State, ex rel. New Mexico Press Ass'n v. Kaufman, 14088

Decision Date02 June 1982
Docket NumberNo. 14088,14088
Citation1982 NMSC 60,648 P.2d 300,98 N.M. 261
Parties, 36 A.L.R.4th 1115, 8 Media L. Rep. 1713 STATE, ex rel. NEW MEXICO PRESS ASSOCIATION and New Mexico Broadcasters Association, Petitioners, v. Hon. Bruce E. KAUFMAN, District Judge, Respondent.
CourtNew Mexico Supreme Court
Hal Simmons, Albuquerque, for petitioners
OPINION

EASLEY, Chief Justice.

Prior to trial in this penitentiary riot-related murder case, Chapman moved to limit media coverage. The State made no objection. Without notice to the media and without their participation in the hearing on the motion, Judge Kaufman ordered limitations on press coverage.

The New Mexico Press Association and the New Mexico Broadcasters Association (Media) intervened by petitioning this Court to prohibit the restraint. We issued a temporary writ as to part of the complaints, ordered briefs and set a hearing date. Prior to the hearing, Chapman was convicted and sentenced.

We address these questions:

1. Whether the Media has standing to intervene, and if so, whether its filing first in this Court is proper.

2. Whether the issues are moot.

3. Whether the trial court could mandate that the names of jurors not be published.

4. Whether the trial court could order that Chapman not be photographed in the "judicial complex".

5. Whether the Media could be required to preserve all news articles, tapes and transcripts for ten days after the verdict was rendered.

Chapman moved to restrict media coverage to insure him a fair trial. He claimed, inter alia, that publishing the jurors' names would subject them to intimidation and harrassment, publication of his photographs would influence testimony of witnesses in this trial and another later trial, and the physical evidence of the stories published or aired by the Media should be preserved for ten days so that he might have access to this evidence, if needed. The trial court held a hearing at which the Media was not represented, since no notice was given to them. Without objection by the prosecution, the court issued its order limiting media coverage as indicated. The Media filed first in this Court to prohibit the actions of the trial judge.

This conflict exemplifies the classic collision between two important constitutional rights. This clash between well-guarded legal principles leaves the Court with the duty to perform a delicate balancing act. Freedom of the press, so sacred to the media, must be weighed against the defendant's right to a fair trial.

" '(O)ne of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, ... appears to have been the rule in England from time immemorial.' " Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 566-67, 100 S.Ct. 2814, 2822-23, 65 L.Ed.2d 973 (1980) (quoting F. Pollock, The Expansion of the Common Law 31-32 (1904)). This concept came across the Atlantic and became a part of colonial jurisprudence. Our First Continental Congress vouchsafed the right to trial by jury and openness of the proceedings.

"(O)ne great right is that of trial by jury. This provides, that neither life, liberty nor property, can be taken from the possessor, until twelve of his unexceptionable countrymen and peers of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character, and the characters of the witnesses, upon a fair trial, and full enquiry, face to face in open Court, before as many of the people as chuse to attend, shall pass their sentence upon oath against him...."

Id. at 568-69, 100 S.Ct. at 2823-24 (quoting 1 Journals of the Continental Congress, 1774-1789, at 107 (1904)).

It is no coincidence that the First Amendment to the Constitution of the United States contains the provision that "Congress shall make no law ... abridging the freedom ... of the press." This amendment is made applicable to the states through the Fourteenth Amendment. Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357 (1931). Article II, section 17, of the New Mexico Constitution contains the same mandate against interference with freedom of the press.

The Sixth Amendment to the United States Constitution, however, secures rights equally fundamental to our jurisprudence: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." The Sixth Amendment is made applicable to the states by the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). "The authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights" and the interplay of these sacred Amendments are as old as the Republic itself. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 561, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976).

We fully agree with Mr. Justice Black's observation that "free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them." Bridges v. California, 314 U.S. 252, 260, 62 S.Ct. 190, 192, 86 L.Ed. 192 (1941). In analyzing the interplay of the First and Sixth Amendments, we note that "(a)ny prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971) (citations omitted).

In Nebraska Press Assn., supra, 427 U.S. at 587, 96 S.Ct. at 2816 (Brennan, J., concurring), Justice Brennan stated:

Commentary and reporting on the criminal justice system is at the core of First Amendment values.... Secrecy of judicial action can only breed ignorance and distrust of courts and suspicion concerning the competence and impartiality of judges; free and robust reporting, criticism, and debate can contribute to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system ... by subjecting it to the clensing effects of exposure and public accountability. (Citations omitted.)

The issues in our case must be matched with this impressive authority.

1) Standing.

The Media did not plead or appear in the trial court, but filed a petition for a writ in this Court. Thus, issues arise as to whether the Media has standing to intervene in this criminal case, particularly at the appellate level.

Cases from many jurisdictions make it clear that the news media has standing to question the validity of an order impairing its ability to report the news, even though it is not a party to the litigation below. See, e.g., State ex rel. Miami Herald Pub. v. McIntosh, 340 So.2d 904 (Fla.1977). However, the news media has no right to intervene as a party in a criminal case. State v. Bianchi, 92 Wash.2d 91, 593 P.2d 1330 (1979). The proper approach lies in a separate action for declaratory judgment, mandamus or prohibition. Bianchi, supra. Therefore, we find that the Media has standing.

In Canon 3(A)(7), Code of Judicial Conduct, 20 N.M.St.B.Bull. 1249-51 (1981), we provided that an appellate court shall not exercise its appellate or supervisory jurisdiction to review an order banning media coverage. The State argues that we should deny this petition based on that section. The Court finds that we are compelled by our New Mexico Constitution, Article VI, section 3, to hear cases involving writs of prohibition, and that these issues are of such great importance, the guidelines are now so indefinite and the potential for further disputes so great that we address these questions.

Furthermore, when an order banning coverage constitutes a prior restraint, it attenuates the basic constitutional rights of the media to publish. If no effective review is provided, constitutional error may be uncorrected. See United States v. Dickinson, 465 F.2d 496 (5th Cir. 1972).

We hold that the Media has a right to appear and contest this decision.

It is imminently necessary that the trial courts, the attorneys and the litigants be given more definite guidelines for reconciling these competing positions. In satisfying these guidelines, we draw liberally on Seattle Times v. Ishikawa, 97 Wash.2d 30, 640 P.2d 716 (1982).

We hold as follows:

The media right to publish is not absolute. See Richmond Newspapers, Inc., supra. It may be limited to protect other interests.

When restrictions are sought in a criminal case, the trial court should require certain steps. The proponent of the ban must specify the reasons for and show cause for a limitation. If it is sought for the purpose of protecting a defendant's right to a fair trial, the evidence must demonstrate that there is a substantial likelihood that the presence of cameras will deny defendant a fair trial. However, if a limitation is sought to protect other interests, which involve important constitutional rights, a higher test should be required. The proponent of a ban should in that case prove that a "serious and imminent threat to some other important interest" exists.

Before placing restrictions on the media, some minimum form of notice should be given to the media and a hearing held. Anyone present should be given an opportunity to object. These proceedings should take place in advance of the date set for trial, if possible, to avoid delays and postponements. Short notice, proof by affidavits, abbreviated hearings are not precluded.

The court should weigh the competing interests of the defendant and the public and determine if the limitation sought...

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