B. Gag orders on the press
The Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976), that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Such a gag order is a “most extraordinary remedy” that may be used only in “exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.” CBS Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citations omitted). Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property . . . [t]hose who see and hear what transpired can report it with impunity.” Craig v. Harney, 331 U.S. 367, 374 (1947).
In Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court noted that a newspaper party could not publish information it obtained in discovery because “pretrial depositions and interrogatories are not public components of a civil trial.”
The Second Circuit has held that “there is a fundamental difference between a gag order challenged by the individual gagged and one challenged by a third party; an order objected to by the former is properly characterized as a prior restraint, one opposed solely by the latter is not.” Application of Dow Jones & Co., Inc., 842 F.2d 603, 609 (2d Cir. 1988). There is a “heavy presumption” against the validity of a prior restraint, particularly as applied to reporting on criminal proceedings. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559-60 (1976). In United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005), the Second Circuit held that a trial court's order restraining the press from publishing the names of jurors sitting on a non-anonymous panel was an impermissible prior restraint on free speech. See also United States v. Corbin, 620 F. Supp. 2d 400, 404 (E.D.N.Y. 2009) (rejecting defendant’s request for a gag order because defendant had failed to establish that the publicity in this case would pose any difficulty in impaneling an impartial jury of twelve persons and alternates in this expansive, densely populated district).
To enjoin the press from publishing information disclosed in open court is the type of prior restraint condemned in Nebraska Press. See In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990).
The Fourth Circuit has suggested that a gag order that interferes with legitimate newsgathering activities would violate the First Amendment. See In re Murphy-Brown, LLC, 907 F.3d 788, 800 (4th Cir. 2018).
A gag order is a prior restraint that bears a heavy presumption against its constitutional validity. United States v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983). Prior restraints on the media are constitutionally disfavored nearly to the point of extinction. United States v. Brown, 250 F.3d 907, 914–15 (5th Cir. 2001). Such restraints on the media will be upheld only if the government can establish that the activity restrained either poses a clear and present danger or a serious or imminent threat to a protected competing interest. Id.
On rare occasions, a gag order may be upheld based on a defendant’s Sixth Amendment right to a fair trial, since this right can trump the media’s First Amendment right of access and openness. United States v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983). In order for a gag order based on the defendant’s right to a fair trial to prevail, a court must determine from the evidence before it (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unconstrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. Id. The trial court must also consider the precise terms of the requested restraining order and craft the order so that it does not suppress more free speech than requested. Id. An order without any findings whatsoever is likely to be overturned.
In determining whether pretrial publicity is a sufficient reason to justify a prior restraint, a court will review (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent threatened danger. United States v. Brown, 250 F.3d 907, 916 (5th Cir. 2001).
Trial courts should employ methods short of prior restraints if possible, and gag orders on trial participants are preferred to gag orders on the press. United States v. Brown, 218 F.3d 415, 425–26 (5th Cir. 2000).
Change of venue, jury sequestration, ‘searching” voir dire, and “emphatic” jury instructions should be viewed as court tools for ensuring a fair trial that are preferable to a gag order on the press. United States v. Brown, 218 F.3d 415, 431 (5th Cir. 2000).
Pretrial publicity is less likely to be deemed inherently prejudicial to a defendant’s ability to get a fair trial if considerable time has elapsed since the public reports, and if the news reports are “factual accounts” and “straight news reports” rather than the sensational type that tend to “inflame ill will.” Willie v. Maggio, 737 F.2d 1372, 1387 (5th Cir. 1984). The constitutional standard of fairness requires only that the accused have a panel of impartial and “indifferent” jurors who base their decision solely on the evidence produced in court; it does not require that the jurors be wholly ignorant of the case. Id
In an appeal of a gag order, the media must show either that it will probably succeed on the merits in its appeal or that it has presented a substantial case on the merits and that the balance of the equities weighs heavily in favor of granting a stay of the order. United States v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983).
In a challenge by a member of the press, the Seventh Circuit held the First Amendment was violated by Indiana statute that specified “no person” may disclose the existence of sealed indictment prior to arrest or bringing of defendant into court custody, and which authorized contempt penalty for such disclosure. Worrell Newspapers of Ind., Inc. v. Westhafer, 739 F.2d 1219 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985).
A gag order is a restraint on the freedom of the press, and even if it is narrow in scope and duration, it is subject to the closest scrutiny. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301, 306 (2000). While prior restraints are not unconstitutional per se, any system of prior restraint bears a heavy presumption against its constitutional validity. Id.; see also Helena Daily World v. Simes, 365 Ark. 305, 308-09, 229 S.W.3d 1, 1-4 (Ark. 2006). A gag order restricting the news media from publishing something that transpired in open court is usually an unconstitutional prior restraint on speech. Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972); Helena Daily World v. Simes, 365 Ark. 305, 308-09, 229 S.W.3d 1, 1-4 (2006).
Under Nebraska Press Assn v. Stuart, 427 U.S. 539 (1976), trial judges may not order reporters not to reveal lawfully acquired information once they have been admitted to the court room. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301, 307 (2000).
Finally, the Arkansas Rules of Criminal Procedure say that no rule of court or judicial order shall be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case. Ark. R. Crim. P. 38.1.
Pursuant to well-established law under the First Amendment to the United States Constitution and the Georgia Constitution, the entry of an order restricting speech about litigation can only be supported where: (1) record evidence establishes a serious, imminent threat to the administration of justice; and (2) the order is narrowly drawn to minimize that threat. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976). The Supreme Court of Georgia has affirmed the demanding standard articulated Nebraska Press must be met before a gag order may be entered. In R.W. Page Corp, 249 Ga. 576 (1982), the Supreme Court made it clear that Georgia courts “ha[d] sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings.” In reversing the closure of pretrial proceedings in the case, the court referenced Nebraska Press as the controlling authority on gag orders.
Even when confronted with a “carefully and precisely drawn” order, the Supreme Court of Georgia held in Ga. Gazette Publ’g Co. v. Ramsey, 248 Ga. 528 (1981), that a gag order in a civil case was constitutionally prohibited as a matter of law. In Ramsey, the trial court had issued an order preventing the defendant newspaper, in an invasion of privacy case, from publishing information obtained in discovery without prior approval by the court. Although acknowledging that the trial court’s order was “carefully and precisely drawn,” the court ruled it facially invalid under the Georgia Constitution as an “unwarranted [prior] restraint upon the newspaper’s liberty of speech and of the press.” Id. at 530.
In criminal cases, the Supreme Court of Georgia has repeatedly emphasized that the issue a trial court must consider with respect to a defendant’s rights to a fair trial is not publicity, but prejudice. In Miller v. State, 275 Ga. 730, 735 (2002), the court held that: “Even in cases of widespread pretrial publicity, situations where such publicity has rendered a trial setting inherently prejudicial are extremely rare. . . . We are inclined to agree with those prospective jurors who reported during voir dire that the pretrial publicity they had seen tended to make them feel empathy for both appellant and [the victim].” “‘A conclusory representation that publicity might hamper a defendant’s right to a fair trial is insufficient to overcome the protections of the First Amendment.’” Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 170–71 (2004) (quoting United States v. Noriega, 917 F.2d 1543, 1549 (11th Cir. 1990)).
There are no reported Idaho decisions on this issue, although an order prohibiting the press from publishing information which it lawfully obtained is likely to be held an unconstitutional prior restraint. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 558–59 (1976) (prior restraints are “presumptively unconstitutional”).
The Kansas Supreme Court firmly declared its opposition to prior restraints against the media in a case that originated in 1993 in Atchison, Kansas. State v. Alston, 887 P.2d 681 (Kan. 1994). A newspaper reporter was attending a pre-trial criminal hearing in a local courtroom. The hearing was open to the public, and the reporter’s presence was ordinary. Nothing portended the confrontation that was about to occur.
As the reporter watched, the judge considered a defense motion to suppress certain evidence. The defense attorney argued that the prosecution should be barred from using or discussing the defendant’s criminal record or outstanding arrest warrants. After granting the motion, the judge asked whether any other matter needed attention. The attorney then pointed out the presence of the reporter, who worked for the Atchison Daily Globe, and expressed concern that the newspaper might publish a report about the hearing. The judge immediately ordered the reporter to publish neither the defendant’s criminal history nor even the existence of the judge’s order itself.
The Globe, however, defied the order, publishing a report about what had happened in the courtroom. For its defiance of the gag order, the Globe received a contempt citation, but the newspaper successfully appealed. In Alston, the state supreme court reversed the gag order and the contempt citation. The Kansas Supreme Court recognized that “those who see and hear what transpired in an open courtroom can report it with impunity,” and “once a public hearing has been held, what transpired there could not be subject to prior restraint.” Alston, 887 P.2d at 688.
At the same time, the Kansas Supreme Court embraced a line of precedent that preserved the media’s defense against “transparently invalid” gag orders. Alston, 887 P.2d at 691 (citing In re Providence Journal Co., 820 F.2d 1342, 1347–48 (1st Cir. 1986), modified on reh’g, 820 F.2d 1354 (1st Cir. 1987)). The Globe was subject to the general rule that persons must obey a judicial order even if they believe it is unconstitutional. The state supreme court said:
"In this case, the . . . order was transparently unconstitutional. The trial court failed to make the requisite … findings. The [newspaper had based its news report on information that was available from] the court’s records and in open court prior to the gag order. The order was issued without a full and fair hearing with all the attendant procedural protection."
Alston, 887 P.2d at 690.
The supreme court found that the Globe had disobeyed the gag order in good faith. According to the court, “[o]nly where timely access to an appellate court is not available can the newspaper publish and then challenge the constitutionality of the order in contempt proceedings.” Alston, 887 P.2d at 621.
The Mississippi Supreme Court has noted that information obtained legally from a public proceeding or document cannot be restrained. Jeffries v. State, 724 So.2d 897, 900 (Miss. 1998). In Jeffries, a circuit court judge ordered a reporter not to publish information about the defendant’s juvenile record, which was discussed in open court. Id. at 898. The reporter chose to publish in violation of the order. Id. at 899. The judge issued an arrest warrant for the reporter for contempt of court. Id. However, the Mississippi Supreme Court ruled that the circuit court’s order barring the reporter from writing about the defendant’s juvenile record was a prior restraint and was therefore presumptively invalid. Id. “Once [the circuit court judge] made the matter public, those in attendance, including the press, had a right to further disseminate the information. Therefore, the prior restraint was an invalid interference with Jeffries's [F]irst [A]mendment rights.” Id. at 899-90.
District courts have issued gag orders on the press related to pending cases. Las Vegas Review-Journal v. Eighth Judicial Dist. Court in & for Cty. of Clark, 412 P.3d 23, 26 (Nev. 2018) (noting that a prior restraint or “gag” order is only justified when “(1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) less restrictive alternatives are not available”) (internal quotations omitted).
Gag orders are not common in New Mexico. To this end, speculation that publication of juror names might expose them to intimidation during the trial is insufficient to justify prior restraint. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303 (“There is no question that the jury list is a public record and that the Media was entitled to inspect and publish it.”). In determining the constitutionality of the gag order, New Mexico courts must make their own inquiry into the imminence and magnitude of danger said to flow from particular utterances and then balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. Twohig v. Blackmer, 1996-NMSC-023, ¶ 13, 121 N.M. 746, 749, 918 P.2d 332, 335 (recognizing that a “prior restraint requires special judicial attention” because of a “heavy presumption against its constitutional validity.”).
The press is free to publish that which transpires during a court case. Significantly, absent a state interest of the highest order, courts may not prevent or punish the publication of truthful information related to a matter of public concern, such as an ongoing case, that has been lawfully obtained. Even short-lived gag orders are reviewed cautiously out of concern that they may cause irreparable injury to First Amendment interests as long as they remain in effect. Indeed, gag orders on the press are “extremely difficult to justify” and would be upheld only in the most “exceptional cases.”Nebraska v. Press Ass’n v. Stuart, 427 U.S. 539, 591-92 (1976) (Brennan, J., concurring).
For example, in Commonwealth v. Genovese, 487 A.2d 364 (Pa. Super. 1985), the media challenged two gag orders issued by the trial judge in a murder trial. The first order prohibited the press from publishing the name of any juror and the second order prevented the media from contacting any potential juror. The trial judge stated the order was put in place to prevent jury harassment. On appeal, the Superior Court ruled that because evidence was lacking that the jury actually would be harassed, no equally effective alternatives to the order had been considered, and the voir dire was conducted publicly, the first gag order was an unconstitutional prior restraint. Id. at 368-69.The court struck down the second order on First Amendment grounds, holding that there was no evidence that such an order was necessary to protect the jurors or guarantee a fair trial. Id. at 369.
The U.S. Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 559 (1976) that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Such a gag order is “one of the most extraordinary remedies known to our jurisprudence.” Id. at 562; see also State v. Schaefer, 157 Vt. 339, 354, n.1, 599 A.2d 337, 346 (Vt. 1991) (Allen, C.J., concurring). In rescinding the only prior restraint order in Vermont history, a Superior Court in Vermont v. Morgan, No. S3-79Rc (Vt. Super. Ct., Jan. 17, 1980), recognized that under Nebraska Press Association v. Stuart, a newspaper could not be forbidden to print information already in its possession except under the most extreme and compelling circumstances. The case arose in the context of a related criminal prosecution.