UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 2, No.2SPRING 1979
COMMENTS
Gagging the Press Through Participant and Closure Orders: The Aftermath of Nebraska Press Association v. Stuart
Valerie Bell
Three years ago, in Nebraska Press Association v. Stuart,(fn1) the Supreme Court struck down a state court injunction prohibiting pretrial publication of matters deemed prejudicial to an accused murderer. The Court held that trial courts trying to minimize prejudicial publicity to preserve a fair trial must consider alternatives less drastic than gagging the press. Yet despite a unanimous pro-media(fn2) decision on the issue of direct gag orders, Nebraska Press has not fostered dissemination of information on judicial proceedings. Because Nebraska Press focused almost exclusively on the prior restraint doctrine, emphasizing a gag order's form rather than its effect on media coverage of the judicial system, the decision did not elaborate a principle applicable to orders that, although technically not prior restraints, nevertheless effectively restrain media coverage of judicial events. Accordingly, appellate courts generally have held Nebraska Press inapplicable when reviewing lower courts' resort to closed judicial proceedings, sealed records, and gag orders on trial participants.(fn3) In the absence of Supreme Court guidance, appellate courts have established various standards for determining the validity of these restraints-restraints that often interfere substantially with the press' role as a check on the abuses of governmental power.(fn4)
This comment will examine post-Nebraska Press cases involving orders that restrict the flow of information concerning judicial proceedings and will suggest standards that focus on whether an indirect gag order inhibits media coverage of the judicial process. After a brief discussion of Nebraska Press' reasoning and its emphasis on the prior restraint doctrine, a survey of lower court cases will demonstrate Nebraska Press has not prevented judges from issuing orders that substantially impair press coverage of the judicial system. Finally, the comment will propose procedural safeguards to protect the press' role as a monitor of governmental abuses.
Nebraska Press involved the prosecution of Erwin Charles Simants for the murder of six members of a small town Nebraska family.(fn5) Local newspapers dedicated front page coverage to the gruesome events of the alleged murders and sexual assaults, and to Simants' confessions to his parents and law enforcement officers.(fn6) Because the town where the alleged murders occurred is a community of 850,(fn7) potential jurors were few. Furthermore, Nebraska statutes limited the territorial scope of changes of venue and the length of continuances.(fn8) These factors combined to create profound practical problems for a trial judge seeking to assure that a jury determines a defendant's guilt or innocence "only by evidence and argument in open court, and not by any outside influence whether of private talk or public print."(fn9) Moreover, the trial judge realized if prejudicial publicity prevented jury members from fairly receiving and evaluating evidence, an appellate court could overturn the conviction, thus necessitating a new trial.(fn10) Faced with requests from both prosecution and defense to restrain prejudicial pretrial publicity, the trial judge issued an order proscribing publication of specified information.(fn11) On review, the Supreme Court sought to determine the scope of the judiciary's power to limit freedom of the press.
The Court resolved the conflict between first amendment(fn12) and sixth amendment(fn13) rights(fn14) by holding that before entering a direct gag order a trial court must find other measures avoiding a confrontation between these rights would be ineffective.(fn15) Although the Court noted "trial courts must take strong measures to ensure that the balance is never weighed against the accused,"(fn16) it suggested lower courts use the techniques mentioned in Sheppard v. Maxwell(fn17) as alternatives to gagging the press.(fn18) These include continuance, change of venue, voir dire, jury instructions, and participant gag orders. Thus, under Nebraska Press' analysis, before gagging the press, a trial judge must both find these alternatives would not mitigate the adverse effects of pretrial publicity,(fn19) and demonstrate a restraining order would prevent the threatened harm.(fn20)
By allowing trial courts to issue direct gag orders only when alternatives would not preserve a defendant's fair trial right, the Court recognized the need for complete coverage of the judicial process. Both Chief Justice Burger's majority and Justice Bren-nan's concurring opinions noted that the press guards against miscarriages of justice by subjecting police, prosecutors, and the judicial system to public scrutiny.(fn21) Furthermore, Justice Bren-nan's opinion implicitly recognized the public's "right to know"; that is, a right to receive and actively acquire information.(fn22) The right to know extends first amendment coverage to receivers and gatherers, as well as disseminators, of information: "[I]t would be a barren marketplace of ideas that had only sellers and no buyers."(fn23) Justice Brennan stressed that increased exposure of the judicial system through public criticism and debate can improve the quality of the system;(fn24) that is, the press ensures the integrity of the judicial system by publishing news that readers, because of limited time and resources, could not gather for themselves. Thus, Nebraska Press acknowledged the press' crucial role, in relation to both the judiciary and the public, of subjecting information on judicial proceedings(fn25) to public accountability.
To protect the press' role as a monitor of governmental abuses,(fn26) the Court used prior restraint analysis. All of the opinions relied heavily on the prior restraint doctrine,(fn27) which imposes a strong presumption against the constitutionality of formal prohibitions on speech imposed in advance of utterance or publication.(fn28) The Supreme Court has authorized prior restraints only in "exceptional cases"(fn29) because they not only destroy the immediacy of intended communication,(fn30) but also are predetermined prohibitions a violator cannot challenge even though a court later adjudges the restraint unconstitutional.(fn31)
Although the prior restraint doctrine appears to provide far-reaching protection, in fact it does not protect adequately the press' role. Prior restraint analysis emphasizes the form of the restraint rather than its effect. Although it prohibits restrictions prior to communication, the doctrine places no restrictions on other types of governmental action that can curtail significantly the dissemination of information and ideas.(fn32) The prior restraint doctrine allows courts to seal records or close judicial proceedings entirely because these orders do not directly restrain utterance or publication.(fn33) Furthermore, the doctrine allows orders gagging trial participants because, unlike prior restraints, a violator can challenge these orders.(fn34) Press coverage of the judicial system provides information of legitimate public concern.(fn35) To enable the press to perform its role in relation to the judiciary and the public, procedural safeguards should precede any governmental interference with the press' first amendment rights, regardless of whether the interference technically is a prior restraint. Nebraska Press, unfortunately, did not articulate a principle applicable to orders that technically are not prior restraints, and thus failed to protect adequately the public's first amendment right to receive useful information.(fn36)
Post-Nebraska Press cases involving gag orders in the trial context demonstrate that prior restraint analysis inadequately protects the flow of information concerning judicial proceedings. The orders in these cases are of three types: first, orders preventing publication of information on the public record or orders failing to satisfy Nebraska Press standards; second, orders gagging witnesses, parties' attorneys, or other trial participants; and third, orders withholding information from both the public and press. Definitive standards govern issuance of orders in the first category: courts cannot prevent the press from publishing factual materials from judicial records,(fn37) and if courts directly gag the press, they must meet the Nebraska Press standards.(fn38) Yet outside these areas, standards are far less clear.
When a court gags trial participants rather than the press, a significant threshold problem involves the press' standing to challenge the order. In two recent cases,(fn39) the United States District Court for the District of South Carolina refused to grant the press standing to appeal gag orders on trial participants. The district court said the press does not have a personal stake in the outcome of a participant gag order because the order does not directly restrain publication.(fn40) Reasoning that the first amendment does not guarantee the press a constitutional right of access to information unavailable to the general public, the court concluded that if the information is not public, the press has no first amendment right to gather it.(fn41) Although the Fourth Circuit eventually granted the press standing, the press could not appeal the order for several...
