A. Media standing to challenge third-party gag orders
In Cent. S.C. Chapter, Soc. of Prof'l Journalists, Sigma Delta Chi v. U.S. Dist. Ct., 551 F.2d 559 (4th Cir. 1977), the Fourth Circuit initially held 2-1 that the media lacked standing to challenge a gag order, reasoning that the propriety of the order was not sufficiently clear to support a writ of mandamus, and that the media lacked an interest in the underlying criminal action sufficient to support intervention and an appeal. Subsequently, in connection with the same underlying criminal action, the Fourth Circuit held that the media did have standing to challenge the gag order, and that mandamus is the preferred vehicle for appellate review. See Cent. S.C. Chapter, Soc. of Prof'l Journalists, Sigma Delta Chi v. Martin, 556 F.2d 706 (4th Cir. 1977). It is now established that mandamus is the preferred method of challenging a gag order, and members of the media have standing to challenge a gag order that directly impairs the media’s rights under the First Amendment to gather news and to receive speech from willing speakers. See In re Wall St. Journal, 601 F. App’x 215 (4th Cir. 2015) (per curiam) (remanding with instructions to vacate gag order); In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir. 2018) (same).
Media organizations are permitted to intervene in court proceedings for the limited purpose of opposing efforts to restrain their exercise of First Amendment rights. See, e.g., Riggs v. Valdez, 2011 WL 1598630, at *8 (D. Idaho Apr. 27, 2011) (granting media organization’s motion to intervene for purpose of opposing gag order). When faced with this issue, Idaho courts look to Ninth Circuit precedent for guidance. Id.
In Radio & Television News Ass’n of S. Cal. v. U.S. Dist. Ct., 781 F.2d 1443 (9th Cir. 1986), the Ninth Circuit considered a challenge to a trial court’s issuance of a gag order on its participants from discussing a high-profile criminal case with members of the media. The media filed a writ of mandamus challenging the order as infringing upon its First Amendment right to seek and report the news. The Ninth Circuit began by noting that there are two elements to standing. “First, the plaintiff must allege an ‘injury in fact’ sufficient to show a ‘personal stake’ in the outcome of the legal action. . . . Second, the plaintiff must show that ‘the interest sought to be protected by the complainant is arguable within the zone of interests to be protected or regulated by the statue or constitutional guarantee in question.” Id. at 1445–46. The Court found that the media satisfied both elements of standing here because “[a]s the district court’s order impairs the media’s ability to gather news by effectively denying the media access to trial counsel, a concrete personal interest is affected,” id. at 1445, and “the RTNA asserts an interest that is at least ‘arguably’ protected by the first amendment.” Id. at 1446. Accordingly, the Ninth Circuit held that the media had standing to challenge the trial court’s gag order.
Kansas courts have not settled the issue of whether or when media have standing to challenge third-party gag orders. In 2016, media organizations attempted to gain a ruling on the issue but were unsuccessful. The attempt was made in connection with a high-profile case in Great Bend, Kansas, State v. Villega, Case No. 2015 CR 388, District Court of Barton County, Kansas (2015). The case resulted from a fatal shooting in a Great Bend residence in 2015. Three charged in Great Bend homicide case, KSN (December 3, 2015), https://www.ksn.com/news/local/three-charged-in-great-bend-homicide-case/1023885090. On January 8, 2016, the judge granted a defense request for a gag order on trial participants. In response, the Great Bend Tribune, along with the two media organizations—the Kansas Press Association and the Kansas Association of Broadcasters—moved to intervene to challenge the gag order. They argued that it was unconstitutionally broad. They asserted that it “completely prohibits the parties, all law enforcement, all court personnel, court reporters, and all witnesses and potential witnesses from making any comments concerning this case.” The Great Bend Tribune’s Second Motion to Intervene to Intervene and for Relieve from Protective Order Restricting Extrajudicial Comments, Case No. 2015 CR 388 (Jan. 15, 2016).
In claiming standing to intervene, the movants stated that the gag order damaged the media’s ability to gather and report news about proceedings in State v. Villega. Because no Kansas precedent was directly on point, they relied on such cases such as Journal Publishing v. Mechem, 801 F.2d 1233 (10th Cir. 1986), in which a newspaper challenged a judge’s prohibition of post-trial interviews with jurors. In that case, the Tenth Circuit said that a newspaper had standing because the paper alleged that the judge’s order “impeded its ability to gather news, and that impediment is within the zone of interest sought to be protected by the first amendment.” Mechem, 801 F.2d at 1235.
The movants in State v. Villega, in claiming standing to intervene, also cited an array of decisions by the U.S. Supreme Court and lower courts. Among precedents movants cited was Stephens v. Van Arsdale, 608 P.2d 972 (Kan. 1980). In that case, the Kansas Supreme Court held that a newspaper and report had standing to challenge a court clerks’ denial of access to official court records because the denial “impair[ed] their ability to carry on their business, the collection and dissemination of information.” Van Arsdale, 608 P.2d at 979. The movants also cited Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001), in which the state supreme court held that the media had standing to challenge a court order to seal a record or close a proceeding, even in the absence of a statute allowing such intervention. Owens, 27 P.3d at 883.
Nevertheless, the judge in State v. Villega denied the motion to intervene, and the Tribune, with the two state media organizations, petitioned the Kansas Supreme Court for a writ of mandamus. They requested that the state supreme court direct the judge to set aside his gag order on trial participants. However, the state supreme court responded by issuing a perfunctory order that comprised just four words: “Denied on present showing.” The Great Bend Tribune, et al. v. Swaty, Case No. 115304, Kansas Supreme Court (May 20, 2016).
More thorough consideration was given to the issue of standing in 1998 by a U.S. District Court judge in Kansas. He analyzed the conditions under which the media may intervene in federal court. The media sought to object to a gag order that he had issued against trial participants, and the judge acknowledged that the media had a right to intervene under certain conditions. Koch v. Koch Industries, Inc., 6 F. Supp. 2d 1185, 1188 (D. Kan. 1998), aff’d, 203 F.3d 1202 (10th Cir. 2000). He said that, in challenging a gag order, the media “must allege an injury in fact—that the court’s order impeded their ability to gather news and ‘that impediment is within the zone of interest sought to be protected by the first amendment.”’ Koch, 6 F. Supp. 2d at 1190 (quoting Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir. 1986)). In addition, he indicated that the media’s standing to challenge a gag order banning advertising by parties to the case would depend on the ban’s impact on their financial interest.
The judge emphasized First Amendment protection for press freedom, saying:
[A]ny inhibitions against news coverage of a trial carry a heavy presumption of an unconstitutional prior restraint. If a court order burdens constitutional rights and the action proscribed by the order presents no clear and imminent danger to the administration of justice, the order is constitutionally impermissible. A court may impose a prior restraint on the gathering of news about one of its trials only if the restraint is necessitated by a compelling governmental interest. Moreover, the court must narrowly tailor any prior restraint and must consider any reasonable alternatives to that restraint which have a lesser impact on first amendment rights. These requirements apply for criminal trials as well as civil trials.
Koch, 6 F. Supp. 2d at 1188–89 (citations omitted).
The media argued that the gag order impaired their First Amendment interest in gathering and reporting news and engaging in commercial speech and also prevented them from gaining revenue from advertising sales. The judge, however, ruled that the media did not have standing to intervene, although he made his decision only after balancing “the parties’ and public’s interest in a fair trial against the competing interest in freedom of speech.” Koch, 6 F. Supp. 2d at 1189. He found that the media lacked standing, in part, because the parties to the litigation had requested the gag order and said they did not want to talk to reporters. The media has no standing to intervene, he concluded, if the affected parties are not willing to speak publicly and be sources of news. He also decided to dissolve his ban on advertising.
A person seeking to challenge the legality of a gag order should file a petition with the trial court to intervene for that purpose. See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339 (Pa. 1984). Pennsylvania law allows a third party to intervene in a proceeding if “the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.” Pa. R. Civ. P. 2327(4); see Hutchison v. Luddy, 581 A.2d 578, 581, 585 (Pa. Super. 1990) (holding a trial court’s grant of a newspaper’s petition to intervene was not an abuse of discretion when the newspaper sought to secure its right of access to the pleading and pretrial proceedings in the case because any other holding would jeopardize the newspaper’s ability to enforce its right of access).
The process for intervening in civil cases is outlined in Pa. R. Civ. P. 2328. An application for leave to intervene is to be made by a petition that should be in the form of a plaintiff’s initial pleading in a civil action and verified as such. Pa. R. Civ. P. 2328. The pleading should set forth the ground on which intervention is sought and a statement of the relief or defense the petitioner seeks to demand or assert. Attached to the petition to intervene should be any pleading that the petitioner will file in the action if permitted to intervene. Id. A copy of the petition should be served upon each party to the action. Id.
If an order denying leave to intervene is entered, it is immediately appealable, and, if appropriate, the Supreme Court can exercise its plenary jurisdiction and stay proceedings pending its review under the collateral order doctrine. See Capital Cities Media, Inc., 483 A.2d at 1342.
The Pennsylvania Supreme Court has never expressly ruled on whether the media has standing to challenge gag orders that only restrict the speech of trial participants. In Commonwealth v. Crawford, 789 A.2d 266 (Pa. Super. 2001), the Superior Court held that the media did not have standing to challenge a gag order prohibiting trial participants from making extrajudicial statements that could interfere with the defendant’s fair trial rights. The Superior Court concluded the media lacked standing in that case because (1) the media organizations challenging the order were never granted intervenor status at the trial court level, and (2) the gag order only restricted the speech of trial participants and therefore did not prevent the media from covering the proceedings. 789 A.2d at 269-70. However, in a different case, the Superior Court assumed, without expressly reaching the issue, that members of the media had standing to challenge a gag order that only restricted the speech of trial participants. See Commonwealth v. Lambert, 723 A.2d 684, 688 (Pa. Super. 1998). This is the view taken by the majority of courts in other jurisdictions. See, e.g., FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 824, 838-39 (3d Cir. 1996) (citing cases).