Capital Cities Media, Inc v. Toole, A-1070

• Decision Date: 13 July 1983
• Docket Number: No. A-1070,A-1070
• Citation: 103 S.Ct. 3524,77 L.Ed.2d 1284,463 U.S. 1303
• Parties: CAPITAL CITIES MEDIA, INC., et al. v. Patrick J. TOOLE, Jr., Judge of the Court of Common Pleas of Luzerne County
• Court: U.S. Supreme Court

463 U.S. 1303

103 S.Ct. 3524

77 L.Ed.2d 1284

CAPITAL CITIES MEDIA, INC., et al.

v Patrick J. TOOLE, Jr., Judge of the Court of Common Pleas of Luzerne County.

No. A-1070.

July 13, 1983.

Justice BRENNAN, Circuit Justice.

This is an application for an immediate stay of several orders entered by the Court of Common Pleas of Luzerne County, Pennsylvania, in connection with a homicide trial in that court, Commonwealth v. Banks, Criminal Nos. 1290, 1506, 1507, 1508, 1519, 1520, 1524 of 1982, that had attracted a great deal of public interest. The specific orders in question were entered by respondent Judge Toole on June 3, 1983, after selection of the trial jury but before its sequestration. In one order, respondent directed first that "[n]o person shall print or announce in any way the names or addresses of any juror," Order in Accordance with Pa.Rules Crim.Proc. 1111(c), June 3, 1983, ¶ 2 (hereinafter ¶ 2), and also that "[n]o person shall draw sketches, photographs, televise or videotape any juror or jurors during their service in these proceedings . . .," id., ¶ 6 (hereinafter ¶ 6). In a separate order, Judge Toole ordered that "[n]o one, except attorneys of record, their agents, court personnel, witnesses and jurors may handle exhibits except by Order of the Court," Order Pursuant to Pa.Rules Crim.Proc. 326, June 3, 1983, ¶ 11 (hereinafter ¶ 11). The application for a stay was first presented to me on June 18, 1983, but I held it pending action by the Supreme Court of Pennsylvania on a substantially identical application for summary relief. On June 21, the jury returned a guilty verdict in the Banks case and was discharged; on June 30, the Supreme Court of Pennsylvania denied summary relief. Applicants immediately r applied to me for a stay. An initial response was received by telegram on July 7, with a more complete response submitted on July 13.

In recent years, several Justices have had occasion to explain the role of a Circuit Justice in precisely this context, when a trial court has enjoined the press and other media from publication of information in connection with a criminal trial. Caution is the refrain of any Justice acting as Circuit Justice, but we have recognized the special importance of swift action to guard against the threat to First Amendment values posed by prior restraints. It is clear that even a short-lived "gag" order in a case of widespread concern to the community constitutes a substantial prior restraint and causes irreparable injury to First Amendment interests as long as it remains in effect. When it appears that there is a significant possibility that this Court would grant plenary review and reverse the lower court's decision, at least in part, a stay may issue. Nebraska Press Assn. v. Stuart, 423 U.S. 1327, 1330, 96 S.Ct. 251, 254, 46 L.Ed.2d 237 (1975) (BLACKMUN, Circuit Justice); Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S 1301, 1305, 95 S.Ct. 1, 3, 42 L.Ed.2d 17 (1974) (POWELL, Circuit Justice). See also Bonura v. CBS, Inc., --- U.S. ----, 103 S.Ct. 665, 74 L.Ed.2d 592 (1983) (WHITE, Circuit Justice).

I address first the ¶ 2 provision, which on its face permanently restrains publication of the names or addresses of any juror. Counsel for respondent has informed the Clerk of this Court that this order remains in effect, and that publication at this time of the name of a juror would subject the publisher to the possibility of being held in contempt of court. This order was entered by the Court sua sponte and without a hearing or a record; neither the prosecution nor defendant has expressed any interest in it. Compare Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). The jury was selected at voir dire proceedings begun prior to the issuance of this order, from which the press and public were not excluded, and at which the names of the prospective jurors were not kept confidential. Compare Press-Enterprise Co. v. Superior Court, --- U.S. ----, 103 S.Ct. 813, 74 L.Ed.2d 1012 (1983).

It hardly requires repetition that "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity," and that the State "carries a heavy burden of showing justification for the imposition of such a restraint." New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971) (per curiam ). This Court has given plenary consideration to a number of state statutes and court orders issued thereunder restraining publication of information in connection with a criminal trial or restricting press access to a criminal trial for the purpose of preventing such publication. Just last Term, in Globe Newspaper Co. v. Superior Court, --- U.S. ----, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), we held that the First and Fourteenth Amendments prohibited enforcement of a rule barring press and public access to criminal sex-offense trials during the testimony of minor victims. We adopted a familiar standard: "Where, as in the present case, the State attempts . . . to inhibit the disclosure of sensi- tive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." Id., at ----, 102 S.Ct., at 2620; cf. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979).

I assume, for purposes of argument only, that the State has a compelling interest in keeping personal information about jurors confidential in an appropriate case, either to assure the defendant a fair trial or to protect the privacy of jurors. Cf. Globe Newspaper, -- U.S., at ----, 102 S.Ct., at 2621; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 600, 100 S.Ct. 2814, 2840, 65 L.Ed.2d 973 (1980) (Stewart, J., concurring in the judgment). Our precedents make clear, however, that far more justification than appears on this record would be necessary to show that this categorical, permanent prohibition against publishing information already in the...