Ashland Publishing Co. v. Asbury

LESTER, Judge,

concurring.

I believe this litigation to be of such significance so as to require comments upon several arguments made both orally and by way of brief by counsel.

My colleagues first approach the basic issue of press coverage of pretrial proceedings by “assessment of the competing societal interests involved” (Justice Stewart in Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2989, 61 L.Ed.2d 608, 629 (1979) quoting from Justice Powell’s dissent in Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514, 525 (1974)). This test I consider to be appropriate in cases of this nature, but in order to make this assessment an examination of the nature of the litigants should be made in order to determine what their interests might be. Even though the avowed purpose of the media is that of surrogate of the people, nevertheless, it cannot be denied that generally it is a commercial enterprise which must produce an income, and in most cases, a profit, in order to sustain itself. This is usually accomplished primarily through the sale of advertising space which, along with news items, is disseminated through an area of circulation and, in a truly competitive situation, it is the publication that prevails which can spread the news at an earlier time. As opposed to this entity is one who stands accused of a crime who can lose his liberty for a specified time or even his life, if found guilty, who should have as protection for his rights an unbiased judge and panel of potential or actual jurors together with a competent advocate. By ascribing to the newspaper industry a monetary interest, I merely wish to point out that absent such an element it would be unable to survive in order to fulfill its role of public informant as is evidenced by the recent demise of many of its members. I now turn to the specific legal contentions of the petitioners.

The publishing companies urge reversal of the trial court first relying upon Sections 8, 11 and 14 of the Kentucky Constitution.

Section 8 of the Kentucky Constitution provides:

Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.

The order of the trial court does nothing to restrain access to printing presses or deny the right to fully and freely publish on any subject but it does prohibit the immediate examination and reporting of such pretrial proceedings where only one party, the prosecution, intended to adduce evidence. This temporary denial does nothing to infringe upon the right to utilize printing presses or examine judicial proceedings, but merely delays the exercise of those privileges to a time certain. This is certainly a balancing of the rights of the the defendant and those of the corporate bodies involved.

After delineating the rights of an accused, Section 11 provides that a defendant “... shall have a speedy public trial ...” (emphasis added). It is the word “public” upon which petitioners claim they should be entitled to be admitted to pretrial proceedings, but this contention overlooks that, that particular provision addresses itself specifically to the rights of an accused and no one else. An examination of the cases dealing with Section 11 reflects that the provision has been interpreted only from the standpoint of rights of a defendant and not the public or press. See e. g. Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205 (1911); Beauchamp v. Cahill, 297 Ky. 505, 180 S.W.2d 423 (1944). Therefore, Section 11 is of little aid to petitioners.

Petitioners urge that the transcript which would be made available to them after em-panelment and sequestration of the jury *755would be most likely to reflect the crucial tones, inflections, gestures, impatience or inattentiveness of a witness which constitute the “atmosphere" of the proceeding. Curiously enough, this is the precise manner in which a case reaches the appellate courts of this jurisdiction. What petitioners seem to be saying is that they should be free to inject into their accounts of proceedings certain editorial comments or observations which are nothing more than an interpretation of their representative who is present which may or may not be accurate. This could be especially damaging to a defendant seeking an objective jury panel when such comments could be made in the report of a hearing where only his adversary introduced evidence.

Petitioners also complain of the inconvenience and costs attendant upon acquiring transcripts, but we are unaware of any commercial venture that can be operated without some costs and vexation.

The third section of our constitution (§ 14) which the media claims supports its position, states:

All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

Petitioners rely upon Johnson v. Higgins, 60 Ky. (3 Metc) 566, 570 (1862) to the effect that:

They [courts] are to be held in an open and public manner, and their proceedings are not to be secret or concealed from public view.

but this overlooks Forrester v. Terry, 357 S.W.2d 308, 310 (1962), citing Section 14 as meaning that “courts are always open for redress .... ” The very language, or shall I say the meaningful language, of the provision clearly states that the courts shall be open to every person to seek a remedy for an injury done to him. To hold otherwise would require that we throw all adoption and juvenile matters open to the public scrutiny. I cannot overlook the fact that when Johnson v. Higgins, supra, was written in 1862 and the debates on the constitution of 1890 (cited by my Brother Wilhoit) were held there was no proceeding in the law known as pretrial hearings. Moreover, Johnson v. Simpson, Ky., 433 S.W.2d 644 (1968) and Lexington Herald Leader Co., Inc. v. Tackett, Ky., 601 S.W.2d 905 (1980), addressed themselves to the trial of criminal and juvenile eases as distinguished from matters of pretrial nature.

Attention has been directed to the recent decision of the Supreme Court of Appeals of West Virginia in State ex. rel. Herald Mail Company v. Hamilton, W.Va., 267 S.E.2d 544 (1980), dealing with the same subject matter as the cause before us. That court in construing Article III, § 17 of the West Virginia Constitution (which is nearly identical to § 14 of the Kentucky Constitution) in light of that state’s open courts provision (Article III, § 14) found that pretrial proceedings are to be opened to the press. However, the Herald Mail case is distinguishable from the one at bar because West Virginia Justice Miller wrote that his Section 14 “does not couch the right to a public trial in terms of a right conferred on the defendant” while in this jurisdiction, by virtue of Section 11, the right to a public trial is guaranteed to the defendant. Therefore, I find little assistance in the opinion of our West Virginia colleagues.

In spite of the fact that I do not consider the several sections of our Constitution, either individually or collectively, as forming a basis for the relief requested, I do believe that the policy pronouncements of the majority to be sound in that there is a lesson to be learned from Johnson, Lexington Herald Leader Co., Herald Mail Co., DePasquale, all supra, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) and even Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), in that the better policy is that of openness of judicial proceedings. However, since reason requires temperance, I would subscribe to a rule that after a trial court has determined that there is no substantial probability that the right of the accused to a fair *756trial or his other constitutional rights will not be otherwise damaged, then the press should should be permitted to attend and report the pretrial hearings only if the evidence adduced thereat would be proper in the trial of the case to determine, in whole or in part, the guilt or innocence, of the defendant, provided, however, that nothing contained in the publication should convey any innuendo whatsoever as to the innocence of guilt of the accused.