Belo Broadcasting Corp. v. Clark, KDFW-T

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation654 F.2d 423
Docket NumberNos. 80-2169,KDFW-T,80-2239,I,s. 80-2169
Parties7 Media L. Rep. 1841 BELO BROADCASTING CORPORATION, Plaintiff-Appellant, v. Jesse CLARK, Defendant-Appellee. UNITED STATES of America, Plaintiff, v. Billy Wayne CLAYTON, et al., Defendants,nc. and Quin Mathews, Movants-Appellants. . Unit A
Decision Date28 August 1981

Page 423

654 F.2d 423
7 Media L. Rep. 1841
Jesse CLARK, Defendant-Appellee.
UNITED STATES of America, Plaintiff,
Billy Wayne CLAYTON, et al., Defendants,
KDFW-TV, Inc. and Quin Mathews, Movants-Appellants.
Nos. 80-2169, 80-2239.
United States Court of Appeals,
Fifth Circuit.
Unit A
Aug. 28, 1981.

Page 425

Locke, Purnell, Boren, Laney & Neely, Stephen Philbin, Dallas, Tex., for plaintiff-appellant.

Mary L. Sinderson, Asst. Atty. Gen., Houston, Tex., for defendant-appellee.

Jackson, Walker, Winstead, Cantwell & Miller, Charles L. Babcock, Stephen Philbin, Dallas, Tex., for movants-appellants.

Appeals from the United States District Court for the Southern District of Texas.

Before CHARLES CLARK and GEE, Circuit Judges, and SPEARS *, District Judge.

GEE, Circuit Judge:

As the result of a Federal Bureau of Investigation "sting" operation (the "Brilab" investigation) concerned with alleged bribery in the awarding of state employee insurance contracts, the Speaker of the Texas House of Representatives, two Austin, Texas, attorneys, and a Houston, Texas, labor official, L. G. Moore, were indicted and the first three tried and acquitted in Houston on a number of federal offenses. 1

Prominent items of proof at trial were audiotapes of discussions between defendants and the FBI operatives. Prior to and during the criminal trial, the presiding district judge prohibited the clerk of the court, counsel, or any party from providing the news media with the tapes or copies of the tapes admitted into evidence at trial. Belo Broadcasting Corporation and station KDFW, two Dallas broadcasting stations, made separate requests to the district judge to copy these Brilab tapes for public broadcast. Both the Belo motion, made during the criminal trial, for a temporary restraining order that would have required the clerk to turn over the tapes to the broadcaster, and the KDFW "Petition for Hearing and for Vacation of Restrictions on Press and Other News Media," filed after the verdicts of acquittal, were denied by the district court. In refusing to permit the requested access, the district judge made clear his concern that broadcast of the tapes outside his courtroom would have a deleterious effect on the pending trial of defendant Moore. In his memorandum opinion rejecting Belo's request, which was incorporated by reference in his denial of the subsequent KDFW motion, the district judge wrote:

Widespread publication of these tapes prior to trial will severely prejudice Mr. Moore's sixth amendment right to a fair trial, as well as potentially deny him rights guaranteed by the fourth and fifth amendments. Moreover, if the tapes are prematurely heard by the public, this court would be severely hampered in selecting a fair and impartial jury in the forthcoming trial.

The broadcasters' appeals have been consolidated for our consideration. We affirm the orders of the district court.

I. Appellate Jurisdiction.

A brief but necessary discussion of the appealability of these district court orders is

Page 426

warranted. The disposition below of KDFW's "Petition for Hearing and for Vacation of Restrictions on Press and Other News Media" is an appealable order. The petition was copied from one filed in the criminal trial of former U.S. Senator Edward Gurney, the lower court disposition of which was found by this court to be a sufficiently appealable order in United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977).

The Belo request stands in a somewhat different light: Belo appeals from the denial of what all concerned styled a temporary restraining order ("TRO"). The disposition of a motion for a temporary restraining order is generally not appealable under 28 U.S.C. § 1292(a)(1) as an order granting, denying, or modifying an injunction. In certain circumstances the denial of a requested TRO can be considered denial of a preliminary injunction. The label appended by the requesting party or the judge is not conclusive as to its proper characterization. The central inquiry goes to the nature and scope of the hearing that precedes the denial of the motion. The denial of a so-called temporary restraining order is properly appealable when entered after a hearing in which all interested parties had an opportunity to participate, thus allowing for full presentation of relevant facts. See Dilworth v. Riner, 343 F.2d 226 (5th Cir. 1965).

Application of these principles to this "TRO" denial does not yield a certain result. From what appears in the transcript, the hearing on Belo's motion could not have lasted over a minute. Belo's lawyers asked for access, the judge denied it. An assistant United States attorney was present, but no occasion arose for her to address the court on behalf of the clerk as custodian of the tapes. The presence of counsel for defendants or L. G. Moore is not reflected in the record. More lawyers could have added little to this hearing; it does not appear that any facts required fuller explication. On these particular facts a motion for which factual development was irrelevant, the hearing was not ex parte, and time was exceedingly short 2 we find the denial of the TRO for access to be an order sufficiently final to endow us with jurisdiction. 3

With both appellants properly before us, we proceed to a consideration of the substance of their positions. Because, as will appear, our conclusions place us in something of a minority among our fellow circuits, we write at greater length than explaining an affirmance of a trial court's exercise of discretion usually requires.

II. Constitutional Claims.

The broadcasters assert both a constitutional and a common law right of access to the tapes. We deal first with the claimed right of constitutional derivation: 4 there is no such first amendment right. In Nixon v. Warner Communications, 435 U.S.

Page 427

589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), confronted with a claim identical to that made by the broadcasters here, the Supreme Court squarely rejected a claimed constitutional right of physical access to trial exhibits: "Respondents claim that Cox Broadcasting 5 guarantees the press 'access' to meaning the right to copy and publish exhibits and materials displayed in open court. This argument misconceives the holding in Cox Broadcasting." Id. at 608-09, 98 S.Ct. at 1317-18. In Cox Broadcasting the Court held that the press could not be prohibited from reporting what it had learned in open court and what the public was thus entitled to know. In Warner Communications the Court recognized the difference between the situation in Cox Broadcasting and the one immediately before it and now before us. Here, as in Warner Communications, there were "no restrictions on press access to, or publication of any information in the public domain." Id. at 609, 98 S.Ct. at 1318. Members of the press were allowed to listen as the tapes were played in court; transcripts were prepared and distributed for their use; reporters and broadcasters were free to report this information as they wished. All that was denied them was the right to play these tapes over the air waves; that the Constitution does not require.

The district judge here recognized, consistent with prior Supreme Court authority relied on by the Court in Warner Communications, that the right of access enjoyed by the press is generally no greater than that of the public at large.

Thus, the issue presented in this case is not whether the press must be permitted access to public information to which the public generally is guaranteed access, but whether these copies of the White House tapes to which the public has never had physical access must be made available for copying. Our decision in Cox Broadcasting simply is not applicable.

435 U.S. at 609, 98 S.Ct. at 1318 (emphasis in original). As recognized by the Court in Warner Communications, neither the public nor the press enjoys any constitutional right of physical access to exhibits introduced in evidence at a criminal trial. Constitutional requirements are fully satisfied by the kind of untrammeled access to the information contained therein that was afforded press and public alike in this case.

Our decision in United States v. Gurney, supra, where we found it significant that the documents withheld from the press were not part of the public record in the criminal case, may be read as holding, in reliance on Cox Broadcasting, that there exists a constitutional right of physical access to and inspection of courtroom exhibits. To that extent, it must be considered overruled by Warner Communications. Counsel for KDFW suggested at oral argument that the subsequent Supreme Court attention to fair trial-free press questions in Richmond Newspapers, Inc. v. Virginia, supra, had rescued Gurney from obliteration by Warner Communications. We have carefully considered the argument that Richmond Newspapers has altered the firm "no constitutional right of access" holding of Warner Communications and thus breathed new life into the broadcasters' claim of first amendment entitlement to copy and broadcast these tapes. We find it unpersuasive.

The question before the Court in Richmond Newspapers was a narrow but important one: "whether the right of the public and press to attend criminal trials is guaranteed under the United States Constitution." 448 U.S. at 558, 100 S.Ct. at 2818. 6 The Supreme Court answered that question affirmatively but left us with an even narrower holding: the state court here impermissibly closed this criminal trial to public

Page 428

and press alike. That the right to attend criminal trials is not absolutely guaranteed by the first amendment is indicated in the plurality opinion. In restating the question before the Court in a subsequent passage, the Chief Justice writes:

But here for the first time the Court is asked to decide whether a criminal trial itself may be closed to the public upon the...

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