Worrell Newspapers of Indiana, Inc. v. Westhafer

• Decision Date: 28 August 1984
• Docket Number: No. 83-2851,83-2851
• Citation: 739 F.2d 1219
• Parties: 10 Media L. Rep. 2088 WORRELL NEWSPAPERS OF INDIANA, INC., d/b/a Greensburg Daily News, and Karen McKinley, Plaintiffs-Appellants, v. Honorable John WESTHAFER, Decatur County Circuit Court, Judge, and Kenneth Bass, Decatur County Prosecutor, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1219

739 F.2d 1219

10 Media L. Rep. 2088

WORRELL NEWSPAPERS OF INDIANA, INC., d/b/a Greensburg Daily

News, and Karen McKinley, Plaintiffs-Appellants, v. Honorable John WESTHAFER, Decatur County Circuit Court,

Judge, and Kenneth Bass, Decatur County

Prosecutor, Defendants-Appellees.

No. 83-2851.

United States Court of Appeals,

Seventh Circuit.

Argued April 3, 1984.

Decided July 16, 1984.

Rehearing and Rehearing In Banc

Denied Aug. 28, 1984.

Stanley C. Fickle, Barnes & Thornburg, Indianapolis, Ind., for plaintiffs-appellants.

Mark J. Tidd, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before WOOD and FLAUM, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

FLOYD R. GIBSON, Senior Circuit Judge.

The plaintiffs, Worrell Newspapers and Karen McKinley, appeal from the district court's denial of their motion for summary judgment, and the district court's grant of the defendants', the Honorable John Westhafer and Kenneth Bass, motion for summary judgment, 570 F.Supp. 1447. We reverse.

I. Facts

On November 4, 1982, Karen McKinley, a reporter for the Greensburg Daily News, was informed by a confidential source that a criminal information would be filed that morning by the Decatur County Prosecutor, Kenneth Bass, in connection with an arson investigation. McKinley went to the County Clerk's Office to look at the court records in order to confirm the suspect's name, that a probable cause hearing had been held, and to learn the details of the charge. The employees in the office would not allow McKinley to look at the criminal docket book, and they also denied her access to all records relating to the criminal information involved.

McKinley then went to see John Westhafer, Judge of the Decatur County Circuit Court, and asked him why she was being denied access to these records. The Judge responded that he had granted the County Prosecutor's motion to seal the information until the suspect was arrested. The motion had been granted pursuant to an Indiana statute which punishes by contempt anyone who discloses the name contained in a sealed information before the suspect is arrested. Ind.Code Ann. Sec. 35-34-1-1(d) (Burns Cum.Supp.1984). McKinley asked Judge Westhafer what would happen if the Greensburg Daily News published a story concerning the information. The Judge told McKinley that she and her editor would be held in contempt if the newspaper published a story about the information before the criminal suspect was arrested.

McKinley returned to the newspaper and related these events to her editor. Because of the possible contempt sanction, the paper did not print any story on November 4 about the sealed information. On November 5, the newspaper was informed that the individual named in the sealed information had been arrested, and the paper published an article concerning the information and arrest in its evening edition. All parties agree, and the district court found, that but for Sec. 35-34-1-1(d) and Judge Westhafer's statement to McKinley, the plaintiffs would have published an article reporting the existence of the information, and the individual it named, on November 4.

The plaintiffs brought this action in federal district court seeking a declaratory judgment that Sec. 35-34-1-1(d) is unconstitutional because it violates the rights of freedom of speech and the press as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States. There was no dispute over the facts and so the case was submitted to the court on cross-motions for summary judgment. Although the district court acknowledged that the Indiana statute infringed upon the right of freedom of the press guaranteed by the First Amendment, it held that the State's interest in the apprehension of criminals was sufficiently compelling to overcome the constitutional infirmity, and the statute was narrowly tailored to serve that interest in the manner least restrictive of a free press.

II. Discussion

The only issue before us concerns the authority of a state to subject to criminal punishment any person who truthfully publishes the name of an individual against whom a sealed criminal indictment or information has been filed. Because we hold that Sec. 35-34-1-1(d) is, on its face, an unconstitutional infringement on the First Amendment, we do not reach the other issues raised by the plaintiffs.

Sec. 35-34-1-1(d) provides as follows:

The court, upon motion of the prosecuting attorney, may order that the indictment or information be sealed. If a court has sealed an indictment or information, no person may disclose the fact that an indictment or information is in existence or pending until the defendant has been arrested or otherwise brought within the custody of the court. However, any person may make any disclosure necessarily incident to the arrest of the defendant. A violation of this subsection is punishable as contempt.

It is clear that the statute applies to the press. The First Amendment provides that "Congress shall make no law ... abridging the freedom ... of the press...." U.S. Const. amend. I. Through the Fourteenth Amendment, this prohibition applies equally to the states. Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093 (1940); Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357 (1931). Despite the unequivocal language of the First Amendment, its freedoms are not absolute. Near, 283 U.S. at 708, 51 S.Ct. at 628. The authority of a state to enact laws to promote the health, safety, and general welfare of its people must be acknowledged, id. at 707, 51 S.Ct. at 627, and accommodated by constitutional jurisprudence. However, when a state statute infringes upon constitutional guarantees, the interest which the state seeks to secure must be compelling. In Smith v. Daily Mail Pub. Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979), the Supreme Court held as follows:

Whether we view the statute [forbidding publication of an alleged juvenile delinquent's name] as a prior restraint or as a penal sanction for publishing lawfully obtained, truthful information is not dispositive because even the latter action requires the highest form of state interest to sustain its validity. Prior restraints have been accorded the most exacting scrutiny in previous cases. See Nebraska Press Assn. v. Stuart, supra, [427 U.S. 539] at 561 [96 S.Ct. 2791, 2803, 49 L.Ed.2d 683; Organization for a Better Austin v. Keefe, supra, [402 U.S. 415] at 419 [91 S.Ct. 1575, 1577, 29 L.Ed.2d 1]; Near v. Minnesota ex rel. Olson, supra, [283 U.S.] at 716 . See also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 [95 S.Ct. 1239, 43 L.Ed.2d 448] (1975)....

Our recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards.

Id. at 101-02, 99 S.Ct. at 2669-70. Also, "the burden is on the government to show the existence of such an interest." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978), citing Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976). Further, the interest cannot be pursued by means which broadly stifle fundamental liberties when the end can be more narrowly achieved. In other words, the state must use the least restrictive means for achieving its purpose. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, ----, 103 S.Ct. 1365, n. 7 , 75 L.Ed.2d 295, 305 n. 7 (1983); Bellotti, 435 U.S. at 786, 98 S.Ct. at 1421. In addition, there is a "heavy presumption" against the constitutional validity of a statute which infringes upon First Amendment guarantees. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968).

The State argues that these standards are not applicable because Sec. 35-34-1-1(d) is not a "prior restraint" on the press, but rather provides a subsequent punishment for violation of its terms. This is a distinction without a difference, and the Supreme Court recently eliminated this semantic distinction. Daily Mail, 443 U.S. at 101-02, 99 S.Ct. at 2669-70; see also Thornhill, 310 U.S. at 101-02, 60 S.Ct. at 743-44 ("The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.") Indeed, as the Court went on to note, "state action to punish publication of truthful information seldom can satisfy constitutional standards." Daily Mail, 443 U.S. at 102, 99 S.Ct. at 2670.

We consider only one of the interests which the State tenders, and characterizes as compelling, as a justification for the statute. ¹ The interest boils down to the State's interest in the apprehension of criminals.

We agree that courts have the power to seal indictments or informations, under appropriate circumstances, to facilitate the apprehension of criminals. See generally, United States v. Muse, 633 F.2d 1041 (2d Cir.1980) (en banc ), cert. denied, 450 U.S. 984, 101 S.Ct. 1522, 67 L.Ed.2d 820 (1981); United States v. Slochowsky, 575 F.Supp. 1562 (E.D.N.Y.1983). For federal courts, Rule 6(e)(4) of the Federal Rules of Criminal Procedure formally embodies this judicial power. ² Rule 6(e)(2) contains a general provision for secrecy in order to give effect to and protect sealed records. ³ The obvious purpose behind these provisions is to "prevent the requirement of an indictment from serving as public notice that would enable the defendant to avoid arrest." Muse, 633 F.2d at 1043. However, unlike Sec. 35-34-1-1(d), the secrecy provision in Rule 6(e) applies, by its terms, only to individuals who are privy to the information contained in a sealed document by virtue of their positions in...