South Band Tribune v. Elkhart Circuit Court

• Decision Date: 16 January 1998
• Docket Number: No. 20A03-9709-CR-339,WSBT-T,WSBT-R,20A03-9709-CR-339
• Citation: 691 N.E.2d 200
• Parties: 26 Media L. Rep. 1694 SOUTH BEND TRIBUNE,adio, Elkart Truth, and WTRC, Appellants-Intervenors, v. ELKHART CIRCUIT COURT and the Honorable Gene R. Duffin, Appellees.
• Court: Indiana Appellate Court

Page 200

691 N.E.2d 200

26 Media L. Rep. 1694

SOUTH BEND TRIBUNE, WSBT-TV, WSBT-Radio, Elkart Truth, and WTRC, Appellants-Intervenors, v. ELKHART CIRCUIT COURT and the Honorable Gene R. Duffin, Appellees.

No. 20A03-9709-CR-339.

Court of Appeals of Indiana.

Jan. 16, 1998.

Transfer Denied April 15, 1998.

Gerald F. Lutkus, George E. Horn, Jr., Barnes & Thornburg, South Bend, for Appellants-Intervenors.

Jeffrey A. Modisett, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellees.

OPINION

GARRARD, Judge.

The South Bend Tribune, WSBT-TV, WSBT-Radio, the Elkhart Truth, and WTRC (collectively "Media") appeal the trial court's denial of its motion to quash the gag order placed on the trial participants in a local murder trial, claiming the gag order was an impermissible prior restraint upon their First Amendment rights.

We affirm.

FACTS

The gag order at issue here was initially issued on July 16, 1997 by Judge Gene Duffin to prevent the participants in the murder retrial ¹ of Ricky Joyner ("Joyner") from speaking with the media. ² Shortly after Judge Duffin entered the gag order, the Media filed a motion to intervene and to quash the gag order. The trial court granted the motion to intervene and, on July 30, 1997, held oral argument. ³ After the oral argument, the trial court asked the Media to supply it with copies of newspaper articles concerning the Joyner trial and articles from previous murder trials.

After reviewing the articles submitted by the Media, the trial court issued an order denying the motion to quash and affirming the gag order on August 11, 1997. In its order, the trial court first stated that the Media had the right to intervene in the present case and then stated that the gag order was justified by the pretrial publicity's threat to Joyner's Sixth Amendment right to a fair trial. The trial court then discussed each of the alternatives to the gag order suggested by the Media and found that the alternatives were either not justified or ineffective. Finally, the trial court further defined the restricted parties and clarified what they were prohibited from discussing. Eight days later, the Media filed a request for leave to file an interlocutory appeal which the trial court granted. On October 8, 1997, we granted the Media's petition for interlocutory appeal.

ISSUES

The Media raises two issues on appeal which we restate as:

I. Whether the gag order constituted an impermissible prior restraint upon the Media's First Amendment rights.

II. Whether the trial court's order was justified in light of the surrounding facts.

DISCUSSION

In its first claim, the Media argues that the gag order placed upon the trial participants constitutes a prior restraint upon the Media because it was intended to "quiet the media" and prevents them from effectively reporting the murder trial. The State ⁴ contends that the gag order is not a prior restraint because it does not apply to the Media and does not prevent them from covering the trial. We agree.

Based upon our research and the admission of the parties, the question of whether a gag order placed upon the participants in a criminal trial constitutes a prior restraint upon the press appears to be a question of first impression in Indiana. In its order of August 11, 1997, the trial court relied upon Application of Dow Jones & Co., Inc., 842 F.2d 603 (2nd Cir.1988) cert. denied, 488 U.S. 946, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988) for its determination that its gag order did not constitute a prior restraint. The State argues that the trial court properly relied upon Dow Jones to determine that the gag order is not a prior restraint. Admitting that the gag order is not a "classic" prior restraint, the Media nonetheless contends that the gag order was intended to muzzle the media ⁵ and is, therefore, a prior restraint. In addition, the Media argues that Dow Jones is factually distinguishable because it involved much more pervasive and prejudicial pretrial publicity than exists in the present situation. The Media claims that the trial court should have relied upon Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) to find the order a prior restraint upon its First Amendment rights. ⁶

In Nebraska Press, the trial court issued a gag order against the media restraining them from publishing certain facts about a highly publicized murder trial. We are not presented here with a gag order entered against the media, instead the gag order is directed at the trial participants. We find Nebraska Press to be factually distinguishable. Unlike Nebraska Press, the gag order in Dow Jones is strikingly similar to the order in the present case. In Dow Jones, the trial court issued a gag order that restrained the trial participants from speaking with the media about the case. Like the Media in the present case, the media in Dow Jones challenged the gag order claiming that it constituted a prior restraint upon their First Amendment rights. The Dow Jones court initially noted that the gag order was not directed at the media, but was instead directed at the trial participants. The court found this distinction to be critical, Dow Jones, 842 F.2d at 608, and held that the gag order could not be characterized as a prior restraint upon the media. Id. at 609. The Media contends that Dow Jones is factually distinguishable because the pretrial publicity at issue here was much less pervasive and prejudicial than in Dow Jones. We fail to see how the amount and type of publicity changes the holding that a gag order on trial participants does not constitute a prior restraint upon the press. The Media's argument that the publicity in Dow Jones was greater goes to whether the gag order is justified, not whether it is a prior restraint. The Media is not prevented from covering the trial by this gag order. The only parties prevented from speaking are the trial participants and they are not parties to this appeal. We agree with Dow Jones and hold that a gag order placed solely upon trial participants does not constitute a prior restraint upon the press.

We now turn to the test used by the Dow Jones court to determine whether the trial court was justified in issuing the gag order. ⁷ "To decide whether the pretrial publicity justified the order, the standard by which to measure justification is whether there is a 'reasonable likelihood' that pretrial publicity will prejudice a fair trial." Id. at 610. The trial court must examine the nature and extent of the pretrial publicity to determine whether this reasonable likelihood standard has been met. Id. Before a trial court may enter an injunction against speech, the trial court must decide whether alternative means would effectively mitigate the prejudicial effect of the pretrial publicity. Id. at 611. These alternative means must be examined individually and collectively. Id.

In its second claim, the Media does not directly discuss the Dow Jones test, but instead claims that the trial court's order was vague, ambiguous, and overly broad. The Media argues that the gag order is vague and ambiguous because it is not clear which parties may not speak with the media. The Media claims the order is overly broad because it covers more people than is necessary to insure a fair trial. These claims all revolve around the premise that the gag order applies to the Media and is a prior restraint upon the Media. As we have discussed, the gag order is not a prior restraint upon the Media and does not apply to the Media. The Media may speak with anyone it so desires. It is the restrained parties who may not speak about the subjects defined in the order. ⁸ In this instance, the only parties who may challenge the terms of the restraining order as they are applied are the restrained parties. Because the Media is not one of the restrained parties, the Media may not now challenge the order as it is applied. We will, therefore, treat the Media's second claim as challenging whether the facts justified the gag order under the reasonable likelihood...