Publishing Corp v. Schulingkamp 8212 1305

Decision Date29 July 1974
Docket NumberTIMES-PICAYUNE,No. A,A
Citation42 L.Ed.2d 17,419 U.S. 1301,95 S.Ct. 1
PartiesPUBLISHING CORP. v. Oliver P. SCHULINGKAMP. —1305
CourtU.S. Supreme Court

Mr. Justice POWELL, Circuit Justice.

This is an application for stay of an order of the Louisiana Criminal District Court for the Parish of Orleans restricting media coverage of the trials of two defendants accused of committing a highly publicized rape and murder in the city of New Orleans. The applicant, a Louisiana corporation that owns and publishes two of the city's daily newspapers, has asked that I stay that order pending filing and disposition of a petition for a writ of certiorari in this Court. Respondent, the Honorable Oliver P. Schulingkamp, has at my request filed a memorandum in opposition to the application. The record before me indicates a substantial possibility that the state court's order is inconsistent with this Court's decisions governing prior restraint of the news media and that continuance of the order pending consideration of a petition for a writ of certiorari would inflict irreparable harm. I therefore have granted the requested stay.

In April 1973, a young white nursing student was raped and murdered following her visit to an elderly patient living in one of the city's public housing projects. Shortly thereafter, two Negro suspects were arrested and charged with the crime. The case immediately became the focal point in the media for a number of more generalized concerns. The state university program that prompted the student's unescorted visit to the housing project was called into sharp question, as was the sufficiency of law enforcement efforts in high-crime areas of New Orleans. The case also occasioned criticism of the criminal and juvenile justice systems.

Much of the initial publicity was directed toward one defendant, a 17-year-old with an apparently extensive history of juvenile offenses. Newspaper stories recounted in some detail the circumstances leading to his arrest and his subsequent alleged disclosure of the location where the victim's body was recovered. Additionally, stories dwelt on his prior juvenile offenses. Almost all of the many newspaper references characterized him as a youth with a history of 43 juvenile arrests, the accuracy of which has since been disputed. Some newspaper accounts referred to his previous arrest on charges of murder and armed robbery without simultaneously revealing that those charges had been dropped for insufficient evidence. Others reported a psychiatric diagnosis of this defendant made several years earlier and apparently contained in the records of the juvenile probation officer.

Within a few days reports concerning the crime, the accused, and other related concerns ceased to be of banner importance. Stories became shorter and began to move from the first page to less prominent positions in the papers. Newspaper coverage appears to have ceased within some 10 days of the arrest and the papers apparently published no stories about the defendants from the latter part of April until late January of the following year, when one subdued story announced the anticipated initiation of pretrial motions in the case.1

Some of the newspaper reporting that occurred in April can hardly be characterized as responsible journalism. Like many States, Louisiana maintains the confidentiality of the records of juvenile offenders. La.Rev.Stat.Ann. § 13:1586.3 (Supp.1974). The record does not indicate how reporters came into possession of some of their information. Additionally, there appear to be inaccuracies or partial truths in matters that are of obvious importance.

In March 1974, some 11 months after the crime and attendant extensive publicity, counsel for the defendant who had received the most journalistic attention moved that the Criminal District Court for the Parish of Orleans impose restrictions on reporting of the case. The court granted the motion on June 17, 1974. The court's order imposes a total ban on reporting of testimony given in hearings on pretrial motions until after the selection of a jury and also places other selective restrictions on reporting before and during trial.

At the time the order was issued, the court apparently contemplated only one trial. By its terms the order was to remain in effect until termination of the trial. The court later severed the defendants' cases and ordered separate trials of the rape and murder charges against each. It made no modification of its media coverage order to reflect this changed circumstances. The applicant has represented that the court stated that the order would remain in effect until the termination of the last trial. Respondent has not contradicted this representation, and I assume it to be correct.

The applicant sought relief from both the lower federal courts and the state court system prior to addressing this application to me. After failing to obtain immediate injunctive relief from the federal courts,2 the applicant asked the state court to vacate its order. That request was denied, as was a request that the court stay its order pending submission of application for supervisory and remedial writs in the Louisiana Supreme Court. On July 9, 1974, the applicant sought writs of certiorari, review, prohibition, and mandamus, and a stay of the state trial court's order in the Louisiana Supreme Court. That same day the Louisiana Supreme Court denied relief by a vote of four to three, stating that the '(s)howing made does not justify the relief demanded.' Following one more unsuccessful attempt to obtain an injunction in the United States District Court, the applicant has requested that I, as Circuit Justice for the Fifth Circuit, stay the state court's order pending this Court's consideration of a petition for a writ of certiorari.

I have previously expressed my reluctance, in considering in-chambers stay applications, to substitute my view for that of other courts that are closer to the relevant factual considerations that so often are critical to the proper resolution of these questions. Graves v. Barnes, 405 U.S. 1201, 1203, 92 S.Ct. 752, 753, 30 L.Ed.2d 769 (1972). In my in-chambers opinion in that case, I articulated the general standards governing the grant of a stay application: there must be a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court's decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed. Ibid.

The question of the possibility of irreparable harm is particularly troublesome in this case. It presents a fundamental confrontation between the competing values of free press and fair trial, with significant public and private interests balanced on both sides. If the order is not stayed, the press is subjected to substantial prior restraint with respect to a case of widespread concern in the community. If, on the other hand, the order is stayed and the press fails to act with scrupulous responsibility, the defendants' constitutional right to a fair trial may be seriously endangered.

The challenged portions of the order of the Criminal District Court for the Parish of Orleans impose a total prohibition on publication of testimony adduced in pretrial hearings until after selection of a jury. Noting that extensive testimony would be required in considering the many pretrial motions, including motions to suppress an alleged confession and other evidence, the court specifically ordered 'that the reporting of such testimony be deferred until after the jury has been selected in order to preclude the possibility of such testimony influencing, in any way, prospective jurors yet to be selected, and rendering more difficult the task of selecting said jurors.' In addition, the state court order imposes other selective restrictions on what may be published both before and during trial. These restrictions are aimed at the content of news reporting. The order requires that the media avoid publication of interviews with subpoenaed witnesses. It also prohibits publication of any of the defendants' criminal records or discreditable acts or of any possible confessions or inculpatory statements unless made part of the evidence in the court record. The order forbids publication of any testimony stricken by the court unless identified as having been stricken and bars publication of any leaks, statements, or conclusions of guilt or innocence that might be expressed or implied by statements of the police, prosecuting attorneys, or defense counsel. Finally, the order prohibits any editorial comment preceding or during trial 'which tends to influence the Court, jury, or witnesses.' By its terms, the order remains in effect 'until the conclusion of the trial.' The court's...

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  • Nebraska Press Association v. Stuart
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    • United States Supreme Court
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    ...S.Ct., at 1520. See generally Id., at 358-363, 86 S.Ct., at 1519-1522; cf. Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.S. 1301, 1308, 95 S.Ct. 1, 5, 42 L.Ed.2d 17, and n. 3 (1974) (Powell, J., in chambers). For this reason, the one thing Sheppard did not approve was "any direct limitat......
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    ...1, 73 L.Ed.2d 1385 (1982) (POWELL, J., in chambers) (quoting Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1305, 95 S.Ct. 1, 4, 42 L.Ed.2d 17 (POWELL, J., in chambers)). Applications for stays of death sentences are expected to contain the information and materials necessa......
  • Gannett Co Inc v. Pasquale
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    • United States Supreme Court
    • 2 Julio 1979
    ...584 n. 11, 96 S.Ct., at 2814 n. 11 (BRENNAN, J., concurring in judgment); Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1308 n. 3, 95 S.Ct. 1, 5 n. 3, 42 L.Ed.2d 17 (1974) (POWELL, J., in chambers). It is clear that this case does not involve the type of prior restraint th......
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1 books & journal articles
  • THE PRECEDENTIAL EFFECTS OF THE SUPREME COURT'S EMERGENCY STAYS.
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    • Harvard Journal of Law & Public Policy Vol. 44 No. 3, June 2021
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