465 F.2d 496 (5th Cir. 1972), 71-3469, United States v. Dickinson

Docket Nº:71-3469.
Citation:465 F.2d 496
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Larry DICKINSON and Gibbs Adams, Defendants-Appellants.
Case Date:August 22, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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465 F.2d 496 (5th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

Larry DICKINSON and Gibbs Adams, Defendants-Appellants.

No. 71-3469.

United States Court of Appeals, Fifth Circuit.

Aug. 22, 1972

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Frank M. Coates, Jr., Baton Rouge, La., for defendants-appellants.

Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, James D. Carriere, New Orleans, La., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and BELL and SIMPSON, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The civil libertarians' nightmare with which we here are haunted presents a classic confrontation between "two of the most cherished policies of our civilization" 1-freedom of the press, encased in the armor of the First Amendment, pitted against the right of the accused to a fair and impartial trial, shielded by the Sixth Amendment and reinforced in this case by a protective order of the District Court which is the real cause of the battle. In the skirmish that ensues, both sides glimpse victory and both sides taste defeat. But the Day of Armageddon has not yet dawned on this great conflict, and accordingly at our hands there is a forced withdrawal to the District Court.

A Prohibited Publication

Cast against a backdrop of assassination and political intrigue, the case began when Frank Stewart, a VISTA worker active in civil rights endeavors on behalf of the black community of Baton Rouge, Louisiana, was indicted in Louisiana State Court on a charge of conspiring to murder the Mayor of Baton Rouge. Alleging that the State Court prosecution was completely groundless and intended solely and exclusively to harass the accused in order to suppress his exercise of First Amendment rights, Stewart, calling on the full arsenal of Federal Civil Rights Statutes, sought to foreclose the pending State criminal prosecution by requesting injunctive relief from the United States District Court for the Eastern District of Louisiana. The District Court declined

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to restrain the State Court (Stewart v. Dameron, E.D.La., 1971, 321 F.Supp. 886), but this Court vacated that order and remanded the case for a new evidentiary hearing, since "Stewart had not been allowed to put on any evidence concerning his allegations of bad faith prosecution and harassment" at the original proceeding. Stewart v. Dameron, 5 Cir., 1971, 448 F.2d 396.

In accordance with the mandate of this Court, the District Court held a Younger v. Harris 2 hearing on November 1, 1971, limited solely to the question of whether the State prosecutorial motive was legitimate or contrived. This hearing likewise resulted in a holding for the State, but again the District Court's order was reversed on appeal and the case remanded for another evidentiary hearing. Stewart v. Dameron, 5 Cir., 1972, 460 F.2d 278.

Meanwhile, during the second hearing, the opening shot of the present battle had been fired. Dickinson and Adams, appellants, were newspaper reporters, employed by the City Press and assigned to cover that hearing for the Morning Advocate and the State Times. During the course of the morning's proceedings the Judge pronounced this order from the bench:

"And, at this time, I do want to enter an order in the case, and that is in accordance with this Court's Rule in connection with Fair Trial-Free Press provisions, the Rules of this Court,

"It is ordered that no, no report of the testimony taken in this case today shall be made in any newspaper or by radio or television, or by any other news media. This case will, in all probability, be the subject of further prosecution; at least, there is the possibility that it may. In order to avoid undue publicity which could in any way interfere with the rights of the litigants in connection with any further proceedings that might be had in this or other courts, there shall be no reporting of the details of any evidence taken during the course of this hearing today.

"This order is made subject to the sanctions provided by law in the event of any violation of this order.

"Now, gentlemen, by that I do not mean that the press cannot report the fact that a hearing has been held or that a hearing is being held, but it's obvious that the testimony here today could impede another court in its progress toward selecting a jury in this case if such became necessary. Consequently, I do not want-and this order means that there shall be no reporting of the details of the evidence taken in this court today or in any continuation of this trial-of this hearing."

Notwithstanding that order, and with admitted knowledge that their actions violated its terms, Dickinson and Adams wrote articles for their newspapers summarizing the day's testimony in detail. Accordingly, a show cause order was issued and following a hearing thereon, the District Court found the appellants guilty of criminal contempt for knowingly having violated the November 1 order. Each defendant was sentenced to pay a fine of $300.00. This appeal resulted.

Free Press vs. Fair Trial-Constitutionality Of The Court's Order

The initial question with which we are confronted concerns the constitutionality of the District Court's order. Sympathetic as we are to the legitimate objective earnestly pursued by the conscientious Trial Judge (preservation of an impartial venire within the local community whenever the state criminal prosecution should reach trial), we must conclude that a blanket ban on publication of Court proceedings so far transgresses First Amendment freedoms that any such absolute proscription "cannot withstand the mildest breeze emanating from the Constitution." Southeastern Promotions Ltd. v. City of West Palm Beach, 5 Cir., 1972, 457 F.2d 1016, p. 1017 .

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We start, of course, with the proposition repeatedly reaffirmed by the Supreme Court that "a trial is a public event. What transpires in the courtroom is public property. * * * Those who see and hear what transpired may report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it." Craig v. Harney, 1947, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546, 1551; Stroble v. California, 1952, 343 U.S. 181, 193, 72 S.Ct. 599, 96 L.Ed. 872, 882; Estes v. Texas, 1965, 381 U.S. 532, 541, 85 S.Ct. 1628, 14 L.Ed.2d 543, 549; Sheppard v. Maxwell, 1966, 384 U.S. 333, 350, 86 S.Ct. 1507, 16 L.Ed.2d 600, 613. 3 Moreover, "reporters of all media * * * are plainly free to report whatever occurs in open court through their respective media." Estes, supra, 381 U.S. at 541-542, 85 S.Ct. at 1632.

Particularly is maximum freedom of the press required where the trial is intended to "determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will." Wood v. Georgia, 1962, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569, 580. "The free press has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences, including court proceedings." Estes, supra, 381 U.S. at 539, 85 S.Ct. at 1631. Therefore, "particularly in matters of local political corruption and investigations is it important that freedom of communications be kept open * * *." Wood, supra, 370 U.S. at 390, 82 S.Ct. at 1373.

The Younger v. Harris hearing generating the present case, involving as it did allegations of bad faith, harassment, political machinations, and racial motivation on the part of the State prosecutorial officials, was peculiarly one of public concern. In fact, it was precisely the widespread interest in the case which led the Court to issue the controversial order. Accordingly, in the circumstances of this case, the prior restraint of the press imposed by the questioned order "comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 1963, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584, 593; Organization for a Better Austin v. Keefe, 1971, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1, 6; New York Times Co. v. United States, 1971, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822, 824; Near v. Minnesota, 1931, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. Any less stringent standard would forsake the unequivocal commands of the First Amendment. Bridges, supra, 314 U.S. at 263, 62 S.Ct. 190, 86 L.Ed. 192; Craig, supra, 331 U.S. at 373, 67 S.Ct. 1249.

Of course, the accused has constitutional rights, too, and particularly important among these are rights to a

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speedy trial before a fair and impartial tribunal in the venue where the alleged offense occurred. Clearly, pervasive and irresponsible news coverage of a pending criminal proceeding can so inflame and prejudice a community that it becomes virtually impossible to select an impartial jury therefrom. And without a doubt it is the Trial Court's responsibility to protect the defendant from such inherently prejudicial influences which threaten the fairness of his trial and an abrogation of his constitutional rights. Sheppard, supra; Estes, supra; Rideau v. Louisiana, 1963, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663. "Newspapers, in the enjoyment of their constitutional rights, may not deprive accused persons of their right to fair trial." Shepherd v. Florida, 1951, 341 U.S. 50, 53, 71 S.Ct. 549, 550, 95 L.Ed. 740, 743 (Jackson, J. concurring).

Thus does Alexander again confront the Gordian Knot. For our history demands that breaches of the unqualified...

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