

A media coalition challenged the Nebraska courts’ prohibition on publishing by appealing to the U.S. Supreme Court. In Nebraska Press Association v. Stuart, the Supreme Court reversed the prior restraint. All nine justices agreed that the prior restraint violated the constitutional guarantee of free speech. Writing for the majority of the court, Chief Justice Warren Burger described restrictions on publication as “one of the most extraordinary remedies known” in the law. The court left no doubt that the attempt to prohibit reporting here, after a public hearing, was “clearly invalid.” In the court’s words, “once a public hearing had been held, what transpired there could not be subject to prior restraint.”

The court’s opinion was based on the premise that prior restraints on speech and publication “are the most serious and the least tolerable infringement on First Amendment rights.” As such, they are “presumptively unconstitutional,” and carry a heavy burden to sustain. Moreover, because of the press’s role in monitoring the workings of the justice system, the presumption of unconstitutionality carries “particular force as applied to reporting of criminal proceedings,” the court emphasized.

Burger’s majority court opinion left open the possibility that circumstances could exist to justify a prior restraint, even though some of the justices wanted the court to go further by establishing a near-blanket prohibition on prior restraint orders. Burger’s court opinion said that judges who issue a prior restraint in advance of trial face the heavy burden of supporting their decision in relation to three factors: the nature and extent of pretrial news coverage; whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and how effectively a restraining order would operate to prevent the threatened danger.

Justifying a prior restraint under these factors is not an easy task, as the court’s decision made clear. Subsequent Supreme Court case law has further refined just how difficult it is to justify a prior restraint. The Supreme Court has never upheld a prior restraint order prohibiting the press from publishing lawfully obtained information, according to First Amendment attorney Kevin Baine, who has represented the media in prior restraint matters. As a result, such orders are rare and “tend to be reversed fairly quickly” when challenged, he said.

Courts continue to issue prior restraints

Prior restraint orders against the media continue to occur when judges feel the administration of a trial is threatened, and the media continues to contest the orders.

The background of one recent case, Toledo Blade Company v. Henry County, reads much like an updated version of the Supreme Court’s Nebraska Press case from the 1970s. The Ohio trial court prohibited the media from reporting on the first of two defendants’ trials on the grounds that the coverage of the first trial could affect the subsequent trial of a second defendant. The defendants, a mother and her boyfriend, were charged with involuntary manslaughter and child endangering related to the death of the mother’s child. At the request of the defendants, the trial court ordered the defendants tried separately. The mother’s trial was set to occur shortly before her boyfriend’s trial.

Just as in the Nebraska Press case, the trial court in Ohio ordered that the media could attend the court proceedings, but prohibited reporting on what happened. Fritz Byers, an attorney for The Toledo Blade Co., considered the judge’s order to be a “remarkably pure form of a prior restraint.” On behalf of The Blade, Byers asked the court to reconsider the media gag order. When the judge declined to withdraw the order, The Blade challenged the trial court’s order in the Ohio Supreme Court. The Reporters Committee for Freedom of the Press filed a friend of the court brief in support of lifting the order.

The Ohio Supreme Court reversed the trial court order. Assessing the order under the factors articulated in Nebraska Press and other case law, the Ohio high court ruled that the prior restraint was “patently unconstitutional.”

Civil cases see restraints too

Media prior restraints are not limited to criminal matters, as reflected in another case this year, POM Wonderful v. ALM Media Properties. That prior restraint arose out of a legal fee dispute between POM Wonderful and the law firm of Hogan Lovells. At the request of POM Wonderful, a Superior Court judge in Washington, D.C., issued an order prohibiting The National Law Journal from publishing information about a federal investigation into POM Wonderful that a reporter had lawfully obtained from public court records in the civil case. The court reportedly issued the prior restraint order on the ground that the documents were mistakenly made available to the public and should have been under seal.

TheNational Law Journal’s parent company, ALM Media Properties LLC, appealed the prior restraint order, which the National Law Journal says had forced it to scrub a story just before a Friday publishing deadline.

“There was no question that this [court order] was a prior restraint,” said Laurie Babinski, one of the attorneys who represented ALM in the POM Wonderful matter. Given the facts, ALM felt that it had a strong case and it was important to challenge such an order to avoid bad precedent from being set, according to Babinski.

The Reporters Committee joined with a number of media organizations to file a friend-of-the-court brief in the appeal as well.

“There is nothing more foreign to a system of free expression than an order prohibiting a citizen from saying what he knows or from publishing what he learns,” Baine wrote in the media organizations’ brief.

After the appeal was filed, POM Wonderful withdrew its request to maintain the prior restraint and the trial court removed the order. According to the National Law Journal, POM issued a written statement that read, in part “Although we believe very strongly in our right to keep confidential documents shielded by attorney-client privilege, we never intended our protected communications with a governmental regulatory agency and a private law firm to become a First Amendment issue.”

Restraint on photographer

Prior restraints also are not limited solely to the written word. One recent example is from August, when a California trial court ordered a Los Angeles Times photographer not to publish photographs of a murder defendant on the ground that the photographs could affect the defendant’s right to a fair trial. After originally agreeing to allow the photographer to take photographs at a pre-trial hearing, the court changed course in response to arguments by the prosecutor that such photographs could affect eye witnesses in the upcoming trial.

TheTimes appealed the prior restraint order, which was reversed by the California Court of Appeals in Los Angeles Times Communications, LLC v. Superior Court. The appellate court’s opinion reviewed the trial court’s order in light of the standards identified by the Supreme Court in Nebraska Press Association, concluding that the trial court’s order “unconstitutionally violates the prohibition against prior restraints of speech.”

Jeff Glasser, one of the attorneys who challenged the order on behalf of the Times, applauded the result. He noted that although there are exceedingly rare outlier cases in which prior restraints have been approved, the appellate decision here and a 2008 published opinion in another California case, Freedom Communications, Inc. v. Superior Court of Orange County, “reaffirm the principle that prior restraints come to the courts with a heavy presumption of invalidity, and that short of a state interest of the highest order, such restraints are unconstitutional infringements on the 1st Amendment.”

Resurgent use of prior restraints?

It’s not clear whether the recent cases are part of any trend toward increased use of prior restraints. Several of the attorneys involved in these cases saw no evidence of such a pattern, although Karlene Goller, Vice President and Deputy General Counsel for the Los Angleles Times, said that prior restraint cases seem to have become more common over the last 10 to 15 years. Either way, there appears to be a number of reasons why some courts continue to issue such orders. For one, a prior restraint is effective if it isn’t challenged. As in the recent murder trial in Georgia, such orders can occur without objection by either party; indeed, sometimes both parties prefer such orders.

That was the case in McDuffie County, where prosecutors from the Toombs Judicial Circuit District Attorney’s office requested the media gag order in the murder pre-trial hearing. Toombs District Attorney Dennis Sanders (who did not attend the hearing) said his office has on occasion supported judicial orders to prohibit reporting on crucial pretrial evidentiary matters that could influence a jury pool. He cites a significant concern, particularly in small communities, that potential jurors will learn information through news reports that is not admitted at trial. In effect, news reports about such a hearing can mean “that the hearing is no longer outside the presence of the jury,” Sanders said.

Sanders commented that he is generally in favor of open courts and has no problem with reporters covering criminal proceedings. “Reporters have a job to do, too,” Sanders said. But reporting on pretrial hearings can put prosecutors in a bind. Criminal defendants have the constitutional right to obtain a fair trial. Prosecutors “have to be aware of the concern” that too much pretrial publicity can lead to a reversal of a conviction if a reviewing court determines that the publicity tainted the jury pool. Sanders said this had happened to him before, in a different murder trial.

Byers, the attorney for The Blade, does not believe that prior restraints are necessary to ensure a fair trial. “Courts have an absolute obligation to ensure a fair trial,” but there are mechanisms at a court’s disposal to enable a fair and impartial jury that do not require infringing on the press’s free speech rights, he said. The Supreme Court’s opinion in Nebraska Press reviewed a number of such options, from jury questioning and instructions, to moving the trial in exceptional cases.

Some courts appear to doubt the effectiveness of such measures. The trial courts in Ohio and California concluded that the prior restraints they imposed were necessary to protect the fair trial rights of the criminal defendants. The Ohio trial court also suggested that the emergence of new media forms placed into doubt the continued relevance of the Supreme Court’s Nebraska Press decision. Notably, the Ohio Supreme Court rejected the trial court’s assertion, quoting the U.S. Supreme Court’s recent statement in Citizens United v. Federal Election Commission that it will not “draw, and then redraw, constitutional lines based on the particular media or technology used.”

Byers also notes that there is nothing new about the assertion that pretrial publicity will prevent a fair trial from occurring. Indeed, the same arguments have been made for at least the last 50 years, and there is “nothing about contemporary culture to suggest that these problems have become more acute,” Byers said.

A related concern for some courts is the maintenance of judicial control of the courtroom. The judge who issued the prior restraint in the POM Wonderful case viewed the issuance of the prior restraint as a form of managing her own courtroom authority, The National Law Journal reported.

In the court’s view, the fact that the court had ordered the records sealed outweighed the fact that the media outlet had received a legal copy of the records, according to press reports. The National Law Journal quoted the judge as stating: “If I am throwing 80 years of First Amendment jurisprudence on its head, so be it. . . . None of that First Amendment jurisprudence, to my knowledge, is dealing with this issue — the integrity of the functioning of the court system.”

Speaking generally, Baine said there may be a temptation by some judges and parties to view a prior restraint order as an extension of other of judicial mechanisms used to prevent public access to sensitive case information, such as sealing records or closing hearings. However, case law makes clear that the situations are not the same, he said. “The rules do change once the information is in the hands of the press.”

[Disclosure: The writer is on a leave of absence for the duration of his one-year legal fellowship from the law firm that represented the Los Angeles Times in the above challenge.]