Standard 8-5.1. Prior Restraints

• Library: ABA Standards for Criminal Justice--Fair Trial and Public Discourse (ABA) (2019 Ed.)

Standard 8-5.1. Prior Restraints

(a) Protecting the fairness of a criminal trial is by itself an insufficient basis for rules or judicial orders prohibiting members of the public from disseminating or otherwise making available by means of public communication any information in their possession relating to a criminal matter.

(b) If a lawyer participating in a criminal matter, or other person subject to these Standards, has repeatedly violated these Standards, a judicial order restraining such persons from making further public statements or disclosing non-public information in violation of these Standards may be appropriate. Such orders should be used sparingly and, when used, should be specific in describing to whom the order applies and what statements are prohibited. Prior to issuing such an order, the court should provide notice and an opportunity to be heard to those who would be affected by the proposed order and the public. Any such order should include written findings sufficient to justify its issuance, including that continued violations create a substantial danger to the fairness of the trial or other compelling interest, that the proposed order will effectively prevent or substantially lessen the potential harm, and that there is no less restrictive alternative reasonably available to prevent that harm.

Related Standards

ABA Standards for Criminal Justice, Special Functions of the Trial Judge 6-4.1 to 6-4.3 (2000)

Commentary

This Standard addresses prior restraints.⁴⁷ Paragraph (a) addresses prior restraints on members of the public, as distinguished from lawyers participating in a criminal matter or other persons such as law enforcement officers or judicial employees who are subject to these Standards. Paragraph (a) reflects the view that prior restraints on members of the public cannot be justified solely by the interest in protecting the fairness of the trial. This represents a departure from the prior version of this Standard, which authorized a prior restraint upon a showing of a "clear and present danger" to the fairness of the trial. See Standard 8-3.1 (3d ed. 1992) ("Absent a clear and present danger to the fairness of a trial or other compelling interest, no rule of court or judicial order should be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case.")

In Nebraska Press Ass'n v. Stuart,⁴⁸ the Supreme Court held unconstitutional a prior restraint on the media's dissemination of a defendant's confession and other incriminating materials until the jury was impaneled in a community of 850 people. The Court credited that the record developed in the district court demonstrated that "there was indeed a risk that pretrial news accounts, true or false, would have some adverse impact on the attitudes of those who might be called as jurors."⁴⁹ Nevertheless, the Court was not persuaded that further publicity would make it impossible to seat an impartial jury, given the availability of other remedial measures such as voir dire, or that a prior restraint would serve its intended purposes. Although Nebraska Press Ass'n nominally left the door open to the possibility that a prior restraint could be justified based on the danger to the fairness of a trial,⁵⁰ the decision strongly suggests that the requisite showing will be virtually impossible. The revised Standard therefore takes the position that trial courts should not issue prior restraints against members of the public in order to safeguard the fairness of the trial, on the view that it is so unlikely that the circumstances justifying such an order would be present that a bright-line rule is warranted. This is particularly so given that, notwithstanding Nebraska Press Ass'n, trial courts on occasion still issue prior restraints against...