New York Times Co. v. Starkey

• Decision Date: 30 January 1976
• Citation: 380 N.Y.S.2d 239,51 A.D.2d 60
• Parties: In the Matter of the NEW YORK TIMES COMPANY et al., Petitioners, v. John R. STARKEY, etc., Respondent. In the Matter of NEW YORK NEWS INC., Petitioner, v. John R. STARKEY, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 239

380 N.Y.S.2d 239

51 A.D.2d 60

In the Matter of the NEW YORK TIMES COMPANY et al., Petitioners, v. John R. STARKEY, etc., Respondent.

In the Matter of NEW YORK NEWS INC., Petitioner, v. John R. STARKEY, etc., Respondent.

Supreme Court, Appellate Division, Second Department.

Jan. 30, 1976.

Cahill Gordon & Reindel, New York City (Floyd Abrams, Eugene R. Scheiman, Dean Ringel and James C. Goodale, New York City, of counsel), for petitioners The New York Times Co. et al.

Townley, Updike, Carter & Rodgers, New York City (Richard J. Barnes and Peter C. Gould, New York City, of counsel), for petitioner New York News Inc.

Louis J. Lefkowitz, Atty. Gen., New York City (Dominick Tuminaro, New York City, of counsel), for respondent.

Farrell, Diamond & Kalina, Maspeth (Vincent D. Farrell and Arthur L. Diamond, Maspeth, of counsel), for New York Press Club, Inc., amicus curiae.

Before HOPKINS, Acting P.J., and COHALAN, RABIN, SHAPIRO and TITONE, JJ.

HOPKINS, Justice.

The respondent, a Justice of the Supreme Court, Kings County, is presiding at a criminal trial which commenced on January 13, 1976. The defendant Carso and five codefendants, are on trial, charged with the alleged murder of one Philip Williams on May 23, 1973. The defendants are also charged with kidnapping, robbery and burglary. On January 13, 1976, the first day of the trial, the respondent admonished petitioner Kleiman, a reporter for petitioner The New York Times, and a Mr. Liberman, a reporter for the New York Post, not to report anything about the case, except what transpired in the courtroom. The respondent advised petitioner Kleiman and Liberman 'not to go into any background at all'.

On January 15, 1976 the New York Times printed an article by Ms. Kleiman which referred to a previous trial and conviction in Nassau County of defendant Carson and four of his codefendants herein on charges of kidnapping and to the conviction of two codefendants herein of attempted murder, stemming from events which took place on the same evening as the alleged crimes for which these defendants are being tried in Kings County.

That morning, in open court, counsel for defendant Carson read the article written by petitioner Kleiman to the respondent in the absence of the jury. The respondent then ascertained from petitioner Kleiman, who was then in the courtroom, that she had indeed written the article, and had considered respondent's admonishment of January 13, 1976 to be a request and not an order. The respondent stated that it had been an order, and that any future disregard thereof would lead to a contempt citation.

That afternoon counsel for the New York Times appeared before the respondent and moved to vacate the oral order and, alternatively, moved for a stay thereof. Counsel argued that, as a matter of constitutional law, the respondent could not impose any prior restraint upon the press. The respondent denied the motion and stated that he had the duty to balance the constitutional guarantee of a free press against the paramount rights of the defendants to a fair trial. Counsel asked the respondent whether he intended to reduce his oral order to writing. The respondent indicated that it was not necessary to do so as his oral order was on the record.

Immediately thereafter the New York Times commenced this proceeding seeking the vacatur of the respondent's oral orders and moved for a stay of those orders pending a determination by this court. The Times' request for a temporary restraining order in its order to show cause was denied by a member of this court. However, it continued to publish articles containing information about defendants' criminal backgrounds, in disregard of the respondent's order.

While this proceeding was pending before this court, the respondent signed a written order, dated and entered on January 20, 1976, which was effective as of January 13, 1976, prohibiting the New York Times, the New York Post, the New York Daily News, Ms. Kleiman and Mr. Liberman from 'printing and publishing any criminal background on any or all of the defendants herein and more particularly any matter against these defendants in Nassau County pertaining to these defendants in any proceeding arising out of the subject matter of the within indictment currently on trial in Kings County for the reasons set forth by this court in the trial minutes of January 13, 1976, and January 15, 1976'. Both counsel for petitioners the New York Times and Kleiman and the Attorney-General, as counsel for the respondent, have stipulated that the respondent's written order 'is and may be considered as a part of the record in the above-entitled proceedings.'

On January 23, 1976, the New York Daily News instituted a similar proceeding against the respondent and moved for a stay of respondent's written order of January 20, 1976. Both proceedings were thereupon consolidated by this court for disposition.

The preliminary issue as to the propriety of this proceeding may be quickly resolved. A proceeding under CPLR article 78 lies to determine the constitutional rights of the press to report criminal trials and orders of the court affecting those rights (Matter of Oliver v. Postel, 30 N.Y.2d 171, 331 N.Y.S.2d 407, 282 N.E.2d 306; cf. La Rocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606). Such a proceeding satisfies the need for the expeditious consideration of the constitutional rights of the press during a pending trial.

Two questions essentially are presented by the parties: First, the existence of the trial court's authority to issue the orders under review; and second, assuming that the authority exists, the nature of the conditions under which such orders may be properly issued. The First Amendment establishes the freedom of the press to report events and to disseminate news, as well as to express opinion. The Sixth Amendment establishes the right of a defendant in a criminal prosecution to a fair trial. At times these constitutional rights inevitably collide. Both occupy in our system a preferential position as indispensable privileges. First Amendment rights may not be diluted except for a compelling state interest (National Assn. for Advancement of Colored People v. Button, 371 U.S. 415, 439, 83 S.Ct. 328, 9 L.Ed.2d 405; Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649). Even so, the preservation of a fair trial is 'the most fundamental of all freedoms' (Estes v. Texas, 381 U.S. 532, 540--541, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543).

The power to enforce these rights, to give content and meaning to these ancient commandments, must reside in the courts, as the ultimate arbiters of disputes having constitutional dimensions. In exercising the power of enforcement, the right to a fair trial may require the issuance of an order, temporary in duration, forbidding the publication by the press of information prejudicial to a defendant on trial (Branzburg v. Hayes, 408 U.S. 665, 685, 92 S.Ct. 2646, 33 L.Ed.2d 626; Shepherd v. Florida, 341 U.S. 50, 53, 71 S.Ct. 549, 95 L.Ed. 740; Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663).

The existence of the court's authority to issue such an order, however, is only the beginning to the process of deciding whether the order ought to be issued. Precisely because 'a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field' (Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600), and because the press is the instrument by which the public is informed of current events, only the most exigent circumstances warrant the issuance of an order curtailing the right of the press to publish. All other measures within the power of the court to insure a fair trial must be found to be unavailing or deficient. No invasion of the freedom of the press should be sanctioned unless it appears clearly on the record that the court has inquired into the potential danger to the defendant if the prejudicial information is published, that on substantial grounds it appears that the defendant will be deprived of a fair trial as a result, and that the danger cannot be avoided or minimized by other means, such as by sequestering the jury, or through proper instructions to the jury (cf. Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.S. 1301, 95 S.Ct. 1, 42 L.Ed.2d 17). In short, an order directing the press not to publish the information ought to be the last resort of the court.

Moreover, due process and the delicate accommodation of the constitutional privileges require that the inquiry of the court should be made in advance of the trial, and on notice to the parties and to the press and to other interested media. ^* The procedure should generally follow the guidelines recommended by the Legal Advisory Committee on Fair Trial and Free Press (62 A.B.A.J. 63--64; see discussions in Landau, 'Fair Trial and Free Press: A Due Process Proposal', id. pp. 55--59, and Roney, 'The Bar Answers the Challenge', id. pp. 60--63). In most criminal cases action by the court will not be necessary; only in the rare case--the case which through the force of its circumstances becomes newsworthy to the degree that daily coverage of the proceedings is warranted--will the court be compelled to consider the issue whether a fair trial might be prevented through the publication of prejudicial information.

In this case the record before us is clear that no such inquiry of this character was made by the court; nor indeed that any findings were declared on the record establishing that the ultimate resort to the restrictions on the press were justified under the circumstances. Indeed, from the record, it appears that the jurors have been instructed not to read the newspapers, and have been heeding those instructions scrupulously. Nor does it appear from the record that the trial court has given consideration to the alternative measure of...