504 S.E.2d 592 (S.C. 1998), 24831, State-Record Co., Inc. v. State

Docket Nº:24831.
Citation:504 S.E.2d 592, 332 S.C. 346
Opinion Judge:TOAL, Justice
Party Name:Ex Parte The STATE-RECORD CO., INC., Appellant, v. In Re STATE of South Carolina vs. B.J. Quattlebaum, Respondent.
Attorney:Jay Bender and Kirby D. Shealy, III, of Baker, Barwick, Ravenel & Bender, Columbia, for appellant. Joseph M. McCulloch, Jr., Columbia, A. Camden Lewis of Lewis, Babcock & Hawkins, Columbia; Katharine E. Evatt and Donald V. Myers, Lexington, for respondent.
Case Date:August 31, 1998
Court:Supreme Court of South Carolina

Page 592

504 S.E.2d 592 (S.C. 1998)

332 S.C. 346

Ex Parte The STATE-RECORD CO., INC., Appellant,


In Re STATE of South Carolina vs. B.J. Quattlebaum, Respondent.

No. 24831.

Supreme Court of South Carolina.

August 31, 1998

Heard Oct. 22, 1997.

Rehearing Denied Sept. 25, 1998.

[332 S.C. 347] Jay Bender and Kirby D. Shealy, III, of Baker, Barwick, Ravenel & Bender, Columbia, for appellant.

Joseph M. McCulloch, Jr., Columbia, A. Camden Lewis of Lewis, Babcock & Hawkins, Columbia; Katharine E. Evatt and Donald V. Myers, Lexington, for respondent.

Page 593

WALLER, Justice:

This is an appeal of a temporary restraining order prohibiting the media from disseminating the contents of a videotape containing a privileged communication between the defendant herein, B.J. Quattlebaum, and his attorney. The State-Record Co., Inc. (The State/Newspaper) appeals. We affirm.


Quattlebaum was indicted for murder, armed robbery, assault and battery with intent to kill and possession of a [332 S.C. 348] firearm during commission of a violent crime; the State sought the death penalty. While he was imprisoned at the Lexington County Detention Center, a privileged conversation between Quattlebaum and his attorney was surreptitiously recorded. 1 The videotape was thereafter disseminated to WIS-TV, a Columbia television station. 2 Upon learning of the videotape and its dissemination to the media, Quattlebaum moved for a temporary restraining order (TRO) prohibiting dissemination or characterization of its audio content. On August 18, 1997, the circuit court granted an ex parte TRO, pending a hearing the following day, prohibiting all trial participants and all media from disseminating the substance and details of the privileged communication. Counsel for The State was notified by telephone and a copy of the order was served on it the same day.

After a hearing on August 19, 1997, 3 the circuit court continued its order in effect until such time as a jury was empaneled and sequestered in Quattlebaum's case. 4 The circuit court's order specifically notes that it does not "prohibit the reporting of the invasion of the attorney client privilege;" nor does it "restrain or prohibit [publication of] the identity of the individuals involved or the nature of the charges in the case." It simply prohibits the "dissemination of the contents of the communication or the characterization of its contents."


1. Did the circuit court have subject matter jurisdiction to issue the temporary restraining order?

[332 S.C. 349] 2. Did the circuit court have personal jurisdiction over Newspaper?

3. Did the court err in imposing a prior restraint?


    Initially, The State contends the court of general sessions is without subject matter jurisdiction to issue an injunction. 5 We disagree.

    The general rule that a court in a criminal case will not issue an injunction is subject to the exception that a court, once having obtained jurisdiction of a cause of action, has inherent power to do all things reasonably necessary to the administration of justice in the case before it. 42 Am.Jur.2d Injunctions § 11 (1969). The United States Supreme Court has recently recognized the inherent authority of a court to protect its proceedings. See Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (courts invested with judicial power have inherent authority to protect their proceedings in course of discharging their traditional responsibilities). We find it patent

    Page 594

    that a court of general sessions has subject matter jurisdiction to issue an injunction, if necessary, to protect its proceedings.


    The State next argues the circuit court was without personal jurisdiction to bind it. We disagree.

    Under Rule 65(d) of the South Carolina Rules of Civil Procedure (SCRCP), every order granting a restraining order is binding on the parties and "those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." 6 Here, the only known media entity in possession of the videotape at the time [332 S.C. 350] Quattlebaum sought a TRO was WIS-TV, which was named and served with the motion for a TRO. We agree with the circuit court that The State was "in active concert" with WIS and had actual notice of the order so as to be bound by it. We find no error in the circuit court's assertion of personal jurisdiction over The State.


    The State next contends the circuit court erred in issuing a prior restraint as Quattlebaum failed to meet his burden of justifying its necessity. We disagree. Under the extremely limited factual circumstances of this case, we find the circuit court properly enjoined dissemination of the privileged communication between Quattlebaum and his attorney.

    This Court is faced with a profound dilemma: whether to uphold a prior restraint upon the media's First Amendment 8 right of free speech, a task which carries with it an extremely heavy burden upon the party seeking to limit the speech 9 ; or whether to invalidate the prior restraint placing in jeopardy the fundamental right of a defendant to a fair trial pursuant to the Sixth Amendment. 10 We are faced with the added quandary that the information sought to be disseminated by the media is a privileged communication between a criminal defendant and his attorney. 11

    Page 595

    [332 S.C. 351] To date, the United States Supreme Court has declined to assign priorities between the First Amendment right of free press and the Sixth Amendment right to a fair trial. 12 In Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 561, 96 S.Ct. [332 S.C. 352] 2791, 2803-04, 49 L.Ed.2d 683, 699 (1976), the Court specifically declined to rule on the issue, stating:

    The authors of the Bill of Rights did not undertake to assign priorities as between the First Amendment and Sixth Amendment rights, ranking one as superior to the other. In this case, petitioners would have us declare the right of an accused subordinate to their right to publish in all circumstances.... [I]t is not for us to rewrite the Constitution by undertaking what they declined to do. It is unnecessary, after nearly two centuries, to establish a priority applicable in all circumstances.

    Notwithstanding its reluctance to assign priorities between the competing interests, the Court has recognized that the right of a defendant to a fair trial is "the most fundamental of all freedoms--[which] must be maintained at all costs." Estes v. State of Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543, 549 (1965). More recently, the Court noted that "No right ranks higher than the right of an accused to a fair trial." Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629, 637 (1984).

    The Nebraska Press Court recognized a trial court's duty to protect the defendant's constitutional right to a fair trial from the impact of pretrial publicity:

    Due process requires that the accused receive a trial by an impartial jury free from outside influences.... [T]he trial courts must take strong measures to ensure that the balance is never weighed against the accused .... where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should [take such measures as continuance, change of venue, sequestration, or a new trial].... But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.

    427 U.S. at 552-53, 96 S.Ct. at 2800, 49 L.Ed.2d at 694 (emphasis supplied) (citing Sheppard v. Maxwell, 384 U.S. [332 S.C. 353] 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)). See also Noriega, 752 F.Supp. at 1049-51.

    Citing Learned Hand, 13 Nebraska Press established a three-prong balancing test to determine whether a prior restraint is justified:

    1. The nature and extent of pretrial publicity;

    2. Whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and

    Page 596

    3. How effectively a restraining order would operate to prevent the threatened danger.

    427 U.S. at 562-68, 96 S.Ct. at 2804-07, 49 L.Ed.2d at 699-703. Nebraska Press specifically noted that "[t]he precise terms of the restraining order are also important." Id. at 562, 96 S.Ct. at 2804, 49 L.Ed.2d at 699.

    We find the remedial measures employed by the trial court here were necessary to guarantee Quattlebaum's right to a fair trial. 14 Moreover, the restraint imposed by the trial court was as narrowly tailored, both in scope and duration, as was possible under the circumstances.

    Here, as to the first element, although Quattlebaum's case was not extremely "sensational," it was a death penalty case which received media attention throughout the state due, in large part, to the videotape in question. We find sufficient evidence in the record from which to conclude the pretrial publicity in this case had the potential to impair the Quattlebaum's right to a fair trial. Accord Nebraska Press, 427 U.S. at 562-63, 96 S.Ct. at 2804, 49 L.Ed.2d at 700 (notwithstanding impact of publicity is "of necessity speculative," dealing as a court must with factors unknown and unknowable, court could reasonably conclude, based on common human experience, that publicity might impair defendant's right to a fair trial).

    [332 S.C. 354] Further, we find the third prong of Nebraska Press is met in this case. Undoubtedly, the prior restraint prevented prospective jurors from learning the contents...

To continue reading