Sioux Falls Argus Leader v. Miller5/10/2000
rohibition, Media claimed Judge Miller's participant gag order violated its First Amendment rights and that the court acted in excess of its authority. Media was not in a position to seek a remedy by direct appeal because it is neither a party to the underlying action nor specifically enjoined by the order from discussing the case. However, Media's First Amendment rights are affected by the gag order, as is noted below, and it would be without a remedy should we find prohibition could not be invoked. There being no "plain, speedy and adequate remedy" available to it in the ordinary course of law, and concluding Media has a beneficial interest in the outcome, we deem it appropriate to review the trial court's gag order in this prohibition action.
Standing
[ ] We must also initially determine whether Media, a nonparty to the underlying lawsuit, has standing to challenge the gag order. Standing requires that a party allege (1) a personal injury in fact, (2) a violation of his or her own, not a third-party's rights, (3) that the injury falls within the zone of interests protected by the constitutional guarantee involved, (4) that the injury is traceable to the challenged act, and (5) that the courts can grant redress for the injury. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 US 464, 472-74, 102 SCt 752, 758-59, 70 LEd2d 700 (1982).
[ ] The United States Supreme Court has previously determined that the First Amendment protects the right to receive information and ideas. See Application of Dow Jones & Co., Inc. 842 F2d 603, 606-08 (2ndCir 1988) (discussing this right and citing Supreme Court cases). See also Branzburg v. Hayes, 408 US 665, 681, 92 SCt 2646, 2656, 33 LEd2d 626 (1972) ("without some protection for seeking out the news, freedom of the press could be eviscerated."). However, the Supreme Court has also held that " he right to speak and publish does not carry with it the unrestrained right to gather information." Zemel v. Rusk, 381 US 1, 17, 85 SCt 1271, 1281, 14 LEd2d 179 (1965) (emphasis added); Richmond Newspapers v. Virginia, 448 US 555, 576, 100 SCt 2814, 2827, 65 LEd2d 973 (1980). ()
[ ] Other courts have held that news agencies have standing to challenge court orders in an effort to obtain information or access to judicial proceedings, though the agencies are neither parties to the litigation nor directly restrained by those orders. Pansy v. Borough of Stroundsburg, 23 F3d 772, 777 (3dCir 1994); Davis v. East Baton Rouge Parish Sch. Bd., 78 F3d 920, 926-27 (5thCir 1996); CBS, Inc. v. Young, 522 F2d 234, 238 (6thCir 1975); Radio & Television News Ass'n, 781 F2d at 1445; Journal Publishing Co. v. Mechem, 801 F2d 1233, 1235 (10thCir 1986). Applying the test for standing set forth in Valley Forge Christian College, supra, we note that here Media has been injured because the order, though not directed at Media, restricts some of the sources to which it may turn or has turned for information about the underlying criminal action. The violation, if one is found to exist, is to Media's own rights as potential recipients of speech rather than a third party's, and the injury falls within the zone of interests protected by the First Amendment. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 US 748, 756-57, 96 SCt 1817, 1823, 48 LEd2d 346 (1976). We conclude that Media has standing to challenge the validity of the order.
First Amendment Challenge
[ ] Media directs its First Amendment challenge specifically to paragraphs 3 and 9 of the trial court's gag order. These two paragraphs are as follows:
3. No interviews or broadcasts shall be c
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