Star-Telegram, Inc. v. Walker

• Decision Date: 01 July 1992
• Docket Number: STAR-TELEGRA,INC,No. D-1464,D-1464
• Citation: 834 S.W.2d 54
• Parties: 20 Media L. Rep. 1379 , d/b/a the Fort Worth Star-Telegram; Richard Connor, Individually and as President of Star-Telegram, Inc., d/b/a Fort Worth Star-Telegram; Michael Blackman, Individually and as Executive Director of Star-Telegram, Inc., et al., Relators, v. The Honorable Jeff WALKER, Judge, Respondent.
• Court: Texas Supreme Court

Page 54

834 S.W.2d 54

20 Media L. Rep. 1379

STAR-TELEGRAM, INC., d/b/a the Fort Worth Star-Telegram Richard Connor, Individually and as President of Star-Telegram, Inc., d/b/a Fort Worth Star-Telegram Michael Blackman, Individually and as Executive Director of Star-Telegram, Inc., et al., Relators, v. The Honorable Jeff WALKER, Judge, Respondent.

No. D-1464.

Supreme Court of Texas.

July 1, 1992.

Thomas J. Williams, Fort Worth, for relators.

Mabel Murphy Simpson, Mark A. Haney, Roger Jeffrey Walker, Fort Worth, for respondent.

OPINION

GONZALEZ, Justice.

The issue before us in this mandamus proceeding is whether a trial court may issue a protective order to prohibit a newspaper from publishing information already disclosed in open court and made part of a trial court's public record. We hold that the trial court's protective order violates article I, section 8 of the Texas Constitution, because it unreasonably restricts expression by preventing the dissemination of public information. This constitutes a clear abuse of discretion by the trial court for which there is no adequate remedy at law. We thus conditionally grant the writ and order the trial court to dissolve the protective order.

I.

The victim and real party in interest was brutally raped on September 24, 1989. She reported the crime to the police who prepared an offense report that contained her identity. Based on this report, Star-Telegram published two news articles on September 27 and 28, 1989, neither of which contained her name.

On October 4, 1989, the victim filed a request to compel the use of the pseudonym "Jane Doe" in all public files and records concerning the offense pursuant to that provision of the Texas Code of Criminal Procedure which requires that the attorney for the State "ensure that the victim [of certain sexual offenses] is designated by the pseudonym in all legal proceedings concerning the offense." TEX.CODE CRIM.PROC. art. 57.02(f) (1992). A public servant who violates this request by disclosing the victim's identity to anyone not involved in the investigation or prosecution of the offense commits a class "C" misdemeanor. ¹ Despite her request for anonymity, Jane Doe's real name was used in the indictment filed on October 26, 1989.

On June 15, 1990, Jane Doe filed a civil suit against Star-Telegram for invasion of privacy based on the paper's publication of the two articles relating to her rape. Although Star-Telegram did not use Jane Doe's real name, she alleged that the stories contained sufficient detail to identify her. Star-Telegram served its first set of interrogatories on Jane Doe asking for information relating to her identity, and she responded by filing a motion for protective order which was orally granted during a telephone hearing held on December 10, 1990. ² Under this order, Star-Telegram was prohibited from publishing facts relating to the victim's identity.

About two months later, the attorney in charge of prosecuting the criminal case advised Jane Doe that using her real name during trial would increase the probability of conviction. Jane Doe agreed to the use of her name provided that the State would seal the records following the criminal trial. The assailant was tried and convicted on March 13-14, 1991, and Jane Doe's real name was used on numerous occasions throughout the trial. When Star-Telegram learned of this, it moved for reconsideration of the oral protective order.

On June 24, 1991, the State filed a motion for protective order in the criminal proceeding, which the criminal court immediately granted, also entering written orders sealing the files and expunging Jane Doe's real identity from the criminal records. Thereafter, the district court in the civil suit held a hearing on Star-Telegram's motion to reconsider the protective order. Jane Doe stipulated that the State used her real name in the indictment, the State's motion in limine, and its charge to the jury, and that she testified under her own name during the criminal trial. As proof of the State's agreement to maintain her confidentiality, Jane Doe introduced into evidence the criminal court's order expunging her identity from the record.

At the conclusion of the hearing, the trial court modified its oral protective order and reduced it to writing. The written protective order required all parties to maintain the confidentiality of Jane Doe's true identity by not disclosing it in any way to anyone other than the parties and lawyers in the civil suit. The order defined "identity" to include Jane Doe's real name, employment, home and work addresses and telephone numbers, social security number, and driver's license number.

II.

We recently relied exclusively on article I, section 8 of the Texas Constitution to create a test to aid us in assessing the validity of gag orders in civil proceedings. See Davenport v. Garcia, 834 S.W.2d 4, 7-12 (Tex.1992). Davenport involved a prior restraint that prevented communications by the parties to a civil lawsuit as well as by a guardian ad litem who had already been dismissed from the suit. Id. at 6. The test established in that context applies equally in the situation before us, where we consider a prior restraint on a media defendant.

The two-part Davenport test prohibits prior restraints in civil judicial proceedings except in the extraordinary circumstance where the court, based on the evidence adduced, determines specifically that:

(1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.

Id. at 10. This test enables reviewing courts to ensure the preservation of the press' constitutionally sanctioned right of access to the judicial process.

Relying on a test that derives its strength from our own constitution is particularly appropriate here since the federal law on prior restraints remains somewhat unsettled. See Id. at 21 (characterizing the federal guidelines on prior restraint as "just a dotted line where road construction has not yet even gotten under way"); Bernard v. Gulf Oil Co., 619 F.2d 459, 481 (5th Cir.1980) (Tjoflat, J., concurring) (jurisprudence of prior restraints is "a difficult and little-explored area of constitutional law"). The United States Supreme Court in Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), clearly disfavors prior restraints, but that case addressed prior restraints as applied to third party media complainants who were unconstitutionally prohibited from reporting about a trial. ³ Here, Star-Telegram is the defendant in a civil suit but is restrained by the gag order from disclosing the plaintiff's real identity.

Applying the Davenport test to the facts before us, we first must analyze whether the order is necessary to prevent imminent and irreparable harm to the litigant's right to a fair trial. Ensuring the secrecy of the information covered by the order is in no way essential to ensuring a fair trial in this instance. Indeed, the information in question is no longer secret; it is already public. The State disclosed Jane Doe's true identity several times during the criminal prosecution of her assailant--in the indictment, in its motion in limine, and in its charge to the jury. Once filed, these instruments became part of the public record of the criminal case. ⁴ In addition, Jane Doe consented to testify under her true name as a witness for the prosecution.

Trial proceedings are public information. It is beyond dispute that the information relating to Jane Doe's true identity could be gleaned from the criminal court records and testimony. The order entered by the criminal court closing the files and expunging Jane Doe's true identity from the criminal records (more than three months following the criminal trial) could not retroactively abrogate the press' right to publish public information properly obtained from open records. ⁵ The law cannot recall information once it is in the public domain.

The Court of Criminal Appeals in Ex Parte Foster, 44 Tex.Crim. 423, 71 S.W. 593 (App.1903), discussed the article I, section 10 right to a public trial in conjunction with article I, section 8's assurance of a free press. In that case, the editor of a newspaper sought habeas corpus relief to allow publication of testimony adduced during a criminal trial. In Ex Parte Foster, the court held that a trial court is without power to prohibit the publication of testimony presented during the trial of a criminal case. 71 S.W. at 596; see also Houston Chronicle Publishing Co. v. Shaver, 630 S.W.2d 927, 932 (Tex.Crim.App.1982) (holding that trial judge's retiring to chambers to conduct remainder of hearing in private was equivalent to closing court to spectators and news reporters, thus denying public right of access to proceedings). Interpreting article I, sections 8 and 10, the court in Ex Parte Foster stated that:

[o]ur constitution is but in accord with the genius and the spirit of our free institutions, which is intended to guaranty publicity to the proceedings of our courts, and the greatest freedom in the discussion of the doings of such tribunals, consistent with truth and decency. And as has been well said, "When it is claimed that this right has in any manner been abridged, such claim must find its support, if any there be, in some limitation expressly imposed by the lawmaking power." And this imposition must be in accord with the provisions of our constitution guarantying the publicity of all trials, as well as the freedom of speech and of the press.

71 S.W. at 595.

The Court of Criminal Appeals followed Foster when it held, in Ex Parte McCormick, that a trial court could not prohibit newspaper reporters from publishing testimony in a murder trial regardless of the trial court's assertion that such publication would impede a speedy trial by an impartial jury...