Application for stay of Louisiana trial court's order
restricting media coverage of trials of defendants accused of
committing highly publicized rape and murder is granted pending the
timely filing and disposition of a petition for certiorari in this
Court, where the order imposed pervasive restraints of uncertain
duration, and where alternative means for protecting the
defendants' rights to a fair trial appear to have been available to
the trial court.
MR. JUSTICE POWELL, Circuit Justice.
This is an application for stay of an order of the Louisiana
Criminal District Court for the Parish of Orleans restricting media
coverage of the trials of two defendants accused of committing a
highly publicized rape and murder in the city of New Orleans. The
applicant, a Louisiana corporation that owns and publishes two of
the city's daily newspapers, has asked that I stay that order
pending filing and disposition of a petition for a writ of
certiorari in this Court. Respondent, the Honorable Oliver P.
Schulingkamp, has at my request filed a memorandum in opposition to
the application. The record before me indicates a substantial
possibility that the state court's order is inconsistent with this
Court's decisions governing prior restraint of the news media and
that continuance of the order pending consideration of a petition
for a writ
Page 419 U. S. 1302
of certiorari would inflict irreparable harm. I therefore have
granted the requested stay.
In April, 1973, a young white nursing student was raped and
murdered following her visit to an elderly patient living in one of
the city's public housing projects. Shortly thereafter, two Negro
suspects were arrested and charged with the crime. The case
immediately became the focal point in the media for a number of
more generalized concerns. The state university program that
prompted the student's unescorted visit to the housing project was
called into sharp question, as was the sufficiency of law
enforcement efforts in high-crime areas of New Orleans. The case
also occasioned criticism of the criminal and juvenile justice
systems.
Much of the initial publicity was directed toward one defendant,
a 17-year-old with an apparently extensive history of juvenile
offenses. Newspaper stories recounted in some detail the
circumstances leading to his arrest and his subsequent alleged
disclosure of the location where the victim's body was recovered.
Additionally, stories dwelt on his prior juvenile offenses. Almost
all of the many newspaper references characterized him as a youth
with a history of 43 juvenile arrests, the accuracy of which has
been disputed. Some newspaper accounts referred to his previous
arrest on charges of murder and armed robbery without
simultaneously revealing that those charges had been dropped for
insufficient evidence. Others reported a psychiatric diagnosis of
this defendant made several years earlier and apparently contained
in the records of the juvenile probation officer.
Within a few days reports concerning the crime, the accused, and
other related concerns ceased to be of banner importance. Stories
became shorter and began to move from the first page to less
prominent positions in the papers. Newspaper coverage appears to
have ceased
Page 419 U. S. 1303
within some 10 days of the arrest and the papers apparently
published no stories about the defendants from the latter part of
April until late January of the following year, when one subdued
story announced the anticipated initiation of pretrial motions in
the case. [
Footnote 1]
Some of the newspaper reporting that occurred in April can
hardly be characterized as responsible journalism. Like many
States, Louisiana maintains the confidentiality of the records of
juvenile offenders. La.Rev.Stat.Ann. § 13:1586.3 (Supp. 1974). The
record does not indicate how reporters came into possession of some
of their information. Additionally, there appear to be inaccuracies
or partial truths in matters that are of obvious importance.
Page 419 U. S. 1304
In March, 1974, some 11 months after the crime and attendant
extensive publicity, counsel for the defendant who had received the
most journalistic attention moved that the Criminal District Court
for the Parish of Orleans impose restrictions on reporting of the
case. The court granted the motion on June 17, 1974. The court's
order imposes a total ban on reporting of testimony given in
hearings on pretrial motions until after the selection of a jury
and also places other selective restrictions on reporting before
and during trial.
At the time the order was issued, the court apparently
contemplated only one trial. By its terms the order was to remain
in effect until termination of the trial. The court later severed
the defendants' cases and ordered separate trials of the rape and
murder charges against each. It made no modification of its media
coverage order to reflect this changed circumstance. The applicant
has represented that the court stated that the order would remain
in effect until the termination of the last trial. Respondent has
not contradicted this representation, and I assume it to be
correct.
The applicant sought relief from both the lower federal courts
and the state court system prior to addressing this application to
me. After failing to obtain immediate injunctive relief from the
federal courts, [
Footnote 2]
the applicant asked the state court to vacate its order. That
request was denied, as was a request that the court stay its order
pending submission of application for
Page 419 U. S. 1305
supervisory and remedial writs in the Louisiana Supreme Court.
On July 9, 1974, the applicant sought writs of certiorari, review,
prohibition, and mandamus, and a stay of the state trial court's
order in the Louisiana Supreme Court. That same day the Louisiana
Supreme Court denied relief by a vote of four to three, stating
that the "[s]howing made does not justify the relief demanded."
Following one more unsuccessful attempt to obtain an injunction in
the United States District Court, the applicant has requested that
I, as Circuit Justice for the Fifth Circuit, stay the state court's
order pending this Court's consideration of a petition for a writ
of certiorari.
I have previously expressed my reluctance, in considering
in-chambers stay applications, to substitute my view for that of
other courts that are closer to the relevant factual considerations
that so often are critical to the proper resolution of these
questions.
Graves v. Barnes, 405 U.
S. 1201,
405 U. S.
1203 (1972). In my in-chambers opinion in that case, I
articulated the general standards governing the grant of a stay
application: there must be a reasonable probability that four
members of the Court would consider the underlying issue
sufficiently meritorious for the grant of certiorari or the
notation of probable jurisdiction; there must be a significant
possibility of reversal of the lower court's decision; and there
must be a likelihood that irreparable harm will result if that
decision is not stayed.
Ibid.
The question of the possibility of irreparable harm is
particularly troublesome in this case. It presents a fundamental
confrontation between the competing values of free press and fair
trial, with significant public and private interests balanced on
both sides. If the order is not stayed, the press is subjected to
substantial prior restraint with respect to a case of widespread
concern in the community. If, on the other hand, the order is
stayed and
Page 419 U. S. 1306
the press fails to act with scrupulous responsibility, the
defendants' constitutional right to a fair trial may be seriously
endangered.
The challenged portions of the order of the Criminal District
Court for the Parish of Orleans impose a total prohibition on
publication of testimony adduced in pretrial hearings until after
selection of a jury. Noting that extensive testimony would be
required in considering the many pretrial motions, including
motions to suppress an alleged confession and other evidence, the
court specifically ordered
"that the reporting of such testimony be deferred until after
the jury has been selected in order to preclude the possibility of
such testimony influencing, in any way, prospective jurors yet to
be selected, and rendering more difficult the task of selecting
said jurors."
In addition, the state court order imposes other selective
restrictions on what may be published both before and during trial.
These restrictions are aimed at the content of news reporting. The
order requires that the media avoid publication of interviews with
subpoenaed witnesses. It also prohibits publication of any of the
defendants' criminal records or discreditable acts or of any
possible confessions or inculpatory statements unless made part of
the evidence in the court record. The order forbids publication of
any testimony stricken by the court unless identified as having
been stricken and bars publication of any leaks, statements, or
conclusions of guilt or innocence that might be expressed or
implied by statements of the police, prosecuting attorneys, or
defense counsel. Finally, the order prohibits any editorial comment
preceding or during trial "which tends to influence the Court,
jury, or witnesses." By its terms, the order remains in effect
"until the conclusion of the trial." The court's decision to
continue the order during pendency of all of the trials ensures
that it will
Page 419 U. S. 1307
extend over an indefinite and possibly lengthy period of
time.
The court's order imposes significant prior restraints on media
publication. As such, it would come to this Court "
bearing a
heavy presumption against its constitutional validity.'" New
York Times Co. v. United States, 403 U.
S. 713, 403 U. S. 714
(1971); Organization for a Better Austin v. Keefe,
402 U. S. 415,
402 U. S. 419
(1971); Bantam Books, Inc. v. Sullivan, 372 U. S.
58, 372 U. S. 70
(1963); Near v. Minnesota ex rel. Olson, 283 U.
S. 697 (1931). Decisions of this Court repeatedly have
recognized that trials are public events. See, e.g., Sheppard
v. Maxwell, 384 U. S. 333,
384 U. S.
349-350 (1966); Estes v. Texas, 381 U.
S. 532, 381 U. S. 541
(1965); Craig v. Harney, 331 U. S. 367,
331 U. S. 374
(1947). And "reporters . . . are plainly free to report whatever
occurs in open court through their respective media." Estes v.
Texas, supra, at 381 U. S.
541-542.
This Court also has shown a special solicitude for preserving
fairness in a criminal trial. "Legal trials are not like elections,
to be won through the use of the meeting hall, the radio, and the
newspaper."
Bridges v. California, 314 U.
S. 252,
314 U. S. 271
(1941).
See also Rideau v. Louisiana, 373 U.
S. 723,
373 U. S. 726
(1963);
Irvin v. Dowd, 366 U. S. 717
(1961). The task of reconciling First Amendment rights with the
defendant's right to a fair trial before an impartial jury is not
an easy one. This Court has observed in dictum that newsmen might
be prohibited from publishing information about trials if such
restrictions were necessary to assure a defendant a fair trial.
Branzburg v. Hayes, 408 U. S. 665,
408 U. S. 685
(1972). There was no indication in that opinion, however, that the
standards for determining the propriety of resort to such action
would materially differ from those applied in other decisions
involving prior restraints of speech and publication.
Page 419 U. S. 1308
I need only consider this question in the limited context of an
application for a stay. On the record before me, and certainly in
the absence of any showing of an imminent threat to fair trial, I
cannot say that the order of the state court would withstand the
limitations that this Court has applied in determining the
propriety of prior restraints on publication.
Cf. United States
v. Dickinson, 465 F.2d 496 (CA5 1972). The state court was
properly concerned that the type of news coverage described above
might be resumed and might threaten the defendants' rights to a
fair trial. But the restraints it has imposed are both pervasive
and of uncertain duration. They include limitations on the timing
as well as the content of media publication,
cf. Miami Herald
Publishing Co. v. Tornillo, 418 U. S. 241
(1974). Moreover, the court has available alternative means for
protecting the defendants' rights to a fair trial. [
Footnote 3]
Page 419 U. S. 1309
The issues underlying this case are important and difficult.
Without anticipating my views on the merits, I have concluded that
this application satisfies the standards for the grant of a stay.
Accordingly, I have decided to stay that portion of the order of
the Louisiana Criminal District Court that imposes direct
limitations on media reporting pending the timely filing and
disposition of a petition for a writ of certiorari in this Court.
[
Footnote 4]
[
Footnote 1]
Stories from the applicant's newspapers were included in the
defendant's motion to restrict media coverage and have been made
part of this application. They reveal that the crime obtained
immediate first-page banner coverage. On April 10, 1973, stories
appeared that reported discovery of the victim's body and the
arrest of a juvenile in connection with the crime. By the next day,
this defendant had been identified and front-page stories began to
portray his history of juvenile arrests. The arrest of the second
defendant received banner coverage on April 12, as did a report
that allegedly linked property stolen from the victim to the
possession of the first defendant. The following day first-page
banner stories appeared purportedly detailing the first defendant's
juvenile record and his psychiatric diagnosis. One newspaper also
ran a picture of him being escorted to arraignment with his hands
cuffed behind his back. During that same period other stories dealt
with more general topics, and many mentioned this defendant and his
juvenile record.
Publicity began to subside around April 15 and ended a few days
thereafter. The record does not disclose any subsequent newspaper
accounts mentioning the defendants until the appearance on January
12, 1974, of a story reporting the expected initiation of routine
pretrial motions in the case.
The record does not specifically reveal the nature and extent of
radio and television reporting. I assume that its timing and
intensity more or less paralleled that of the newspaper
reporting.
[
Footnote 2]
The United States District Court conducted a hearing at which it
heard argument of counsel and the testimony of the respondent
herein. Thereafter, the court determined that it should abstain
from interfering with the state proceedings at that stage. The
applicant noted an appeal from that decision and requested that the
United States Court of Appeals for the Fifth Circuit stay the state
court order pending appeal. A panel of the Fifth Circuit denied the
request for a stay. Neither of these decisions is before me
today.
[
Footnote 3]
The court has already invoked several of these procedures. For
example, portions of the court's order prohibit members of the bar
and other persons under the court's supervision and control from
making extrajudicial statements prior to the termination of trial.
These prohibitions are not challenged here. Additionally,
respondent has indicated his intention to sequester the juries.
This will protect against many of the hazards that the selective
restrictions on reporting during trial are designed to prevent.
Some other options may yet be used to protect the defendants'
rights. The defendant who sought the order apparently did not
request that the pretrial hearings be closed to the public and
press, and the court does not seem to have contemplated that
possibility. As an initial matter, the court's power to take such
action is a question governed by state law. Unlike some States,
Louisiana does not appear to have a specific provision authorizing
such action.
Cf. Cal.Penal Code § 868 (1970); Iowa Code §
761.13 (1973); Mont.Rev.Codes Ann. § 9122(c) (1969). This Court has
not been called upon to determine whether these provisions are
constitutional, and I express no view on that question. Of course,
the court must conduct
voir dire of the prospective jurors
in these cases with particular care. Finally, the court retains the
power to hold persons, including members of the media, in contempt
in particular limited circumstances.
See Craig v. Harney,
331 U. S. 367
(1947);
Pennekamp v. Florida, 328 U.
S. 331 (1946);
Bridges v. California,
314 U. S. 252
(1941).
[
Footnote 4]
The applicant has not questioned the portions of the court's
order that relate to the conduct of other persons, and this stay
order does not affect them. My order is limited to the portion of
the respondent's order directed specifically to the news media. It
does not, however, stay the portion of the court's order
prohibiting the use of electronic or mechanical equipment within
the court during the trial or related proceedings.
The Reporters Committee for Freedom of the Press and the Vieux
Carre Courier Publishing Co., as
amici curiae, have
requested additionally that I enjoin any court proceeding about
which the press is prohibited from reporting pending final
disposition of this case on the merits. I find that action to be
unwarranted and unwise.