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Sioux Falls Argus Leader v. Miller5/10/2000
public, constituted an unconstitutional prior restraint on the press. In so holding, the court applied the "clear and present danger" standard. Id. at 240. See also Journal Publ. Co., 801 F2d at 1236 (holding order prohibiting jurors from post-trial interviews with press, where threat to administration of justice no longer existed, constituted a prior restraint on the media's First Amendment right to gather news); Connecticut Magazine v. Moraghan, 676 FSupp 38, 42-44 (DConn 1987) (extending Journal Publ. Co. and holding attorney gag order was an unconstitutional prior restraint on press' right to gather news); Chase v. Robson, 435 F2d 1059 (7thCir 1970) (gag order restricting attorneys and defendants held unconstitutional where pretrial publicity was seven months old when order issued and was found to be overbroad; among other restrictions, the order prohibited public dissemination of court's rulings); Rodgers v. United States Steel Corp., 536 F2d 1001 (3rdCir 1970).
[ ] Although the Supreme Court denied certiorari without comment in Dow Jones, Justices White, Brennan and Marshall filed a written dissent, expressly stating that the Second and the Sixth Circuits differed in both their constitutional analysis of this issue and the appropriate standard of review. Dow Jones & Co., Inc. v. Simon, 488 US 946, 109 SCt 377, 102 LEd2d 365 (1988). However, as noted, the Supreme Court elected not to address the matter and has yet to issue an opinion on this question. Moreover, the Supreme Court has never held that a clear and present danger to the right of a fair trial (the standard utilized by the Sixth Circuit in CBS, Inc.) must exist before a trial court can forbid extra-judicial statements about the trial.
Legal Standard
[ ] Although we hold that there is no violation of Media's restrained right to gather and report the news under the First Amendment by Judge Miller's participant gag order, we must still examine whether the order is beyond the trial court's authority and jurisdiction. To this end, we adopt the rule described in Dow Jones, which relies on the test announced by the Supreme Court in Sheppard and reaffirmed ten years later in Nebraska Press Ass'n, as the better reasoned and more appropriate rule to apply to participant gag orders in this state.
[ ] Dow Jones held the legal standard to determine whether a participant gag order can be justified is "whether there is a 'reasonable likelihood' that pretrial publicity will prejudice a fair trial." 842 F2d at 610 (citing Sheppard, 384 US at 363, 86 SCt at 1522, 16 LEd2d 600). Then, prior to entering an injunction against speech, the trial court must explore whether other available remedies would effectively mitigate the prejudicial publicity. Id. at 611 (citing Nebraska Press Ass'n, 427 US at 562, 96 SCt at 2804, 49 LEd2d 683). Such alternative remedies may include change of venue, () trial postponement, a searching voir dire, emphatic jury instructions, and jury sequestration. Id. (citing Nebraska Press Ass'n, 427 US at 563-64, 96 SCt at 2804-05, 49 LEd2d 683; Sheppard, 384 US at 358-63, 86 SCt at 1519-22, 16 LEd2d 600). See News-Journal, 939 F2d at 1515 (upholding participant gag order, with which all parties agreed, against media's First Amendment challenge, applying same Dow Jones standard). See also Radio and Television News Ass'n, 781 F2d at 1447; Russell, 726 F2d at 1010; Tijerina, 412 F2d at 666 (finding gag orders constitutionally permissible under reasonableness test); cf. Hirschkop v. Snead, 594 F2d 356, 370 (4thCir 1979) (rule prohibiting certain extra-judicial statements of lawyers did not violate their right to free speech where statements had a "reasonable likelihood of prejudice to fair administration o
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