Lead Opinion
The respondent, a Justice of the Supreme Court, Kings County, is presiding at a criminal trial which commenced on January 13, 1976. The defendant Car
On January 15, 1976 the New York Times printed an article by Ms. Kleiman which referred to a previous trial and conviction in Nassau County of defendant Carson and four of his codefendants herein on charges of kidnapping and to the conviction of two codefendants herein of attempted murder, stemming from events which took place on the same evening as the alleged crimes for which these defendants are being tried in Kings County.
That morning, in open court, counsel for defendant Carson read the article written by petitioner Kleiman to the respondent in the absence of the jury. The respondent then ascertained from petitioner Kleiman, who was then in the courtroom, that she had indeed written the article, and had considered respondent’s admonishment of January 13, 1976 to be a request and not an order. The respondent stated that it had been an order, and that any future disregard thereof would lead to a contempt citation.
That afternoon counsel for the New York Times appeared before the respondent and moved to vacate the oral order and, alternatively, moved for a stay thereof. Counsel argued that, as a matter of constitutional law, the respondent could not impose any prior restraint upon the press. The respondent denied the motion and stated that he had the duty to balance the constitutional guarantee of a free press against the paramount rights of the defendants to a fair trial. Cоunsel asked the respondent whether he intended to reduce his oral order to writing. The respondent indicated that it was not necessary to do so as his oral order was on the record.
Immediately thereafter the New York Times commenced this proceeding seeking the vacatur of the respondent’s oral orders and moved for a stay of those orders pending a determination by this court. The Times’ request for a temporary restraining order in its order to show cause was denied by a
While this proceeding was pending before this court, the resрondent signed a written order, dated and entered on January 20, 1976, which was effective as of January 13, 1976, prohibiting the New York Times, the New York Post, the New York Daily News, Ms. Kleiman and Mr. Liberman from "printing and publishing any criminal background on any or all of the defendants herein and more particularly any matter against these defendants in Nassau County pertaining to these defendаnts in any proceeding arising out of the subject matter of the within indictment currently on trial in Kings County for the reasons set forth by this court in the trial minutes of January 13, 1976, and January 15, 1976”. Both counsel for petitioners the New York Times and Kleiman and the Attorney-General, as counsel for the respondent, have stipulated that the respondent’s written order "is and may be considered аs a part of the record in the above-entitled proceedings.”
On January 23, 1976, the New York Daily News instituted a similar proceeding against the respondent and moved for a stay of respondent’s written order of January 20, 1976. Both proceedings were thereupon consolidated by this court for disposition.
The preliminary issue as to the propriety of this proceeding may be quickly resolved. A proceeding under CPLR article 78 lies to determine the constitutional rights of the press to report criminal trials and orders of the court affecting those rights (Matter of Oliver v Postel,
Two questions essentially arе presented by the parties: First, the existence of the trial court’s authority to issue the orders under review; and second, assuming that the authority exists, the nature of the conditions under which such orders may be properly issued. The First Amendment establishes the freedom of the press to report events and to disseminate news, as well as to express opinion. The Sixth Amеndment establishes the right of a defendant in a criminal prosecution to a fair trial. At times these constitutional rights inevitably collide. Both occupy in our system a preferential position as indispensable privileges. First Amendment rights may not be
The power to enforce thesе rights, to give content and meaning to these ancient commandments, must reside in the courts, as the ultimate arbiters of disputes having constitutional dimensions. In exercising the power of enforcement, the right to a fair trial may require the issuance of an order, temporary in duration, forbidding the publication by the press of information prejudicial to a defendаnt on trial (Branzburg v Hayes,
The existence of the court’s authority to issue such an order, however, is only the beginning to the process of deciding whether the order ought to be issued. Precisely because "a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field” (Sheppard v Maxwell,
Moreover, due process and the delicate accommodation of the constitutional privileges require that the inquiry of the court should be made in advance of the trial, and on notice to the parties and to the press and to оther interested media.
In this case the record before us is clear that no such inquiry of this character was made by the court; nor indeed that any findings were declared on the record establishing that the ultimate resort to the restrictions on the press were justified under the circumstances. Indeed, from the record, it appears that the jurors have been instructed not to read the newspapers, and have been heeding those instructions scrupulously. Nor dоes it appear from the record that the trial court has given consideration to the alternative measure of sequestering the jury. In the absence of a hearing, on notice to the parties and the press, and findings based on substantial grounds, the orders under review cannot stand (cf. United States v Schiavo, 504 F2d 1; United States v Dickinson, 465 F2d 496; Chase v Robson, 435 F2d 1059; Younger v Smith, 30 Cal App 3d 138, 153-156).
Accordingly, the petition is granted.
Notes
The inquiry might be joined with a consideration of a defendant’s application for a change of venue (cf. People v Luedecke,
Concurrence Opinion
If the majority opinion merely assumed the existence of power in the courts to issue "an order, temporary in duration, forbidding the publication by the press of information prejudicial to a defendant on trial” and then went on to conclude, as it does, that in any event "in this case the record before us is clear * * * that the ultimate resort to the restrictions on the press were [not] justified under the circumstances”, I could have associated myself with that opinion. However, despite the absence of any need, as I see it, to reach the issue of constitutionality, the majority has seen fit to pass upon that issue and to determine that "at times [the right of the press under the First Amendment freely to repоrt events and disseminate news and the right of a defendant to a fair trial under the Sixth Amendment] inevitably collide”. I do not agree with that conclusion for I am firmly of the opinion that the press, and all other
The First Amendment, so far as is here material, reads: "Congress shall make no law * * * abridging the freedom of speech, or of the press”. This language should be taken at face value and not frittered away by exceptions. It means, and should be interpreted to mean, that any law or order mandating, authorizing or directing prior restraint of the press does direct violencе to its very heart and purpose.
Since our founding fathers drew the Constitution, and its enactment into our fundamental law by the States, the Supreme Court of the United States has never in any case sustained a prior restraint order; in this bicentennial year of our existence as a democracy this court should not now do what that court has refrained from doing despite the many cases it has had before it in which such restraints have been sought.
The supposed conflict between a free press and fair trial may be a reality, although in 50 years as a member of the Bar of the State (most of it spent in a courtroom) I have not found it to be so, but that conflict, if there be one, is not truly the issue here. The harm, if any, done by any unrestrained publication of news, usually occurs long before a defendant goes to trial and to that harm this case cannot, and does not, address itself, for we are here concerned with publication of news after the commencement of a trial.
The majority of this court, by its approval of prior restraint —a fancy legal phrase for "gag”—and its assumption of an inevitable collisiоn between a fair trial and a free press, implicitly denigrates the ability and ingenuity of our Trial Justices to devise appropriate steps, within constitutional limits, to protect a defendant in his right to a fair trial. Furthermore, it assumes that jurors will not heed the directions of the court as to what they may and may not consider, an assumption which experience shows is not founded in fact.
My learned brother Mr. Justice Hopkins suggests that before making a prior restraint order, the trial bench "should generally follow the guidelines recommended by the Legal
While the. press has "sometimes been outrageously abusive, untruthful, arrogant and hypоcritical” (Stewart, Or of the Press, 26 Hastings LJ 631, 636), "prior restraints fall on speech with a brutality and a finality all their own” and therefore violate "the hypothesis of the First Amendment that injury is inflicted on our society when we stifle the immediacy of speech” (Bickel, The Morality of Consent, p 61).
It should be emphasized that we are here dealing with an attempt to impose a dirеct "gag” on the press and not with the issuance of a restrictive order directed against court personnel, or attorneys, or others directly involved in the judicial process. In this connection, and after enumerating the propriety of the use of such restraints to protect a defendant’s right to a fair trial, the Supreme Court, in Sheppard v Maxwell (
In an article entitled "The Doctrine of Prior Restraint” (20 Law & Contemp Prob 648), Professor Emerson notes that the First Amendment was developed directly out of attempts to license the press and that (p 662) "nothing in the growth of modern society has, thus far at least, appealed to the country
Whether undue frenetic activity of the press should be curbed should never be a matter for court decision.
For more than two centuries the unwritten canon of judicial restraint has been the hallmark of our jurisprudence. As the immortal Cardozo once wrote: "A jurist is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness”; and as Justice White, in his concurring opinion in Miami Herald Pub. Co. v Tornillo (
Since the context in which this controversy arises demands an expeditious determination of the issues, I forego a more extended discussion of the views here expressed, except to say that our recent national trauma, resulting in part from an attempted cover-up, should tеach us that fungus grows in unlit places and that neither a government which imposes, nor a press which suffers from, the disease of secrecy is truly free.
Cohalan, Rabin and Titone, JJ., concur with Hopkins, Acting P. J.; Shapiro, J., concurs in result with a separate opinion.
Petition granted, without costs or disbursements, and respondent is prohibited from enforcing his oral orders of Januаry 13 and 15, 1976, respectively, and his written order, entered January 20, 1976, and the said orders are vacated.
. In this connection I note that, despite massive and nationwide detrimental publicity, former Attorney General Mitchell was acquitted in New York and former Secretary of the Treasury Connally was acquitted in Washington.
. In New York Times Co. v United States (
That narrowly defined exception to the ban to the First Amendment on any prior restraint order is not really an exception, for every government has the inherent right to take measures against its own self-destruction.