THE STATE OF WASHINGTON, Respondent, v. MAYMERUTH COE, Defendant, KHQ, INC., Appellant.
No. 49104-6
Supreme Court of Washington
March 22, 1984
101 Wn.2d 364 | 679 P.2d 353
The court stated intent was an element of the crime (instruction 4) and gave a lucid and statutorily correct instruction on intent. Defendant‘s conviction should be affirmed.
I dissent.
WILLIAMS, C.J., and BRACHTENBACH and DIMMICK, JJ., concur with DOLLIVER, J.
[No. 49104-6. En Banc. March 22, 1984.]
THE STATE OF WASHINGTON, Respondent, v. MAYMERUTH COE, Defendant, KHQ, INC., Appellant.
Carl Maxey and George D. Conrad, for respondent.
P. Cameron DeVore and Daniel M. Waggoner on behalf of Allied Daily Newspapers and Floyd Abrams and Stephen E. De Forest on behalf of National Broadcasting Company, National Association of Broadcasters, Radio-Television News Directors Association, and Reporters Committee for Freedom of the Press, amici curiae for appellant.
Fredric C. Tausend, amicus curiae for respondent.
UTTER, J.—The trial court held a radio and television station in contempt for violating a court order prohibiting the broadcast of accurate, lawfully obtained copies of tape recordings that had been played in open court. We hold that such an order is void under the free speech and press provisions of the Washington and United States Constitutions, and therefore reverse the conviction.
I
MaymeRuth Coe (Coe) was on trial from May 17 to 25, 1982, in Spokane County Superior Court on a charge of solicitation of murder. She was accused of attempting to hire an undercover police officer to murder the prosecutor and judge who had previously tried and convicted her son,
The case was tried without a jury. Coe‘s defenses included entrapment and diminished mental capacity at the time she solicited the murders. Among the most important evidence against Coe were tape recordings of her meetings and telephone conversations with the undercover police officer.
On the second day of trial (May 18) a reporter for appellant KHQ, Inc. (KHQ), a Spokane radio and television station, asked the prosecutor for a copy of the tape recordings, which had already been admitted into evidence. The prosecutor obliged on the condition that the tapes not be aired before they were played in open court. KHQ complied with this condition.
Later on May 18, Coe‘s attorney asked the trial court to withhold the tapes from the news media. The trial judge orally ordered KHQ not to air the tapes. A hearing on the issue was scheduled for 4 p.m. the next day, May 19. Meanwhile, on the afternoon of May 18, the recordings were played in open court. Coe received permission to leave the packed courtroom while the tapes were being played. Transcripts of the recordings were released to the news media the same day, and were printed virtually in their entirety in the May 19 editions of Spokane‘s daily newspapers.
At the May 19 hearing, Coe‘s attorney, Carl Maxey, presented an affidavit from two psychologists who had been retained as defense witnesses. The affidavit described Coe‘s treatment for psychological problems, including “manic-depressive psychosis” and “suicide ideation.” It stated:
In essence the tapes made public would be direct opposition to both the short and long term treatment goals and would facilitate a full-blown psychotic break.
If the tapes were to be given for general access by the media and the public, not only would it be probable for Ruth to undergo remission, playing of the tapes would exacerbate [sic] her psychosis resulting in a high poten-
tial for suicide. The tapes made public would in fact, literally destroy her. Suicide and/or a major psychotic break with reality would be her only remaining defense mechanisms. If suicide was attempted but not completed, irreparable damage would occur; therefore in consideration of the above, we strongly believe that the tapes should not be made public.
Clerk‘s Papers, at 57-58.
At 9 a.m. the next morning, May 20, the judge announced in open court that the order would remain in effect indefinitely pending the news media‘s production of affidavits or other expert opinions to refute the opinions of Coe‘s psychologists.
Later that afternoon, attorneys for Coe and KHQ met with the judge in chambers. In his oral decision, the judge said of that meeting:
[KHQ‘s attorneys] requested the right to either have an examination of the Defendant by some psychologist or psychiatrist of their choosing or be given the opportunity to cross-examine the two psychologists. Mr. Maxey declined to permit that, and I declined, at least at that time to lift the ban. And we sort of left the thing on hold.
Verbatim Report of Proceedings, vol. 4, at 3. Counsel for KHQ added that Mr. Maxey had declared his willingness to be held in contempt rather than permit the psychologists to be examined.
At or shortly after that discussion, KHQ‘s attorney presented the judge with a brief proposed order prohibiting the broadcast of the tapes. The written order, like the oral order then in effect, contained no express temporal or geographic limits. The judge signed the order to provide KHQ a written basis for appeal, adding in his own handwriting that it was “based on the allegations stated in the affidavits of the two psychologists filed by Def[endant].” In his later oral opinion, the judge added that he also considered prior testimony about Coe‘s long-standing psychiatric problems.
Beginning at noon on Friday, May 21, following presentation of a motion to reconsider the written order, KHQ broadcast excerpts of the tape recordings on its radio and
In response to a motion by Coe‘s attorney, the judge issued an order to show cause why KHQ should not be held in civil contempt under
At the May 26 show cause hearing, KHQ was found in contempt of court. The judge said in his oral decision that “I expressed some skepticism [at the May 19 hearing] as to whether or not this one additional traumatic event, that is, of the rebroadcast over the media of the tapes themselves, would be sufficient to change her psychiatric situation all that much“, and “I felt some skepticism about the validity or soundness of the [psychologists‘] opinion . . .” Verbatim Report of Proceedings, vol. 4, at 2, 7. He also expressed some uncertainty about the legality of the order.
On May 28, Coe was found guilty of solicitation of murder.
On September 1, 1982, a memorandum decision holding KHQ in contempt was entered. The memorandum decision contained a number of important findings and statements. First, the judge found that KHQ had lawful physical possession of the tapes prior to any court order regarding their broadcast. Second, he found that although the news media‘s First Amendment right to broadcast the tapes was not absolute, their limited right was not satisfied by the publication of the tapes in print or by oral repetition. Third, the judge declared that “[t]his is truly a ‘prior restraint’ case.” Clerk‘s Papers, at 85. Fourth, he stated:
Defendant argues that her right to a fair trial was in
Clerk‘s Papers, at 85. Fifth, the judge stated that the order was actually based on the need to protect Coe‘s rights to life and sanity, which he found to be impliedly protected as rights “retained by the people” under the ninth amendment to the United States Constitution. Sixth, he reiterated that he had been “openly skeptical of the opinion that rebroadcast of the tapes would be the straw that broke the camel‘s back for Mrs. Coe . . .” Clerk‘s Papers, at 87. Seventh, the judge “concede[d] that KHQ was placed in an awkward position because it claimed an inability to refute the affidavits of [the psychologists] for the reason that the experts it apparently consulted would not express an opinion without examining the defendant. . . . I had no reason to doubt it . . .” Clerk‘s Papers, at 88. Finally, the judge stated that the “order was and is of honestly debatable constitutionality“. Clerk‘s Papers, at 91. He nevertheless imposed a fine of $2,000.
KHQ appeals the contempt judgment on the ground that the order restraining broadcast of the tapes was constitutionally invalid for a number of reasons, and therefore a contempt conviction could not be based on its violation. Respondent replies that the order was constitutionally valid, and that even if it were not, it would not relieve KHQ of the consequences of deliberately disobeying a court order.
II
The first issue is whether the alleged invalidity of the underlying order would vitiate the contempt judgment.
Our “collateral bar” rule states that a court order
[t]he “jurisdiction” test measures whether a court, in issuing an order or holding in contempt those who defy it, was performing the sort of function for which judicial power was vested in it. If, but only if, it was not, its process is not entitled to the respect due that of a lawful judicial body. “Only when a court is so obviously traveling outside its orbit as to be merely usurping judicial forms and facilities, may [its order] be disobeyed . . .”
Mead, at 282. The contempt order is therefore vitiated where there is “an absence of jurisdiction to issue the type of order, to address the subject matter, or to bind the defendant . . .” Mead, at 284. In Bresolin v. Morris, 86 Wn.2d 241, 245, 543 P.2d 325 (1975), we stated that “[a] judgment is void only where the court lacks jurisdiction of the parties or the subject matter or lacks the inherent power to enter the particular order involved.” Since Mead involved only a technical jurisdictional problem (the plaintiff‘s attorneys were authorized to file the action by an invalid resolution of the board of directors), the court upheld the contempt conviction. Mead, at 283, 288.
A case we relied on in Mead to deduce the scope of the jurisdiction test was State ex rel. Superior Court v. Sperry, 79 Wn.2d 69, 483 P.2d 608, cert. denied, 404 U.S. 939 (1971). In Mead we characterized Sperry as a case “where the order itself was not one the court was authorized to
The [collateral bar] rule of Walker is inapposite here. There the order was not patently invalid, as compared to the order challenged here which is void on its face, as later in this opinion explained. We have held in a number of cases that a void order or decree, as distinguished from one that is merely erroneous, may be attacked in a collateral proceeding. . . . The violation of an order patently in excess of the jurisdiction of the issuing court cannot produce a valid judgment of contempt. . . .
The “collateral bar” rule which the state contends to be enunciated in Walker has justifiably been subjected to much legal criticism, particularly as it applies to free speech cases. Frequently an injunction issues immediately before the planned activity is to occur and there is then no time available to the enjoined party to make a direct attack upon the injunction. The practical result then is that the enjoined party has no adequate remedy at law and cannot engage in a lawful activity because of an unconstitutional order. To us “It . . . seems unlikely that allowing collateral attack would significantly reduce citizen compliance with lawful decrees; the citizen still faces a substantial risk of criminal penalties if proved wrong in collateral, rather than direct, attack on the decree‘s validity.” . . .
Additionally, it is likely that we would have declined to review the October 8, 1970 order by direct appeal or review.
Under Washington law, if the order in this case was patently invalid or “void” as outside the court‘s power, the contempt judgment against KHQ must be reversed.3
III
The trial judge found that “this is truly a ‘prior restraint’ case,” and all of the parties and amici seem to agree. The order in this case does fit neatly within the definition of prior restraints, which are “official restrictions imposed upon speech or other forms of expression in advance of actual publication.” Seattle v. Bittner, 81 Wn.2d 747, 756, 505 P.2d 126 (1973) (quoting Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Probs. 648 (1955)). See also Nebraska Press Ass‘n v. Stuart, 427 U.S. 539, 556, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976), where “prior restraints” are defined as “orders that prohibit the publication or broadcast of particular information or commentary . . .”
Although prior restraints are presumptively unconstitutional, see, e.g., Sperry, at 76, not all prior restraints are
The order in this case constitutes a classic prior restraint. See also Smith v. Daily Mail Pub‘g Co., 443 U.S. 97, 103, 61 L. Ed. 2d 399, 99 S. Ct. 2667 (1979).
IV
Whether the prior restraint was constitutionally valid or invalid should be treated first under our state constitution, for a number of reasons. First, state courts have a duty to independently interpret and apply their state constitutions that stems from the very nature of our federal system and the vast differences between the federal and state constitu-
The question remains whether, under the Washington Constitution, the trial court‘s prior restraint order was patently invalid or void. We hold that it was.
Prior restraints on speech and press are governed by
Freedom of Speech. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.
Appellant correctly points out that, unlike the first amendment to the United States Constitution, the plain language of
The language of the Washington Constitution absolutely forbids prior restraints against the publication or broadcast of constitutionally protected speech under the facts of this case, since the information sought to be restrained was lawfully obtained, true, and a matter of public record by virtue of having been previously admitted into evidence and presented in open court.
Sperry provides only ambiguous guidance regarding the scope of our free speech provision‘s protection against prior restraints. While we purported to base our application of a balancing test in that case on both the state and federal constitutions, the court there failed to distinguish between the two documents, and in fact referred only to the United States Constitution when announcing the relevant rule and summarizing the holding. Sperry, at 75-76, 78. This is probably why our subsequent opinion in State v. Braun, 82 Wn.2d 157, 509 P.2d 742 (1973), the criminal case that gave rise to the order struck down in Sperry, describes Sperry as “holding that the order violated the first amendment to the United States Constitution.” (Italics ours.) Braun, at 168 n.9. On the other hand, we have also interpreted Sperry as establishing an apparently unqualified right under
The California Supreme Court began its review of the order by stating:
[T]his case now stands before us exactly as though one of the daily journals was threatening to publish its sentiments pertaining to the conduct of a criminal trial then pending, and the court where such trial was pending and in progress, believing such publication would interfere with the due administration of justice, had issued an order restraining and prohibiting the threatened action of the paper.
We are entirely clear that the court had no jurisdiction to make the order which forms the basis of this proceeding, for such order was an attempted infringement upon rights guaranteed to every citizen by section 9, article I, of the constitution of this state. That section provides: “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” The wording of this section is terse and vigorous, and its meaning so plain that construction is not needed. . . . It is patent that this right to speak, write, and publish, cannot be abused until it is exercised, and before it is exercised there can be no responsibility. The purpose of this provision of the constitution was the abolishment of censorship, and for courts to act as censors is directly violative of that purpose.
that the order made by the trial court was an attempted restraint upon the right of free speech, as guaranteed by the constitution of this state, and that petitioner‘s mouth could not be closed in advance for the purpose of preventing an utterance of his sentiments, however mischievous the prospective results of such utterance. He had the right of free speech, but at all times was responsible to the law for an abuse of that right.
For the foregoing reasons the order is annulled, as being beyond the power of the court to make.
112 Cal. at 100. The California Supreme Court‘s 19th-century interpretation of the free speech provision of the California Constitution of 1879 is particularly apposite here because
Article 2, section 6 of the Arizona Constitution of 1910, enacted after ours, is identical to Washington‘s free speech provision. In Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966), a trial judge complied with defense counsel‘s oral request to order the press representatives attending a public habeas corpus hearing not to publish what occurred at the hearing. The order was based on the judge‘s and defense attorney‘s concern that the jury, which had not yet been selected, might be prejudiced by hearing that the judge had found probable cause to try the defendant for murder. Two newspapers nevertheless published factual accounts of the habeas corpus hearing, and were ordered to appear and show cause why they should not be held in contempt. The newspapers then initiated an action to prohibit the show cause hearing. The Arizona Supreme Court found that the free speech provision of the Arizona Constitution prohibited such an order,
the court could not, in advance of publication, limit the right of petitioners to print the news and inform the public of that which had transpired in open court in the course of a judicial hearing. The order prohibiting publication and discussion in this case is violative of Article 2, § 6 of the Arizona Constitution and is void.
The reasoning of the California and Arizona Supreme Courts in interpreting identical or nearly identical provisions of their own constitutions is persuasive. It gives support for our own independent conclusion that
V
Although our decision in this case rests on “bona fide separate, adequate, and independent [state constitutional] grounds,” Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469, 3476 (1983), and it is therefore unnecessary for us to reach the federal constitutional issues raised by the parties, we will discuss the potential federal constitutional problems as well for two reasons. First, our reasoning may be of aid to other courts with similar problems who do not have state constitutional provisions similar to ours and must rely on the appropriate federal constitutional provisions and decisions. Second, although the federal cases in no way influenced our decision under the Washington Constitution, such a discussion demonstrates that federal constitutional law also forbids a court to impose prior restraints on the publication of information lawfully obtained at public court proceedings.
In Oklahoma Pub‘g Co. v. District Court, 430 U.S. 308,
In Cox Broadcasting, a television reporter learned the identity of a rape victim by asking the trial court clerk during a recess in proceedings against the alleged rapists for copies of the indictments. There was no contention that the name of the victim was obtained in an improper fashion or that the indictments were not official court documents open to public inspection. After the victim‘s name was broadcast, the victim‘s father sued the television station for invasion of privacy, relying on a state statute that made it a misdemeanor to publish or broadcast the name of a rape victim. The state courts upheld the father‘s right to sue for damages. The United States Supreme Court
We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. . . . At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. . . . Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.
In Nebraska Press Ass‘n, the United States Supreme Court held unconstitutional an order prohibiting the press from publishing, among other things, information concerning a confession made by a criminal defendant in a highly publicized murder trial which was discussed at a public preliminary hearing. The order was designed to protect the fair trial rights of the defendant and expired by its own terms when the jury was impaneled. Although some of the Justices thought that closure of the preliminary hearing was a legitimate means of controlling pretrial publicity, all nine Justices agreed that “once a public hearing had been held, what transpired there could not be subject to prior restraint.” 427 U.S. at 568 (majority); see also 427 U.S. at 596-98 (Brennan, J., concurring).
These cases make it clear the United States Constitution also prohibits prior restraints against publication or broadcast of information lawfully obtained from public court records or proceedings.
A trial is a public event. What transpires in the court room is public property. . . . Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as
Craig v. Harney, 331 U.S. 367, 374, 91 L. Ed. 1546, 67 S. Ct. 1249 (1947). See also Sheppard v. Maxwell, 384 U.S. 333, 362-63, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966); Estes v. Texas, 381 U.S. 532, 541-42, 14 L. Ed. 2d 543, 85 S. Ct. 1628, reh‘g denied, 382 U.S. 875 (1965).
“In view of the Nebraska Press Association, Oklahoma Publishing, and Cox Broadcasting cases, it would seem that a gag order forbidding publication of material disclosed in open court is ‘transparently invalid’ or has ‘only a frivolous pretense to validity.‘” Barnett, The Puzzle of Prior Restraint, 29 Stan. L. Rev. 539, 555 (1977). Barnett adds, at page 555, that “it should follow that the collateral bar rule may not constitutionally be applied to prevent a publisher from relying on the constitutional infirmities of such an order as a defense to a charge of contempt for having published in the face of it.”
VI
Coe contends that under Nebraska Press Ass‘n, the affidavit of the two psychologists and evidence concerning Coe‘s mental state were sufficient to show a danger to her fair trial or other constitutional rights and mandate a balancing of the allegedly endangered rights against the free speech and press rights asserted by KHQ. As we have noted, such balancing is not appropriate in this case because the right of the press to broadcast accurate, lawfully obtained copies of tapes previously played in open court is absolute.5
Even if the exercise of such a free speech right were subject to balancing, however, Coe has failed to meet her heavy
Coe and amicus also argue, apparently in the alternative, that “the niceties of Nebraska Press” are not applicable when the alleged threat arises in the middle of trial, or when the press was free to publish the “substance” of the tapes. Regarding the first contention, we believe that an order which would otherwise be invalid cannot be sustained merely because the trial judge and counsel were pressed for time. In such situations, the heavy presumption of unconstitutionality requires a judge to resolve all doubts against prior restraint and to deny requests for such orders. This is especially true where, as in this case, “the judge could not possibly have known whether restraining broadcast of the tapes was strictly and inescapably necessary.” Brief of Amicus Tausend, at 20. Regarding the second contention, we have already noted that the inflections of voice recorded on the tapes themselves constituted substantive information which could not be adequately communicated to the public through the publication of cold transcripts or their reading by actors. Since such information was highly relevant to Coe‘s two major defenses, broadcasting the tapes served a far greater public interest than mere drama or entertainment.
VII
While we are concerned for the defendant‘s right to a fair trial, it is our belief that there are numerous adequate and constitutionally permissible methods for trial courts to fulfill their fundamental obligation to protect such rights. Our holding today that prior restraint of certain speech, like secret “star chamber” trials and mandatory submission of advance newspaper copy for court approval, is among the long list of tools that are not constitutionally available to courts to protect defendants’ rights in no way reduces the trial courts’ responsibilities in this regard.
In Sheppard v. Maxwell, supra, the United States
This partial list of a trial court‘s powers is not meant to suggest that courts are responsible for the protection of all of a defendant‘s rights in all circumstances. Sometimes that responsibility must rest with other officials who have also sworn to uphold the constitution, and even with interested private parties. In a recent case involving the closure of a pretrial hearing in part to protect allegedly endangered witnesses, Justice Dolliver wrote:
It is not the business of courts through pretrial secrecy orders to provide “protection” for witnesses or parties. To hold otherwise would put the courts in an impossible position: Fail to issue a secrecy order and if the witness or party is injured or killed it is the fault of the court.
The safety or life of a witness or a party to an action is the responsibility of law enforcement agencies. It is not properly done by courts through the use of secrecy orders. Once the argument to the contrary is accepted, any vitality in an open judicial system is destroyed.
If the unavoidable circumstances are indeed such that a witness or a party to an action must be protected, then this must be accomplished by appropriate police action and not by the closure of the court.
Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 46, 640 P.2d 716 (1982) (Dolliver, J., concurring). Such an allocation of responsibilities is especially appropriate in cases like the one at bar, where primary responsibility for the defendant‘s mental health rests with the defendant and her physicians, psychiatrists, attorneys and family. When those persons are unable to adequately protect her, the courts, the police, and various specialized public and private agencies provide appropriate procedures and resources for treating seriously disturbed individuals on an emergency basis and protecting them from self-inflicted harm.
Finally, although it is difficult to conceive of a situation where conscientious public officials would be unable to protect a criminal defendant‘s rights with the tools available, a defendant‘s fair trial rights can always be vindicated by reversing his or her conviction. Although such a drastic remedy should be used sparingly, an occasional reversal is a small price to pay for preventing “prior restraints on speech and publication [which] are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass‘n, at 559.
VIII
For the foregoing reasons, the trial court‘s judgment of
WILLIAMS, C.J., and BRACHTENBACH, DOLLIVER, DIMMICK, and PEARSON, JJ., concur.
ROSELLINI, J. (concurring in part, dissenting in part)—The majority today grants the press and news media an absolute right to publish and broadcast lawfully obtained information. Majority opinion, at 378. Because the notion that any right is absolute conflicts with basic constitutional analysis, delegates, unwisely, judicial responsibility for protecting individual rights and celebrates the rhetoric of prior restraint over the substantive values inherent in First Amendment analysis, I dissent from part IV of the majority opinion.
The majority‘s assertion that
The majority justifies its approach on the theory of independent state grounds. The majority asserts that article 1, section 5 grants greater rights to the press under our state constitution than does the First Amendment.
The majority‘s reliance on the doctrine of independent state grounds is misplaced. Although a state may grant
Although we read section 5 and amendment 7 as not requiring the same “state action” as the Fourteenth Amendment, that does not mean those provisions are applicable to all speech and initiative activities. If there were no limitations to their application, every private conflict involving speech and property rights would become a constitutional dispute. Note, Robins v. Pruneyard Shopping Center: Free Speech Access to Shopping Centers Under the California Constitution, 68 Cal. L. Rev. 641, 659 (1980). Such an approach would deny private autonomy and property rights in the same way as the “state action” requirement of the Fourteenth Amendment denies free speech. To endorse either approach would ignore the validity of certain constitutional rights and would be inconsistent with the balancing approach generally employed in resolving First Amendment and property rights conflicts.
(Footnote omitted.)
By granting an absolute right to broadcast this information, the majority “ignore[s] the validity” of the defendant‘s Sixth Amendment rights and the privacy rights of participants in the judicial process. This our court cannot—constitutionally—do. This fact is most obvious in the context of conflicts with Sixth Amendment rights. Of this right, the United States Supreme Court has said: “No right ranks higher than the right of the accused to a fair trial.” (Italics mine.) Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819, 823 (1984). The absolutist approach taken by the majority would prevent a trial judge from protecting Sixth Amendment rights, and to that extent our independent state grounds analysis is constitutionally prohibited.
I do not believe, however, that the majority purposefully intends to vitiate Sixth Amendment rights. It is likely that
My uneasiness stems, in part, from the majority‘s insistence that the press may publish the evidence in whatever form it is introduced in trial. Implicit in this holding is the belief that the news media will judiciously utilize the evidence presented in court. Given the potency certain forms of evidence take, I cannot agree with the majority‘s abrogation of its duty to protect an individual‘s constitutional rights.
Consider the variety of information introduced in criminal trials. Criminal trials frequently involve the introduction of gruesome or obscene photographs and of taped conversations between participants in criminal activity. These items may not be overly prejudicial. But consider also some of the more dramatic forms evidence may take: the video tapes of rape scenes filmed by sexual psychopaths, the dramatic emergency calls between victims and county dispatchers, and the stark and distressing, but frequently necessary, photographs of an autopsy. All of these items are subject to the rule promulgated by the majority. Yet, the broadcast of any one of these items has the potential for causing irreparable prejudice to a defendant or grievous invasion of a victim‘s privacy. Nonetheless, the rule suggested by the majority binds the hands of trial judges and leaves them helpless to protect these rights.
Even if we were to assume, as does the majority, that evidence admitted in court cannot be overly prejudicial to a defendant, and even if we were to assume, as the majority must, that the trial court has no obligation to protect the privacy interest of the participants in a trial, we would still be left with a rule that allowed potential infringement upon Sixth Amendment rights. This premise can be demonstrated by examining a news media access case from Florida. Green v. State, 377 So. 2d 193 (Fla. Dist. Ct. App.
It also seems clear that the advent of electronic media coverage of a criminal trial carries with it, at times, the risk of rendering a borderline competent defendant incompetent to stand trial and that a case involving such a defendant must be handled with special care by the trial court. A mentally disturbed, but technically competent defendant, like any other defendant, must face a much greater public exposure if his trial is televised. As a result, he is almost certain to suffer a greater level of anxiety than he would if his trial were not televised. This increased anxiety may impair his ability to consult with counsel during trial with a reasonable degree of rational understanding or it may impair his rational as well as factual understanding of the proceedings against him. If either event be the case, the defendant has, in our view, demonstrated prejudice under [In re Post-Newsweek Stations, Florida, Inc., 347 So. 2d 402, 347 So. 2d 404 (Fla. 1977)], so as to exclude electronic media coverage of the judicial proceedings in the case. To rule otherwise would be to sanction the trial of a competent defendant rendered incompetent by electronic media coverage, a result which our law does not and cannot permit.
Although the present case involves the out-of-court usage of evidence rather than television coverage of the event itself, the Florida court‘s discussion of the trial
Finally, the majority‘s dogmatic prior restraint approach celebrates form over substance, in that it is itself violative of the underlying goal of encouraging free and open communication which inheres in First Amendment analysis. The majority uncritically views the issue as an open and shut prior restraint case. This analysis not only ignores much of the recent criticism of the prior restraint doctrine, see, e.g., Jeffries, Rethinking Prior Restraint, 92 Yale L. Rev. 409 (1983); Mayton, Toward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment, and the Costs of the Prior Restraint Doctrine, 67 Cornell L. Rev. 245 (1982), it also infringes upon the goal of open communication.
Consider the consequences of the majority‘s rule. The majority‘s analysis “guarantees an absolute right” to publish information that is admitted into evidence and presented in open court. Majority opinion, at 378. By its decision to ignore the manner of communication, the court also guarantees the right to broadcast information in the form the information takes in court. Thus, to avoid infringement on a defendant‘s Sixth Amendment rights or the privacy rights of participants,8 the court must close the
Because I believe that MaymeRuth Coe has not established a substantial infringement on her Sixth Amendment rights, I concur in the result reached by the majority. But because I fear the consequences of any absolute rule, I dissent from part IV of the majority opinion.
DORE, J., and CUNNINGHAM, J. Pro Tem., concur with ROSELLINI, J.
Notes
The jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the
public domain.
104 S. Ct. at 825. After discussing the importance of these rights, the Court implicitly condoned limited closure of voir dire to protect those privacy rights. Chief Justice Burger wrote:
When limited closure is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished without safeguarding the juror‘s valid privacy interests. Even then a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.