Digital Media and Data Privacy Law Blog

We have previously reported on prior restraints on media coverage and the interplay between the First Amendment rights of free speech and press and other Constitutional rights.  Prior restraints occur in different forms: “gag orders” imposed by courts, typically through the form of temporary restraining orders or injunctions; licensing requirements and cease and desist orders imposed by regulatory agencies; and “gag statutes” imposed by legislatures.  Additionally, different forms of prior restraints can affect the press equally; a gag order preventing persons from contacting the press can have the same chilling effect on publication as a prior restraint imposed on the press.

The United States Supreme Court has viewed a free press as “essential to the nature of a free state,” holding in Near v. Minnesota, 283 U.S. 697 (1931), that the chief purpose of the First Amendment’s guarantee to freedom of the press is to prevent prior restraints on publication.  This purpose stems directly from the press’s struggle in England to publish free of government censorship.  Correspondingly, the Supreme Court has examined prior restraints on the press with a “heavy presumption” against their constitutionality, holding in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), that prior restraints are “the most serious and the least tolerable infringement on First Amendment rights.”

The right to free press is not absolute, however.  While the Supreme Court has never upheld a prior restraint upon the press, it has recognized limited situations where a prior restraint might be justified, such as where pervasive publicity might interfere with a criminal defendant’s constitutional right to a fair trial.  Moreover, the Supreme Court has viewed punishment for statements in the press after publication as a more tolerable form of First Amendment infringement than preventing publication from happening in the first place.  Specifically, the Court has permitted criminal punishment and civil damages for the publication of defamatory statements, invasion of privacy, and obstruction of justice, among others.  As noted by the Supreme Court in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975):

[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.  It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.

Although different forms of prior restraints can have the same chilling effect on the press, courts in the Fourth Circuit have been more permissive of prior restraints on members of the general public than prior restraints on the press.  In United States v. King, 192 F.R.D. 527 (E.D.Va. 2000), the U.S. District Court for the Eastern District of Virginia granted a motion to restrain government witnesses in a high-profile drug conspiracy trial from forecasting their probable testimony for an upcoming trial in interviews with the press, although the court refused to prevent the media from airing a television interview that had already occurred.  The court in King recognized the Fourth Circuit’s interpretation of Nebraska Press to mean that, in the context of ensuring a defendant’s right to a fair trial, “the proponent of a prior restraint order must show a ‘clear and present danger’ that the pretrial publicity sought to be restrained will adversely affect the ability of the defendant to receive a fair trial.”

King further stated that to determine the necessity of a prior restraint to protect the fair trial rights of a defendant, Nebraska Press requires that courts must:

[D]etermine (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of the unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.  The precise terms of the restraining order are also important.

In answering the first prong of the Nebraska Press analysis, the court in King found that, although the airing of the interview could have “some adverse impact” on the views of potential jurors, it could not be said that the interview would “so distort the views of potential jurors that 12 could not be found who would . . . fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court.”  Additionally, the court found that extensive voir dire examination and appropriate trial instructions would alleviate any possible juror prejudice arising out of the airing of the interview, satisfying the second prong of Nebraska Press.  Although the court found that a prior restraint on the publication of the interview would effectively protect the defendant’s right to a fair trial, the court found that its analysis of the first two prongs compelled the court to decline imposition of a prior restraint on the interview.

The King court analyzed the right of government witnesses to forecast their probable testimony more strictly, however.  While the court recognized that witnesses in judicial proceedings have the right of free speech, it noted that previous Fourth Circuit decisions have prohibited witnesses from discussing their probable trial testimony with the media.  Similar to the test in Nebraska Press for prior restraints on the press, the court found that the test to determine whether to restrain public statements by witnesses was “whether there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.”  After finding no feasible alternative, the court in King found that the record established “that unrestrained discussion by the Government’s witnesses with the media, be it print or electronic, presents a reasonable likelihood that there will be prejudicial news coverage before trial that would prevent a fair trial.”  Correspondingly, the court imposed a gag order preventing government witnesses from discussing the case in interviews with the press.

Likewise, the Fourth Circuit in In re Russell, 726 F.2d 1007 (4th Cir. 1984), upheld a gag order from the Middle District of North Carolina preventing potential witnesses in a high-profile criminal trial from discussing their probable testimony with the media.  The court grounded its decision on the extensive publicity surrounding the trial, the “potentially inflammatory and highly prejudicial” statements that the witnesses would likely make, and the relative ineffectiveness of any feasible alternative to protect the defendants’ right to a fair trial.  Finding that judges must, by necessity, speculate as to what information may be prejudicial to potential jurors, the court in Russell concluded that the district judge acted “well within constitutional limits . . . in light of the difficult task of drafting an order that sufficiently protected the sixth amendment rights of defendants and at the same time did not unjustifiably trammel petitioners’ protected speech activities.”