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Sioux Falls Argus Leader v. Miller5/10/2000
Michigan Law Review 1171 (1990). In Nebraska Press Ass'n, the Supreme Court indicated that, in lieu of prior restraints on the press, restraints on trial participants may be an appropriate means for minimizing prejudicial communications concerning trial proceedings. 427 US at 564, 96 SCt at 2805, 49 LEd2d 683. See News-Journal Corp. v. Foxman, 939 F2d 1499, 1512 (11thCir 1991) ("The Supreme Court has suggested a restrictive order limiting extra-judicial commentary of trial participants as an alternative to a prior restraint on the media." (citing Sheppard, 384 US at 361, 86 SCt at 1521, 16 LEd2d 600)).
[ ] Dow Jones, 842 F2d at 609, cert denied, 488 US 946, 109 SCt 377, 102 LEd2d 365, represents the majority rule among the federal circuit courts having addressed the question. There, the Second Circuit Court of Appeals held that whether a gag order constitutes a prior restraint depends upon the status of the challenging party; it constitutes a prior restraint when challenged by the "individual gagged," but not when challenged by a "third party." The court distinguished prior restraints from participant gag orders by noting that they lack the "most offensive aspect of a prior restraint [which] is the censorship involved by forbidding the dissemination of information already known to the press and therefore the public." Id. at 608. Since the gag order does not directly restrain the press, it is not held to the same level of scrutiny as prior restraints and will be upheld if "reasonable." Id. at 609-10.
[ ] In so holding, the Second Circuit joined the Ninth Circuit in refusing to treat as a prior restraint, a gag order directed against the participants and challenged only by the media. Radio & Television News Ass'n, 781 F2d at 1446. Compare Levine v. United States District Court, 764 F2d 590, 595 (9thCir 1985) (holding that the order at issue is properly characterized as a prior restraint on counsel's First Amendment right to free speech). The Fourth, Tenth and Eleventh Circuits are in accord with this position as well, with some circuits finding the orders constitutional even where challenged by the parties restrained. See In re Russell, 726 F2d 1007 (4thCir 1984), cert. denied sub nom. Russell v. Flannery, 469 US 837, 105 SCt 134, 83 LEd2d 74 (participant gag order held constitutionally permissible against challenge brought by potential witnesses restrained by the order); News-Journal Corp., 939 F2d 1499 (noting the press was accorded its constitutional attendance and reporting rights and has not been limited directly in any manner by the participant gag order designed to preserve defendants' Sixth Amendment rights); United States v. Tijerina, 412 F2d 661 (10thCir 1969), cert. denied, 396 US 990, 90 SCt 478, 24 LEd2d 452 (applying First Amendment and "reasonable likelihood" test to participant gag order and upholding criminal contempt order for violation by the defendants restrained). See also Charles H. Whitebread and Darrell W. Contreras, Free Press v. Fair Trial: Protecting the Criminal Defendant's Rights in a Highly Publicized Trial by Applying the Sheppard-Mu'Min Remedy, 69 SCalLRev 1587 (1996) (analyzing cases and concluding a participant gag order as recommended in Sheppard combined with voir dire to determine impartiality strikes the necessary balance between defendants' and the media's constitutional rights and interests).
[ ] In the leading case of those courts holding the opposite viewpoint, the Sixth Circuit Court of Appeals ordered a district court to vacate a participant gag order challenged by the press. CBS, Inc., 522 F2d 234. () The court held the order, which restrained participants, their relatives and close friends from discussion of the case with the media or the
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