Wxia-Tv v. State

• Decision Date: 05 March 2018
• Docket Number: S17A1804
• Citation: 303 Ga. 428,811 S.E.2d 378
• Court: Georgia Supreme Court
• Parties: WXIA–TV et al. v. STATE of Georgia et al.

303 Ga. 428

811 S.E.2d 378

WXIA–TV et al.

v.STATE of Georgia et al.

S17A1804

Supreme Court of Georgia.

Decided March 5, 2018

Baker & Hostetler, Stephen D. Bauer, Ian K. Byrnside, Cody S. Wigington, for appellants.

C. Paul Bowden, District Attorney, for appellees.

Holland & knight, Robert S. Highsmith, Jr., Allen A. Hendrick, amici curiae.

Blackwell, Justice.

This is an appeal from a gag order, which restrains the lawyers in a murder case, the defendant and the lawyers in a related case, court personnel, and current and retired law enforcement personnel from making extrajudicial, public statements on certain subjects related to the murder case for so long as it remains pending. A gag order like this one may be constitutionally permissible in exceptional circumstances, but the record here does not reveal circumstances sufficiently exceptional to warrant such a restraint. For that reason, we vacate the gag order.

1. Soon after Tara Grinstead went missing from Irwin County in October 2005, her disappearance attracted significant media attention. The Georgia Bureau of Investigation (GBI) and other law enforcement agencies investigated her disappearance for more than eleven years, and throughout the course of that lengthy investigation, news organizations continued to show an interest, reporting from time to time on her disappearance and developments in the investigation. When Ryan Alexander Duke was arrested on February 23, 2017 and charged with Grinstead’s murder, his arrest unsurprisingly was the subject of extensive media coverage. From the record, it appears that the media coverage was most intense in Irwin County and surrounding areas of central and south Georgia. To a lesser extent, the record shows that Duke’s arrest also was covered by television stations and newspapers in Atlanta, as well as some national news organizations.

Five days later, the Superior Court of Irwin County issued a gag order,¹ which forbade several classes of persons (some of which were indeterminate) from making extrajudicial, public statements about the case:

[D]uring the pendency of this case and until final determination in the trial court, the prosecution, all law enforcement, [Duke], counsel for [Duke], potential witnesses, expert and other, court personnel and family members for both [Duke] and [Grinstead] shall not make, release or authorize the release of any extrajudicial statements for dissemination by any means of public communication relating to any matters having to do with this case.

The superior court issued this gag order without an evidentiary hearing, but it found that "this case is high profile and has generated extensive media coverage." The court concluded that "there is a reasonable likelihood that [Duke]’s Sixth Amendment right to a fair trial by an impartial jury may be prejudiced by extra judicial statements," and for that reason, "an [o]rder restricting statements made outside of the courtroom is necessary and proper."

Nine news organizations (including WXIA-TV and 13 WMAZ-TV)² and Grinstead’s sister promptly filed motions to intervene and to set aside the gag order. The superior court allowed intervention, and it set a hearing on the motions to set aside. At that hearing, counsel for the news organizations argued that the gag order impaired their news gathering, that it was a constitutionally impermissible prior restraint, that it swept too broadly, and that it was improperly issued without any evidentiary record to support it. In response to the last point, Duke tendered 78 exhibits, which consist of online search results and published articles and commentary that illustrate the extent of media coverage and public interest in Grinstead’s disappearance and the murder case against Duke. In light of the significant media attention, Duke’s lawyer argued that a gag order was warranted and necessary, and the prosecuting attorney said that the State did not object to a gag order.

Following the hearing, on March 27, 2017, the superior court issued the modified gag order that is the subject of this appeal. The modified gag order provides in pertinent part:

During the pendency of the [case against Duke and an apparently related case], and until [their] final determination in this Court (including sentencing, if applicable), or until further order of this Court to the contrary, the District Attorney (and all persons associated with his office), counsel for [Duke] (and all persons associated with his office), [the defendant in the related case], counsel for [the defendant in the related case] (and all persons associated with his office), the Court staff, current and past members or employees of law enforcement who participated in the investigation or who have knowledge of facts uncovered by the investigation, shall not release, make or authorize the release of any extrajudicial statement by any means of public communication and news media relating to:

a. the character, credibility, reputation or criminal record of [Duke] or the identity of a witness or the expected testimony of a party or witness;

b. the possibility of a plea of guilty to the offense charged;

c. the existence or contents of any confession, admission or statement given by [Duke] or his refusal or failure to make a statement; d. the performance or results of any examination or test or the refusal or failure of [Duke] to submit to examinations or tests or the identity or nature of physical evidence expected to be presented;

e. any opinion as to the guilt or innocence of [Duke]; and

f. information that the lawyers know or reasonably should know is likely to be inadmissible as evidence at trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial.

The modified gag order is considerably narrower than the original gag order. It applies to fewer and better-defined classes of persons than the original gag order.³ And it does not forbid all extrajudicial, public statements about the case, only statements upon the enumerated topics.⁴ In addition, the modified gag order explicitly states that it is not a restraint upon speech by "members of the media or other members of the public," and the modified gag order itself does not limit access to judicial proceedings or judicial records in the case. As a basis for the modified gag order, the superior court made several findings of fact about the significant attention that the case has received from the media.

WXIA–TV and 13 WMAZ–TV filed a motion to reconsider the modified gag order. They acknowledged that it is narrower than the original gag order, but they argued that it still is constitutionally impermissible. In particular, they urged that the evidentiary record and findings of fact do not establish a sufficiently high likelihood of prejudice to warrant any restraint and that the superior court in any event failed to give adequate consideration to less restrictive alternatives. The superior court took no action on the motion to reconsider, and WXIA–TV and 13 WMAZ–TV then brought this appeal.⁵

2. To begin, we consider whether WXIA–TV and 13 WMAZ–TV have standing to challenge the modified gag order, notwithstanding that it does not restrain them directly. The United States Supreme Court has recognized that the freedom of speech implies a "right to receive information and ideas," Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 757 (III), 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (citation and punctuation omitted), and the Supreme Court has acknowledged that the First Amendment offers some protection to news gathering by journalists. See Branzburg v. Hayes, 408 U.S. 665, 681 (II), 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) ("[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated."). Consonant with this recognition, the federal courts have held in a number of cases that a news organization may have standing to challenge a restraint upon the speech of another when that restraint impairs its own ability to effectively engage in news gathering. See Davis v. E. Baton Rouge Parish School Bd., 78 F.3d 920, 926 (II) (B) (5th Cir. 1996) ("Several courts have held that news agencies have standing to challenge confidentiality orders in an effort to obtain information or access to judicial proceedings, although they are neither parties to the litigation nor restrained directly by the orders.") (citing cases). See also United States v. Aldawsari, 683 F.3d 660, 664–665 (III) (A) (5th Cir. 2012) (standing to challenge gag order in criminal case); In re Application of Dow Jones & Co., 842 F.2d 603, 607–608 (2d Cir. 1988) (standing to challenge gag order restraining speech of trial participants); CBS Inc. v. Young, 522 F.2d 234, 237–238 (6th Cir. 1975) (standing to appeal gag order prohibiting parties to litigation from publicly discussing case).⁶

Some federal courts have limited such standing to cases in which there is "reason to believe that [an] individual subject to the gag order is willing to speak and is being restrained from doing so," United States v. Wecht, 484 F.3d 194, 202 (II) (A) (1) (3d Cir. 2007) (citation and punctuation omitted), whereas others have "found media standing to challenge confidentiality orders without expressly finding the existence of a willing speaker." Davis, 78 F.3d at 927 (II) (B). Whether or not standing depends on a reason to believe that someone restrained by a gag order would otherwise be willing to speak, the record in this case suggests the existence of willing speakers. The record shows that the case has produced significant media coverage, and at least on some occasions, that coverage has been based in part on information provided by law enforcement sources. In the modified gag order, the superior court found that GBI officials held a press conference just days before the issuance of the original gag order, and subsequent to that press conference, GBI officials spoke with reporters. Several of the news...