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Friday, February 2, 2007 - Page updated at 03:34 PM

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I. Prior Restraints or Gag Orders

A. Legal Background

1. Courts sometimes issue orders prohibiting or qualifying publication of material which the press ordinarily has the right to possess and freely disseminate. Such orders are classified as "prior restraints." One type of prior restraint is a gag order, in which a court may order attorneys or witnesses not to discuss an issue or a case with journalists or directly order journalists not to report certain court proceedings or records.

2. The right of the press to publish information in its possession concerning a criminal defendant or the details of a crime is almost sacrosanct. In Nebraska Press Association v. Stuart, the U.S. Supreme Court struck down a judicial gag order in a sensational murder trial in a small community and held that such a prior restraint can withstand First Amendment attack only if no alternative measures (e.g., change of venue, postponement, voir dire, emphatic instructions or sequestration) would likely mitigate the effects of pretrial publicity, and also only if the "gag" would effectively prevent the predicted prejudice.

The Ninth Circuit has vacated an order prohibiting television broadcast of government videotapes from the investigation of a national celebrity on cocaine charges. The court noted that to merit a gag order, "publicity must threaten to prejudice the entire community so that 12 unbiased jurors cannot be found." Given the sensational nature of that case, it is difficult to imagine a situation in which a gag order would survive a First Amendment challenge.

3. Even clearer is the rule that there may be no prior restraint on reporting what happens in open court.

(a) The Washington Supreme Court has 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 U.S. constitutions.

4. A prior restraint may not always take the classic form of a judge telling you not to publish information you have obtained. For example:

(a) Courts have imposed prior restraints indirectly by saying they will give you information or allow you access to a hearing only if you agree to publish it in a particular fashion. This, too, is a prior restraint if it imposes government controls on what you may publish.
(b) A prior restraint challenge has been raised when a protective order was entered regarding material obtained in pretrial discovery. The newspaper defendant thus was barred from publishing the information it gained solely through the discovery process in a defamation case against the newspaper. The U.S. Supreme Court held that the prohibition did not violate the First Amendment. The court also held, however, that the order could not prevent the newspaper from publishing the same (or any) information it obtained outside the discovery process.
(c) The Ninth Circuit has upheld the use of an order prohibiting criminal defense attorneys from communicating with the news media. The gag order was challenged both by the attorneys as violating their rights of free speech and by the media as violating free press guarantees.
(d) In another case, the same Ninth Circuit panel decided the media had no right of access to trial participants. The court found that the First Amendment gives the media a right "to sit, listen, watch and report," but does not prevent a court from restraining the comments of others even if the court could not constitutionally prevent the media from reporting such comments once made.
(e) The U.S. Supreme Court denied review of a trial court order forbidding the media to broadcast a tape of a jailhouse phone conversation between a criminal defendant, General Manuel Noriega, and his lawyer, pending production of all tapes in the network's possession for court review of possible harm to a fair trial.

B. Practical Suggestions If a Gag Order Is Proposed

1. Respectfully object to the order and call the court's attention to the almost absolute restrictions on press gag orders in Nebraska Press, a U.S. Supreme Court case, and State v. Sperry and State v. Coe, Washington Supreme Court cases discussed above, both classifying such orders as impermissible "prior restraints." Suggest that a state court judge take a moment to read Sperry Coe, which his or her clerk can quickly obtain for the judge.

2. Stress that you are not requesting a special privilege for the press, but are trying to protect the public's right to know about the criminal justice system.

3. Request adjournment, or postponement of the court's ruling, so you can call your lawyer to argue to the court concerning the matter.

4. If the court will not agree to a delay, ask for a written copy of the order and ask if the court would be willing to suspend the proceedings so your lawyer can seek a stay from a higher court. Remind the judge that this was the procedure used in Sperry.

5. Politely reject any agreement not to publish information obtained in open court in exchange for being permitted to stay. Check with your editor and your lawyer before agreeing to conditions.

6. You should obey a gag order pending review by your editor and lawyer of its enforceability, and their consideration of appeal to a higher court. Otherwise, you may be in contempt of court and you may compromise your right to appeal.

II. Courtroom Closure and Sealing Court Records

A. Legal Background

1. In response to the unavailability of prior restrains and gag orders under Nebraska Press and Sperry, some judges turned to the more drastic sanction of courtroom closure to limit allegedly prejudicial publicity. In some instances, the power to close courtrooms and seal records has been used by judges to to attempt gain control over press reports of criminal proceedings. See discussion below.

2. Pretrial evidentiary suppression hearings in criminal trials were the first segment of the historically public criminal trial process frequently to be closed, particularly after the U.S. Supreme Court held the Sixth Amendment right to a speedy public trial to be the right solely of the defendant and not of the public or the press. However, subsequent U.S. Supreme Court decisions developed a qualified First Amendment right of access to criminal proceedings and effectively overruled the older cases.

3. In Richmond Newspapers Inc. v. Virginia, the U.S. Supreme Court recognized a constitutionally based right of access to criminal trials, presumptively open to the press and the public under the First Amendment unless an "overriding" showing is made that "closure is required" to protect the defendant's right to a fair trial. The First Amendment right of access was subsequently reaffirmed by the court when it held that the press and public may be denied access to criminal trials only when closure is necessitated by a compelling government interest.

(a) The U.S. Supreme Court vacated a trial court's order closing six weeks of voir dire in a rape-murder trial, despite the state's argument that candid responses from prospective jurors could not be assured if the press were present. The court held that voir dire was traditionally open, and thus presumptively open to the public and press. To overcome the presumption, the trial court must make specific findings that: closure is essential to preserve higher values, the order of closure is no broader than necessary, and no less restrictive alternatives would adequately protect the specified interests.
(b) The U.S. Supreme Court subsequently expanded the qualified First Amendment right of access developed in earlier cases. In Press-Enterprise Co. v. Superior Court, (known as Press-Enterprise Il), the court ruled that the First Amendment requires access to extensive pretrial hearings, such as are conducted in California. Such a hearing may be "the final and most important step in the criminal proceeding," thus providing "the sole occasion for public observation of the criminal justice system." Preliminary hearings may be closed only when the test of substantial probability of prejudice without reasonable alternatives has been met.
Press-Enterprise II is the leading case because the court expressly relied on the First Amendment right of access rather than on the defendant's Sixth Amendment right to a speedy public trial. In Press-Enterprise II the defendant had requested that the preliminary proceeding be closed, but the Supreme Court held that the press had a right to access nonetheless.
The Press-Enterprise II test thus strongly favors openness and provides a formula which largely wipes out the historically asserted "confrontation" between the First and Sixth Amendments. The decision also makes clear that Washington state courts must allow freer access to criminal trials and pretrial proceedings than was the rule under the earlier Kurtz and Ishikawa cases described below. Press-Enterprise II also supports access to civil trials and pretrial proceedings. Although not addressed by the majority, the dissent noted that the decision's logic applies with equal force to civil cases. Furthermore, First Amendment access to civil trial and pretrial proceedings would appear even more compelling since the fair trial guarantee of the Sixth Amendment that is invoked to limit publicity applies only to criminal cases.

4. Washington has a specific "open proceedings" provision in the state Constitution (Article I, Section 10). In Washington cases decided before Press-Enterprise II, the Washington Supreme Court recognized similar high standards for closure. However, the even higher threshold required by Press-Enterprise Il applies in all states and should always be cited as controlling:

a) In Federated Publications v. Kurtz, the Washington court held that Article I, Section 10 did not require a stronger showing than "some likelihood" of prejudice, and a consideration of alternatives by the judge to support closure of a pretrial suppression hearing. It also considered Article I, Section 5, the Washington version of the First Amendment; and Article I, Section 22, the Washington version of the Sixth Amendment, but found them to provide no additional protection for the public's right to attend such hearings.
(b) In Seattle Times v. lshikawa, the Washington court later held that closure for reasons other than protection of the defendant's fair trial rights, (e.g., protection of the secrets of an ongoing investigation or of a witness' safety), required a far stronger showing than "some likelihood" of prejudice. The proponent of closure has the burden of showing both a "serious and imminent threat to some other important interest," and that other alternatives would not avoid the threat.
The state court also emphasized that the judge must take an active role in preventing such problems, must articulate specific reasons for the closure, and must explain the inadequacy of other alternatives such as sequestration, change of venue or venire, or continuance.

5. Sealing court records often occurs when court closure is ordered. Sealing is subject to the same constitutional limitations as closure and is also strongly disfavored under the First Amendment and the stringent Press-Enterprise II test. The Ninth Circuit has consistently vacated sealings by federal district courts. Seattle Times v. U.S. District Court unsealed pretrial records of hearings and evidence on court appointment of defense counsel and bail detention. Each involved potentially inflammatory information in a nationally publicized cyanide capsule murder case.

6. In 1992, the Washington Supreme Court struck down a statute mandating closure and sealing of child victim testimony and other information identifying the child in abuse trials. The court relied on Article I, Section 10 of the state constitution. The case is strong affirmation that traditionally open court proceedings and records are in the public domain and legislative power to limit public and press access is sharply limited.

7. In the mid-1960s, a voluntary and cooperative program of the media, the state courts, and the Washington Bar Association developed Bench-Bar-Press Guidelines to accommodate fair trial and free press principles. The media had always considered the guidelines completely voluntary and had adhered to them strictly as a matter of ethics. However, some Washington courts began to treat the guidelines as a binding contract which they could enforce.

(a) A so-called "violation" of the guidelines by the press' pretrial publication of incriminating ballistics information was held to justify exclusion of the press from a suppression hearing.
(b) Another trial judge made contractual adherence to the guidelines a condition for attendance at a pretrial hearing. If a reporter would not sign an agreement to follow the guidelines in reporting on the hearing, the reporter would be excluded from the hearing, even though the general public was admitted without limitation. The Washington Supreme Court upheld this procedure in a 5-4 decision. It held that the trial court had not imposed a prior restraint, but had merely imposed a reasonable limitation" on access, on a voluntary basis, not subject to contempt sanctions for violation. The U.S. Supreme Court denied review.
(c) In the wake of that case, Federated Publications v. Swedberg, the media withdrew their formal endorsement of the guidelines to make clear that they may not be enforced as a contract. A new statement of "Principles and Considerations" (Appendix V) that contains language emphasizing their voluntary nature and stressing the duty of the trial court to maintain openness, was adopted in 1983 by the Washington Bench-Bar-Press Committee. Media organizations did not formally endorse the principles. Since the revision of the guidelines into Principles and Considerations, Swedberg has no practical impact.
(d) After the media withdrew endorsement of the old guidelines, The Seattle Times developed its own internal procedures and criteria for reporting on criminal proceedings. They are as follows:

(i) While there is no proven connection between publication of certain types of evidence and any ultimate prejudice to a criminal defendant, The Times generally avoids publication, at least before empaneling of a jury, of admissions or confessions by the defendant, information about the results of investigative tests such as ballistics tests, polygraph examinations, fingerprints or other laboratory tests, and conclusory statements of guilt by law enforcement officials.
(ii) There may be occasions, particularly in cases of extreme public anxiety about a crime or apparent series of crimes, when publication of such evidence before trial is appropriate. However, such information should be published only after obtaining authority from a senior editor.

8. In addition to general familiarity with the federal and Washington state cases discussed above, the reporter should be aware of a set of helpful rules which may deter closure in either federal or state courts:

(a) Federal Court Rule 53(e): In the Western District of Washington, the federal court has ruled that no order can be entered limiting press access to criminal proceedings without a special hearing at which media representatives must be present. At one hearing under Rule 53(e), a motion to close a bail hearing was denied when the requester failed to show substantial probability of irreparable damage and that alternative means would be inadequate to protect fair trial rights.
(b) Department of Justice Guidelines: In 1980, the attorney general published a rule which forbids any U.S. attorney from moving for or consenting to a closure order without meeting a six-point test and obtaining specific approval of a deputy attorney general in Washington, D.C.
As later amended, the rule applies to all federal trials, pre- and post-trial evidentiary proceedings, arraignments, bond hearings, plea proceedings, sentencing proceedings or portions thereof. A 60-day review requirement has been added to ensure that records of closed proceedings are unsealed as soon as possible.
(c) In a 1979 case, United States v. Baker, the Western District of Washington federal judge concluded that careful voir dire could adequately protect against prejudice in a sensational criminal case, in a populous county such as King with a large jury panel. This concept was strongly supported by the Ninth Circuit in Seattle Times v. U.S. District Court, discussed above.
(d) King County Prosecuting Attorney Guidelines: In 1980, the King County prosecutor adopted a rule similar in effect to that described in (b) above, requiring that notice of a proposed closure be given to media lawyers and that deputies not participate in a closure without the approval of the chief criminal deputy the rule is printed in Appendix VIII below.

9. Cameras in the Courtroom. The Washington Supreme Court specifically authorizes trial judges to permit television and still cameras and recording in criminal trials. You should familiarize yourself with this rule if you will be trying to film or photograph judicial proceedings. Note that the U.S. Supreme Court has held that filming, photographing and broadcasting a trial does not in itself violate a defendant's rights.

10. Note that the press does not have a right of access to all judicial proceedings. For example, conferences of appellate courts, grand jury proceedings and jury deliberations are traditionally closed, and neither the First Amendment nor Article I, Section 10, may operate to open them. Also note that, in spite of impressive efforts to open them, federal courts and couthouses are still off limits to camera

B. Practical Suggestions if Closure or Sealing Is Proposed in Federal Court

1. Time is critical. If you cannot get to a telephone, try to have someone call your editor and lawyer. Media cooperation should be in effect; when any media lawyer learns of the problem, he or she should be alerted to call counsel for other media present.

2. If time permits, remind the U.S. attorney present of Local Court Rule 53(e) and of the Department of Justice's anticlosure guidelines and rules.

3. If that fails, respectfully object to the court and hand the court your "open hearing card" (Appendix VI). In addition, you should call the following authorities to the attention of the court:

(a) If it is a pretrial evidentiary hearing, advise the court that Gannett Co. v. DePasquale, suggests that any "spectators present in the courtroom" can object to a proposed closure. Furthermore, a majority of the justices in Globe Newspaper v. Superior Court, found that representatives of the press "must be given an opportunity to be heard on the question of their exclusion."
(b) In either a pretrial hearing or a trial, cite Richmond Newspapers Inc. v. Virginia, discussed in the previous section, and its clear holding that the First Amendment requires that judicial proceedings should be open unless it is clearly shown that closure is required as the only alternative to preventing prejudice. Remind the court that Press-Enterprise II, discussed above, firmly establishes that the First Amendment right to access is independent of the defendant's Sixth Amendment right to fair trial, and that if at all possible the fair trial rights must be protected by means that do not restrict public access to a judicial proceeding.
(c) Cite Federal District Court Local Rule 53(e) and its requirement that your lawyer must be given an opportunity to present full argument.
(d) Cite Seattle Times v. U.S. District Court, discussed above, and the Ninth Circuit's recognition that voir dire and other alternatives will likely be effective to mitigate prejudice, particularly in a metropolitan area.

4. The most compelling argument in a pretrial suppression hearing will be the procedural requirements of Local Rule 53(e) if you are in the Western District of Washington. Respectfully ask the judge to read that rule before deciding. The same rule must be followed before closing a federal court trial, but if the court can be familiarized with Richmond Newspapers, it is considerably less likely that a trial would be closed.

5. If a federal judge determines to close the hearing without following Local Rule 53(e), state that you object and that you believe that court rules and the First Amendment entitle the public and the press to an adjournment of the proceeding so that counsel can present critical constitutional issues to the court.

6. Do not agree to refrain from publishing information which you might obtain if allowed to remain in the otherwise closed proceeding. Check with your editor and lawyer if the court makes such a request.

7. If the judge orders you to leave, you should comply, but respectfully ask that you be given a written copy of the judge's closure order, setting forth the reasons for the closure.

C. Practical Suggestions if Closure or Sealing Is Proposed In State Court

1. Time is critical. If you cannot get to a telephone, try to have someone call your editor and lawyer. Media cooperation should be in effect; when any media lawyer learns of the problem, he or she should be alterted to call counsel for other media present.

2. If time permits, remind the deputy prosecutor of the King County prosecuting attorney's anti-closure rule and procedures, above. Show him or her a copy of the rule (Appendix VIII).

3. If that fails, respectfully object to the court and hand the court your "hearing card" (Appendix VI). You may also wish to have a legal brief prepared in advance to respond quickly to such closure motions. In addition, cite the following authorities:

(a) Kurtz, discussed in the previous section, states specifically that you have standing, as a reporter, to object to the closure.
(b) If it is a pretrial suppression hearing, remind the court that Kurtz holds that pretrial hearing closure would be "uncommon" and should arise only in "exceptional" circumstances. Tell the court that Kurtz suggested other alternatives for protecting the defendant without blocking the public's right to attend judicial proceedings under Article I, Section 10, of the state Constitution, including continuance, severance, change of venue, change of venire, voir dire, peremptory challenges, sequestration and admonition of the jury.
Remind the court that these alternatives are especially effective in a metropolitan area with a large population for jury selection, and note that Ishikawa, discussed at above, strongly supports that position.
Note that Press-Enterprise I, (see footnote 5) specifies the test that must be met before closure may be ordered, consistent with the U.S. Constitution, and that simply meeting the more related closure test under Kurtz is no longer sufficient. Direct the court's attention, finally, to Press-Enterprise II, discussed above, mandating a finding of substantial likelihood of prejudice and inadequacy of alternatives before closure, in order to protect the independent First Amendment right of public access a right vital to the effective functioning of the judicial process.
(c) If the hearing is being closed to protect some interest other than the fair trial rights of the defendant, point out to the court that Ishikawa requires a showing of a "serious and imminent threat" to that interest. In any proposed closure, remind the court that Ishikawa requires specific findings as to both the necessity of closure and the unavailability of alternatives. One court has held that even the physical safety of witnesses is less compelling than preserving an open system of criminal justice.
(d) If a trial is proposed to be closed, remind the court that Kurtz is limited to pretrial suppression hearings by its own terms and that trials are governed by the First Amendment guarantees of open proceedings as set forth in Press-Enterprise II, above.

4. Again, every effort should be made, if not by you, then cooperatively with other reporters present, to contact your editor and lawyer. Your editor and lawyer should contact their counterparts for other media organizations whose reporters are present in court.

5. After contacting the lawyer, the editor should call Rowland Thompson at Allied Daily Newspapers of Washington (1-360-943-9960) to activate the Bench-Bar-Press emergency liaison procedures, or call directly to King County Superior Court Judge Robert Lasnik, chair of the liaison group, at 1-206-296-9113.

6. If the judge determines the hearing or trial is to be closed without further discussion, state politely that you object and believe that the state Constitution and the First Amendment entitle the public and the press to an adjournment of the proceeding so that counsel can present critical constitutional issues to the court.

7. If the judge orders you to leave, you should comply, but respectfully ask that you be given a written copy of the judge's closure order, setting forth the reasons for the closure.

8. Be aware of the possibility that a judge may ask you to sign an agreement or to orally commit to follow the Bench-Bar-Press Statement of Principles and Considerations as a condition on access to the courtroom.

(a) If this occurs, you should first tell the judge that you do not have authority to make such an agreement, but must consult with your editors. Then get your lawyer there as quickly as possible.
(b) If the judge will not let you consult your editor or lawyer, you will have to decide whether you should agree to such a request. The Seattle Times and its editors and reporters will not agree to such a request, as The Times believes it would be an unconstitutional prior restraint. Because of Swedberg, discussed in the previous seciton, each member of the media should determine its policy on such requests.
(c) Point out to the judge that all leading media organizations withdrew their endorsement of the guidelines, which have been superseded by a non-binding Statement of Principles and Considerations; point out that these changes make Swedberg no longer applicable.
(d) If the judge questions whether the withdrawal of endorsement means the media will no longer exercise voluntary restraint in reporting on criminal proceedings, refer him to the specific voluntary policy of your organization. (See Seattle Times policy above.)

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