Prior Restraints in the Fourth Circuit and North Carolina
We have previously reported on prior restraints on media coverage and the interplay between the First Amendment rights of free speech and press and other Constitutional rights. Prior restraints occur in different forms: “gag orders” imposed by courts, typically through the form of temporary restraining orders or injunctions; licensing requirements and cease and desist orders imposed by regulatory agencies; and “gag statutes” imposed by legislatures. Additionally, different forms of prior restraints can affect the press equally; a gag order preventing persons from contacting the press can have the same chilling effect on publication as a prior restraint imposed on the press.
The United States Supreme Court has viewed a free press as “essential to the nature of a free state,” holding in Near v. Minnesota, 283 U.S. 697 (1931), that the chief purpose of the First Amendment’s guarantee to freedom of the press is to prevent prior restraints on publication. This purpose stems directly from the press’s struggle in England to publish free of government censorship. Correspondingly, the Supreme Court has examined prior restraints on the press with a “heavy presumption” against their constitutionality, holding in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), that prior restraints are “the most serious and the least tolerable infringement on First Amendment rights.”
The right to free press is not absolute, however. While the Supreme Court has never upheld a prior restraint upon the press, it has recognized limited situations where a prior restraint might be justified, such as where pervasive publicity might interfere with a criminal defendant’s constitutional right to a fair trial. Moreover, the Supreme Court has viewed punishment for statements in the press after publication as a more tolerable form of First Amendment infringement than preventing publication from happening in the first place. Specifically, the Court has permitted criminal punishment and civil damages for the publication of defamatory statements, invasion of privacy, and obstruction of justice, among others. As noted by the Supreme Court in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975):
[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.
Although different forms of prior restraints can have the same chilling effect on the press, courts in the Fourth Circuit have been more permissive of prior restraints on members of the general public than prior restraints on the press. In United States v. King, 192 F.R.D. 527 (E.D.Va. 2000), the U.S. District Court for the Eastern District of Virginia granted a motion to restrain government witnesses in a high-profile drug conspiracy trial from forecasting their probable testimony for an upcoming trial in interviews with the press, although the court refused to prevent the media from airing a television interview that had already occurred. The court in King recognized the Fourth Circuit’s interpretation of Nebraska Press to mean that, in the context of ensuring a defendant’s right to a fair trial, “the proponent of a prior restraint order must show a ‘clear and present danger’ that the pretrial publicity sought to be restrained will adversely affect the ability of the defendant to receive a fair trial.”
King further stated that to determine the necessity of a prior restraint to protect the fair trial rights of a defendant, Nebraska Press requires that courts must:
[D]etermine (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of the unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. The precise terms of the restraining order are also important.
In answering the first prong of the Nebraska Press analysis, the court in King found that, although the airing of the interview could have “some adverse impact” on the views of potential jurors, it could not be said that the interview would “so distort the views of potential jurors that 12 could not be found who would . . . fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court.” Additionally, the court found that extensive voir dire examination and appropriate trial instructions would alleviate any possible juror prejudice arising out of the airing of the interview, satisfying the second prong of Nebraska Press. Although the court found that a prior restraint on the publication of the interview would effectively protect the defendant’s right to a fair trial, the court found that its analysis of the first two prongs compelled the court to decline imposition of a prior restraint on the interview.
The King court analyzed the right of government witnesses to forecast their probable testimony more strictly, however. While the court recognized that witnesses in judicial proceedings have the right of free speech, it noted that previous Fourth Circuit decisions have prohibited witnesses from discussing their probable trial testimony with the media. Similar to the test in Nebraska Press for prior restraints on the press, the court found that the test to determine whether to restrain public statements by witnesses was “whether there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.” After finding no feasible alternative, the court in King found that the record established “that unrestrained discussion by the Government’s witnesses with the media, be it print or electronic, presents a reasonable likelihood that there will be prejudicial news coverage before trial that would prevent a fair trial.” Correspondingly, the court imposed a gag order preventing government witnesses from discussing the case in interviews with the press.
Likewise, the Fourth Circuit in In re Russell, 726 F.2d 1007 (4th Cir. 1984), upheld a gag order from the Middle District of North Carolina preventing potential witnesses in a high-profile criminal trial from discussing their probable testimony with the media. The court grounded its decision on the extensive publicity surrounding the trial, the “potentially inflammatory and highly prejudicial” statements that the witnesses would likely make, and the relative ineffectiveness of any feasible alternative to protect the defendants’ right to a fair trial. Finding that judges must, by necessity, speculate as to what information may be prejudicial to potential jurors, the court in Russell concluded that the district judge acted “well within constitutional limits . . . in light of the difficult task of drafting an order that sufficiently protected the sixth amendment rights of defendants and at the same time did not unjustifiably trammel petitioners’ protected speech activities.”
Courts in North Carolina, however, have generally viewed prior restraints on both the press and members of the general public unfavorably. In Beaufort County Bd. of Educ. v. Beaufort County Bd. of Comm’rs, 645 S.E.2d 857 (N.C. Ct. App. 2007), the Court of Appeals of North Carolina vacated a gag order from a trial court that prohibited parties to a lawsuit and their attorneys from communicating with the media about the case. In vacating the order, the court quoted with approval previous North Carolina decisions on prior restraints, noting that prior restraints are “presumptively unconstitutional as violative of the First Amendment,” and are “repugnant to the basic values of an open society.” Subsequently, the Beaufort court recognized North Carolina’s test for assessing the validity of a gag order, finding that the party asserting validity of the order must establish:
(1) A clear threat to the fairness of the trial; (2) such threat is posed by the actual publicity to be restrained; and (3) no less restrictive alternatives are available to rebut the presumptive unconstitutionality of gag orders.
The court concluded that the trial court’s gag order, which consisted of the trial court judge verbally stating the words “gag order” and then directing all parties not to talk to the press, “utterly failed” to meet any of the above requirements, as set out by previous North Carolina court decisions. Furthermore, the “trial court failed to enter any findings of fact of the existence of ‘a clear threat to the fairness of the trial,’ that ‘such threat is posed by the actual publicity to be restrained,’ and that it considered ‘less restrictive alternatives.’” In its analysis, the court extensively quoted Sherrill v. Amerada Hess Corp., 504 S.E.2d 802 (N.C. Ct. App. 1998), a case in which the North Carolina Court of Appeals reversed a trial court order prohibiting any party or their attorney from communicating with any persons or entities not parties to the suit, including the media, about the case.
Similarly, in State v. Williams, 284 S.E.2d 437 (N.C. 1981), the North Carolina Supreme Court upheld a trial court judge’s refusal to impose an order sought by the defendant in a murder trial to prohibit a large group of unnamed public officials and attorneys from commenting on the case to the media. The Williams court found that, even though the motion for the gag order did not seek to directly restrain the news media, the motion was “an attempt to indirectly impose a prior restraint upon the news media and to impose a ‘gag’ order upon assorted people in violation of the state and federal constitutional guarantees.” Accordingly, the court upheld the trial court’s denial of the defendant’s motion.
Beyond case law, the North Carolina State Constitution and General Statutes provide strong protection against the imposition of prior restraints on the press. Article I, Section 14 of the North Carolina Constitution directly guards against prior restraints on the press:
Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.
Likewise, Section 7A-276.1 of the North Carolina General Statutes prohibits courts from issuing any rule or order restricting the publication or broadcast of the contents of any public record or any evidence, testimony, argument, ruling, verdict, decision, judgment, or other matter occurring in open court in any civil or criminal hearing, trial, or other proceeding. The statute further states provides that if any rule or order is issued contrary to the provisions of 7A-276.1, “it shall be null and void and of no effect, and no person shall be punished for contempt for the violation of any such void rule or order.”
More information on prior restraints generally can be found here and here.
