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Sioux Falls Argus Leader v. Miller5/10/2000
v. Means, 268 NW2d 802, 808 (SD 1978) ("a trial judge has an inherent power, as well as a duty, to conduct a fair and orderly trial ... the court has the authority to issue such proper orders as may be necessary from time to time.") (citing United States ex rel. Robson v. Malone, 412 F2d 848 (7thCir 1969); Comstock v. United States, 419 F2d 1128 (9thCir 1969)); and Sheppard, 384 US 333, 86 SCt 1507, 16 LEd2d 600. Judge Miller's restriction protects the dignity of the courtroom during these proceedings and, as noted above, is in place to preserve the participants' Sixth Amendment rights.
Paragraph 9
[ ] It is important to note that the gag order does not prohibit the press from broadcasting information or commentary gleaned from other sources, including its own attendance at the proceedings. It prohibits extra-judicial discussion of the case by specifically identified persons involved with the criminal lawsuit.
[ ] Media argues the order impinges its role in informing the public "about happenings in its government." However, the governmental events are the legal proceedings occurring in the courtroom, the subject of which the press is not prohibited from reporting under this order. () The Supreme Court has repeatedly held that the First Amendment grants the press no right to information about a trial superior to that of the general public. Houchins v. KQED, Inc., 438 US 1, 10-12, 16, 98 SCt 2588, 2594-95, 2597, 57 LEd2d 553 (1978); Nixon v. Warner Communications, Inc., 435 US 589, 609-10, 98 SCt 1306, 1317-18, 55 LEd2d 570 (1978); Pell v. Procunier, 417 US 817, 833-35, 94 SCt 2800, 2809-2810, 41 LEd2d 495 (1974); Branzburg, 408 US at 684-85, 92 SCt at 2658, 33 LEd2d 626. See Davis, 78 F3d at 928 ("the news media have no right to discover information that is not available to the public generally"). "It is axiomatic that the First Amendment guarantee of freedom of the press is for the benefit of all the people and not a device to give the press a favored status in society." CBS, Inc., 522 F2d at 238. The cases upon which Media relies involving orders closing trials to the press and public are inapposite as such a situation does not exist here. ()
[ ] Media also relies on those cases holding that a participant gag order is an unconstitutional prior restraint on the press. () In its responsive brief, however, Media concedes its First Amendment challenge does not involve a classic prior restraint case. Media's First Amendment right consists of the right to gather and report the news. However, it has no constitutional right to information about a trial beyond what is seen and heard in the courtroom. The restriction imposed upon the trial participants by Judge Miller's order does not gag Media or violate its First Amendment rights. As noted by the Ninth Circuit Court of Appeals addressing a media challenge to a participant gag order:
edia is free to attend all of the trial proceedings before the district court and to report anything that happens. In fact, the press remains free to direct questions at trial counsel. Trial counsel simply may not be free to answer. In sum, the media's right to gather news and disseminate it to the public has not been restrained. Radio & Television News Ass'n, 781 F2d at 1446.
[ ] We recognize that there is a split of authority as to whether participant gag orders constitute prior restraints on the media. See Montana ex rel. Missoulian, 933 P2d at 838-40 (discussing the disagreement on this issue following Nebraska Press Ass'n, 427 US at 556, 96 SCt at 2801, 49 LEd2d 683). See also Note, A Prior Restraint by Any Other Name: The Judicial Response to Media Challenges of Gag Orders Directed at Trial Participants, 88
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