Sherrill v. Amerada Hess Corp., 504 S.E.2d 802

Sherrill v. Amerada Hess Corp.

504 S.E.2d 802

N.C. Ct. App.

1998

Check Treatment

*718 GREENE, Judge.

Anna Mae Sherrill et al. and Grover Bob Cloninger et al. (сollectively, Plaintiffs) appeal from the trial court’s order restricting the speech of all parties and сounsel relating to matters of the cases. 1

Plaintiffs are residents and homeowners in the community of Paw Creek, outsidе of Charlotte, North Carolina. Amerada Hess Corp. et al. (collectively, Defendants) operate a bulk petroleum storage facility in Paw Creek. Plaintiffs allege that Defendants caused leaks, spills, and emissions of petroleum product to the atmosphere, ground, and groundwater. Plaintiffs further allege that such conduct was wilful, negligent, in violatiоn of N.C. Gen. Stat. § 143-215.93, constituted trespass, and a nuisance. The complaints seek compensatory and punitive damages.

On 30 May 1997, the trial court, sua sponte, entered an order which provided in pertinent part:

No counsel or party in either [a]ction . . . shall communicate in any way with any media representative or other person or entity not a party to either [a]ction concerning either [a]ction until such time as bоth [a]ctions . . . are finally resolved by a final judgment no longer subject to appeal or by a final and binding settlement.

In support of this directive, the trial court found as a fact: “[T]hat communications concerning the [a]ctions with mediа representatives and with other persons ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not parties to this action by the parties and their counsel. . . will be dеtrimental to the fair and impartial administration of justice in such [a]ctions.”

The issues are whether: (I) the order is appealable; and if so, (II) the order constitutes an unconstitutional prior restraint of Plaintiffs’ First Amendment right to free speеch.

As a general rule, there is no right of immediate appeal from an interlocutory order. Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377, reh’g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Because thе order in these cases does not finally determine the rights of the parties, the *719 appeal is interlocutory. An appeal from an interlocutory order is permitted, however, if such order affects a substantial right. Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). An order implicating a party’s First ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Amendment rights affects a substantial right. Kaplan v. Prolife Action League of Greensboro, 111 N.C. App. 1, 15, 431 S.E.2d 828, 834, dismissal allowed, disc. review denied, 335 N.C. 175, 436 S.E.2d 379 (1993), and cert. denied, 512 U.S. 1253, 129 L. Ed. 2d 894 (1994). In this case, the order of the trial court restricting the parties’ right to communicate with others about the claims raises First Amendment issues and thus affects a substantial right. These appeals, therefore, are properly before this Court.

“The issuance of gag orders prohibiting participants in judicial proceedings from speaking to the public or the press about those proceedings is a form of prior restraint.” 1 Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 15:41 (1996) [hereinafter 1 Smolla and Nimmer]. The phrase “prior restraint” refers to “judicial orders or administrative rules that operate to forbid expression before it takes place.” Id. at § 15:1. “Prior restraints” are not unconstitutional per se, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 43 L. Ed. 2d 448, 459 (1975), but аre presumptively unconstitutional ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as violative of the First Amendment, New York Times Co. v. United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 824-25 (1971); State v. Williams, 304 N.C. 394, 403, 284 S.E.2d 437, 444 (1981), cert. denied, 456 U.S. 832, 72 L. Ed. 2d 450 (1982); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 558, 49 L. Ed. 2d 683, 697 (1976), and are “repugnant to the basic values of an open society,” 1 Smolla and Nimmer § 15:10. As noted by the United States Supreme Court:

[A] free society prefers to punish the few who abuse rights of speech after they break the lаw than to throttle them and all others beforehand. It is always difficuít 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 fоrmidable.

Southeastern Promotions, Ltd., 420 U.S. at 559, 43 L. Ed. 2d at 459.

One who undertakes to show the necessity for “prior restraint” or rebut the presumption of unconstitutionality of such an order must show: (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 restric *720 tive alternatives are available. 2 Nebraska Press Ass’n, 427 U.S. at 571, 49 L. Ed. 2d at 705 (Powell, J., concurring). Furthermore, the record must reflect findings ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by the trial court that it has considered each of the above factors, id. at 563, 49 L. Ed. 2d at 700, and contain evidence to support such findings, Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-02, 68 L. Ed. 2d 693, 703-04 (1981). Finally, any “prior restraint” order must comply with the specificity rеquirements of the First Amendment. Nebraska Press Ass’n, 427 U.S. at 568, 49 L. Ed. 2d at 703 (holding order unconstitutional because it was “too vague and too broad to survive [First Amendment] scrutiny”).

In this case, the 30 May 1997 order of the trial court prohibited any party or their attorney 3 from communicating with “any media representative or other person or entity” not a party to the proceeding “concerning” the claims until the suit was resolved. As such, the order operated “to forbid expression before it [took] placе” and constitutes a “prior restraint.” Although the record reflects a finding that communications concerning the action by the parties to persons not involved in the suit would “be detrimental to the fair and impartial administration of justice,” there is no evidence in the record to support this finding. Furthermore, the trial court made no findings reflecting the cоnsideration of less restrictive alternatives. Accordingly, the 30 May 1997 order must be reversed.

Reversed.

Judges TIMMONS-GOODSON and SMITH concur.

Notes

. Because the two cаptioned cases present common questions of law, they were consolidated for hearing, pursuant to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Rulе 40 of our Rules of Appellate Procedure, and are consolidated for purposes of this opinion. N.C.R. Aрp. P. 40.

. Some alternatives to orders of “prior restraint” include: (1) change of trial venue; (2) postponement оf trial; (3) the use of clear and emphatic instructions to the jurors emphasizing their duty to decide the case on evidence presented at trial; (4) sequestration of the jury; and (5) screening of jurors to eliminate those with fixed opiniоns. Nebraska Press Ass’n, 427 U.S. at 563-64, 49 L. Ed. 2d at 700.

. We note that the attorneys for the parties in this case have not appealed the order of the triаl court and we do not, therefore, address the validity of the order with respect to these attorneys. We are aware that the Rules of Professional Conduct of the North Carolina State Bar contain a provision restriсting the “extrajudicial statement[s]” of attorneys participating or having participated in litigation “if there is a rеasonable likelihood that the statement will materially prejudice an adjudicative proceeding in the matter.” N.C.R. Professional Conduct 3.6.