Injunctions and the Press in Fair Trial Cases.

Confront-ing a claimed conflict between free press and fair trial guarantees, the Court unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal defendant.443 Though agreed as to the result, the Justices were divided as to whether “gag orders” were ever permissible and if so what the standards for imposing them were. The Court used the Learned Hand formulation of the “clear and present danger” test444 and considered as factors in any decision on the imposition of a restraint upon press reporters “(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 the threatened danger.”445 Though the Court found that one seeking a restraining order must meet “the heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial would be denied,” it refused to “rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint.”446 Justice Brennan’s concurring opinion flatly took the position that such restraining orders were never permissible. Commentary and reporting on the criminal justice system is at the core of First Amendment values, he would have held, and secrecy can do so much harm “that there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by which the information is obtained.”447 The only circumstance in which prior restraint of protected speech might be permissible is when publication would cause “virtually certain, direct, and immediate” national harm, Justice Brennan continued, but “the harm to a fair trial that might otherwise eventuate from publications which are suppressed . . . must inherently remain speculative.”448 Although the result in the case does not foreclose the possibility of future “gag orders,” it does lessen the number to be expected and shifts the focus to other alternatives for protecting trial rights.449 On a different level, however, are orders that restrain the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart,450 the Court determined that such orders protecting parties from abuses of discovery require “no heightened First Amendment scrutiny.”451

Footnotes

443
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976). back
444
427 U.S. at 562, quoting Dennis v. United States, 183 F.2d 201, 212 (2d Cir. 1950), aff’d, 341 U.S. 494, 510 (1951). back
445
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976) (opinion of Chief Justice Burger, concurred in by Justices Blackmun and Rehnquist, and, also writing brief concurrences, Justices White and Powell). Applying the tests, the Chief Justice agreed that (a) there was intense and pervasive pretrial publicity and more could be expected, but that (b) the lower courts had made little effort to assess the prospects of other methods of preventing or mitigating the effects of such publicity and that (c) in any event the restraining order was unlikely to have the desired effect of protecting the defendant’s rights. Id. at 562–67. back
446
427 U.S. at 569–70. The Court distinguished between reporting on judicial proceedings held in public and reporting of information gained from other sources, but found that a heavy burden must be met to secure a prior restraint on either. Id. at 570. See also Oklahoma Pub. Co. v. District Court, 430 U.S. 308 (1977) (setting aside injunction restraining news media from publishing name of juvenile involved in pending proceeding when name has been learned at open detention hearing that could have been closed but was not); Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979). back
447
427 U.S. at 572, 588. Justices Stewart and Marshall joined this opinion and Justice Stevens noted his general agreement except that he reserved decision in particularly egregious situations, even though stating that he might well agree with Justice Brennan there also. Id. at 617. Justice White, while joining the opinion of the Court, noted that he had grave doubts that “gag orders” could ever be justified but he would refrain from so declaring in the Court’s first case on the issue. Id. at 570. back
448
427 U.S. at 599. back
449
One such alternative is the banning of communication with the press on trial issues by prosecution and defense attorneys, police officials, and court officers. This, of course, also raises First Amendment issues. See, e.g., Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976). back
450
467 U.S. 20 (1984). back
451
467 U.S. at 36. The decision was unanimous, all other Justices joining Justice Powell’s opinion for the Court, but Justices Brennan and Marshall noting additionally that under the facts of the case important interests in privacy and religious freedom were being protected. Id. at 37, 38. back