CENTRAL SOUTH CAROLINA CHAPTER, ETC. v. Martin, Civ. A. No. 77-575.

• Decision Date: 02 May 1977
• Docket Number: Civ. A. No. 77-575.
• Parties: CENTRAL SOUTH CAROLINA CHAPTER, SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, Robert Hitt, Individually as news reporters and as members, officers and directors of the Central South Carolina Chapter, Society of Professional Journalists, Sigma Delta Chi, South Carolina Broadcasters Association, Dr. Richard Uray, Individually and as Executive Manager of the South Carolina Broadcasters Association, South Carolina Press Association, the Enterprise, Inc., Edward M. Sweatt, Individually as President of the South Carolina Press Association and as a shareholder and member of the Board of Directors of the Enterprise, Inc., and Carolyn Kay Harris, Plaintiffs, v. The Honorable J. Robert MARTIN, Jr., United States District Court for the District of South Carolina, Mark W. Buyck, Jr. Esq. United States District Attorney for the District of South Carolina. J. Elliot Williams, United States Marshal for the District of South Carolina, and Miller C. Foster, Jr., United States Clerk for the District of South Carolina, Defendants.
• Court: U.S. District Court — District of South Carolina

431 F. Supp. 1182

CENTRAL SOUTH CAROLINA CHAPTER, SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, Robert Hitt, Individually as news reporters and as members, officers and directors of the Central South Carolina Chapter, Society of Professional Journalists, Sigma Delta Chi, South Carolina Broadcasters Association, Dr. Richard Uray, Individually and as Executive Manager of the South Carolina Broadcasters Association, South Carolina Press Association, the Enterprise, Inc., Edward M. Sweatt, Individually as President of the South Carolina Press Association and as a shareholder and member of the Board of Directors of the Enterprise, Inc., and Carolyn Kay Harris, Plaintiffs, v. The Honorable J. Robert MARTIN, Jr., United States District Court for the District of South Carolina, Mark W. Buyck, Jr. Esq. United States District Attorney for the District of South Carolina. J. Elliot Williams, United States Marshal for the District of South Carolina, and Miller C. Foster, Jr., United States Clerk for the District of South Carolina, Defendants.

Civ. A. No. 77-575.

United States District Court, D. South Carolina.

May 2, 1977.

COPYRIGHT MATERIAL OMITTED

Mitchell Rogovin, George T. Frampton, Jr., Joel I. Klein, David R. Boyd, Washington, D. C., Jack C. Landau, Reporters Committee for Freedom of the Press, Washington, D. C., James C. Harrison, Jr., Costa M. Pleicones, Columbia, S. C., for plaintiffs.

Thomas E. Lydon, Jr., U. S. Atty., Wistar D. Stuckey, Glen E. Craig, Asst. U. S. Attys., Columbia, S. C., for defendants.

ORDER

MARTIN, Chief Judge.

This matter is before the Court upon the above captioned parties'¹ cross-motions for summary judgment upon the pleadings pursuant to a complaint for injunctive and declaratory relief seeking to void an order issued by this Court on May 31, 1976 in the criminal case of United States v. J. Ralph Gasque, et al., No. 76-104. The plaintiffs with the exception of one who is a newspaper subscriber are newsmen, journalists and news media establishments. The order issued May 31st reads as follows:

"For reasons appearing to the Court it is Ordered that the above captioned case is scheduled for trial in the United States District Courtroom, Columbia, South Carolina, on June 21, 1976. It is further ordered that

(1) Extra judicial statements by trial participants in the trial, including lawyers, parties, witnesses, jurors and court officials, which might divulge prejudicial matter not of public record in the case are prohibited.

(2) All participants in the trial, including lawyers, parties, witnesses, jurors and other officials shall avoid mingling with or being in the proximity of reporters, photographers and others in the entrances to and the hallways in the courthouse building, including the sidewalks adjacent thereto, both in entering and leaving the courtroom and the courthouse during recesses in the trial.

(3) The names and addresses of prospective jurors are not to be released except on Order of the Court, and no photographs shall be taken and no sketch made of any juror within the environs of the Court.

(4) All witnesses are prohibited from news interviews during the trial period.

(5) The United States Marshal at the direction of the Court will allocate seating of spectators and representatives of the news media, provided, however,

(a) No member of the public or news media representative shall be permitted at any time within the bar railing, except to specific seats designated for their use.

(b) Allocation of seats to the news media representatives, if there be an excess of requests, will take into account any pooling arrangement that may be agreeable among the newsmen."

The plaintiffs do not contest the validity of section five of the May 31st order in this action. They do, however, contest the remaining portions of the order and contend that it constitutes a prior restraint on freedom of the press in violation of their First Amendment rights accorded by the United States Constitution. As the basis of their contentions, the plaintiffs assert that the order has effectively destroyed the right of the press to print the news by destroying its right to gather news from important sources, a right they contend is necessarily a First Amendment corollary of the right to report public proceedings and the conduct of public officials. Additionally, the plaintiffs contend that the order was issued in violation of their constitutional due process right to be served notice and to be heard prior to its issuance and that the order suffers from vagueness and overbreadth.

The claims asserted by the plaintiffs are new to this Court only in the sense that this is the first and only proceeding before this Court to which it may properly address the same. Prior to the instant action, the identical plaintiffs had instituted an appeal or in the alternative a petition for a writ of mandamus attacking the provisions of the May 31st order in the United States Court of Appeals for the Fourth Circuit. As it was apparent to that Court that the complainants were not parties to the criminal proceedings against J. Ralph Gasque and his codefendants and that their right to relief from the order was far from clear and indisputable, it dismissed the appeal and denied, in the alternative, the petition for mandamus. A stay order which had been previously issued against the criminal case by the Court of Appeals was dissolved as well. Central South Carolina Chapter, Society of Professional Journalists, Sigma Delta Chi et al. v. United States District Court for the District of South Carolina et al., 551 F.2d 559 (4 Cir. 1977).

The plaintiffs now seek independent recourse against the provisions of the May 31st order, apart from the proceedings of the criminal case, by way of a motion to stay or preliminary injunction of the order and by way of permanent injunctive and declaratory relief against the same. That complaint was served on the interested parties named as defendants and an answer and memorandum has since been submitted by the United States District Attorney for the District of South Carolina. The answer, entitled motion to dismiss pursuant to Rule 12(b), F.R.Civ.P. or in the alternative, motion for summary judgment pursuant to Rule 56, F.R.Civ.P. was filed on behalf of the named defendants, Williams, Foster and on behalf of Thomas Lydon, who recently succeeded Mark Buyck as the District Attorney for the District of South Carolina. In reply, the plaintiffs have filed a pleading and memorandum entitled opposition to motion to dismiss and cross-motion for summary judgment. The plaintiff also requested in that pleading that this Court enter a final order as promptly as possible in recognition of the urgency of the issues raised in the complaint.

It is immediately recognized and agreed to by the parties that there are no disputed facts and that the issues raised and joined by the pleadings, affidavits and exhibits attached thereto and the previous proceedings before the Court of Appeals are purely legal questions and that the motion for a stay or preliminary injunction may be determined by this Court in absence of an evidentiary hearing without prejudice to any of the interests involved.² It is also apparent that the action for permanent injunctive and declaratory relief should be advanced and expedited in order that a final determination in this matter be made with some urgency. The issues raised thereto are also without factual dispute or controversy and are purely legal questions so as to support the consolidation of this action for a final determination in the absence of a hearing without prejudice to any of the interests involved and as agreeable by the parties. Accordingly, the remainder of this order will be devoted to the merits of the claims raised that the May 31st order constitutes a prior restraint against the press in violation of the First Amendment and that the order was issued in violation of the plaintiffs' Fifth Amendment due process rights to notice and a hearing and that the order suffers from vagueness and overbreadth.

There first appears to be a serious question of standing for the plaintiffs to assert this action. The concept of standing focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The standing question is whether the plaintiff has alleged such a personal stake in the outcome of the controversy to warrant his invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on his behalf. The relevant inquiry, assuming justiciability of the claim, is whether the plaintiff has shown injury to himself that is likely to be redressed by a favorable decision. Absent such a showing, exercise of its power by a federal court would be gratuitous and thus inconsistent with the Article III limitation of the Constitution. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). The concept of standing has also been said to focus upon the inquiry whether "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by statute or constitutional guarantee in question" Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); C. B. S. v. Young, 522 F.2d 234 (6 Cir. 1975).

Turning to the latter concept of standing first, it is immediately recognized that this is not a case of direct restraint upon the right of the public or the press to publish or speak what it knows, but is rather a restraint upon trial participants in a criminal case (none of which are plaintiffs in this civil action) to prohibit the trial participants from divulging extrajudicial prejudicial matters not of public record in the pending criminal case. The plaintiffs contend that such a restraint destroys its right to publish news by destroying its right to gather news. They argue...