From the Summer 2000 issue of The News Media & The Law, page 41.
Saying that the media “has no constitutional right to information about a trial beyond what is seen and heard in the courtroom,” the state Supreme Court issued an unsigned unanimous opinion on May 10 upholding a trial judge’s gag order on all trial participants in a prominent case involving allegations of manslaughter and child abuse in a state reform school.
“If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered,” the court stated. “But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. . . Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.”
On July 21, 1999, 14-year-old Gina Score was found dead at a state boot camp in Plankinton after participating in a forced run. Gov. William J. Janklow told the media that he believed that the State of South Dakota was liable regarding the events surrounding Score’s death. The state then filed criminal charges against Raelene Layne and Tamara Wagaman, former employees of the school, alleging manslaughter and felony child abuse. Janklow then told members of the media that the charged former employees were at fault and that they had acted outside the school’s prescribed policies.
James Abourezk, a former U.S. Representative and Senator and one of Wagaman’s attorneys, responded by telling the media that Janklow and the attorney general’s office “have had four months to ‘demonize'” his client. Attorney Timothy Whalen, who represents Layne, made similar statements about the charges against his client. Janklow responded by saying that unless Abourezk stopped talking to the press, Janklow would “start telling all the potential jurors in South Dakota exactly what the facts are. . . . I got mad when I found out that Gina Score died by the actions of some people.”
The state then filed a pretrial motion seeking an order prohibiting the attorneys, parties and witnesses involved from discussing the case with members of the press. A media coalition made up of the Sioux Falls Argus Leader, Associated Press, Mitchell Daily Republic, KDLT, KELO, KEVN, KMIT, KSFY, Sorenson Broadcasting, South Dakota Newspaper Association and KOTA filed a motion requesting the right to speak at the hearing, which was granted by the trial court. At the hearing, the state and the defendants argued in favor of the gag order to protect Layne’s and Wagaman’s constitutional rights to a fair trial.
The trial court entered an order with two key components. First, it barred interviews or broadcasts from being conducted inside the courtroom at any time.
Second, after noting the pretrial publicity and making a finding that there is a reasonable likelihood of prejudicial pretrial publicity that would make it difficult to impanel an impartial jury and tend to prevent a fair trial, it ordered that none of the parties, attorneys, public officials, jurors or witnesses “shall release or authorize the release for public dissemination of any matters relating to this case, without prior permission of the Court” or express opinions outside of court about the evidence and testimony in the case. The order noted that legislative and executive branch members could still conduct interviews or investigations relating to this matter in the normal course of their duties.
The media organizations filed a petition with the South Dakota Supreme Court arguing that their First Amendment right to cover a criminal proceeding was being compromised by the gag order.
The court accepted the petition and ruled that the media coalition had the ability to contest the gag order even though it was not a party to the criminal proceeding. But in a unanimous, unsigned opinion, the court rejected the media’s First Amendment arguments and upheld the order.
The court began its First Amendment analysis by quoting the U.S. Supreme Court’s opinion in Sheppard v. Maxwell that discussed the due process concerns inherent in any analysis of a gag order: “Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.”
It then looked to the gag order in this case. It noted that the court had instituted a constitutional “time, place and manner” restriction by excluding one location from which the media could interview and broadcast its reports. It quoted the U.S. Supreme Court’s opinion in Richmond Newspapers v. Virginia that “[j]ust as a government may impose reasonable time, place, and manner restrictions upon the use of its streets in the interest of such objectives as the free flow of traffic, so may a trial judge, in the interest of the fair administration of justice, impose reasonable limitations on access to a trial. . . . It is far more important that trials be conducted in a quiet and orderly setting than it is to preserve that atmosphere on city streets.”
Here, the South Dakota Supreme Court ruled that the time, place and manner restrictions were content neutral, were narrowly tailored to serve a significant government interest, and left open ample alternative channels for communication of the information.
The court disregarded the media’s contention that the order impinges its role in informing the public about happenings in its government. “The governmental events are the legal proceedings occurring in the courtroom, the subject of which the press is not prohibited from reporting under this order,” the court held. “The Supreme Court has repeatedly held that the First Amendment grants the press no right to information about a trial superior to that of the general public.”
The court also rejected the media’s contention that the gag order serves as an unconstitutional prior restraint on the press. “[The media’s] First Amendment right consists of the right to gather and report the news,” the court noted. “However, it has no constitutional right to information about a trial beyond what is seen and heard in the courtroom.”
The court declared that the proper legal standard in South Dakota was whether there is a reasonable likelihood that pretrial publicity will prejudice a fair trial. Then, prior to entering an injunction against speech, the trial court must explore whether other available remedies — such as change of venue, trial postponement, a searching voir dire, emphatic jury instructions and jury sequestration — would effectively mitigate the prejudicial publicity.
Here, the court ruled that the judge was justified in finding that the pretrial publicity would interfere with a fair trial “based upon the ongoing and sensational public nature of this case, the almost daily reporting of news connected directly or indirectly with it, and the commencement of a volley of accusatory statements by two high-profile participants.”
The court also noted that the judge said he considered less restrictive measures to the participant gag order, but had found they would be ineffective.
Finally, the court rejected the media’s claim that the gag order was overbroad. “The order specifies to whom it applies, for how long it is in effect, and what type of speech is prohibited,” the court held. “Further, it delineates what type of speech is excepted from the court’s restrictive order. The order burdens no more speech than is necessary to protect the parties’ Sixth Amendment right to a fair trial.”