Gag order on criminal trial parties does not restrain the press

ILLINOIS–A state appellate panel in Indianapolis unanimously held in mid-January that a gag order imposed on the parties in a criminal trial did not constitute an impermissible prior restraint on the news media.

The court stated that the news media could not challenge the gag order “as applied” because “the only parties who may challenge the terms of a restraining order . . . are the restrained parties.” The court construed the news media’s claim as challenging whether the facts justified the imposition of the gag order, and found that they did under the “reasonable likelihood of prejudice” test.

The trial judge issued the gag order in the July 1997 retrial of Ricky Joyner, accused of the murder of Sandra Hernandez. Joyner had been convicted in 1994, but the state Supreme Court reversed Joyner’s conviction and ordered a new trial.

On appeal, the five news organizations argued that the gag order was a prior restraint because it was intended to “quiet the media” and because it prevented them from effectively covering the murder trial. The state countered that the gag order did not apply to the news media and did not prevent them from reporting on the trial.

After hearing oral argument in July 1997, the trial court asked the news organizations to supply it with copies of newspaper articles concerning the Joyner trial and articles from previous murder trials. In August, the trial court held that the gag order was justified by the threat of pretrial publicity to Joyner’s Sixth Amendment right to a fair trial. The court said that alternatives would not effectively protect Joyner’s rights.

The appeal was filed by The South Bend Tribune, WSBT-TV, WSBT-Radio, the Elkhart Truth, and WTRC. (South Bend Tribune v. Elkhart Circuit Court; Media Counsel: Gerald Lutkus, South Bend)