State high court upholds restraint on disclosure of videotape

SOUTH CAROLINA–In late August, the state Supreme Court in Columbia held that the media could not disseminate the contents of a videotape containing a privileged communication between a defendant and his attorney.

The court determined that the media’s First Amendment right of free speech was outweighed by accused killer B.J. Quattlebaum’s Sixth Amendment right to a fair trial and that the prior restraint was necessary to protect that right. The court noted that although other remedial measures such as change of trial venue, postponement of trial, jury instructions or jury sequestration might have mitigated the effects of pretrial publicity, “the only measure to ensure Quattlebaum’s fundamental right to a fair trial was imposition of the prior restraint.”

The court’s decision to uphold the prior restraint was bolstered by its uncertainty as to what standard to apply when a defendant like Quattlebaum claims “not only that the pretrial publicity threatens his right to a fair trial, but also that his attorney client privilege has been violated, thereby jeopardizing his right to effective assistance of counsel.”

A conversation between Quattlebaum and his attorney had been surreptitiously recorded at the Lexington County Detention Center, where Quattlebaum was being held on charges of murder, assault and battery, and armed robbery. The videotape was later given to WIS-TV, a Columbia television station, and Quattlebaum asked the circuit court in Lexington for a temporary restraining order to prohibit the media from reporting on or airing the videotape. At a subsequent hearing to extend the order, the court continued its order until the jury was empaneled and sequestered.

In a strongly worded dissent, Justice Jean Toal said the prior restraint was invalid. Toal wrote that although “more flexibility in issuing a prior restraint may be deserving in a case such as this, it should not result in a ‘rubber stamped’ restraint whenever there is any potential prejudice to the defendant.” Toal found that in Quattlebaum’s case, less restrictive alternatives would have sufficiently mitigated the effects of the videotape’s release. According to Toal, the record did not support a finding that Quattlebaum would have been denied a fair trial unless the media were restrained. Rather, she concluded, the trial court “failed to make specific findings regarding the degree to which other measures would mitigate the effects of the pretrial publicity.” (Ex Parte: The State Record Co., Inc.; Media Counsel: Jay Bender, Columbia)