Gag orders on press coverage of juvenile trial invalidated

From the Summer 2000 issue of The News Media & The Law, page 40.

Finding that the state interest in preserving the rights of juvenile defendants did not justify infringement of the First Amendment, the Arkansas Supreme Court ruled in June that a juvenile court judge must revise gag orders that had operated as a prior restraint on the media.

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Twelve-year-old Michael Nichols allegedly exchanged gunfire with Prairie Grove police officer Greg Lovett on May 11. Nichols and the police officer were wounded. On May 17, Nichols was charged with attempted capital murder in Judge Stacey Zimmerman’s juvenile court. In reporting on the case, the media published a yearbook photograph of Nichols, his name, his parents’ names, and the name and employment of the victim.

On May 18, Nichols made his first appearance in Zimmerman’s juvenile court. He was advised of the charge against him, and he pleaded not guilty. The hearing was open to the public, and some members of the media were present. Zimmerman announced at the hearing that, on her own motion, she was issuing an oral order stating that the media could not disseminate information about Nichols other than what was stated on the record at the hearing; disseminate names or pictures of Nichols, Lovett or their families; or broadcast or release the names or pictures of juveniles in the courthouse.

The written order memorializing the gag order was entered at 4:03 p.m. that day and added that the media could not distribute pictures of juveniles entering, present in, or leaving the courtroom.

After Zimmerman issued her oral gag order, a reporter for the Arkansas Democrat-Gazette told a Democrat-Gazette photographer stationed outside the courtroom that the judge had issued a gag order. Later that day, the photographer took photographs of Nichols’ parents outside the courthouse and of Nichols leaving the courthouse with a coat over his head and escorted by two police officers. The photographs were published in the Democrat-Gazette the next day.

On May 20, Zimmerman held a second hearing on the Nichols matter. At that time, she orally modified her gag order to permit dissemination of pictures obtained by the media prior to her May 18 gag order. She stated that she was within her statutory authority to restrict the dissemination of future photographs and stated that the public’s right to know events through the media must be “balanced with the confidentiality requirements and the spirit of the Juvenile Code.” Finally, she stated that “Juvenile Court staff, prosecutors and defense attorneys in the case are restricted from discussing the particular facts of the case with the media while case is pending.”

On May 25, Zimmerman conducted a hearing in response to a motion by Nichols’ attorney to both determine whether the Democrat-Gazette should be held in contempt of court for violating the judge’s gag order and to consider a motion by the Democrat-Gazette to intervene in the case in order to protest imposition of restrictions on their coverage of the legal proceedings. She heard testimony from witnesses for the newspaper, but then fined the Democrat-Gazette $100 for contempt of court, ordered that further proceedings in the Nichols case be closed to the public and denied the media’s motion to intervene.

On June 6, Zimmerman wrote an order opening Nichols’ adjudication hearing to the public but barring tape recorders or photography in the courtroom and sealing Nichols’ case file.

The Democrat-Gazette, Arkansas Press Association, Associated Press, KFSM-TV, Morning News of Northwest Arkansas, and Northwest Arkansas Times collectively petitioned the Arkansas Supreme Court for a writ of mandamus directing Zimmerman to revoke her gag orders because their overbreadth violated the First Amendment rights of the media to gather and disseminate the news.

The Arkansas Supreme Court unanimously ruled in favor of the media coalition on June 29.

The court noted that the central question before it was whether the gag orders constituted unconstitutional prior restraints on the media. Quoting an earlier case, the court held that “any restraint on the freedom of the press, even though narrow in scope and duration, is subject to the closest scrutiny and will be upheld only upon a clear showing that an exercise of this right presents a clear and imminent threat to the fair administration of justice.”

The public has a right of access to criminal trials for adults that is not absolute, and if it is necessary to protect an “overriding interest articulated in findings,” courtrooms may be closed, or less restrictive, alternative restraints may be imposed, according to the court.

“We do not disagree with Judge Zimmerman that confidentiality and rehabilitation are two overarching themes in the [Arkansas] Juvenile Code,” the court stated. “Our concern, nevertheless, is whether her gag orders went beyond the bounds of what was necessary under the facts of this case.”

The court first held that no overriding state interest justified restraining the media from taking additional photographs of Nichols because prior to the imposition of Zimmerman’s gag orders the juvenile proceedings had already been open to the public and a photograph of Nichols and his identity and family were lawfully obtained and in the public domain.

Second, it held that Zimmerman must more specifically define the term “families” as it is used in the gag order.

It then stated that “once the juvenile proceedings have been opened to the public, we discern no overriding state interest that would warrant an injunction against photographing Nichols and the others entering or leaving the courthouse.”

The court added that Zimmerman’s “order was too broad and constituted a prior restraint of the media. . . . The breadth of the gag order leads us to conclude that the judge’s order is a plain, manifest, clear, and gross abuse of discretion.” It ordered Zimmerman to revise her gag orders.

On July 24, Zimmerman revised the order to only bar the taking of photos inside of the court house.