Chapter §21.5 Prior Restraints and Gag Orders

• Jurisdiction: Washington

§21.5 PRIOR RESTRAINTS AND GAG ORDERS

The right of the press in the United States to publish information about crimes and court proceedings is almost absolute. In Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), the U.S. Supreme Court struck down a gag order in a sensational murder trial and held that such a prior restraint on publication could withstand First Amendment attack only if no alternative measures would likely mitigate the effects of pretrial publicity (e.g., change of venue, postponement, voir dire, emphatic jury instructions, and sequestration), and also only if the "gag" would effectively prevent the predicted harm. In Columbia Broadcasting Systems, Inc. v. U.S. District Court, 729 F.2d 1174, 1180 (9th Cir. 1984), the U.S. Court of Appeals for the Ninth Circuit overturned a trial court's order that prohibited television broadcast of videotapes made by the government during its investigation of drug charges against celebrity John DeLorean, observing that "the publicity must threaten to prejudice the entire community so that twelve unbiased jurors cannot be found." This is an extremely difficult burden to meet.

Even clearer is the rule that there may be no prior restraint on reporting what happens in open court. The court in Nebraska Press held this in absolute terms, 427 U.S. at 596, as did the Washington Supreme Court in State ex rel. Superior Court v. Sperry, 79 Wn.2d 69, 483 P.2d 608, cert, denied sub nom. McCrea v. Sperry, 404 U.S. 939 (1971). In State v. Coe, 101 Wn.2d 364,679 P.2d 353 (1984), the Washington court held that a court order prohibiting the broadcast of tape recordings that had been played in open court was void under the free speech and press provisions of both the Washington and...