United States v. Columbia Broadcasting System, Inc.

• Decision Date: 11 July 1974
• Docket Number: No. 73-2602.,73-2602.
• Citation: 497 F.2d 102
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. COLUMBIA BROADCASTING SYSTEM, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 102 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. COLUMBIA BROADCASTING SYSTEM, INC., Defendant-Appellant.

No. 73-2602.

United States Court of Appeals, Fifth Circuit.

July 11, 1974.

Talbot D'Alemberte, Miami, Fla., Morton Stavis, Doris Peterson, Nancy Stearns, Center for Constitutional Rights, New York City, Larry G. Turner, Gainesville, Fla., Cameron Cunningham, Brady Coleman, Austin, Tex., for Briggs.

Jack S. Graff, Pensacola, Fla., for defendant-appellant.

William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Elliot Richardson, Atty. Gen., Erwin N. Griswold, Sol. Gen., of the U. S., Guy Goodwin, Robert A. Dierker, Attys., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before DYER, MORGAN and RONEY, Circuit Judges.

DYER, Circuit Judge:

The inherent tension between two fundamental constitutional guarantees — the freedom of the press and the right to a fair trial — is manifest in this appeal by the Columbia Broadcasting System from a series of district court orders which restricted the making and publishing of sketches. The lower court forbade not only in-court sketching, but also proscribed the publication of sketches of courtroom scenes, regardless of where the sketches were made. Because the orders are unconstitutionally overbroad, they must be vacated.

This controversy began during the pre-trial stage of the criminal prosecution of individuals, popularly known as the "Gainesville Eight," who were accused of conspiring to disrupt the Republican National Convention in 1972. CBS News sent correspondent Jed Duvall and artist Aggie Whelan to cover the trial, which was scheduled to begin on July 31, 1973. A pre-trial hearing was held on June 20, 1973, and on that date the trial judge announced orally that "no sketches in the courtroom would be permitted to be made for publication." Pursuant to these instructions, Whelan took no sketch materials into the courtroom, but did enter to observe the proceedings. After two hours she left and began sketching outside in the hall. When the judge learned of this activity, he called both Duvall and Whelan into his chambers, confiscated the sketches and issued another verbal order. No court reporter was present during this meeting, but the judge later stated that he

made explicit the direction that no sketches for publication of proceedings in the courtroom or its environs were to be made, even though such sketches were made not in the courtroom or its environs but from memory. . . .¹

After this order, the artist did not re-enter the courthouse, but later sketched the trial participants from memory, based on her observations both inside and outside of the courtroom. Four of the sketches were televised on the CBS Morning News on June 22, 1973. On July 7, CBS was adjudged guilty of having defied the district court's order.²

The judge later issued two other orders pertaining to sketching. On July 12, an order was entered promulgating a number of rules applicable only to the "Gainesville Eight" case. The following day the judge entered another order identical in substance to the sketching provisions of the previous day's order, but which was intended to supplement the local rules applicable in the district court.³ The order of July 13 reads:

During the progress of or in connection with any judicial proceedings now or hereafter pending before the undersigned . . . sketching in the courtroom or its environs, whether or not court is actually in session, is prohibited.

This order extends to and prohibits the publication of any sketch of the courtroom or its environs or any proceedings therein, regardless of the place where such sketch is made.

CBS immediately appealed, and both CBS and NBC sought writs of mandamus to require the district judge to vacate the parts of the July 12 and 13 orders which restricted sketching. On July 20 we suspended the effect of the orders and held the mandamus petitions in abeyance pending resolution of this appeal.

The orders issued by the district court present two distinct issues. First we must examine the constitutionality of the order banning the publication of sketches, regardless of whether the sketches were made in the courtroom, its environs, or elsewhere. Then we must consider the prohibition on sketching itself in the courtroom or its environs during any judicial proceedings.

At the outset we wish to make clear that it is not our intention to deprecate the efforts of the district court in attempting to maintain the dispassionate forum essential for a fair trial. A heavy obligation rests on trial judges to effectuate the fair-trial guarantee of the Sixth Amendment:

Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to insure that the balance is never weighed against the accused.

Sheppard v. Maxwell, 1966, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600. Nor are we unmindful of the difficult problems confronting the court in this particular case. The trial judge's concerns were summarized in the statement accompanying the July 12 order:

There has been a great deal of publicity concerning this case and, in all probability and likelihood, there will continue to be. Moreover, it is clear that defendants are actively seeking publicity and in so doing are trying to place before the public, including persons who are potential jurors, their own version of the merits of the case. In the material on file they make statements such as: That they are not guilty and that the government brought the prosecution for the purpose of attempting to destroy the VVAW Vietnam Veterans Against the War; that the time prior to trial would be spent in educating the jury and the people through the media that the trial is a farce, a political repression and a political trial; that the indictments should be dropped and that the "illegal use of the federal Grand Jury system" by the Nixon administration be discontinued. That this conduct, if continued, might be prejudicial to a fair and impartial trial cannot be doubted.

However, to recognize that the trial court is obligated to take "stong measures" to protect the rights of the accused is but the first step in our consideration of the validity of the publishing ban. The difficulty, of course, is that a countervailing constitutional guarantee, freedom of the press, must also be taken into account. Happily, our task is made easier by a recent decision of this Court, authored by Chief Judge Brown, which thoroughly examines the delicate balance between the First and Sixth Amendments in the context of a judicial ban on publication. United States v. Dickinson, 5 Cir. 1972, 465 F. 2d 496. That case stands for the proposition that before a prior restraint may be imposed by a judge, even in the interest of assuring a fair trial, there must be "an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil." Craig v. Harney, 1947, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546. See also Wood v. Georgia, 1962, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569; Bridges v. California, 1941, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192.

We entertain no doubt that the publication ban in the case before us must be measured in the terms of this high standard. If there was ever any question that the free-press guarantee encompassed more than the written word, it was dispelled by the decision in Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, which extended First Amendment protection to motion pictures. The prior restraint standard cannot be avoided by the Government's suggestion that this case involves only a "minor restriction prohibiting the publication of certain sketches." True, we are not confronted with the kind of blanket restraint condemned in cases such as New York Times v. United States, 1971, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822; Bantam Books, Inc. v. Sullivan, 1963, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584, or Dickinson, supra, but we know of no authority for the proposition that First Amendment standards can be "tempered" according to the degree of the restraint imposed.

In testing the prior restraint imposed by the district judge, we have the additional guidance of the Kaufman Committee Report,⁴ a study by a group of judges charged with the responsibility of making suggestions to implement the fair-trial mandate of Sheppard v. Maxwell, supra, without unnecessary infringement on the freedom of the press. The court below properly employed several of the recommendations of the Report concerning highly publicized trials. By imposing the ban on the publication of sketches, however, the district court disregarded the express caveat of the Report:

The Committee does not presently recommend any direct curb or restraint on publication by the press of potentially prejudicial material. Such a curb, it feels, is both unwise as a matter of policy and poses serious constitutional problems.

45 F.R.D. at 401-402.

Despite that warning, the Government now urges that the constitutional obstacles to a direct restraint on publication can be overcome. In arguing that the sketching ban is not an invalid restraint under the First Amendment, the Government relies heavily on the Supreme Court's decision in Estes v. Texas, 1965, 381 U.S....