dissenting:
Because I believe the constitutional guarantee of a free press prohibits the State from inviting journalists into a courtroom and simultaneously editing or censoring what they report about the proceedings, I respectfully dissent.
Section 1 — 5(6) of the Juvenile Court Act provides that “[t]he general public except for the news media and the victim shall be excluded” from juvenile hearings. (Ill. Rev. Stat. 1989, ch. 37, par. 801—5(6).) It also provides, however, that the juvenile court may, “for the minor’s protection and for good cause shown, prohibit any person or agency present in court from further disclosing the minor’s identity.” (Ill. Rev. Stat. 1989, ch. 37, par. 801—5(6).) Thus, the Act unambiguously purports to grant judges the authority to prohibit the media from disclosing a minor’s identity, even when this information is revealed in proceedings statutorily open to media attendance. The only issue presented in this case, then, is whether the trial judge’s order prohibiting the newspaper from identifying the minor victims is an unconstitutional prior restraint on the freedom of the press.
The majority correctly notes that prior restraints are not unconstitutional per se. (149 Ill. 2d at 254-55.) Nevertheless, such measures are the most serious and the least tolerable infringement on first amendment rights. (Nebraska Press Association v. Stuart (1976), 427 U.S. 539, 559, 49 L. Ed. 2d 683, 697-98, 96 S. Ct. 2791, 2802-03.) For this reason, any prior restraint bears a “heavy presumption” against its constitutional validity. Organization for a Better Austin v. Keefe (1971), 402 U.S. 415, 419, 29 L. Ed. 2d 1, 5, 91 S. Ct. 1575, 1578.
In Oklahoma Publishing Co. v. District Court (1977), 430 U.S. 308, 51 L. Ed. 2d 355, 97 S. Ct. 1045, the Supreme Court held that a newspaper could not be enjoined from publishing the name or photograph of an 11-year-old offender after reporters gained the information by attending a juvenile proceeding. (See also Smith v. Daily Mail Publishing Co. (1979), 443 U.S. 97, 61 L. Ed. 2d 399, 99 S. Ct. 2667 (holding that a statute forbidding newspapers from publishing names of juvenile offenders without court approval violates the first amendment).) The Court also has found that States may not award civil damages for invasion of privacy against television stations and newspapers that publicize the names of rape victims obtained from public records. See The Florida Star v. B.J.F. (1989), 491 U.S. 524, 105 L. Ed. 2d 443, 109 S. Ct. 2603; Cox Broadcasting Corp. v. Cohn (1975), 420 U.S. 469, 43 L. Ed. 2d 328, 95 S. Ct. 1029.
To prohibit or punish publication of truthful, lawfully obtained information, government must demonstrate that such action is necessary to further a State interest of the highest order. (Daily Mail, 443 U.S. at 104, 61 L. Ed. 2d at 405, 99 S. Ct. at 2671.) If, as the majority suggests, the privacy rights of juvenile victims of sexual abuse are greater than those of juvenile offenders and adult victims of sexual offenses, the difference in degree is not of constitutional proportion, particularly where a court presumes to tell the media what they may or may not publish in the first instance. Indeed, the United States Supreme Court has never upheld a prior restraint of information protected by the first amendment. The Court has only hypothesized that a restriction on the “publication of the sailing dates of transports or the number and location of troops” in time of war might be sufficient. (Near v. Minnesota ex rel. Olson (1931), 283 U.S. 697, 716, 75 L. Ed. 1357, 1367, 51 S. Ct. 625, 631.) Thus, while I share the majority’s concern for the privacy rights of minor victims, I do not believe the State’s interest in protecting these rights is of the magnitude necessary to sustain a prior restraint on publication.
The majority cites Seattle Times Co. v. Rhinehart (1984), 467 U.S. 20, 81 L. Ed. 2d 17, 104 S. Ct. 2199, for the proposition that the Supreme Court has sanctioned a prior restraint of the press. That case, however, involved a protective order prohibiting a newspaper, as the defendant in a civil action for defamation and invasion of privacy, from publishing information it obtained through pretrial discovery. The Court observed that “an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny.” (467 U.S. at 33, 81 L. Ed. 2d at 27, 104 S. Ct. at 2208.) The Court thus recognized that protective orders occupy a “unique” position in relation to the first amendment, and that court control over information obtained in discovery “does not raise the same specter of government censorship that such control might suggest in other situations.” (467 U.S. at 32, 81 L. Ed. 2d at 26-27, 104 S. Ct. at 2207.) Unlike Seattle Times, the case before us involves restraint of the publication of information lawfully obtained by the media in its capacity as a newsgathering organization.
I believe this case is wrongly decided precisely because, as the majority notes, reporters for the News-Gazette obtained the minors’ names at a court hearing which they were allowed to attend. The State may not, consistent with the first amendment, prohibit the publication of information obtained at a court proceeding open to the media. (Oklahoma Publishing, 430 U.S. at 310, 51 L. Ed. 2d at 357, 97 S. Ct. at 1046.) Contrary to the majority’s assertion, I believe that information disclosed at a hearing open to the media is, by definition, “publicly revealed.” Once the media or general public are allowed to attend a judicial proceeding, even if they might have been properly excluded under State law, publication of information revealed there cannot be subject to prior restraint. (Nebraska Press, 427 U.S. at 568, 49 L. Ed. 2d at 703, 96 S. Ct. at 2807.) “Those who see and hear what transpired [in a courtroom] can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.” Craig v. Harney (1947), 331 U.S. 367, 374, 91 L. Ed. 1546, 1551, 67 S. Ct. 1249, 1254.
In sum, the State cannot ask the media to secret facts it makes no effort to safeguard in the first place. (The Florida Star, 491 U.S. at 544, 105 L. Ed. 2d at 462, 109 S. Ct. at 2615 (White, J., dissenting).) “If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information.” (Cox Broadcasting, 420 U.S. at 496, 43 L. Ed. 2d at 350, 95 S. Ct. at 1047.) Unlike criminal trials, which the media and the general public have a first amendment right to attend, juvenile proceedings historically have been closed to the public. (Daily Mail, 442 U.S. at 107-09, 61 L. Ed. 2d at 407-09, 99 S. Ct. at 2673-74 (Rehnquist, J., concurring).) If the legislature can constitutionally exclude the general public from juvenile hearings, which it has done in section 1 — 5(6), it may also exclude the media, for the media have no greater first amendment rights than the public at large. Estes v. Texas (1965), 381 U.S. 532, 540, 14 L. Ed. 2d 543, 549, 85 S. Ct. 1628, 1631; Houchins v. KQED, Inc. (1978), 438 U.S. 1, 16, 57 L. Ed. 2d 553, 565-66, 98 S. Ct. 2588, 2597 (Stewart, J., concurring).
Publication of the names of minor victims of sexual abuse may be hurtful for the children and their families, and would be of little or no value to the public. The legislature, however, having granted the media a statutory right to attend juvenile hearings, cannot constitutionally establish a process by which information gathered at such proceedings is subject to prior restraint. That restraint must be left to the media.
For these reasons, I would reverse the decision of the appellate court and hold that the juvenile court judge’s order prohibiting the newspaper from disclosing the identities of the minors involved in this case violates the first amendment. Accordingly, I dissent.