Gag order, seal unconstitutional without factual findings

MONTANA–In early March, the Montana Supreme Court ruled that a trial court violated the federal and state constitutions by gagging trial participants and sealing documents without first making factual findings that such restrictions were necessary to protect the defendant’s right to a fair trial.

The (Missoula) Missoulian petitioned the state Supreme Court to overturn the orders of District Court Judge Jeffrey Langton in Hamilton. Langton entered the orders in connection with the criminal trial of Kippy Joe Hill, who was charged with homicide in connection with the death of Laurel Elaine Camper in late June 1996.

Hill argued for restricted public access because the press had already published articles indicating that he had confessed to committing the homicide. According to Hill’s counsel, his client had made incriminating “admissions” rather than confessing.

After a brief hearing in August 1996 during which no evidence was taken, and with consent of the parties, the judge gagged the attorneys, the defendant, witnesses, court staff and law enforcement officers, and directed that no evidentiary material be filed with the court unless under seal.

The high court reversed the order because a state statute requires trial courts to seek the “voluntary cooperation” of the news media in delaying dissemination of potentially prejudicial information and to give the media an opportunity to be heard concerning less restrictive alternatives. The court noted that the Montana Constitution gives the public more extensive rights to receive information about the criminal law process than are available under the federal Constitution. According to the court, the parties’ consent to closure and sealing did not override the state’s policy of balancing the public’s right to know with the defendant’s right to a fair trial.

The high court concluded that the gag order was not a prior restraint because, although it impeded the flow of communication, it did not intrude upon the prerogative of the media to publish what they know.

In a “special concurrence and dissent,” Judge James Nelson agreed with the majority’s holding, but stated that the gag order did constitute an “indirect prior restraint” because restrictions on the sources of information from which the media traditionally gather information effectively precludes the press from “knowing” and therefore from publishing “much of anything.” The judge further noted that a gag order was not warranted in Hill’s case, because it did not involve a “media circus” like more highly publicized criminal cases. (Montana ex rel. The Missoulian v. Montana Twenty-First Judicial District Court; Media Counsel: Steven Carey, Missoula)