State-Record Co., Inc., In re, STATE-RECORD

Decision Date16 October 1990
Docket NumberSTATE-RECORD,Nos. 90-5908,90-5909,s. 90-5908
Citation917 F.2d 124
Parties18 Media L. Rep. 1286 In re theCOMPANY, INC.; the South Carolina Press Association; the Evening Post Publishing Company; the Greenville News-Piedmont Company; the Spartanburg Herald-Journal, A Division of The New York Times Company, Inc., Petitioners. In re theCOMPANY, INC.; the South Carolina Press Association; the Evening Post Publishing Company; the Greenville News-Piedmont Company; the Spartanburg Herald-Journal, A Division of The New York Times Company, Inc., Petitioners.
CourtU.S. Court of Appeals — Fourth Circuit

Jay Bender, Belser, Baker, Barwick, Ravenel & Bender, Columbia, S.C. (S. Markey Stubbs, on pleadings), for petitioners.

William A. Coates, Love, Thornton, Arnold & Thomason, Greenville, S.C., Ben A. Hagood, Asst. U.S. Atty., Columbia, S.C. (E. Bart Daniel, U.S. Atty., Sherri Lydon, Asst. U.S. Atty., on pleadings), for respondents.

Before WIDENER, CHAPMAN and NIEMEYER, Circuit Judges.

PER CURIAM:

The above matters have been consolidated because both involve petitions by the news media for relief from "gag orders" issued in similar criminal prosecutions pending in the United States District Court for the District of South Carolina. The petitioners, publishers of daily newspapers of general circulation within the State of South Carolina, seek to vacate orders by United States District Judges in the two criminal actions: United States v. Luther Langford Taylor (No. 90-5908) and United States v. Ennis Maurice Fant, Larry Blanding, and Benjamin J. Gordon (No. 90-5909).

These defendants are now, or formerly were, elected members of the South Carolina General Assembly, and each has been charged with violation of Federal statutes, particularly the Hobbs Act. The investigation leading to these indictments, and all activities since the indictments, have produced intense coverage and comment by all news media in South Carolina.

On September 4, 1990, defendant Taylor, through his attorney, filed a "Motion for Gag Order" in which he

moves that the court enter its order specifically directing counsel for the parties, including the United States Attorney, and any indicted defendant in this or any companion case, including but not limited to Robert Kohn, Daniel Winstead, Robert Brown, and Richard Lee, and any attorneys representing the same, from making any extra-judicial statement.

This motion is based upon the grounds that any such statement will likely interfere with the rights of this defendant to a fair trial.

Although this motion mentions only extra-judicial statements by the parties and their attorneys, the request for relief was extended on or about September 10, 1990. At that time Taylor objected to release of certain information filed by the United States Attorney in a response to a motion for "Brady material" and for any evidence the government intended to use under Federal Rule of Evidence 404(b) of "other crimes, wrongs, or acts" that might be used to prove motive, opportunity or intent. Taylor contends that information contained in the government's response to these motions was prejudicial to him and should not be admitted into evidence, and if the government's response was not sealed, it would be the immediate subject of intense media coverage and endanger his right to be tried by an impartial jury.

The press had notice of the September 4 request for the gag order, and a hearing was held to consider this motion on September 24, 1990. This hearing was in open court and well attended by the press. No member of the press requested a delay of the hearing or requested the right to be heard, and there was no attorney present representing any of the media.

At the conclusion of that hearing the trial judge stated: "It is now 4:12 p.m. and I am issuing a verbal order, effective at this time. Neither the attorneys nor the defendant may engage in any further conversations with any news media."

The following day the trial judge ordered "that the clerk of the Court is to seal all documents, including notices, which have been filed in this case prior to September 24, 1990 and that all documents, including notices, which are subsequently filed in connection with the case are to be sealed at the time of filing." The order further provided that copies of the documents filed would be distributed to the attorneys and directed the attorneys, members of their staffs, and court personnel not to publish, reproduce or distribute any information regarding the case to the news media. By a subsequent order of the same date, the judge directed the clerk to advise the public and the news media of any and all public courtroom proceedings in the case.

The following day the State Record Company and the South Carolina Press Association moved to intervene and to seek reconsideration of the verbal order and the written orders sealing the records. The district court heard these motions on September 27, 1990, and the following day issued an order denying relief. In this order the district court sealed the list of prospective jurors, the written questionnaire forwarded to prospective jurors, and the answers to the juror questionnaires, but provided that this material be made available to the attorneys and the defendants.

In his order of September 28, 1990, the trial judge found that, "[b]oth the prosecution and the defense have used press conferences, news releases and information contained in public documents to disseminate to the media information which may prejudice potential jurors in this case." The court expressed its concern over the ability of the defendant to receive a trial by an impartial jury in the State of South Carolina and recognized the tension between the defendant's Sixth Amendment right to a fair trial and the First Amendment right of the media and the public of free access to information: "By leaving the courtroom open, but sealing the record in this case, this court hopes to strike a balance which will provide the defendant with his right to a fair trial as well as to provide the citizens of South Carolina with their right to information on the pre-trial proceedings."

The court applied a "reasonable likelihood" test, finding that there was a reasonable likelihood that irreparable damage to the defendant's right to a fair trial would result if the mandates of its order were not carried out. The court felt that by sealing the record and restricting the ability of the participants to comment on the case, it reduced the likelihood of prospective jurors being exposed to inflammatory and prejudicial material which would not be admissible at trial. The court rejected the suggested alternative that the court redact potentially prejudicial and improper material from the documents because the court did not have the time or the resources to fairly edit the documents for the sake of the news media.

The petitioners have appealed this ruling and we have consolidated the Taylor case with the cases of Fant, Blanding and Gordon, because another South Carolina District Judge entered a very similar order in the Fant, et al., case.

I

"Mandamus is the preferred method for review of orders restricting press activity related to criminal proceedings...." In re Washington Post Co., 807 F.2d 383, 388 (4th Cir.1986).

Lack of notice is not an issue in the present case. Various reporters and other media personnel were present in court when the motion for a "gag order" was first discussed, and final action on the order was not taken until three weeks later. Although the original motion was to stop extra-judicial statements by the attorneys and the parties, this motion was expanded in open court to cover documents the government filed in response to requests for "Brady material" and Federal Rule of Evidence 404(b) material. The media used some of the material furnished in these documents to write stories which are claimed to be prejudicial to the defendant.

Petitioners do not contest that part of the district court's order which prevents extra-judicial statements by the attorneys and the individual parties, nor do they object to the order sealing the list of prospective jurors and the answers to the juror questionnaire. Petitioners direct their attack to that part of the order which seals the records of the district court and prevents disclosure of documents filed in the cases "prior to September 24, 1990 and all documents including notices, which are subsequently filed in connection with this case...." This sealing also covers the docket entry sheet maintained by the Clerk of Court.

II

Petitioners claim a First Amendment right of access to the records, rather than a common law right, because they are all engaged in the news dissemination business. We have previously held that the common law does not provide as much access to the press and public as does the First Amendment. Under the common law the trial court's denial of access to documents is reviewed for abuse of discretion, but under the First Amendment, such denial is reviewed de novo and must be necessitated by a compelling government interest that is narrowly tailored to serve that interest. In re Washington Post Co., 807 F.2d at 390.

The more rigorous First Amendment standard applies to documents filed in connection with plea hearings and sentencing hearings in criminal cases, id. at 390, as well as pretrial proceedings. In re Charlotte Observer, 882 F.2d 850, 852 (4th Cir.1989).

In Charlotte Observer, we considered a court's closure of a scheduled hearing and the sealing of certain documents filed in support of a motion to change venue and concluded:

Because the public's right to access to criminal trials and pretrial proceedings is protected by the first amendment, the proceedings here at issue could not properly be closed except on the basis of specific judicial findings that " 'closure is essential to...

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