Sioux Falls Argus Leader v. Miller5/10/2000
axwell, 384 US 333, 362-63, 86 SCt 1507, 1522, 16 LEd2d 600 (1966)) (emphasis added by the Court in Nebraska Press Ass'n). See also Revised Free Press-Fair Trial Guidelines of the Judicial Conference of the United States, 87 FRD 519, 523-30 (1980) (discussing Supreme Court cases and noting professional studies recommend that, in appropriate cases, trial courts limit what attorneys, parties, witnesses and court personnel may say to the public).
Paragraph 3
[ ] Paragraph 3 of the gag order restrains Media by excluding one location from which it may interview and broadcast its reports. () This is a "time, place and manner" restriction that does not violate Media's First Amendment rights. "The 'time, place, or manner' test was developed for evaluating restrictions on expression taking place on public property which had been dedicated as a 'public forum.'" Ward v. Rock Against Racism, 491 US 781, 791, 109 SCt 2746, 2753, 105 LEd2d 661 (1989). () In Richmond Newspapers, the Supreme Court observed that:
People assemble in public places not only to speak or to take action, but also to listen, observe, and learn; indeed, they may 'assembl for any lawful purpose, ...' Subject to the traditional time, place, and manner restrictions, streets, sidewalks, and parks are places traditionally open, where First Amendment rights may be exercised; a trial courtroom also is a public place where the people generally -- and representatives of the media -- have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.
...
Just as a government may impose reasonable time, place, and manner restrictions upon the use of its streets in the interest of such objectives as the free flow of traffic, so may a trial judge, in the interest of the fair administration of justice, impose reasonable limitations on access to a trial. ' he question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge ... the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.' It is far more important that trials be conducted in a quiet and orderly setting than it is to preserve that atmosphere on city streets. 448 US at 578 & 581, n18, 100 SCt at 2828 & 2830, n18, 65 LEd2d 973 (internal citations omitted).
[ ] The Supreme Court's "time, place, and manner" analysis requires asking whether the speech restrictions in the injunction (i) were content neutral, (ii) were narrowly tailored to serve a significant government interest, and (iii) left open ample alternative channels for communication of the information. Ward, 491 US at 791, 109 SCt at 2753, 105 LEd2d 661. Certainly, the restriction in paragraph 3, precluding interviewing and broadcasting from the courtroom but not restricting any other location or the subject matter that is broadcast, meets this standard. The restriction is content neutral, protects a significant government interest in providing both parties with their Sixth Amendment right to a fair trial, and leaves open all other alternative locations for communication. ()
[ ] Paragraph 3 also comports with the trial court's duty to maintain order, dignity and decorum in the courtroom. Canon 3, Code of Judicial Conduct, SDCL ch 16-2, Appx, Section B(12) instructs that " judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recess between sessions" with enumerated exceptions not relevant here. See 20 AmJur2d Courts, Inherent Powers ยง 43 (1995); State
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