concurring. I concur in the decision of the majority. This petition was previously considered by this court in Helena Daily World v. Phillips County Circuit Court, 361 Ark. 146, 205 S.W.3d 134 (2005). In that per curiam opinion, we granted the request that certain documents be certified to us under seal, and we declined to address the remaining issues until those documents were received.
As noted, the testimony that is the subject of the restraining order was given in open court. A courtroom has been characterized a “particularly public forum.” In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990). The rule is that “there is nothing that proscribes the press from reporting events that transpire in the courtroom.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 568 (1976). As the majority notes, this court has stated that, “[u]nder Nebraska Press, trial judges may not order reporters not to reveal lawfully acquired information once they have been admitted to the courtroom.” Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 781, 20 S.W.3d 301, 306 (2000). As the majority also notes, this court in Arkansas Gazette Co. v. Lofton, 269 Ark. 109, 110-11, 598 S.W.2d 745, 746 (1980), stated that:
Any restraint on the freedom of the press, even though narrow in scope and duration, is subject to the closest scrutiny and will be upheld only upon a clear showing that an exercise of this right presents a clear and imminent threat to the fair administration of justice. U.S. v. CBS, Inc., 497 F.2d 102 (5th Cir. 1974). Any prior restraint bears a heavy presumption against its constitutional validity, and the government carries a heavy burden of demonstrating justification for its imposition.
In United States v. Quattrone, 402 F.3d 304, 308 (2d Cir. 2005), the court stated that:
A judicial order forbidding the publication of information disclosed in a public judicial proceeding collides with two basic First Amendment protections: the right against prior restraints on speech and the right to report freely on events that transpire in an open courtroom.
The presumption against prior restraint is strong and any restraint will be subjected to close scrutiny by this court; however, the presumption is not absolute. There are exceptions where prior restraint will be allowed, for example, where it is required to provide a fair trial. See, e.g., Quattrone, supra. The testimony at issue concerns an unsubstantiated complaint filed with the Arkansas Judicial Discipline and Disability Commission. Anyone may file a complaint with the Commission, and the fact that a complaint has been filed means nothing more than someone has complained. It does not indicate that any action whatever has been taken by the Commission.
In support of the restraint, it is argued that Ark. Code Ann. § 16-10-404(b)(2) (Repl. 1999), as well as protection of a judge’s reputation and preservation of public confidence in the judicial system, provides justification. However, although paragraph (b)(2) provides that all proceedings held prior to a determination of probable cause on the complaint are to be confidential, that is a requirement placed on the Commission in carrying out its duties. The filing of a complaint with the Commission does not mean that anyone who happened to hear of the complaint is subject to judicial restraint. Too, as already noted in this case, the disclosure was made in open court, and “[O]nce announced to the world, the information lost its secret characteristic. ...” In re Charlotte Observer, 921 F.2d at 50.
However, only what was exposed to the world is at issue. What occurred after the parties went into chambers is not subject to disclosure, and disclosure of that discussion is not sought. It is regrettable that the court was not told before the hearing that a complaint had been filed with the Commission. However, I concur in the decision that the testimony given in open court is not subject to protection by injunction.