96-509
No. 96-509
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA, EX REL.,
THE MISSOULIAN,
Relators,
v.
MONTANA TWENTY-FIRST JUDICIAL DISTRICT
COURT RAVALLI COUNTY, and THE HONORABLE
JEFFREY H. LANGTON, Presiding District Judge,
Respondents.
ORIGINAL PROCEEDING: Supervisory Control
COUNSEL OF RECORD:
For Relator:
Steven S. Carey; Carey, Meismer & McKeon,
Missoula, Montana (argued)
For Respondents:
David E. Stenerson (argued), Kirk Krutilla,
Attorneys at Law, Hamilton, Montana
Hon. Joe Mazurek, Attorney General, Elizabeth
L. Griffing, Ass't Attorney General, Helena,
Montana
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Submitted: December 5, 1996
Decided: March 6, 1997
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
Kippy Joe Hill was charged with deliberate homicide for the
death of Laurel Elaine Camper which occurred on June 29, 1996. In
Justice Court, Hill filed a motion for an order prohibiting
dissemination of evidentiary material to the news media. On the
same day that the motion was filed, the Justice Court entered an
order barring the Ravalli County Sheriff's office, the Ravalli
County Attorney's office and anyone else involved in the
investigation, prosecution or defense of the matter, from
providing any factual or evidentiary information concerning the
case to the public or the press.
After entry of the above order by the Justice Court, the State
filed an Information against Hill in the Twenty-First Judicial
District Court. Hill then requested that the District Court adopt
the Justice Court order prohibiting dissemination of any
evidentiary information to the press or public. The State opposed
the motion and moved to quash the Justice Court order. A brief
hearing was conducted on August 14, 1996, wherein the court
proposed issuing a restrictive order tailored more narrowly than
the Justice Court order. The State agreed with the court's
proposal. The District Court then entered an order requiring that
certain restrictions on pretrial and trial publicity be followed in
conformity with Rule 3.6 of the Rules of Professional Conduct. The
court's order (hereinafter referred to as "participant gag order")
applied the Rule, not just to attorneys, but to the defendant,
defense witnesses, prosecution witnesses, court staff and all law
enforcement officers. Three days later, the District Court
followed up its order with a Memorandum reiterating its
restrictions and also directing that no evidentiary material was to
be filed with the court unless it were under seal.
The Missoulian, a local newspaper, filed an Application for
Writ of Supervisory Control asking this Court to assume original
jurisdiction of this matter to correct the District Court's
mistakes of law in issuing the restrictive order and in requiring
that any filings referencing evidence in the case be submitted
under seal. In an order dated October 17, 1996, we ordered
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briefing in the matter and on November 21, 1996 entertained oral
argument. We reverse the restrictive order and remand for further
proceedings.
Factual Background
Neither the Justice Court nor the District Court took any
evidence or made any factual findings with regard to their
respective restrictive orders. Thus, the record before this Court
consists solely of the pleadings and the District Court's
"Restrictive Order" of August 16, 1996 and subsequent "Memorandum
and Order" dated August 19, 1996.
Appropriateness of Writ of Supervisory Control
Article VII, Section 2 of the Montana Constitution gives this
Court "original jurisdiction, to issue, hear, and determine writs
. . . ." Supervisory control is appropriate where the district
court is proceeding under a mistake of law, and in so doing is
causing a gross injustice. State ex rel. Forsyth v. District Court
(1985), 216 Mont. 480, 484, 701 P.2d 1346, 1348 (overruled on other
grounds); State ex rel. Fitzgerald v. District Court (1985), 217
Mont. 106, 114, 703 P.2d 148, 153-54.
Recently, in State ex rel. Mazurek v. District Court (Mont.
1996), 922 P.2d 474, 476-77, 53 St.Rep. 678, 679, we stated:
"Supervisory control is an extraordinary remedy, to
be exercised only in extraordinary circumstances. We
have said . . . that to justify such a writ an exigency
or emergency must be shown to exist, or that a gross
injustice would result from a denial of the writ, and the
absence of other adequate relief. . . . [Supervisory
control] has its own appropriate functions, and, without
undertaking to define particularly what these functions
are, we think one of them is to enable this court to
control the course of litigation in the [district] courts
where those courts are proceeding within their
jurisdiction, but by mistake of law, or willful disregard
of it, are doing a gross injustice, and there is no
appeal or the remedy by appeal is inadequate. . . ."
State ex rel. Forsyth v. District Court (1985), 216 Mont.
480, 484, 701 P.2d 1346, 1348 (quoting State ex rel.
O'Sullivan v. District Court (1946), 119 Mont. 429,
431-32, 175 P.2d 763, 764); accord State ex rel. Mapes v.
District Court (1991), 250 Mont. 524, 528-29, 822 P.2d
91, 94.
It is significant to note that we have issued writs of
supervisory control in other cases involving media challenges to
court-imposed restrictions on access to information about the
criminal trial process. Great Falls Tribune v. District Court
(1980), 186 Mont. 433, 608 P.2d 116 and State ex rel. Smith v.
District Court (1982), 201 Mont. 376, 654 P.2d 982. We determine
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that the Missoulian's petition presents legal issues which are
appropriate for us to resolve through a writ of supervisory
control.
Questions Presented
Although the Missoulian submits the same arguments for the
reversal of the court's participant gag order and of the court's
sealing of evidentiary documents, the requirement that filings be
under seal presents an issue separate and distinct from the issue
presented by the participant gag order. We determine that the
District Court order presents the following two distinct questions
for our consideration:
I Did the court's order violate Article II, Section 9
of the Montana Constitution and 46-11-701, MCA, when it
directed that no evidentiary material could be filed with
the court unless it were under seal?
II Did the court's order violate the First Amendment to
the United States Constitution, Article II, Section 9 of
the Montana Constitution and 46-11-701, MCA, when it
directed that the defense counsel and staff, defendant,
county attorney and staff, court staff, and all law
enforcement officers be bound by the Rules of
Professional Responsibility regarding restrictions on
pretrial publicity and trial publicity?
Discussion
I Did the court's order violate Article II, Section 9
of the Montana Constitution and 46-11-701, MCA, when it
directed that no evidentiary material could be filed with
the court unless it were under seal?
In its Memorandum and Order of August 19, 1996, the District
Court ordered that:
no further evidentiary material be filed with the Court
unless it is under seal. Motions or briefs shall not
refer to evidentiary matters not already of public record
as of this date in the Court file except in general
terms.
The Missoulian alleges that the District Court erred in not
complying with the requirements of 46-11-701(3), MCA, before
ordering that all future documents referring to evidentiary matters
be filed under seal. Section 46-11-701(3), MCA, provides:
The judge may close a preliminary hearing, bail
hearing, or any other pretrial proceeding, including a
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hearing on a motion to suppress, and may seal the record
only if:
(a) the dissemination of information from the
pretrial proceeding and its record would create a clear
and present danger to the fairness of the trial; and
(b) the prejudicial effect of the information on
trial fairness cannot be avoided by any reasonable
alternative means.
Although not articulated in its brief, the Missoulian presumes
that the "any other pretrial proceeding" language in subsection (3)
includes the filing of court documents. Although "any other
pretrial proceeding" could be construed as limited to proceedings
in court it could also be construed to include filings of documents
pertinent to the pretrial process as a whole. We hold that
"pretrial proceeding" as used throughout 46-11-701, MCA, is
ambiguous, and we must therefore look beyond the plain words of the
statute to determine its meaning. When legislative intent cannot
be determined from the plain words of a statute the court must
examine the legislative history of the statute. Christenot v.
State, Dept. Of Commerce (1995), 272 Mont. 396, 401, 901 P.2d 545,
548 (citing Lewis & Clark County v. State, Dept. Of Commerce
(1986), 224 Mont. 223, 226, 728 P.2d 1348, 1350).
Section 46-11-701, MCA, was enacted in 1991 in response to our
decision in State ex rel. Smith v. District Court (1982), 201 Mont.
376, 654 P.2d 982, in which we addressed a request to exclude the
press from a pretrial suppression hearing. Defendant Smith asked
this Court to close the evidentiary hearing to the public and the
press on the grounds that his fair trial rights would be
substantially affected by dissemination of evidence that might be
suppressed. Smith, 654 P.2d at 984. We held that, under the Right
to Know provision of Article II, Section 9 of the Montana
Constitution and the right of access recognized under the First and
Fourteenth Amendments to the United States Constitution, the public
and press can be excluded from a pretrial suppression hearing "only
if dissemination of information acquired at the hearing would
create a clear and present danger to the fairness of defendant's
trial and no reasonable alternative means can be utilized to avoid
the prejudicial effect of such information." Smith, 654 P.2d at
987. In arriving at that conclusion, we adopted, in toto, Standard
8-3.2 of the American Bar Association Standards for Criminal
Justice (2nd ed. 1978) as the appropriate test to reconcile the
competing interests of public access and trial fairness. That
Standard was later codified as 46-11-701, MCA.
The text containing the history of ABA Standard 8-3.2 states
explicitly that "the standard governs both the closing of pretrial
proceedings and the sealing of court records." (Emphasis added.)
Given that the legislature adopted the standard in toto it follows
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that the legislature intended 46-11-701, MCA, to comport with the
directives of the Standard. Furthermore, the policy reason behind
closing the pretrial suppression hearing in Smith, that of
preventing possibly inadmissable evidence from prejudicing
potential jurors, is equally applicable to the sealing of
evidentiary materials submitted in various court documents normally
accessible to the public. We hold, therefore, that "pretrial
proceedings," as used in 46-11-701, MCA, includes all documents
filed in conjunction with the pretrial process, regardless of
whether they constitute "records" of a specific court hearing. In
the present case, the record, although sparse, makes it abundantly
evident that the District Court did not comply with the explicit
requirements of 46-11-701(3), MCA. That is, the court did not
conduct an evidentiary hearing and determine that dissemination of
information contained in court filings would present a clear and
present danger to trial fairness. Neither did the court consider
reasonable alternatives to imposing a blanket order sealing all
documents containing reference to evidentiary matters.
In fairness to the trial court, it should be noted that the
order was entered with the consent of counsel for the State and for
the defendant. Thus, given the consent of the parties, there would
appear to be no basis for faulting the court for failure to hold an
evidentiary hearing and make appropriate findings. However,
consent of the parties cannot serve to override the clear intent of
46-11-701, MCA, to balance the public's right to know with the
defendant's right to a fair trial. This balancing can only be
accomplished by including the media in the process even though the
media is not a "party" to the proceeding in the usual sense of that
term. Section 46-11-701(1), MCA, specifically requires that the
trial judge "shall seek the voluntary cooperation of the news media
in delaying dissemination of potentially prejudicial information
until the impaneling of the jury or until an earlier time
consistent with the administration of justice." In the context of
a decision to seal court records, that means that the judge must
allow the media to be heard as to whether there are any "reasonable
alternative means" available to sealing the records. Section 46-
11-701(3)(b), MCA. The parties cannot, by agreement, obviate this
requirement. Given that the District Court did not have the
benefit of any precedent from this Court interpreting 46-11-701,
MCA, we understand why the court proceeded to act on the basis of
consent of the parties. We determine, however, that such a
procedure fails to comply with the requirements of 46-11-701,
MCA, which not only requires specific findings by the court but
also requires that the media be allowed to participate in the
decision making process.
Additionally, the Montana Constitution provides the public,
including the media, with a "right to know" under Article II,
Section 9 of the Montana Constitution. Smith, 654 P.2d at 985;
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Great Falls Tribune, 608 P.2d at 119. The Right to Know provision
provides:
No person shall be deprived of the right to examine
documents or to observe the deliberations of all public
bodies or agencies of state government and its
subdivisions, except in cases in which the demand of
individual privacy clearly exceeds the merits of public
disclosure.
The court order in question requires that no evidentiary materials
can be "filed with the court" except under seal. When a paper is
"filed with the court," it is filed with the clerk of court. The
clerk of court is a "public body" of the county, which, in turn, is
a subdivision of state government. As such, filings with the clerk
of court fall within the Right to Know provision of Article II,
Section 9 of the Montana Constitution. Associated Press v. State
of Montana (1991), 250 Mont. 299, 820 P.2d 421 (overruled in part
on other grounds). In Associated Press we held that a statutory
requirement that all affidavits filed in support of a motion for
leave to file a criminal charge or warrant be filed under seal was
an unconstitutional infringement of the publicþs right to know
under Article II, Section 9 of the Montana Constitution.
Associated Press, 820 P.2d at 423. Evidentiary materials "filed
with the court" likewise fall within the Right to Know provision.
Because the public has a constitutionally protected right to
examine public documents, and a defendant has a constitutionally
protected right to a fair trial under Article II, Section 24 of the
Montana Constitution, a district court's decision to seal court
records must satisfy the standard set out in 46-11-701(3), MCA,
which balances these competing interests. Accordingly, we reverse
the court's order requiring the filing of documents under seal and
remand for further proceedings consistent with our holding above.
II Did the court's order violate the First Amendment to
the United States Constitution, Article II, Section 9 of
the Montana Constitution and 46-11-701, MCA, when it
directed that the defense counsel and staff, defendant,
county attorney and staff, court staff, and all law
enforcement officers be bound by the Rules of
Professional Responsibility regarding restrictions on
pretrial publicity and trial publicity?
For purposes of this discussion, we refer to the media's
"right to know" but we note that this right is derivative from, and
no greater than, the public's right to know under Article II,
Section 9 of the Montana Constitution.
We begin our analysis of this issue by examining our two prior
decisions in which we addressed the interplay between the
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defendant's right to a fair trial and the public's right to know
guaranteed by Article II, Section 9 of the Montana Constitution.
In 1980 we decided Great Falls Tribune v. District Court
(1980), 186 Mont. 433, 608 P.2d 116, in which a district court
ordered that individual voir dire examination of prospective jurors
in a criminal case be closed to the press and the public. The
Tribune sought a writ of supervisory control directing the court to
allow the newspaper reporter to attend and observe or to hold a
hearing and issue findings of fact and conclusions of law showing
that the defendant's right to a fair trial would be jeopardized by
allowing the media access. We issued an order directing the
district court to hold a hearing and submit findings and
conclusions to this Court concerning its reasons for closing the
voir dire exam. Great Falls Tribune, 608 P.2d at 118. The
district court conducted a hearing and, in its findings and
conclusions, rejected various alternatives (sequestration of
prospective jurors, change of venue and continuance of trial date)
to closure of voir dire. The court based the closure on its
finding of substantial prejudicial pretrial publicity,
misstatements of fact, disclosure of defendant's prior criminal
record and disclosure of evidence not generally known to the
public. Great Falls Tribune, 608 P.2d at 118.
In rejecting the district court's rationale for closure, we
noted that, although the United States Supreme Court had held that
the press has no federal constitutional right to access to a
suppression hearing, Gannett Co., Inc. v. DePasqualle (1979), 443
U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608, the analysis is
considerably different under the Right to Know provision of Article
II, Section 9 of the Montana Constitution, which guarantees that
any person has the constitutional right to observe court
proceedings unless the demands of individual privacy clearly exceed
the merits of public disclosure. We held that:
Closure of judicial proceedings breeds suspicion and
mistrust in the minds of the public and representatives
of the media. Such closure is simply censorship at the
source -- a denial of the right to know.
Great Falls Tribune, 608 P.2d at 119. We also held that the
public's right to know under Article II, Section 9 of the Montana
Constitution had to be balanced against the defendant's right to a
speedy trial by an impartial jury under Article II, Section 24 of
the Montana Constitution. Great Falls Tribune, 608 P.2d at 119.
In applying that balancing test to the case under consideration, we
were unable to see how closing the voir dire examination to the
public was necessary to guarantee the right to a fair trial. In
reaching that conclusion, we noted a further distinction between
the case presented and the Gannett case. In contrast to Gannett,
which involved a pretrial suppression hearing, the Great Falls
Tribune case involved closure of voir dire which is an integral
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part of the trial itself.
Closing any part of the trial is simply the first step
down that primrose path that leads to destruction of
those societal values that open, public trials promote.
Nothing short of strict and irreparable necessity to
ensure defendant's right to a fair trial should suffice.
Great Falls Tribune, 608 P.2d at 121 (emphasis added). We vacated
the order and ordered that the public and the press be allowed to
attend the voir dire examination.
Two years later in Smith, we adopted Standard 8-3.2 of the
ABA, governing closure of trial proceedings. Smith, 654 P.2d at
987. In Smith, the defendant in a criminal prosecution applied for
a writ of supervisory control seeking to exclude the public and
media from a pretrial suppression hearing. We first analyzed the
effect of United States Supreme Court decisions, rendered since our
previous decision in Great Falls Tribune, regarding the interface
between a defendant's constitutional right to a fair trial and the
right of the public and press to observe criminal proceedings.
Smith, 654 P.2d at 985. In Richmond Newspapers, Inc. v. Virginia
(1980), 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973, the United
States Supreme Court recognized the public and press' right of
access to criminal trials under the First Amendment and applied to
the states through the Fourteenth Amendment. We noted that,
although the Court had construed the First and Fourteenth
Amendments as providing a right of access to criminal trials, a
right of access to pretrial criminal proceedings had not been
recognized in the federal courts.
In contrast, the broad language contained in the Great
Falls Tribune case, "that any person has the
constitutional right to observe court proceedings,"
[citation omitted] most certainly encompasses pretrial
proceedings as well as the actual trial.
Smith, 654 P.2d at 986.
We jettisoned the "strict and irreparable necessity" standard
from Great Falls Tribune and adopted the ABA Standard as the
appropriate test to reconcile the competing interests of public
access and trial fairness. Thus, based upon the Right to Know
provision of Article II, Section 9 of the Montana Constitution and
the right of access recognized under the First and Fourteenth
Amendments to the United States Constitution, we held
that the public and press may be excluded from a pretrial
suppression hearing only if dissemination of information
acquired at the hearing would create a clear and present
danger to the fairness of defendant's trial and no
reasonable alternative means can be utilized to avoid the
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prejudicial effect of such information.
Smith, 654 P.2d at 987.
We also specifically encouraged trial judges to seek the
voluntary cooperation of the news media before invoking closure.
Finally, in the context of Smith's motion to suppress evidence due
to an allegedly illegal search, we required the district court and
the parties to consider the efficacy of entering a prehearing
protective order forbidding mention during the hearing of specific
items of evidence sought to be suppressed. In remanding for a
hearing under the standard set forth, we concluded: "Only if the
trial court finds that there is a 'clear and present danger' and
that less restrictive alternatives, including a protective order,
cannot protect defendant's right to a fair trial, should closure be
ordered." Smith, 654 P.2d at 988.
Having summarized our two decisions involving fair trial and
public access, it is important to point out that the case sub
judice is distinguishable from both Smith and Great Falls Tribune
in that it does not involve a trial court order closing a pretrial
or trial "proceeding." Rather, the present case involves an order
prohibiting the parties, their attorneys, court staff, and members
of law enforcement from disseminating information about the case,
other than as permitted under Rule 3.6 of the Montana Rules of
Professional Conduct. Such trial participant gag orders are
distinguishable from closure of court proceedings. In Section I of
this Opinion we held that "pretrial proceedings" as used in 46-
11-701, MCA, encompasses the filing of all documents with the
court. The gag order, on the other hand, restricts participants
from discussing the case outside of the courtroom. This
restriction cannot be said to constitute part of the pretrial
proceedings in that the restriction does not pertain to any
official documents or statements that constitute part of the court
record in the case. Since a participant gag order does not
implicate "pretrial proceedings" it is not subject to the scrutiny
of 46-11-701, MCA. Therefore, the District Court did not err by
issuing a participant gag order without satisfying the requirements
of 46-11-701, MCA. Nevertheless, we must still address the
question of whether the participant gag order violates the media's
First Amendment rights or its right to know under Article II,
Section 9 of the Montana Constitution.
The Doctrine of Prior Restraint
The first question we address is whether the court's order,
which indirectly restrains the media's access to certain sources of
information regarding the trial proceedings, constitutes a prior
restraint, thereby violating the media's First Amendment rights.
The doctrine of prior restraint on publication finds its roots in
the United States Supreme Court decision in Near v. Minnesota ex
rel. Olson (1931), 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, in
which the Court struck down a statute which allowed Minnesota to
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enjoin publication of malicious, scandalous and defamatory
newspapers. The Court stated: "it has been generally, if not
universally, considered that it is the chief purpose of the
[freedom of press] guaranty to prevent previous restraints upon
publication." Near, 283 U.S. at 713. The Court held that the
order entered pursuant to the Minnesota statute was an
unconstitutional prior restraint of the press.
A court may impose a prior restraint on the media for the
purpose of protecting the integrity of criminal proceedings only if
"the gravity of the 'evil,' discounted by its improbability,
justifies such invasion of free speech as is necessary to avoid the
danger." Nebraska Press Ass'n v. Stuart (1976), 427 U.S. 539, 562,
96 S.Ct. 2791, 2804, 49 L.Ed.2d 683, 699. The Court in Nebraska
Press Ass'n held that a court order prohibiting publication of a
criminal defendant's confession constituted an unconstitutional
prior restraint on publication. In expressing its concerns about
prior restraints, the Court stated, "[i]f it can be said that
threat of criminal or civil sanctions after publication 'chills'
speech, prior restraint 'freezes' it at least for the time."
Nebraska Press Ass'n, 427 U.S. at 559. The Court in Nebraska Press
Ass'n relied on "[p]rofessional studies . . . recommending that
trial courts in appropriate cases limit what the contending
lawyers, the police, and witnesses may say to anyone[,]" Nebraska
Press Ass'n, 427 U.S. at 564, thereby intimating that, in lieu of
prior restraints on the media, restraints on trial participants may
be an appropriate means for minimizing prejudicial communications
concerning trial proceedings.
In the wake of Nebraska Press Ass'n, there has been
considerable disagreement as to whether participant gag orders are
prior restraints on the media. Those cases holding that such
orders are prior restraints on the media are typified by the Tenth
Circuit decision in Journal Publishing Co. v. Mechem (10th Cir.
1986), 801 F.2d 1233. The Tenth Circuit, in response to a
publisher's challenge, held that a court order which prohibited
jurors from post-trial interviews with the media was an
unconstitutional restraint upon the publisher's First Amendment
right to gather news. See also CBS, Inc. v. Young (6th Cir. 1975),
522 F.2d 234 (holding that a participant gag order was a prior
restraint on CBS' right to gather news); Connecticut Magazine v.
Moraghan (D.Conn. 1987), 676 F.Supp. 38 (holding that a gag order
directed at the trial attorneys constituted a prior restraint on
the right to gather news and derivatively on publication and was
therefore unconstitutional).
Other courts take the view that an order which is not directed
at the media does not constitute a prior restraint on publication.
The Second Circuit employed this rationale in Dow Jones & Co. v.
Simon (2nd Cir. 1988), 842 F.2d 603, cert. denied, 488 U.S. 946.
In Dow Jones, the trial court had prohibited parties and attorneys
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from making extrajudicial statements to the media. Media
organizations challenged the order as being a prior restraint of
their right to gather news. Dow Jones, 842 F.2d at 608. The
Circuit Court held that the determination of whether a gag order
constitutes a prior restraint depends upon the status of the
challenging party. A gag order constitutes a prior restraint when
challenged by the "individual gagged," but not when challenged by
a "third party." Dow Jones, 842 F.2d at 609. The court
acknowledged that the order in question limited the "flow of
information readily available to the news agencies. . . ." Dow
Jones, 842 F.2d at 608. Nonetheless, it held that the order was
less intrusive upon the media than an order which directly
threatened to sanction the media. While an order directed at the
media would be examined under the prior restraint standard, an
indirect restraint would be permitted upon a showing of "a
'reasonable likelihood' that pretrial publicity [would] prejudice
a fair trial." Dow Jones, 842 F.2d at 610. In Dow Jones, the
order in question was buttressed by evidence of a threat to the
administration of justice and evidence that the lower court had
considered less restrictive alternatives such as change of venue,
postponement of trial, extensive voir dire and jury sequestration.
Dow Jones, 842 F.2d at 611.
The Second Circuit distinguished prior restraints from
participant gag orders by pointing out that participant gag orders
lack the "most offensive aspect of a prior restraint [which] is the
censorship involved by forbidding the dissemination of information
already known to the press and therefore public." Dow Jones, 842
F.2d at 608. It is this right to engage in the editorial process
free from government intervention which is the core of the
constitutional guarantee of a free press. Although participant gag
orders impede the flow of communication, they do not intrude upon
the prerogative of the media to publish that which it knows. Thus,
the Second Circuit held that participant gag orders are not subject
to the same level of scrutiny as direct restraints against the
press and will be upheld if "reasonable." Dow Jones, 842 F.2d at
609-610.
We agree with the Second Circuit that prior restraint analysis
is dependent upon the status of the party bringing the challenge.
Additionally, prior restraint analysis is dependent on whether the
restraint impacts the media's prerogative to publish that which it
knows as opposed to its ability to acquire new information.
While an order restraining the trial participants from
communicating with the press may be a prior restraint upon the
participants as communicators, it is not a prior restraint upon the
press. Since a gag order imposed on trial participants does not
"prohibit the publication or broadcast of particular information or
commentary," it does not constitute a "previous" or "prior"
restraint upon publication of speech. Nebraska Press Ass'n, 427
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U.S. at 556. The distinction between restraining orders directed
at trial participants challenged by the press and those challenged
by the trial participants themselves is illustrated by two
decisions from the Ninth Circuit Court of Appeals involving the
same restraining order. Compare Radio and Television News Ass'n v.
United States District Court (9th Cir. 1986), 781 F.2d 1443
(holding that a restraining order not directed at the press does
not restrain the press' First Amendment rights) with Levine v.
United States District Court (9th Cir. 1985), 764 F.2d 590, 595
(holding that "the district court's order is properly characterized
as a prior restraint" on counsel's First Amendment right to free
speech).
As one commentator has observed, the Radio and Television
decision illustrates that the prior restraint doctrine does not
accommodate receiverþs rights and is "insensitive to restriction of
the communication process as a whole." Note, A Prior Restraint by
Any Other Name: The Judicial Response to Media Challenges of Gag
Orders Directed at Trial Participants, 88 Mich. L. Rev. 1171, 1181
(1990). The same commentator correctly notes that the prior
restraint doctrine, in that it focuses solely on the communicator
rather than the receiver of the communication, does not extend any
protection to the communication process as a whole.
Given that the prior restraint doctrine protects only the
rights of the communicator, another means of protecting the
communication process as a whole, and the rights of receivers of
information in particular, must be employed to safeguard the entire
bundle of rights guaranteed by the First Amendment to the United
States Constitution and Article II, Section 7 of the Montana
Constitution.
The primary purpose of the First Amendment to the United
States Constitution is to encourage and protect an "unfettered
interchange of ideas for the bringing about of political and social
changes. . . ." New York Times Company v. Sullivan (1964), 376
U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686, 700. In other
words, the First Amendment protects not just speech itself but the
entire process of communication, including the exchange of ideas
and information between speaker and listener.
Although the United States Constitution, unlike the Montana
Constitution, does not specifically guarantee a "right to know," a
right to receive information has been recognized under First
Amendment principles. See Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Counsel, Inc. (1976), 425 U.S. 748, 96
S.Ct. 1817, 48 L.Ed.2d 346, in which the Court invalidated a
statute which prohibited pharmacists from advertising prices of
prescriptions. In holding that the ban violated consumersþ First
Amendment rights to receive information, the Court extended First
Amendment protection "to the communication, to its source and to
its recipients both." Virginia Bd. of Pharmacy, 425 U.S. at 756.
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See also Red Lion Broadcasting Co. v. F.C.C. (1969), 395 U.S. 367,
89 S.Ct. 1794, 23 L.Ed.2d 371, in which the Court required
broadcasters to provide equal air time to competing political
interests, holding that the "right of the viewers and listeners,
not the right of broadcasters, . . . is paramount." Red Lion, 396
U.S. at 390.
Recognition of the recipient's rights is particularly
compelling in Montana where there exists, in addition to the right
to free speech found in the First Amendment to the United States
Constitution and in Article II, Section 7 of the Montana
Constitution, the "Right to Know" provision of Article II, Section
9 of the Montana Constitution.
The "Right to Know" provision grants the citizens of this
state the right of access to all public documents and deliberations
of public bodies. The contents of a communication which a trial
participant might wish to make outside the courtroom or prior to
trial, could be, under most circumstances, considered private
communication rather than a governmental proceeding and thus not
subject to the publicþs right to know. However, Article II,
Section 9's guarantee of a right to know grants the public an
interest in receiving information about the criminal process.
Great Falls Tribune, 608 P.2d at 119; Smith, 654 P.2d at 986. This
interest is broader than mere access to in-court proceedings or
official court filings. Rather, the public has a right to receive
information about the entire criminal law process. We hold that
the right to know extends to receiving any information which
pertains to the criminal law process, regardless of whether that
information emanates directly from the courthouse or indirectly
from those who are participating in the system as law enforcement
officers, attorneys, parties or witnesses and who may wish to
communicate with the public or the press about the process.
Our holding that the public and press have a right to know
about the entire criminal law process is buttressed by the Ohio
Supreme Court decision in State ex rel. National Broadcasting
Company, Inc. v. Court of Common Pleas (Ohio 1990), 556 N.E.2d
1120. The Ohio Supreme Court held that a participant gag order,
similar to the order at bar, violated the public's right of access
to criminal proceedings under both the federal and state
constitutions. In a previous case, the Ohio court had established
that a newspaper had standing to challenge a trial court order
prohibiting the public and reporters from pretrial hearings. The
court in NBC, Inc. held that the same reasoning applied "with no
less force to the criminal case as a whole," even though an order
not directed at the media was a "lesser restriction" on access.
NBC, Inc., 556 N.E.2d at 1124.
The Ohio Supreme Court relied on the United States Supreme
Court decision in Press-Enterprise Co. v. Superior Court of
California (1986), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1, which
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held that the media had a First Amendment right of access to a
transcript of a preliminary hearing, where the defendant could not
show a "substantial probability" that his right to a fair trial
would be prejudiced by releasing the information. Press-
Enterprise, 478 U.S. at 14-15. The Court in Press-Enterprise based
its holding on the federal constitutional right of access to
proceedings which have "historically been open to the press and
general public" and in which "public access plays a significant
positive role in the functioning of the particular process in
question." Press-Enterprise, 478 U.S. at 8. The Ohio Supreme
Court, relying on Globe Newspaper Co. v. Superior Court (1982), 457
U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248, held that "[c]riminal
trials have historically been open to the public, and public access
has always been considered essential to the fair and orderly
administration of our criminal justice system." NBC, Inc., 556
N.E.2d at 1124. The Ohio Supreme Court further recognized that the
"open courts" provision of the Ohio Constitution also embraced a
right of access. NBC, Inc., 556 N.E.2d at 1124. Because both
federal and state constitutional principles recognized a right of
access to criminal proceedings "as a whole," the court held that
the participant gag order as challenged by the media was subject to
scrutiny under the test established in Press-Enterprise for
determining the constitutionality of restrictions on access to
criminal trial proceedings. NBC, Inc., 556 N.E.2d at 1125.
We hold that participant gag orders, including the one at bar,
do not constitute prior restraints on publication, and therefore
are not subject to traditional prior restraint analysis. And,
although 46-11-701, MCA, contains a standard for reviewing
indirect restraints on the media, its provisions govern only access
to official court proceedings and documents. Although participant
gag orders are also an indirect restraint on the media, the
restraint is not as intrusive as in the case of closure of
proceedings which cuts off the media's access to official court
proceedings. For this reason, a lesser level of scrutiny should be
adopted to determine the constitutionality of a participant gag
order. The level of scrutiny must protect both the defendant's
right to a fair trial and the media's right to know under Article
II, Section 9 of the Montana Constitution and the media's right to
free speech under the First Amendment to the United States
Constitution and Article II, Section 7 of the Montana Constitution.
Having recognized that Article II, Section 9 of the Montana
Constitution guarantees the media a right to receive information
about criminal proceedings, it is implicit that the media should
not have information about the trial process restricted except to
the extent that restrictions are required to protect the
defendantþs right to an impartial jury under Article II, Section
24.
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As indicated above, the "clear and present danger" standard
employed by the prior restraint on publication doctrine is by
definition and historical usage directed at the rights of the
communicator rather than the recipient and thus does not adequately
protect the media's right to receive information; that is, its
right to "know" as opposed to its right to publish that which it
already knows. Accordingly, we decline to employ the common law
"clear and present danger" standard in evaluating a participant gag
order challenged by the media. We likewise decline to employ the
statutory "clear and present danger" standard used in 46-11-
701(3), MCA, because we hold that the media has a lesser interest
in communicating with trial participants than in accessing
official court documents or court proceedings. By the same token,
we find the "reasonableness" standard used by the Second Circuit in
the Dow Jones decision too lenient a standard to adequately protect
the right to know under Article II, Section 9.
As we recognized in Great Falls Tribune, the publicþs right to
know under Article II, Section 9 must be balanced against the
defendantþs right to an impartial jury under Article II, Section
24. In the context of a participant gag order, this balancing
should be accomplished pursuant to a heightened scrutiny standard.
Similar to the heightened scrutiny standard applied by courts for
constitutional equal protection analysis, a heightened scrutiny
standard applied to participant gag orders eliminates the stark
choice between judging gag orders on either a reasonableness test
or a "clear and present danger" test. The "clear and present
danger test," in effect, treats first amendment rights as
paramount; thus making it difficult to truly "balance" such rights
against the right to a fair trial. As Justice White expressed in
his concurring opinion in Nebraska Press Ass'n, "there is grave
doubt" that a prior restraint on the press would ever be justified
under the "clear and present danger" test. Nebraska Press Ass'n,
427 U.S. at 570-71 (White, J., concurring). A heightened scrutiny
standard employs a middle-ground approach which accommodates the
competing interests of free speech and fair trial rights.
Consistent with the Ohio Supreme Court's use of a heightened
scrutiny test for the issuance of gag orders, we hold that where
the rights of the accused to a fair trial are asserted, a gag order
may issue only when the following conditions have been met: (1) the
press and general public must be given an opportunity to be heard
on the question before issuance of the order; (2) the court
describes what reasonable alternatives have been considered and
explains why those reasonable alternatives cannot adequately
protect the defendant's fair trial rights; (3) the order is
narrowly tailored to serve the interest of protecting the
defendant's fair trial rights; and (4) the court has made specific
findings that there is a substantial probability that the
defendant's right to a fair trial will be prejudiced by publicity
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that the gag order would otherwise prevent. This test grants more
protection to the defendant than allowed under traditional prior
restraint analysis and at the same time guarantees greater
protection of the public's right to know under Article II, Section
9 of the Montana Constitution than offered by a reasonableness
test. First, the participant speech in question must pose a
substantial probability of harm to the trial process as compared
with posing a clear and present danger to the trial process as is
required to uphold a prior restraint or to close proceedings under
46-11-701, MCA. Secondly, unlike the reasonableness test, the
heightened scrutiny test requires an order to be narrowly drawn.
Broad sweeping gag orders which restrict "all counsel and Court
personnel, all parties concerned with this litigation, whether
plaintiffs or defendants, their relatives, close friends, and
associates" from discussing the case "in any manner whatsoever"
with the media will not pass muster. CBS, Inc., 522 F.2d at 236.
Employing a heightened scrutiny standard to participant gag
orders challenged by the media protects the media's First Amendment
rights as receivers of information and protects its "right to know"
guaranteed under Article II, Section 9 of the Montana Constitution.
Summary
In summary, prior restraints on publication consist of court
imposed restrictions (1) which are directed at the media, and (2)
which intrude upon the media's editorial process by interfering
with its right to publish material which it already possesses.
Prior restraints are subject to the "clear and present danger" test
established in New York Times.
Indirect restraints of the media include (without limitation):
(1) Restraints which are aimed at the media's ability to
gather information or to access official proceedings but which do
not intrude upon the media's prerogative to publish or edit
information already in its possession. Examples include orders
which prohibit the press from attending voir dire examinations or
pretrial suppression hearings. Such restrictions are not "prior
restraints" on publication but are, nonetheless, subject to the
"clear and present danger" standard under Smith, 654 P.2d 982 and
46-11-701, MCA.
(2) Restraints which are not directed at the media but at the
sources of information; for example, participant gag orders.
Although such restrictions infringe upon the media's ability to
access news and thus the public's right to know, they are not
"prior restraints" upon the media's right to edit or publish that
which it knows.
On a continuum, the participant gag order is not as intrusive
as a "prior restraint" upon publication nor as intrusive as an
order restricting news sources through closure of court proceedings
or sealing of court documents, both of which trigger a "clear and
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present danger" test. The participant gag order does, nonetheless,
impinge upon the media's right to access news and thereby further
the public's right to know. Such orders are, thus, subject to a
heightened scrutiny analysis.
Conclusion
We HEREBY reverse the District Court's Restrictive Order and
subsequent Memorandum and Order and remand for further proceedings
consistent with this Opinion including application of the standard
set forth in 46-11-701, MCA, to any decision to seal court
documents and application of the heightened scrutiny standard to
the issuance of any participant gag order. Without necessarily
approving of the use of a Rule of Professional Conduct to regulate
trial participant speech, we note for the District Court's
consideration that Rule 3.6 of the Montana Rules of Professional
Conduct no longer comports with the ABA Model Rule 3.6. The ABA
Model Rule 3.6 was modified in 1994 in response to the United
States Supreme Court's criticism of the Rule in Gentile v. State
Bar of Nevada (1991), 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d
888. The Court found that in applying a Nevada Supreme Court rule
nearly identical to ABA Model Rule 3.6, "[t]he lawyer has no
principle for determining when his remarks pass from the safe
harbor of the general to the forbidden sea of the elaborated."
Gentile, 501 U.S. at 1048-49. The new version of the ABA Model
Rule 3.6 clarified the list of presumptive statements that an
attorney was allowed to make under the previous Rule and provided
the attorney with a right of reply. Model Rules of Professional Conduct
Rule 3.6(c) (1994). In the event the District Court issues a
restrictive order upon remand, it should evaluate whether the
unmodified Rule 3.6 of the Montana Rules of Professional Conduct is
an appropriate model upon which to base a restrictive order in
light of the ABA modification of the Rule.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ J. A. TURNAGE
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY
Justice James C. Nelson dissents as follows:
I agree that the District Court's August 16, 1996 Restrictive
Order should be reversed. I concur in our discussion and analysis
as to the appropriateness of supervisory control and as to Issue 1.
I respectfully dissent from our decision that the trial participant
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or indirect gag order imposed by the court in this case is not a
prior restraint on the media's right to gather news and to publish
and, derivatively, on the public's right to know and receive
information. To the contrary, I conclude that such a gag order is
a de facto prior restraint that presents the same evil of
"censorship at the source" which we heretofore condemned in Great
Falls Tribune v. District Court (1980), 186 Mont. 433, 438, 608
P.2d 116, 119, and that traditional prior restraint analysis is,
therefore, required.
Before setting out the legal analysis of my disagreement with
our decision on Issue 2, I will make one general observation. The
trial participant gag order issued by the District Court in this
case is, as far as I can tell, unprecedented in Montana. If this
case involved something akin to the trial of O.J. Simpson, Rodney
King, Timothy McVeigh, Theodore Kaczynski or the Menendez brothers,
I might understand (though not necessarily agree with) the trial
court's concern that what is now commonly referred to as the "media
circus" of cameras, equipment, satellite dishes, reporters and
commentators, all in search of ratings and a story to sell, might
prejudice the accused's right to a fair trial. The fact is,
however, O.J. Simpson, Kippy Joe Hill is not!
There is absolutely no evidence in the meager record of this
case to date that would support a conclusion that Kippy Joe Hill's
right to a fair trial was threatened either at the time the
indirect gag orders were issued by the Justice and District Courts
or that his rights are presently in jeopardy. The charges against
Mr. Hill are, in fact, no more "high profile" or of greater public
interest than a multitude of other homicide cases that have been
tried over the decades or that are presently pending in Montana's
courts. Quite to the contrary, there have been numerous homicide
cases in Montana that have garnered infinitely more interest and
ink than this case. See, for example, Duncan McKenzie, "The
Mountain Men," Larry Moore, Ronald Smith, Becky Richards, Dewey
Coleman, Bernard Fitzpatrick, Gene Austad, the Kills on Top
brothers, Terry Langford, Brett Byers, James Egelhoff, Fred Van
Dyken, Douglas Turner, William Gollehon--the list could go on and
on. Yet, each of those cases was prosecuted and defended without
resort to the sort of preemptive strike against freedom of speech,
freedom of the press and the public's right to know and to receive
information that the trial participant gag order imposed in this
case clearly presents. Indeed, at oral argument, Mr. Hill's
defense counsel readily conceded that there was nothing unique
about this homicide case.
Now, unfortunately, there is. For the first time we approve
the use of trial participant gag orders by courts in criminal
proceedings. While, I am not usually impressed by "slippery slope"
arguments, I do have that concern here. Gag orders are simply too
easy to impose. The one issued here by the Justice Court was
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imposed ex parte; the second one was imposed by the District Court
and affected probably more than twenty people, including lawyers,
witnesses, law enforcement and clerks, without so much as an
evidentiary hearing or any input from the media, apparently simply
because the defense counsel and the prosecutor agreed that these
trial participants should be gagged.
Like the majority, I am not necessarily critical of the
District Judge's handling of this matter in view of counsels'
agreement and our lack of precedent, but the fact remains, this
case ably demonstrates how it is all too easy to violate
fundamental rights of free speech, free press and the public's
right to know and to receive information with a well-meaning
stroke of a pen.
Furthermore, even under the four-part approach which we have
adopted, a court anxious to maintain the appearance of tight
control over the case and counsel, fearful that its rulings may be
publicly criticized, concerned over the threat of adverse pretrial
publicity, determined to preemptively head off change of venue
problems and the possibility of having to sequester the jury with
the attendant impact on the local treasury, and set on making sure
that the case is tried locally, will find little difficulty in
gagging at least some of the trial participants. I greatly fear
that although we have not allowed the "primrose path that leads to
destruction of those societal values that open, public trials
promote" to advance into the courtroom, Great Falls Tribune, 608
P.2d at 121, we have now effectively paved precisely such a route
from the courthouse door to the reporter's desk.
Having made that general observation, I must next admit to
being mystified with our reasoning and discussion of Issue 2 and
with our holding that trial participant gag orders, including the
one at bar, do not constitute prior restraints on publication, and,
therefore, are not subject to traditional prior restraint analysis.
We first acknowledge the vaunted position of the public's and
media's right to receive information about the entire criminal law
process under Montana's Constitution--rights which are even more
extensive and jealously guarded than such rights under the federal
constitution. With that, I heartily agree. We then, however,
conclude that trial participant gag orders are not prior restraints
because they do not infringe upon the media's "right to edit or
publish that which it knows." How this latter conclusion follows
from the first is not clear. In fact, in my view, it does not
track at all.
Admittedly, I have no background whatsoever in journalism.
Notwithstanding, I have always understood that "news" is
"gathered." That is, the information which the media reports
concerning a person or event must be first obtained by the reporter
from someone, from some document or thing, or from some personal
observation. News information that appears in the print and
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broadcast media does not, in "Big Bang" fashion, spring
spontaneously into existence from the void, bringing with its
creation the time, places, people and events reported. There must
be a source; and the quantity and quality of the news (ineffective
or biased reporting aside) is completely dependent upon the
quantity and quality of the sources of information available. No
source; no news.
Again, without trying to be overly simplistic, it seems to me
that if we tell the press "you can edit and publish what you know"
and then, in the next breath, allow those sources of information
from which the media traditionally gathers its information to be
silenced on any but the most serious and compelling grounds which
clearly prejudice the defendant's fair trial right, we have
effectively precluded the press from "knowing," and, therefore,
being able to "edit" or "publish" much of anything. We have handed
a thirsty man an empty cup with the admonition "drink all you want;
but the well is off limits." In short, as we have discussed the
terms at issue here, the distinction between a direct prior
restraint (where the media is gagged) and an indirect prior
restraint (where the media's sources are gagged) is one without a
substantive difference. An indirect prior restraint is, de facto,
a prior restraint, nonetheless.
Furthermore, making prior restraint analysis dependent upon
the status of the party bringing the challenge is simply smoke and
mirrors. It is purely a legal fiction with no foothold in reality.
If the court imposes a gag order on trial participants--no matter
what the level of scrutiny or what sort of test it uses--the end
result is precisely the same and is equally intrusive and
offensive: the media is prohibited from gathering and publishing
the news and the public is prohibited from receiving it. The
fundamental rights of both are denied. It is for precisely this
reason that I would require the highest level of scrutiny and the
imposition of the clear and present danger standard--traditional
prior restraint analysis--before I would allow a trial participant
gag order to be imposed.
As the majority intimates, it appears clear, from a historical
perspective, that the rise of the use of gag orders on trial
participants followed in response to the U.S. Supreme Court's
decision in Nebraska Press Ass'n v. Stuart (1976), 427 U.S. 539, 96
S.Ct. 2791, 49 L.Ed.2d 683. That case held that a gag order imposed
on the media directly and which prohibited publication--in that
case of the defendant's confession--constituted an unconstitutional
prior restraint on free speech. It was in that case that the
three-part test was articulated that eventually became the basis
for the procedure set out in our opinion in State ex rel. Smith v.
District Court (1982), 201 Mont. 376, 654 P.2d 982, and in 46-11-
701, MCA. Unfortunately, relying on dictum in Nebraska Press Ass'n
that in some circumstances limits may be imposed on what the
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contending lawyers, police and witnesses may say to anyone, courts
seeking to quash perceived prejudicial pretrial publicity have
sought to do indirectly what they were prohibited from doing
directly.
That dictum found its genesis in a pre-Nebraska Press Ass'n
case, Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16
L.Ed.2d 600. Like the "media circus" cases referred to earlier
(and unlike the instant case), the homicide trial in Sheppard was
characterized as having taken place in the "atmosphere of a 'Roman
holiday' for the news media . . .." Sheppard, 384 U.S. at 356.
The U.S. Supreme Court, critical of the state trial judge's
handling of the publicity, again in dictum, suggested that the
judge "might well have proscribed extrajudicial statements by any
lawyer, party, witness, or court official which divulged
prejudicial matters. . .." Sheppard, 384 U.S. at 361.
Importantly, the suggestion in Sheppard and in Nebraska Press
Ass'n that indirect gag orders might in some cases be permissible
was never anything more than dicta and in each case was simply
thrown into the discussion of preferred less restrictive
alternatives that might have been available to the trial court
under the specific facts of the cases at issue. This is evident
from the Supreme Court's comment in Nebraska Press Ass'n which
cited to Sheppard:
At oral argument petitioners' counsel asserted that
judicially imposed restraints on lawyers and others would
be subject to challenge as interfering with press rights
to news sources. [Citations omitted.] We are not now
confronted with such issues. [Emphasis added.]
Nebraska Press Ass'n, 427 U.S. at 564 n.8. Neither case is proper
authority for indirect gag orders, and I strongly disagree with our
citation to Nebraska Pres Ass'n for that proposition.
Unfortunately, this dicta has taken on a life of its own and
has been interpreted as being directive by those courts seeking an
easy way to avoid the rule against direct gag orders. The result
has been that in the decades since there has been a proliferation
of orders restraining trial participants as a means of indirectly
restraining the press, notwithstanding the availability of other
options suggested by both Sheppard and Nebraska Press Ass'n. See
Sheryl A. Bjork, Indirect Gag Orders and the Doctrine of Prior
Restraint, 44 U. Miami L. Rev. 165, 176 (1989). Indeed, this trend
has accelerated because of highly publicized cases. In response to
the "media circus" cases mentioned earlier, at least one
commentator has gone so far as to recommend the very sort of
preemptive strike approach that the Justice and District Courts
utilized in the instant case--i.e. the trial court should impose a
gag order on trial participants immediately after the commencement
of proceedings and then rely on voir dire to insure that jurors can
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render an impartial verdict despite outside influences. This
commentator maintains that traditional protections such as juror
sequestration and change of venue are either violative of jurors'
rights or just plain worthless given the immediate, wide-spread
coverage of news events. See Charles H. Whitebread & Darrell W.
Contreras, Free Press v. Fair Trial: Protecting the Criminal
Defendant's Rights in a Highly Publicized Trial by Applying the
Sheppard-Mu'Min Remedy, 69 S. Cal. L. Rev. 1587, 1620 (1996).
Again, it deserves repeating that the instant case never was
and is not now the sort of "high profile," "media circus" case that
has typified the use of and has fueled the continuing debate over
the imposition of trial participant gag orders. That fact makes it
even more unfortunate that we have chosen the instant low-profile
case as the vehicle for approving a practice that is fundamentally
based upon highly questionable legal authority.
Moreover, as the majority acknowledges, there is a conflict in
the courts and in the circuits as to the appropriate standard under
which indirect gag orders are issued. The courts which have upheld
the issuance of gag orders on trial participants basically have
employed a "reasonable likelihood" standard of review which only
requires that the court evaluate whether it is reasonably likely
that the pretrial publicity will jeopardize the accusedþs right to
a fair trial. On the other hand, the courts which have struck down
trial-participant gag orders have done so on the basis of the
"clear and present danger" or "serious and imminent threat" test,
which requires that the court reach an inescapable conclusion that
speech will be prejudicial and that the threat of prejudice must be
"present or imminent." This has also been characterized as the
"high threshold test." See 69 S. Cal. L. Rev. at 1609 n.141.
Dissatisfied with either approach, we have now adopted from
National Broadcasting Company, Inc. v. Court of Common Pleas (Ohio
1990), 556 N.E.2d 1120, what in theory, at least, is supposed to be
a middle tier test with a level of scrutiny--"substantial
probability"--that is higher than "reasonable likelihood" but lower
than "clear and present danger."
At the outset, I note that the Ohio Supreme Court's decision
was based primarily upon the U.S. Supreme Court's decisions in
Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 100
S.Ct. 2814, 65 L.Ed.2d 973; Globe Newspaper Co. v. Superior Court
of California (1982), 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248;
Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 104
S.Ct. 819, 78 L.Ed.2d 629; and Press-Enterprise Co. v. Superior
Court (1986), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1. Those
cases did not involve trial participant gag orders, but, rather,
dealt with media access to court proceedings or records of one sort
or another--matters, which I presume from our analysis under Issue
1, would, in Montana, be covered by the "clear and present danger"
test. Accordingly, for whatever reason the Ohio Court adopted the
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substantial probability test to resolve the indirect gag order
question at issue there (and its rationale is more conclusory than
explanatory), I fail to see how the authority underpinning the Ohio
Court's decision would, likewise, support our adoption of this
approach in Montana. If we relied on the same authority as did the
Ohio Supreme Court, we would have to conclude that, in Montana, the
higher "clear and present danger" test would govern since Montana
protects the right of access to information by the public and the
media even more jealously than does the federal government.
Moreover, having extensively discussed the evils of prior
restraint and the importance of freedom of speech, freedom of the
press and the public's right to know and to receive information
which are specially protected under Montana's Constitution and our
prior case law, and, having concluded that the "First Amendment
protects not just speech itself but the entire process of
communication, including the exchange of ideas and information
between speaker and listener," I cannot understand how this new
test--which makes it easier for a judge to gag the sources of
information traditionally relied upon by the media--serves to
protect, much less advance, any of those aforementioned fundamental
constitutional rights or the communication process or the exchange
of ideas to which we refer.
Finally, and most importantly, the guts of this new test
requires a showing--presumably by the person seeking the gag order-
-that "there is a substantial probability that the defendant's
right to a fair trial will be prejudiced by publicity that the gag
order would otherwise prevent." How exactly the "substantial
probability" standard which we embrace differs from the "reasonable
likelihood" standard which we reject is not clear, although, in
conclusory fashion, the Ohio case and the federal cases which use
it assume that there is a difference. Arguendo, if there is a
distinction, it is a fine one, indeed.
More to the point, I suggest that simply using this different
terminology will not necessarily assist the trial court in making
its highly subjective judgment nor will it guarantee the heightened
scrutiny which the majority agrees should be brought to bear in the
court's decision-making process. Under the best of circumstances,
the court's assessment of the impact of pretrial publicity at the
time when indirect gag orders will most likely issue--very early in
the case--can amount to little more than a clairvoyant inquiry into
how media coverage might adversely affect a defendant's right to a
fair trial at a stage when it is impossible to actually know. The
Court must make a conclusion that is "of necessity speculative,
dealing . . . with factors unknown and unknowable." Nebraska Press
Ass'n, 427 U.S. at 563. Whether the test is "substantial
probability" or "reasonable likelihood" makes little practical
difference given the paucity of information that will most likely
be available at the early stage of the proceedings at which the
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court will be required to make its decision.
Furthermore, given the fundamental importance of the free
speech, free press and freedom of information rights that
definitely will be lost by the imposition of an indirect gag order
versus the speculative nature of the defendant's fair trial rights
that might be lost if the order is not imposed, I would opt not to
cloud what has been historically a bright-line two-tiered approach
with an indistinct middle-tier analysis of questionable lineage and
doubtful efficacy. In my view, we should adhere to the "clear and
present danger" standard for the imposition of trial participant
gag orders. I believe this to be the better approach for the
following reasons.
First, as I have stated above, I conclude that indirect gag
orders are de facto prior restraints and that traditional prior
restraint analysis is, therefore, required. While it is argued
that trial participant gag orders only vicariously affect the
press, the whole reason why trial courts issue such orders is to
prevent the public dissemination of information. Accordingly, the
intended and the real casualties of an indirect gag order are the
media's access to information and the public's right to receive it.
In this regard, the whole focus of trial participant gag order
cases is placed improperly on who is restrained, rather than on
what is restrained. An indirect gag order effectively restrains
expression in general--precisely the evil that the seminal case on
prior restraint, Near v. Minnesota ex rel. Olson (1931), 283 U.S.
697, 51 S.Ct. 625, 75 L.Ed. 1357, and later Nebraska Press Ass'n,
sought to prohibit. The result is the loss of public debate that
New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710,
11 L.Ed.2d 686, indicated was the primary concern of the First
Amendment. To say that the press is free to publish information
"it knows" but that the judiciary can dry up the sources of that
information sanctions not only a preemptive strike on First
Amendment, Article II, Section 7 and Article II, Section 9 rights,
but disingenuously exalts form over substance.
Second, as pointed out in our discussion of Issue 1, this
Court and the Montana Legislature have already specifically adopted
the "clear and present danger" test with regard to pretrial court
proceedings and records. Smith, 654 P.2d at 987-88; 46-11-
701(3)(a) and (6). While neither Smith nor the statute
specifically deal with the issue of trial participant gag orders,
based upon Article II, Section 9 of the Montana Constitution, this
Court and the Legislature have already established that any
restraint on the right of access of the public and press to
pretrial criminal proceedings must be reviewed under this highest
level of scrutiny.
As indirect gag orders are de facto prior restraints on the
First Amendment and Article II, Section 9 rights of the press and
public, it is wholly inconsistent with existing Montana case and
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statutory law to adopt some sort of lesser standard of review with
respect to the imposition of such orders simply because they impact
what is said or disseminated outside the courtroom.
Moreover, the fact that Montana has already adopted this test
in relation to closing pretrial proceedings and sealing court
records and the fact that we have re-affirmed the use of this test
in those circumstances (see our discussion under Issue 1) belies
the majority's expression of concern that application of the clear
and present danger standard to judge requests for indirect gag
orders would treat First Amendment rights as paramount. If use of
this test does not render the rights to free speech, press and to
know and receive information paramount in the former setting, there
is no rational basis for concluding that using it in the latter
context will either. The rights of the press, public and the
defendant can be "balanced," if that is required, in either event.
Third, there are deleterious effects and serious consequences
attendant to silencing trial participants that strongly militate
against the imposition of indirect gag orders in all but the most
clear cut and threatening of circumstances. All citizens,
including criminal defendants, have a fundamental constitutional
right of free speech under the federal and Montana constitutions.
That right is obviously abridged by an indirect gag order. A
defendant or his attorney may wish to go to the media with a
perceived misuse of the judicial process or abuse by the
prosecution; defendants who are public officials may wish to
exonerate or explain themselves to their constituents; the
defendant may wish to try to salvage his reputation and rebut the
charges at a time when public and media attention are most focused
upon him--waiting to be acquitted may not serve that same purpose.
Since either side may call any witness who has any knowledge of the
case, a gag order involving witnesses may have the potential of
stifling a wide range of people and commentary--again, likely 20 or
more people, from private citizens to public officials, were gagged
in the instant case. Witnesses and defendants hailed into court
against their wills do not voluntarily waive their First Amendment
rights; most never even have an opportunity to protest before the
gag order is issued; many--as here--likely do not even know that
they are gagged. And, certainly, who among these will invest the
time, trouble and expense of going to court to challenge the gag
order.
Moreover, simply because one becomes an attorney, he or she
does not forfeit First Amendment rights. An attorney may wish to
speak out on a case in order to demonstrate the need for legal
reform illustrated by his clientþs circumstances or to address
perceived injustices in the case. Prosecutors and law enforcement
may wish to address the public so witnesses and others with
knowledge of the crime or the defendant may come forward or to
quell public concern. In civil litigation, attorneys may wish to
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inform the public, for example, of dangerous or defective products
or some particular abusive or wrongful practice by an industry or
governmental agency.
There exist adequate and effective ways of disciplining
attorneys who actually violate the cannons of ethics or rules of
professional conduct, short of prior restraint. If violations are
subsequently punished, then the harm caused, if any, is actually
known and the court does not have to rely on speculation as to what
"might occur if . . .."
Furthermore, judges should not be allowed to easily issue
indirect gag orders. Issuing such a gag order is easy to do and
difficult to undo, as those gagged must appear before the same
judge that issued the order to contest it. Attorneys and parties
may be reluctant to do that and thus potentially incur the wrath of
the issuing judge. Simply ignoring the order will likely bring a
contempt citation--again, as in this case--and contesting such a
citation is not effective because of the collateral bar rule. All
of this has the effect of chilling speech.
Indirect gag orders, because they can be so easily issued, are
particularly subject to overuse and over inclusiveness--again,
witness the present orders. When judges become censors, there are
few, if any, checks and balances (absent, possibly appellate
review); the potential for arbitrariness is great; and there is
little timely or effective way of combating such abuse. Worse, as
mentioned above, indirect gag orders are typically issued early in
the case when there is insufficient information on which to
actually gauge the impact of publicity or even the need for some
sort of protective order. Thus, to a great extent, the issuing
judge is operating in a vacuum in imposing the order. While
indirect gag orders may be issued out of the legitimate desire to
insure the defendant receives a fair trial, they may also be issued
out of a desire by the judge to avoid criticism of his or her
style, case management or rulings.
A trial participant gag order will, in all probability,
effectively delay public speech to a time when the public has lost
interest in the subject. Hence, the effectiveness of public
comment and debate is lost. Absent public dissemination of
information about a case, the public will have little ability to
judge the effectiveness, efficiency and fairness of its various
legal institutions, organizations and public officers--courts,
public offices, law enforcement, even the bar itself--or the
competence of public officials involved. The public loses the very
source of information it needs to observe and to check the
functioning of its government, institutions and public officials.
Fourth, even without focusing on the mediaþs (or on the gagged
participantsþ) rights and the abridgment of those rights by de
facto prior restraint, the public has a concomitant First Amendment
right (and a similar right under Article II, Sections 7 and 9 in
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Montana) to receive information. It has long been a tenant of
federal constitutional law that the constitution protects the
individualþs right to receive information and ideas. Stanley v.
Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542;
Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc. (1976), 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346.
Although the majority seems to acknowledge this legal
principle, it begs the question of how the public is to exercise
this constitutional right if the main purveyor of information and
ideas--the media--is effectively prohibited from gathering news in
order to disseminate it.
Fifth, while the public and press still have access to
pretrial and trial proceedings themselves, few people have the time
or inclination to actually attend such proceedings. Moreover,
those proceedings, even when reported, are highly sanitized via the
formalities of courtroom procedure, the rules of evidence and
courtroom decorum. Indirect gag orders inhibit or prohibit the
press from discovering information that may contradict the
courtroom version or provide an independent view of the proceedings
at issue as well as the persons and the institutions involved.
In conclusion, it is for all of the above-mentioned reasons
that I would hold that trial participant or indirect gag orders are
de facto prior restraints upon the mediaþs rights of free speech
and press and upon the media's and the publicþs right to receive
information and right to know. As a de facto prior restraint, I
would require that the trial judge subject any request for an
indirect gag order to the "clear and present danger" test--i.e. the
court must be convinced that there is a clear and present danger
that the defendantþs right to a fair trial will be prejudiced.
And, because, an indirect gag order is a de facto prior restraint,
the presumption should be against issuance.
Moreover, before an indirect gag order is issued, the court
should be required to give public notice and to hold a hearing on
an expedited basis which hearing would include, at a minimum, the
defendant, the government and any media organizations that wish to
intervene. The court should be required to consider the nature and
extent of pretrial publicity; whether an indirect gag order would
be effective; and whether other measures would likely mitigate the
effects of trial participants not having unrestrained access to the
media. Finally, if such an order is imposed, then it should be
narrowly drawn as to whom and as to what speech is covered.
Except to the extent that we have adopted some of these
procedural safeguards, I cannot agree that our new middle-tier
approach and substantial probability standard for the issuance of
trial participant gag orders serves to protect, much less advance,
the important fundamental rights of freedom of the press, freedom
of speech, and the media's and the public's right to know and
receive information which are extensively protected by Montana's
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Constitution and which this Court has, heretofore, jealously
guarded. While it may be necessary in rare circumstances to
balance the defendant's fundamental right to a fair trial against
these other fundamental rights by the issuance of an indirect gag
order, we have in my estimation, improperly adopted a standard
which will tip the scale decidedly in the defendant's favor in
routine cases such as the one at bar. In allowing trial
participants to be gagged in the absence of evidence of a most
clear, present and imminent threat to the defendant's fair trial
rights, we have truly sanctioned "censorship at the source."
If the "[c]losure of judicial proceedings breeds suspicion and
mistrust in the minds of the public and representatives of the
media," Great Falls Tribune, 608 P.2d at 119, will ordering trial
participants not to talk to the media produce any different result?
I think not.
I respectfully dissent from our decision on Issue 2.
/S/ JAMES C. NELSON
Justice William E. Hunt, Sr., and District Court Judge Thomas
McKittrick, sitting for former Justice Charles E. Erdmann, concur
in the foregoing special concurrence and dissent.
/S/ WILLIAM E. HUNT, SR.
/S/ THOMAS M. McKITTRICK
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State Ex Rel. the Missoulian v. Montana Twenty-First Judicial District Court
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