Kansas high court strikes down contempt charge against paper for violating gag order

KANSAS — A state district court should not have held the Atchison Daily Globe in contempt of court for publishing a criminal defendant’s criminal background discussed in open court, according to a unanimous, mid-December decision by the Kansas Supreme Court.

During the late-June 1993 trial of John Alston on charges of cocaine possession, the defense attorney had succeeded in suppressing Alston’s criminal history from the trial. The attorney expressed concern, however, that news stories mentioning the criminal history would threaten Alston’s right to a fair trial in the small town. Atchison County District Court Judge Maurice O’Keefe ordered the Globe in late June 1993 not to report Alston’s criminal history or the fact that the court had prohibited publication.

Nonetheless, the Globe twice ran front page stories discussing Alston’s criminal history and Judge O’Keefe’s gag order. Consequently, Atchison County District Court Judge Philip Lacey held the Globe and its former publisher, Gary Dickson, in contempt.

The Globe appealed to the state supreme court, which reversed Judge Lacey’s contempt order. The court held that people are entitled to report what they learn in open court, and noted that the U.S and Kansas constitutions forbid imposing criminal sanctions for truthful reporting of facts in public records.

The court also said, however, that prior restraints may be justified depending on the nature and extent of news coverage, whether other means of mitigating pretrial publicity are available and how effective restraining orders would be in preventing potentially harmful publicity.

The decision cautions that news organizations must make a good faith effort to seek appellate relief before publishing information a gag order proscribes, even if the organization believes the order is unconstitutional. Only when timely review is unavailable may the press publish first and wait until the subsequent contempt proceeding to challenge the gag order.

As evidence of the Globe’s good faith attempt, the opinion noted that the newspaper had contacted the judge, but was unable to reach attorneys for the paper and the Kansas Press Association before its copy deadline. Judge O’Keefe issued his gag order two hours before the Globe was to go to press. (State v. Alston; Media Counsel: Daniel Garrity, Atchison, Kan.)