Petition — Central South Carolina Chapter v. Martin

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 97-263

CENTRAL SOUTH CAROLINA CHAPTER, SOCIETY OF

PROFESSIONAL JOURNALISTS, SIGMA DELTI CHI; FRED P.

McNEESE, ROBERT McALISTER, ROBERT HITT, individually as

news reporters and as members, officers, and directors of the Central

South Carolina Chapter, Society of Professional Journalists, Sigma

Delta Chi; SOUTH CAROLINA BROADCASTERS ASSOCIATION;

DR. RICHARD URAY, individually and as Executive Manager of the

South Carolina Broadcasters Association; SOUTH CAROLINA

PRESS ASSOCIATION; THE ENTERPRISE, INC.; EDWARD M.

SWEATT, individually as President of the South Carolina Press

Association and as a shareholder and member of the Board of Directors

of The Enterprise, Inc.; and CAROLYN KAY HARRIS,

Petitioners,

THE HONORABLE J. ROBERT MARTIN, JR., United States

District Court for the District of South Carolina; MARK W. BUYCK,

JR., Esq., United States Attorney for the District of South Carolina;

J. ELLIOTT WILLIAMS, United States Marshall for the District of

South Carolina; and MILLER C. FOSTER, JR., United States Clerk

for the District of South Carolina,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MITCHELL ROGOVIN JACK C. LANDAU JAMES C. HARRISON. JR.

DAVID BOYD Reporters Committee COSTA M. PLEICONES

Rogovin, Stern & Huge For the Freedom of the Press Harrison & Pleicones

1730 Rhode Island Ave.,.N.W. 1750 Pa. Ave.. N.W. 1010 Barringer Bidg.

Washington, D.C. Washington. D.c. Columbia.

South Carolina

Counsel for Petitioners

THE CASILLAS PRESS, INC.-1717 K Street, N. W.—Washington, 0. C.-223-1220

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No.

CENTRAL SOUTH CAROLINA CHAPTER, SOCIETY OF

PROFESSIONAL JOURNALISTS, SIGMA DELTI CHI; FRED P.

McNEESE, ROBERT McALISTER, ROBERT HITT, individually as

news reporters and as members, officers, and directors of the Central

South Carolina Chapter. Society of Professional Journalists, Sigma

Delta Chi; SOUTH CAROLINA BROADCASTERS ASSOCIATION;

DR. RICHARD URAY, individually and as Executive Manager of the

South Carolina Broadcasters Association; SOUTH CAROLINA

PRESS ASSOCIATION; THE ENTERPRISE, INC.; EDWARD M.

SWEATT, individually as President of the South Carolina Press

Association and as a shareholder and member of the Board of Directors

of The Enterprise, Inc.; and CAROLYN KAY HARRIS,

Petitioners,

Vv.

THE HONORABLE J. ROBERT MARTIN, JR., United States

District Court for the District of South Carolina; MARK W. BUYCK.

JR., Esq., United States Attorney for the District of South Carolina;

J. ELLIOTT WILLIAMS, United States Marshall for the District of

South Carolina; and MILLER C. FOSTER, JR., United States Clerk

for the District of South Carolina,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

(i)

SUBJECT INDEX

OPINION SOUGHT TO BE REVIEWED .

JURISDICTION .

QUESTIONS PRESENTED FOR REVIEW .

CONSTITUTIONAL AND STATUTORY PROVISIONS

RELIED UPON .

REASONS FOR GRANTING THE WRIT

I. Statement of the Case .

A. Introduction

B. Fundamental Impact of the Challenged Order

C. Procedural History of Case

The “Reasonable Likelihood of Threat To A Fair

Trial” Standard Applied To Justify Sweeping or

Absolute Prohibitions on Speech and Association

Reflects An Inadequate Recognition Of The First

Amendment Interests At Stake And The Alterna-

tive Measures For Insuring A Fair Trial, And

Should Be Rejected . — >

A. The Total Impact of The Challenged Order Is

Substantially The Same As A Prior Restraint

B. The Lower Courts Are In Plain Conflict As

To The Constitutional Standards To Be onl

plied In These Cases . a a

C. The “Reasonable Likelihood” Standard Affords

Insufficient Recognition To The Strong First

eS A

(ii)

III. The Record In This Case Will Not Support The

Entry of The Challenged Order Even Under The

Lax “Reasonable Likelihood” Standard Adopted

(iii)

Central South Carolina Chapter, et al. v. United

States District Court for the District of South

Carolina, 551 F.2d 559(4thCir.1977) . . . . 8,9,12,13

Chicago Council of Lawyers v. Bauer,

522 F.2d 242 (7th Cir. 1974), cert. denied

sub nom., Cunningham v. Chicago Council

of Lawyers, 427 US.912 (1976) . 4%, 13, 14, 17, 23

Cox Broadcasting Corp. v. Cohn, 420 US. 469 (1975) . 11,12,14

by The District Court And The Court of Appeals . 18

IV. The Challenged Order Suffers From Fatal Defects

of Vagueness and Overbreadth — 22

V. Orders of This Kind Can Be Entered Only In

Accordance With Procedural Safeguards Mandated

By The Due Process Clause or The Court’s Super-

visory Powers . oe e 6 6 eee 24

CONCLUSION 26

TABLE OF CASES

Board of Regents v. Roth,

408 U.S. 564 (1972) 24

Branzburg v. Hayes,

408 U.S. 665 (1972) 16

CBS, Inc. v. Young,

522 F.2d 234 (6th Cir. 1975) 4, 14, 17, 23

Carroll v. President and Commissioners of Princess

Anne, 393 US. 175 (1968) 24

Central South Carolina Chapter, Society of

Professional Journalists et al. v. The Honor-

able J. Robert Martin, Jr., et al., 431 F.Supp.

1182(DS.C. 1977) . _* ae

Central South Carolina Chapter, Society of

Professional Journalists et al. v. The Honor-

able J. Robert Martin, Jr.,etal., _-~ F.2d

(No. 77-1636, 4th Cir. May 17, 1977) .

1, 8, 10, 20, 21

1, 3, 4, 6, 8, 13

Craig v. Harney,

331 US. 367 (1947)

11,14

Dobbert v. Florida,

45 US.L.W. 4721 (US. June 17, 1977. 20

Dorfman v. Meiszner,

430 F.2d 558 (7th Cir. 1970) 23

Estes v. Texas,

381 U.S. 532 (1965) 14

Gertz v. Robert Welch, Inc.

418 US. 323 (1974) 15

Murphy v. Florida,

421 U.S. 794 (1974) 19, 20

NAACP v. Button,

371 US. 415 (1963) 22

Nebraska Press Association v. Stuart,

423 US. 1327 (1976) — — of

J. Blackmun) . . ; “yen 24

Nebraska Press Association v. Stuart,

427 US. 539 (1976)

3, 4, 7, 11, 12, 14, 16, 19, 20

(iv)

Pacific Terminal Co. v. ICC,

Se sé es oe kare a See eee

Pell v. Procunier,

GP eeee kw él tdorta ee soe ee

Rideau v. Louisiana,

DE SD, gt 6 a ee ee ee 19

Saxbe v. Washington Post,

i (TT eee

Schiavo v. United States,

504 F.2d 1 (3rd Cir. 1974), cert. denied sub nom.,

Ditter v. Philadelphia Newspapers Inc. 419 US.

Pn + « .« s «ee O46. bee a & ee ee

Southeastern Promotions v. Conrad,

Pn. ys = +44 «4 aw O~ 6 oe eee

Shelton v. Tucker,

nn. ¢« 5 p64 Oe ee ee 18

Sheppard v. Maxwell,

384 US. 333 (1966) ... . . . 12,14, 16,17, 19, 20, 22

Stroble v. California,

PP =» 6 «6 6 6 Se Ss ee ee

Times-Picayune Publishing Corp. v.

Schulingkamp, 419 U.S. 1301(1974). . . .. . . 14,19

United States v. Addy,

Crim. No. 68/313 (DS.C.May 8,1969) . .......7

United States v. Columbia Broadcasting neared Inc.,

497 F.2d 102 (SthCir.1974) .... ee ae es

(v)

United States v. Dickinson,

465 F.2d 496 (Sth Cir. 1972)

United States v. J. Ralph Gasque, et al.,

Crim. No. 76-104 —_

Ur.ted States v. Tijerina,

412 F.2d 661 (10th Cir. 1969), cert. denied,

396 U.S. 990 (1969) a a

Wood v. Georgia,

370 US. 375 (1962)

ARTICLES

Comment, Prejudicial Publicity in Trials of Public

Officials, 85 Yale LJ. 123 (1965)

1,7, 19

. 4,13

— oT OE ee RN geen ce

OPINION SOUGHT TO BE REVIEWED

This petition for certiorari seeks review of the decision

of the United States Court of Appeals for the Fourth Cir-

cuit in Central South Carolina Chapter, Society of Profes-

sional Journalists, et al. v. The Honorable J. Robert Mar-

tin, Jr., et al., F.2d (No. 77-1636, 4th Cir. May

17, 1977), which substantially sustained an order restrict-

ing media reporting of a criminal trial based on the opin-

ion of the United States District Court. Central South

Carolina Chapter, Society of Professional Journalists, et

al. v. The Honorable J. Robert Marin, Jr., et al., 431 F.

Supp. 1182 (D.S.C. 1977).

JURISDICTION

The opinion presented for review was decided on May

17, 1977. The jurisdiction of this Court is invoked pur-

suant to 28 U.S.C. § 1254.

QUESTIONS PRESENTED FOR REVIEW

The questions presented for this Court’s review are the

following:

1. Whether the restrictive order entered on May 31,

1976, in United States v. J. Ralph Gasque, et al., Crim.

No. 76-104, is valid under the First Amendment to the

United States Constitution;

2. Whether the restrictive order entered on May 31,

1976, in United States v. J. Ralph Gasque, et al., supra,

is valid under the Fifth Amendment to the United States

Con *titution; and

3. Whether, in the exercise of its supervisory powers

over the lower federal courts, this Court should require

that district courts entering restrictive orders of this kind

must precede such orders by notice and the opportunity

for a hearing to interested parties and must accompany

them with a written opinion articulating the basis on

which they are entered.

CONSTITUTIONAL AND STATUTORY

PROVISIONS RELIED UPON

Constitutional Provisions

The petition for certiorari presents issues arising under

ie First and Fifth Amendments to the United States Con-

stitution. The relevant portion of those Amendments are

the following:

First Amendment: “Congress shall make no law... .

abridging the freedom of speech, or of the press... .”

Fifth Amendment: “No person shall . . . be deprived

of life, liberty, or property, without due process of law

”

Statutory Provisions

Also relied upon as a predicate to one element of the

claim under the First Amendment is section 1866(a) of

the Jury Selection and Service Act, 28 U.S.C. § 1861,

which provides, in pertinent part, that the names of per-

sons that may be required for assignment to grand or

petit juries be “publicly draw[n] at random from the

qualified jury wheel .. .”

a mre ye me + ae ee .

———

REASONS FOR GRANTING THE WRIT

I. STATEMENT OF THE CASE

A. Introduction

In Nebraska Press Association v. Stuart, 427 U.S. 539

(1976), this Court articulated the constitutional standards

applicable to classic prior restraints on the reporting of

matters relating to criminal trials. Although the Court

refrained from ruling that such prior restraints can never

be sustained, the rigorous standards set forth in its opin-

ion invariably point to that conclusion. See id., at 570,

570-71 (White, J., concurring); id., at 572, 572-73 (Bren-

nan, J., concurring in judgment).

Thus, following Nebraska Press Association, judicial at-

tempts to impose classic prior restraints on the reporting

of matters related to criminal trials will largely disappear.

Throughout the nation, however, trial courts increasingly

are resorting to methods that indirectly achieve what could

directly be accomplished only by satisfying the rigorous

and perhaps insuperable standards of Nebraska Press As-

sociation; orders increasingly are being entered that exact

the same censorial impact by denying newsmen access to

critical information.

The Courts of Appeals and state courts are in hopeless

disarray in attempting to articulate and apply the consti-

tutional standards by which restrictive orders of this kind

must be assessed. For example, although the Fourth and

Tenth Circuits now require only that a “reasonable likeli-

hood” of threat to a fair trial be found to justify the en-

try of orders of this kind, see Central South Carolina

Chapter, Society of Professional Journalists, et al. v. The

Honorable J. Robert Martin, Jr., et al., supra; United States

v. Tijerina, 412 F.2d 661 (10th Cir. 1969), cert. denied,

396 U.S. 990 (1969), the Sixth and Seventh Circuits have

concluded that such restrictive orders can only be sus-

tained upon a finding that they were entered in response

to a “serious and imminent threat” of interference with

a fair trial. CBS, Inc. v. Young, 522 F.2d 234, 241 (6th

Cir. 1975): Chicago Council of Lawyers v. Bauer, 522

F.2d 242 (7th Cir. 1974), cert. denied sub nom., Cun-

ningham vy. Chicago Council of Lawyers, 427 U.S. 912

(1976). This case affords the Court the opportunity to

articulate and apply the proper constitutional standards,

and thus to provide much-needed guidance on the important

and increasingly litigated questions of constitutional law

that remain unresolved after Nebraska Press Association v.

Stuart, supra, 427 U.S. at 564, n.8. This petition also

poses an equally important question regarding the kinds

of procedural safeguards that should precede and accom-

pany the entry of orders of this kind, another issue on

which the Courts of Appeals are divided. Compare Cen-

tral South Carolina Chapter, Society of Professional Jour-

nalists, et al., supra, with Schiavo v, United States, 504

F.2d 1 (3d Cir. 1974), cert. denied sub nom. Ditter v.

Philadelphia Newspapers, Inc., 419 U.S. 1096 (1975).

B. Fundamental Impact of the Challenged Order

The overall effect of the challenged order is to impose

sweeping, and in some cases, absolute, prohibitions on the

rights of speech and association. Individually, the challenged

order prohibits media resort to a number of important re-

portorial techniques that are essential to the full and accu-

rate reporting of criminal trials. Collectively, the challenged

order effectively imposes a blackout on all sources of infor-

mation other than those obtained in the actual trial proceed-

ings themselves.

Section One of the order prohibits “‘[e] xtrajudicial state-

ments by participants in the trial . . . which might divulge

prejudicial matter not of public record in the case... .”

(emphasis added). By virtue of this broad restriction, all

readily available sources of information — a broad category

of persons, including witnesses and attorneys — were prohib-

ited from discussing even such matters as the financial and

legal implications of the indictment and its ramifications for

the operation of the federal and state manpower programs.

Section Two of the order requires that all participants

in the trial “avoid mingling with or being in the proximity

of reporters, photographers, and others in the entrances to

and the hallways in the courthouse building, including the

sidewalks adjacent thereto, both in entering and leaving the

courthouse during recesses in the trial.” By virtue of this

restriction, reporters were barred from seeking explanatory

sources of information during trial recesses, generally the

only available times for approaching trial participants dur-

ing the day. For reporters who work for daily newspapers

or television and radio stations with daily and even hourly

deadlines, this prohibition effectively denies them informa-

tion they must collect at the time.

Section Three precludes the release of the names and ad-

dresses of prospective jurors “except on Order of Court.”

This section of the order thus precludes the press from exer-

cising its traditional function of monitoring political, racial

and other important characteristics of the prospective jury

pool — characteristics that may be particularly important in

a case with such substantial political overtones.

Finally, Section Four of the order provides that “[a]ll wit-

nesses are prohibited from news interviews during the trial

period.”” The necessity for this absolute proscription is far

from apparent in view of the censorial impact of Sections

One and Two. Nevertheless, this section prevents the press

from asking a witness anything, even the correct spelling of

his name, the witness’ occupation, or his address. It also pro-

hibits the press from obtaining information from the witnesses

— many of whom are public officials — which may have no

relationship at all to the trial.

Individually, each restriction imposes a severe restraint on

First Amendment freedoms and substantially restricts the re-

porting of this important trial. Some even have an impact

that transcends this trial, inhibiting discussion of other issues

by persons legitimately concerned with falling prey to the

order’s broad and ambiguous terms. Thus, even though

some portions of the order may not explicitly impose re-

strictions on the publication of information, the cumulative

impact of the web of restrictions is to create an almost to-

tal blackout on critical sources of information.

C. Procedural History of Case

This petition seeks review of the second ruling of the

United States Court of Appeals for the Fourth Circuit in

Central South Carolina, et al. v. The Honorable Robert J.

Martin, Jr., et al., supra (attached as Appendix B hereto),

which sustained an order restricting reporting of a crimi-

nal trial on the basis of the previous opinion of the

United States District Court for the District of South

Carolina (attached as Appendix C hereto).

aot eee eee _———_—~>_—__---——~

On May 31, 1976, without providing notice or an op-

portunity for a hearing to trial participants or interested

members of the media, the United States District Court

for the District of South Carolina entered an order, sua

sponte, restricting comment and reporting of the then-

pending criminal trial in United States v. J. Ralph Gasque,

et al. (the challenged order is attached as Appendix A

hereto).! The order was entered “for reasons appearing

to the Court.” Those reasons were nowhere articulated,

however.

Petitioners promptly sought and obtained a stay from

the United States Court of Appeals for the Fourth Cir-

cuit, which indicated that their challenge to the restric-

tive order should be pursued by writ of mandamus. Ac-

cordingly, a writ of mandamus was filed in that Court. On

! The trial, then scheduled for June 21, 1976, was subsequently

rescheduled for May 23, 1977. Following the Court of Appeals’

decision and this Court’s denial of petitioner’s motion for stay, the

trial began, and resulted in the conviction of defendant Gasque and

the other defendants.

As the Court recognized in Nebraska Press Association v. Stuart,

427 U.S. 539, 546-47 (1976), this does not render the case moot.

Like other cases of this kind, the issues here presented are “capa-

ble of repetition, yet evading review.” Pacific Terminal Co. v. ICC,

219 U.S. 498, 515 (1911). As in Nebraska Press Association, a pos-

sibility remains that this conviction may be set aside on appeal or

by collateral attack, thus possibly renewing the same issues in this

very case. Moreover, it should be noted that the order challenged

herein is virtually identical to a restrictive order entered by the

same Court in United States v. Addy, Crim. No. 68/313 (D.S.C.

May 8, 1969). Defendant Gasque also presently stands indicted

for other, similar offenses. Petitioners therefore believe that this

District Court or other judges of the United States District Court

will enter similar orders in Senator Gasque’s subsequent trial and

in other more publicized criminal trials, as will other trial courts

throughout the nation.

January 13, 1977, however, the Court of Appeals aban-

doned its earlier petition and ruled that mandamus was

an inappropriate remedy for a challenge of this nature.

Central South Carolina Chapter, et al. v. United States

District Court for the District of South Carolina, 551 F.

2d 559 (4th Cir. 1977). The Court rejected petitioners’

request that the case be considered as an appeal and re-

fused to reach the merits of the case, suggesting instead

that the claims should be pursued by original complaint

in the District Court. The stay was dissolved at that

time. This decision is not presented for this Court’s re-

view.

In accordance with the ruling of the Court of Ap-

peals, on March 30, 1977, petitioners filed a complaint

in the District Court, seeking a declaratory judgment and

preliminary and permanent injunctions. The motion for

preliminary injunction was never ruled upon. On May 3,

1977, however, the District Court dismissed the com-

plaint, holding that petitioners lacked standing and, alter-

natively, that the challenged order was constitutional.

Central South Carolina Chapter, Society of Professional

Journalists, et al. v. The Honorable J. Robert Martin, Jr.,

et al., supra. The District Court subsequently denied pe-

titioners’ motion for stay pending appeal.

Petitioners noted their appeal and sought a stay in

the Court of Appeals. Petitioners also sought expedition

of the appeal. On May 17, 1977, the Court substantially

affirmed on the basis of the opinion of the District Court.

Central South Carolina Chapter, Society of Professional Jour-

nalists, et al. v. The Honorable J. Robert Martin Jr., et al.,

F.2d , No. 77-1636 (4th Cir. May 17, 1977).

Initially, the Fourth Circuit curtly observed that “any

inference in our previous opinion to the contrary not-

withstanding,” but see 551 F.2d at 561, it now believed

that mandamus was the proper remedy. Treating peti-

tioners’ complaint and supporting submissions as a peti-

tion for mandamus, the Court reversed the District Court’s

determination that petitioners lacked standing. Curiously,

however, the Court refrained from expressing an opinion

regarding the propriety of the prohibitions on extrajudi-

cial statements by the defendants, since the record did

not reveal that those persons had objected to the restric-

tive order.

The Court of Appeals affirmed the District Court’s

order in all but minor respects “on the opinion of the

district court.” It did, however, limit the prohibition on

“mingling” by confining the applicability of that prohi-

bition to the courthouse itself. Likewise, the Court of

Appeals limited the reach of the prohibition against pho-

tography and the sketching of jurors to the inside of

the courthouse.?

Although substantially affirming the District Court’s

opinion, the Court of Appeals noted the “time honored”

and customary nature of courtroom sketching and sug-

gested that the District Court might reconsider its prohi-

bition against juror sketching at trial. Similarly, the

Court of Appeals noted that certain parts of the District

2The District Court had constructed its order so as to make those

prohibitions applicable in the courtroom, the courthouse and the

adjacent grounds.

3at the request of other members of the media, the District Court

subsequently agreed to permit the sketching of jurors at trial.

Court’s order may prove unnecessary once a jury was em-

paneled. The Court therefore suggested that the District

Court might reconsider portions of its order in the event

the jury was sequestered.‘

Thus, the Court of Appeals’ ruling adopted the Dis-

trict Court’s conclusion that restrictive orders of this kind

can be imposed prior to trial and thereafter sustained through-

out the trial if there is a “reasonable likelihood that pre-

judicial news prior to trial will jeopardize the defendants’

right to a fair trial.” Central South Carolina Chapter, et

al., supra, 431 F. Supp. at 1188.5 Petitioners’ motion

for stay pending the filing and disposition of this petition

was thereafter denied.®

‘Petitioners had urged both the District Court and the Court of

Appeals that the restrictive order was not necessary, since juror

sequestration offered a preferable manner for protecting the defend-

ants’ Sixth Amendment rights. That argument was rejected by the

District Court, however.

Following the Court of Appeals’ decision and the District Court’s

selection and sequestration of a jury, counsel for petitioners wrote

the District Court to request that, in view of the protection afford-

ed by the juror sequestration, the restrictive order be vacated.

(Counsel’s letter is included as Appendix D, hereto.) That request

elicited no formal response, and the Court indicated that the res-

trictive order would remain in force during the trial.

5The District Court nevertheless concluded that it perceived a “sub-

stantial likelihood” of such a possibility when it entered the order.

Central South Carolina Chapter, Society of Professional Journalists,

et al. v, The Honorable J. Robert Martin, Jr., et al., 431 F. Supp.

1182, 1188, n.5 (D.S.C. 1977).

SJustices Brennan and Marshall voted to grant the stay.

il. THE “REASONABLE LIKELIHOOD OF THREAT TO A

FAIR TRIAL” STANDARD APPLIED TO JUSTIFY

SWEEPING OR ABSOLUTE PROHIBITIONS ON SPEECH

AND ASSOCIATION REFLECTS AN INADEQUATE

RECOGNITION OF THE FIRST AMENDMENT INTER-

ESTS AT STAKE AND THE ALTERNATIVE MEAS-

SURES FOR INSURING A FAIR TRIAL, AND SHOULD

BE REJECTED.

A. The Total Impact of the Challenged Or-

der Is Substantially the Same as a Prior

Restraint.

Preliminarily, it should be recognized that the cumu-

lative impact of the challenged order — the focus of the

prior restraint analysis identified by the Court in Nebras-

ka Press Association v. Stuart, see 427 U.S. at 559 — is

to impose sweeping and pervasive restrictions on the me-

dias’s ability to report matters related to this criminal

trial fully and fairly. As a practical matter, the order

restricts reporting of the criminal trial to a report only

of those matters that transpire in open court. The order

prohibits media resort to any number of common report-

orial techniques designed to assure the accuracy of the

reporting of matters that transpire in open court, and to

provide the additional information that often is necessary

for a thorough understanding of the significance of those

events.

TThe challenged ban on courtroom sketching of jurors applied di-

rectly to the media and constituted a classic prior restraint. Jurors

sitting in a public trial are part of the “public property” of the

occurrences of open court. Craig v. Harney, 331 U.S. 367 (1947).

Thus the media is free to report those matters, Cox Broadcasting

Co. v. Cohn, 420 U.S. 469 (1975), and one of the commonly re-

cognized techniques of that reporting is by providing sketches that

portray the jury’s role in the trial. Possible juror distraction, cited

(continued)

As Judge Craven previously recognized in his con-

curring and dissenting opinion in the initial mandamus

proceeding in this case, the prohibition against news in-

terviews can only fairly be said to apply directly to the

media. Central South Carolina Chapter, et al. v. United

States District Court for the District of South Carolina,

supra, 551 F.2d at 566, n.2. The same applies to the

“mingling” prohibition. Moreover, viewed in its totality,

the order challenged herein “freezes” information just as

surely as would an order prohibiting publication of infor-

mation already obtained; the impact is equally “‘immed-

iate and irreversible.” Nebraska Press Association v. Stu-

art, supra, 427 U.S. at 559.

Relying substantially on the dictum in this Court’s

opinion in Sheppard v. Maxwell, 384 U.S. 333 (1966),

the Courts in this case condluded that such sweeping re-

strictions — including absolute per se prohibitions on “ming-

ling” with the press and witness interviews during the trial

period — could be sustained if there was a generalized find-

ing of a “reasonable likelihood that prejudicial news prior

to trial will prevent a fair trial.” Central South Carolina

7(continued)

by the District Court in justification for its sketch ban, can be

dealt with by assuring that any sketch artist perform that function

in an unobtrusive manner. In addition, the District Court’s sub-

jective impressions of the threats posed by juror sketching are not

sufficient to support this prior restraint on First Amendment rights,

especially when viewed in light of the Court’s own concession that

it has found similar bans unnecessary in other cases. Similarly, the

Court’s denial of access to the jury list failed to recognize that un-

der 28 U.S.C. § 1866 (a) the list of prospective jurors must consist

of names “publicly draw[n],” and thus is information in the public

domain. Cf. Cox Braodcasting Co. v. Cohn, supra.

Chapter, et al. v. The Honorable J. Robert Martin, Jr., et

al., supra, 431 F. Supp. 1188.8 Thus, the Fourth Circuit

cast its vote with that of the Tenth Circuit in requiring a

scant finding of a reasonable likelihood of a threat to a fair

trial in order to justify sweeping, and in some cases absolute,

prohibitions on the full reporting of criminal trials.

B. The Lower Courts Are in Plain Conflict as

to the Constitutional Standards To Be Ap-

plied in These Cases.

The Courts of Appeals are in hopeless disarray in

articulating the basic constitutional standard by which

restrictive orders of this kind are to be judged. For ex-

ample, in United States v. Tijerina, 412 F.2d 661, 666

(10th Cir.), cert. denied, 396 U.S. 990 (1969), the Tenth

Circuit concluded that a reasonable likelihood of prejudi-

cial news which could make the empanelment of an im-

partial jury more difficult and thus tend to prevent a

fair trial suffices to support the entry of such orders.

The Sixth and Seventh Circuits, on the other hand, apply

a more demanding standard. The Seventh Circuit held in

Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th

Cir. 1974), cert. denied sub nom. Cunningham v. Chicago

Council of Lawyers, 427 U.S. 912 (1976), that blanket

prohibitions of this kind cannot stand. Instead, the Sev-

enth Circuit concluded, bans on comment can only be

imposed when “the particular statement posed a serious

8since the Court of Appeals’ decision was explicitly based on the

opinion of the District Court, Central South Carolina Chapter, et

al., supra, F.2d , petitioners rely on the District Court’s

opinion in identifying the basic rationale and the standards that

now govern in the Fourth Circuit.

and imminent threat of interference with a fair trial.”

Id. at 251. Similarly, the Sixth Circuit concluded in

CBS, Inc. v. Young, 522 F.2d 234, 241 (6th Cir. 1975),

that “serious and imminent threats to the fairness and

integrity of the trial’’ must be found in order to justify

restraints similar to those sustained in this case.

C.The “Reasonable Likelihood” Standard Af-

fords Insufficient Recognition to the Strong

First Amendment Protections Against Re-

straints on the Press.

Any consideration of this issue must proceed from

the recognition of the media’s role as the “handmaiden

of et

Court, including its most recent opinion in Nebraska Press

Association v. Stuart, 427 U.S. 539, (1976), have empha-

sized the critical importance of open and public trials, and

the role of the press in assuring and enhancing that right.

See, e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,

491-92 (1975); Times-Picayune Publishing Corp. v. Schuling-

kamp, 419 U.S. 1305, 1307-08 (1974) (Chambers Opinion

of Powell, J.); Sheppard v. Maxwell, supra, 384 U.S. at 349-

50; Estes v. Texas, 381 U.S. 532, 541 (1965); Craig v. Har-

ney, 331 U.S. 367, 374 (1947). In this case, the impor-

tance of full and accurate reporting of this trial was height-

ened by the allegations of abuse of the public trust directed

both against defendant Gasque and, by the defendant, against

the prosecution as well.? These issues assume a vastly

Defendant Gasque, who for many years was a State Senator, was

indicted on charges of misuse of federal manpower funds, and

other, related offenses. He was not re-elected following the indict-

ment. Gasque contended that the indictment was “politically mo

tivated.”

greater public significance, for they go to the very heart

of our political and judicial systems.

Public officials occupy a unique position in our so-

ciety. Their position in the public trust elicits substan-

tially greater public interest in being fully informed as to

their affairs, even those that may not strictly relate to

the public office they occupy. See, e.g., Gertz v. Robert

Welch, Inc., 418 U.S. 323, 344-45 .(1974). Thus, the

Supreme Court has repeatedly emphasized that the First

Amendment responsibilities of the press are especially

important when reporting about elected public officials,

such as Senator Gasque; public programs, such as the

local and federal manpower programs in South Carolina,

which were implicated by the charges against Gasque; and

the public prosecutor’s exercise of his power and duties.

As the Fifth Circuit noted in a similar context in United

States v. Dickinson, 465 F. 2d 496 (Sth Cir. 1972):

“The free press has been a mighty catalyst

in awakening public interest in governmental

affairs, exposing corruption among public of-

ficers and employees and generally informing

the citizenry of public events and occurrences,

including court proceedings. Therefore, ‘par-

ticularly in matters of local political corrup-

tion and investigation it is important that free-

dom of communications be kept open.’” Jd.

at 501, quoting Wood v. Georgia, 370 U.S.

375, (1962).

See also, Comment, Prejudicial Publicity in Trials of Pub-

lic Officials, 85 Yale LJ. 123 (1975).

16 ‘

Petitioners by no means suggest that persons who enter

public service sacrifice their constitutional right to a fair

rial. It is clear, however, that in trials involving public

officials, the public’s right to be informed, and the media’s

corresponding right to information essential to the full

and accurate reporting of those matters, is substantially

greater. In such cases, the normal importance of the press

as the “handmaiden of effective judicial administration,”

Sheppard v. Maxwell, supra, 384 U.S. at 350, is comple-

mented by the critical importance of the press in bring-

ing to the public the full panoply of facts relevant to the

public’s assessment of its public officials.

Cases of this kind present issues that go to the very

core of First Amendment values. The burden on those

seeking to restrain or inhibit full reporting of these pro-

ceedings and their attendant facts therefore must be sub-

stantially greater. The necessity of clearly demonstrating,

by reference to concrete evidence of record, that the cri-

minal defendants’ right to a fair trial cannot be assured

by alternative measures that do not inhibit the free flow

of this critical information is at its zenith.

Neither Sheppard nor the relatively few cases dealing

with questions of access to newsworthy events, see, ¢.g.,

Branzburg v. Hayes, 408 U.S. 665 (1972); Pell v. Procu-

nier, 417 U.S. 817 (1974); Saxbe v. Washington Post,

417 U.S. 843 (1974), support the Fourth Circuit’s con-

clusion in this case. For example, the Court’s interpre-

tation of Sheppard is by no means supported by that de- ~

cision and is inconsistent with the emphasis placed in Neb-

raska Press Association on the many preferable alternatives

short of restrictions on the full and accurate reporting of

criminal trials.

An examination of Sheppard reveals that the “reasonable

likelihood” standard set forth in that opinion related to trans-

fer and continuance — alternatives that fall short of the sweep-

ing abridgement of First Amendment rights imposed in this

case. See Sheppard v. Maxwell, supra, 384 U.S. at 362. Al-

though the Court noted in passing that trial participants

should not be allowed to frustrate the judicial function, id.,

its specific articulation of the standard governing restrictions

on comment by those persons stated, “the trial court might

well have proscribed extrajudicial statements which divulged

prejudicial matters.”’ Id. at 361 (emphasis added). Simi-

larly, the “‘Free Press-Fair Trial” standards of the Commit-

tee on the Operation of the Jury System cannot be relied

upon to expand the Sheppard standard beyond its own boun-

daries. The ultimate standard is set by the Constitution.

The Sheppard statement that proscriptions against trial

participants’ comment be aimed at those statements that

divulge prejudicial matters therefore supports petitioners’

contention that these sweeping abridgments of their First

Amendment rights of the nature here considered be as-

sessed by the rigorous standards traditionally applied to

prior restraints. The traditional “compelling int.vest” re-

quired in justification of abridgements of First Amend-

ment rights cannot be satisfied by a “reasonable likelihood”

of threat to a fair trial. That standard is too lax and amor-

phous. It points more toward speculation than toward the

kinds of concrete harm that should be required to justify

these infringements on First Amendment rights. Thus, the

Court should endorse the decisions of the Sixth and Sev-

enth Circuits in CBS, Inc. v. Young, supra, and Chicago

Council of Lawyers, supra, and require that such orders can

be entered only in response to a serious and imminent threat

to a fair trial.

Additionally, regardless of the precise articulation of

the standard identifying the threat to Sixth Amendment

rights that must be required, all such orders must be

carefully scrutinized to determine whether alternative mea-

sures falling short of such serious infringements of the

First Amendment would suffice to address possible pre-

judice to a fair trial.!8 Absent such an inquiry, restric-

tions on First Amendment freedoms may be imposed un-

necessarily. Finally, of course, any restrictive order that

might be justified under the above criteria can be no

broader than is necessary to deal with the evil to which

it is addressed.

Ill. THE RECORD IN THIS CASE WILL NOT SUP-

PORT THE ENTRY OF THE CHALLENGED OR-

DER EVEN UNDER THE LAX “REASONABLE

LIKELIHOOD” STANDARD ADOPTED BY THE

DISTRICT COURT AND THE COURT OF AP-

PEALS.

Even assuming the “reasonable likelihood” standard to

be constitutionally acceptable, the record in this case will

not support the entry of the challenged order. An exam-

ination of the stories published prior to the District

Court’s order does indicate that this case received con-

siderable media attention. The record is barren of sup-

port for the District Court’s contention that media cover-

age evinced a substantial or even reasonable likelihood of

1OThis requirement reflects the Court’s repeated insistence that the

government must employ alternatives that do not infringe on First

Amendment rights whenever possible. See, ¢.g., Shelton v. Tucker,

364 U.S. 479, 488 (1960).

jeopardizing defendants’ right to a fair trial, however. !!

Moreover, the prohibitions against “‘mingling’’ with the me-

dia and witness interviews are absolute prohibitions, not

even qualified by the “reasonable likelihood” standard the

District Court purported to apply.

The issues at stake in United States v. J. Ralph Gasque,

et al. are not the kind that arouse great public passion

or prejudice. Compare Nebraska Press Association v. Stu-

art, supra; Times-Picayune Publishing Corp. v. Schuling-

Kamp, supra; Sheppard v. Maxwell, supra. The public

awareness of and interest in this matter notwithstanding,

the record contained no suggestion that the trial would be

converted into a circus or carnival affair. Compare Estes

v. Texas, 381 U.S. 532 (1965); Sheppard v. Maxwell, su-

pra. Aliso absent from this case are media publications

of confessions or other highly emotional statements that

reach the ultimate issues to be resolved at trial. Compare

Nebraska Press Association v. Stuart, supra; Rideau y.

Louisiana, 373 U.S. 723 (1963). In sum, there was no

suggestion in this case that full media coverage had or

would create a “trial atmosphere that [would be] utterly

corrupted by press coverage.” Murphy v. Florida, 421

U.S. 794, 798 (1974). The Court’s resctrive order was

thus a severe overreaction to virtually a non-issue of pre-

judicial pretrial publicity.

A careful examination of the District Court’s opinion

indicates that its determination that the perceived “‘sub-

11 Petitioners included as an appendix to their Complaint in the

District Court a compilation of all of the published stories relating

to the trial that had appeared prior to the issuance of the challenged

order. Thus, the record affords the Court the opportunity to assess

for itself the basis on which the District Court and the Court of

Appeals concluded that the threat to a fair trial was sufficient to

support the entry of the challenged order.

stantial likelihood” of a threat to a fair trial that purport-

edly justified the challenged order reflected its concern

that the body of published information, particularly that

denominated by the Court as “prejudicial,” was widely

disseminated and had the effect of “making more diffi-

cult the selection of an impartial jury.”!2

Restrictions on the full and accurate reporting of a

public criminal trial of this importance surely cannot be

justified on the simple conclusion that publicity would

make the empanelment of an impartial jury “more dif-

ficult.” By that standard, virtually any pretrial publicity

in any case would support the entry of restrictions of

the nature challenged in this case. Neither Sheppard v.

Maxwell, supra, nor any other decisions of this Court, nor

the recommendations of the Kaufman Committee for

dealing with the “Free Press-Fair Trial’’ issue endorse or

1275 the extent that the Court’s assessment of this issue rested

on its assumption that the exposure of potential jurors to possi-

bly prejudicial information that might not subsequently be admis-

sible at trial necessarily would render a fair trial impossible, see

Central South Carolina Chapter, et al. v. The Honorable J. Robert

Martin, Jr., et al., supra, 431 F. Supp. 1188 n. 4, it was in error.

That is not the test. Rather, the governing standard is whether, in

light of the prospective juror’s knowledge and attitudes, that person

can render a fair and impartial verdict based on the evidence ad-

duced at trial. Experience demonstrates that such measures as

careful voir dire can assure the defendant’s right to a fair trial even

in cases where pretrial publicity has been extensive. “Taken togeth- Pu

er, the cases demonstrate that pretrial publicity — even pervasive,

adverse publicity — does not inevitably lead to an unfair trial.”

Nebraska Press Association v. Stuart, supra, 427 US. at 554. See

also Dobbert v. Florida, 45 U.S. L.W. 4721, 4726-27 (U.S. June

17, 1977); Murphy v. Florida, 421 U.S. 794 (1974); Stroble v.

California, 343 U.S. 181 (1952).

allow the entry of sweeping, and in some cases absolute, re-

strictions on First Amendment freedoms on so scant a per-

ception of threat to a fair trial.

Finally, even assuming the record might justify some

of the restrictions imposed in this case for the purpose

of facilitating the empaneiment of an impartial jury, that

justification cannot be asserted in support of the continu-

ation of the challenged order after the jury has been se-

lected. The District Court’s concern that jurors would be

exposed to prejudicial information not made a part of

the record at trial clearly can be dealt with by measures

short of such sweeping abridgements on First Amendment

freedoms. The jury can, for example, be instructed to

avoid contact with news stories relating to the trial. If

the threat is more severe, the jury can and should be se-

questered during the period of trial.

An examination of the District Court’s opinion indi-

cates that that Court did not even consider these alter-

natives, however. Thus, even taking the District Court’s

belated rationalizations at face value, it is clear that the

record and the opinion below fail to provide any justifi-

cation for continuing the challenged restrictions on com-

ment, news interviews, or “mingling” after the jury has

been empaneled.!3

13The Court did indicate that sequestration of prospective jurors

prior to the empanelment of a jury would be impractical. Central

South Carolina, et al. v. The Honorable J. Robert Martin Jr., et

al., supra, 431 F. Supp. at 1189, n.6. At no point, however, did

the Court suggest that it considered this or other restrictions on

juror conduct after the jury was selected as a means of striking

the appropriate balance between the First and Sixth Amendments.

(continued)

By any label, it must be recognized that the limitations

imposed on newsgathering and the full and accurate re-

porting of this matter are substantial. Such restrictions

must be based on justifiable grounds, and must be no

broader than necessary to avert the evils that necessitate

the abridgement of First Amendment right. The First

Amendment still requires that such restraints on First

Amendment freedoms be justified by a “compelling inter-

est.” See, e.g, NAACP v. Button, 371 U.S. 415, 419

(1963); Sheppard does not alter or diminish this basic

requirement. No such “compelling interest,” no matter

how articulated in terms of reasonable or substantial like-

lihood of threat to a fair trial, can be supported on the

record of this case in view of the many alternatives for

dealing with the threat of prejudice by means other than

abridgments of First Amendment rights.

IV. THE CHALLENGED ORDER SUFFERS FROM FA-

TAL DEFECTS OF VAGUENESS AND OVER-

BREADTH.

Even assuming that a constitutionally adequate basis

for the entry of some restrictions could be demonstrated,

any such restrictions would still be subject to other stan-

dards traditionally applied in First Amendment cases.

I 3 continued)

This was noted by petitioners in the District Court and the

Court of Appeals, prompting the Court of Appeals lamely to note

that the District Court might reconsider the necessity for the chal-

lenged order. Subsequently, even though a jury had been chosen

and sequestered, the District Court refused petitioners’ request that

the order be dissolved, and it remained in effect throughout the trial.

For example, the order must be narrowly tailored to the

perceived evils that justify its imposition; it is not. The

order likewise must be free of vagueness; it is not. In-

stead, the challenged order is both vague and overbroad.

The order is overbroad in that it prohibits conduct

that could not reasonably be deemed to represent a

threat to the defendants’ right to a fair trial or to the

integrity of the Court. See, e.g., Chicago Council of Law-

yers v. Bauer, supra; CBS Inc. v. Young, supra; United

States v. CBS, Inc., 497 F.2d 102 (Sth Cir. 1974); Dorf-

man v. Meiszner, 430 F.2d 558 (7th Cir. 1970). For

example, the “mingling” prohibition is unnecessary in

light of the restrictions on comment. Indeed, the im-

pact of the challenged order is broader even than the is-

sues at stake in this trial. As one affidavit of record in-

dicates, this order has inhibited discussion of other pub-

lic issues that are unrelated to this trial.

Similarly, terms such as “mingling” and the “environs

of the court” are nowhere defined in the order and defy

easy understanding or interyretation. The vagueness chal-

lenge must be resolved solely be reference to the order

on its face. Subsequent “judicial gloss” or offers to con-

fer to clarify vague portions of the order cannot now be

set forth to salvage it from its inherent vagueness.

Other inherently vague terms, such as “being in the prox-

imity of reporters, photographers and others,” are nowhere

defined, not even at this late date.

V. ORDERS OF THIS KIND CAN BE ENTERED ON-

LY IN ACCORDANCE WITH PROCEDURAL SAFE-

GUARDS MANDATED BY THE DUE PROCESS

CLAUSE OR THE COURT’S SUPERVISORY POW-

ERS.

The challenged order was entered without notice and an

opportunity for prior hearing to petitioners and other

interested parties. Petitioners’ First Amendment rights

are plainly a “liberty” interest within the Fifth Amend-

ment, see Board of Regents v. Roth, 408 U.S. 564 (1972),

and thus cannot be abrogated without prior notice and

an opportunity for a hearing. Carroll v. President and

Commissioners of Princess Anne, 393 U.S. 175 (1968);

Southeastern Promotions v. Conrad, 420 U.S. 546 (1975).

And, even if this Court were reluctant to constitutionalize

this requirement through the Due Process Clause, a hear-

ing should nevertheless be required as a matter of funda-

mental fairness and in the exercise of the Court’s super--

visory powers, as the Court of Appeals for the Third Cir-

cuit recognized in Schiavo v. United States, 504 F.2d |

(3d Cir. 1974) (en banc), cert. denied sub nom. Ditter

v. Philadelphia Newspapers, Inc., 419 U.S. 1096 (1975).

Restrictive orders of this kind frequently generate liti-

gation in which “time is of the essence” in the appellate

court’s resolution of the issues. See, e.g., Nebraska Press

Association v. Stuart, 423 U.S. 1327, 1329 (Chambers

opinion of Blackmun, J.). Invariably, reviewing courts

are asked to rule on the adequacy of the justifications

that prompted the entry of the challenged order, as well

as on whether the challenged order is no broader than

necessary to respond to the perceived threats that prompt-

ed its entry. Invariably, the resolution of these issues re-

quires that reviewing courts make difficult and sensitive

judgments regarding the appropriate balance between the

defendants’ Sixth Amendment right to a fair trial and the

First Amendment protections for the public’s right to be

adequately informed about the workings of the criminal

justice system.

Certainly the history of this case evinces the need that

orders of this kind be preceded by a hearing at which in-

terested parties be afforded the opportunity to comment

on the need for such restrictions as well as on the terms

of any restrictions that might, of necessity, be entered.

Here the order was entered sua sponte, without any no-

tice to interested parties. The order was entered “for

reasons appearing to the Court,” which were nowhere

specified in the opinion and were not articulated by the

entering court until months later, in response to petition-

ers’ action filed in the District Court. This is hardly a

procedure that is conducive to the prompt and respon-

sible resolution of the difficult constitutional issues pro-

duced by cases of this nature. Thus, if the Court should

determine that the Due Process Clause does not consti—

tutionally compel the procedures urged herein, it should

endorse the conclusion of the Third Circuit and require

that United States District Courts afford such procedural

safeguards through the exercise of its supervisory powers

over the lower federal courts.

CONCLUSION

For the reasons articulated herein, petitioners respect-

fully suggest that the petition for certiorari to the United

States Court of Appeals for the Fourth Circuit be granted.

Respectfully submitted,

MITCHELL ROGOVIN JAMES C. HARRISON, JR.

DAVID BOYD

Rogovin, Stern & Huge

1730 Rhode Island Ave., N.W.

Washington, D.C.

COSTA M. PLEICONES

Harrison & Pleicones

1010 Barringer Bldg.

Columbia, South Carolina

JACK C. LANDAU

Reporters Committee

For Freedom of the Press

1750 Pennsylvania Ave., N.W.

Washington, D.C.

oa gue + neon ee

APPENDIX A

ENTIRE TEXT OF ORDER ENTERED IN

UNITED STATES vy. J. RALPH GASQUE, ET AL.,

ON MAY 31, 1976

“For reasons appearing to the Court, it is Ordered that

the above case is scheduled for trial in the United States

District Courtroom, Columbia, South Carolina, on June 21,

1976. It is further Ordered that

“(1) Extrajudicial statements by participants in the

trial, including lawyers, parties, witnesses, jurors and

court officials, which might divulge prejudicial matter not

of public record in the case are prohibited.

“(2) All participants in the trial, including lawyers, par-

ties, witnesses, jurors and other officials shall avoid min-

gling with or being in the proximity of reporters, photo-

graphers and others in the entrances to and the hallways

in the courthouse building, including the sidewalks adjacent

thereto, both in entering and leaving the courtroom and

the courthouse during recesses in the trial.

“(3) The names and addresses of prospective jurors

are not to be released except on Order of Court, and no

photograph shall be taken and no sketch made of any

juror within the environs of the Court.

“(4) All witnesses are prohibited from news interviews

“(5) The United States Marshal at the direction of the

Court will allocate seating of spectators and representa-

tives of the news media, provided, however,

(a) No member of the public or news media rep-

resentative shall be permitted at any time within

the bar railing, except to specific seats designa-

ted for their use.

(b) Allocation of seats to the news media represen-

tatives, if there be an excess of requests, will

take into account any pooling arrangement that

may be agreeable among the newsmen.”

The United States Court of Appeals modified paragraph

two by rendering it inapplicable to “the sidewaiks adja-

cent thereto” and limited pragraph three by defining “en-

virons of the Court” to mean only the inside of the

courthouse, not the adjacent grounds. See Central South

Carolina Chapter, et al. v. The Honorable J. Robert Mar-

tin, Jr., et al, F.2d » No. 77-1636 (4th Cir. May

17, 1977).

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1636

CENTRAL SOUTH CAROLINA CHAPTER,

SOCIETY OF PROFESSIONAL JOURNALISTS,

SIGMA DELTA CHI; FRED P. McNEESE,

ROBERT McALISTER, ROBERT HITT, indi-

vidually as news reporters and as mem-

bers, officers, and directors of the

Central South Carolina Chapter, Society

of Professional Journalists, Sigma Delta

Chi; SOUTH CAROLINA BROADCASTERS ASSOCIA-

TION; DR. RICHARD URAY, individually and

as Executive Manager of the South Caro-

lina Broadcasters Association; SOUTH

CAROLINA PRESS ASSOCIATION; THE ENTER-

PRISE, INC.; EDWARD M. SWEATT, indi-

vidually as President of the South

Carolina Press Association and as a

shareholder and member of the Board

of Directors of The Enterprise, Inc.;

and CAROLYN KAY HARRIS

Appellants

THE HONORABLE J. ROBERT MARTIN, JR.,

United States District Court for the

District of South Carolina; MARK W.

BUYCK, JR., Esq., United States At-

torney for the District of South

Carolina; J. ELLIOTT WILLIAMS,

United States Marshall for the

District of South Carolina; and

MILLER C. FOSTER, JR., United

States Clerk for the District of

South Carolina

Appellees

Appeal from the United States District Court for the Dis-

trict of South Carolina, at Florence. J. Robert Martin,

Jr., District Judge.

Submitted May 16, 1977 Decided May 17, 1977

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

Mitchell Rogovin, George T. Frampton, Jr., Joel I. Klein,

David R. Boyd, James C. Harrison, Jr., Costa M. Pleicones,

Jack C. Landau, for Appellants; Thomas E. Lydon, Jr.,

United States Attorney, Wistar D. Stuckey, Assistant

United States Attorney, Glen E. Craig, Assistant United

States Attorney, Lu Jachnycky, Attcrney, Department of

Justice, for Appellees.

WIDENER, Circuit Judge:

This matter came before the district court on a com-

plaint seeking declaratory and injunctive relief against the

district court’s order of May 31, 1976, and on a motion

for a stay of that order pending appeal. The challenged

order, reproduced below,! establishes certain restrictions

upon extrajudicial statements and actions of participants

in the pending criminal trial of J. Ralph Gasque in the

United States District Court for the District of South Car-

olina.

| The order reads in pertinent part as follows:

“For reasons appearing to the Court, it is Ordered that the above

case is scheduled for trial in the United States District Courtroom,

Columbia, South Carolina, on June 21, 1976. It is further Ordered

- (continued)

United States District Court for the District of South Car-

olina.

The complaint was dismissed by the district court by or-

der dated May 2, 1977, and is now before us on appeal.

The district court also denied plaintiffs’ motion for a stay

l(continued)

“(1) Extrajudicial statements by participants in the trial, includ-

ing lawyers, parties, witnesses, jurors and court officials, which might

divulge prejudicial matter not of public record in the case are pro-

hibited.

“(2) All participants in the trial, including lawyers, parties, wit-

nesses, jurors and other officials shall avoid mingling with or being

in the proximity of reporters, photographers and others in the en-

trances to and the hallways in the courthouse building, including

the sidewalks adjacent thereto, both in entering and leaving the

courtroom and the courthouse during recesses in the trial.

“(3) The names and addresses of prospective jurors are not to

be released except on Order of Court, and no photograph shall be

taken and no sketch made of any juror within the environs of the

Court.

“(4) All witnesses are prohibited from news interviews during the

trial period.

“(5) The United States Marshall at the direction of the Court

will allocate seating of spectators and representatives of the news

media, provided, however,

(a) No member of the public or news media representa-

tive shall be permitted at any time within the bar railing,

except to specific seats designated for their use.

(b) Allocation of seats to the news media representatives,

if there be an excess of requests, will take into account

any pooling arrangement that may be agreeable among the

newsmen.”

The Society did not contest the validity of section five of the order.

The first appeal in this matter is reported as F2 (4th

Cir. 1977).

pending appeal by order of May 10, 1977. That motion

is renewed here pursuant to Rule 8 of the Federal Rules

of Appellate Procedure.

We believe that mandamus is the proper remedy to re-

quest the relief prayed for here, any inference in our previ-

ous opinion to the contrary notwithstanding. See Note:

Ungagging the Press, 65 Georgetown Law Review 81, for a

collection of some decisions on the subject.

The plaintiffs having substantially complied with the re-

quirements of Rule 21(a), Fed. R. App. P., we think the

complaint and supporting submissions should be treated as

a petition for mandamus, and we so treat them. As this

implies, we think plaintiffs have standing to seek issuance

of the writ. Notwithstanding that petitioners desire for ac-

cess to sources of information may be a broadly based con-

cern, shared by the public at-large, if petitioners can show

an injury “to [themselves] that is likely to be redressed by

a favorable decision,” Simon v. Eastern Ky. Welfare Rights

Org., 426 U.S. 26, 38 (1976), if they have alleged a suffi-

cient “personal stake in the outcome of the controversy,”

Baker v. Carr, 369 U.S. 186, 204 (1962), the constitutional

requirement of standing is satisfied. We think these tests

are met here. We do not regard as wholly speculative the

relationship between the district court’s order and the plain-

tiffs’ difficulties in seeking to perform their reportorial

functions. See Simon v. Eastern Ky. Welfare Rights Org.,

426 U.S. 26 (1976).

Considering the papers before us as a pefition for manda-

mus, and having carefully considered the submissions of the

parties, we accordingly hold:

ee ee ee

The district court’s order of May 2, 1977 dismissing the

complaint is in all respects affirmed, on the opinion of the

district court, F.Supp. (D.S.C. 1977), as that opin-

ion addresses the merits of the controversy, subject to the

following qualifications:

1. To the extent that the district court’s order may be

construed to prohibit extrajudicial statements concerning

the trial on the part of the defendant, Gasque,? we express

no opinion as to its propriety, since the defendant has not

objected to the order in any respect. Any rights of Gasque

not waived are reserved.

2. In paragraph 2 of the May 31st order, we regard the

prohibition on mingling upon the sidewalks adjacent to the

courthouse as overly broad. The district court will lift its

prohibition on mingling as it applies to adjacent sidewalks.

3. With respect to the prohibition in paragraph 3 of the

said order upon the sketching of jurors within the environs

of the court, we recognize that courtroom sketching is a

time-honored custom in many communities and many courts.

The district judge has indicated that any particular aspect of

the order is open to reconsideration during the trial, and,

viewing the prohibition in that light, we assume that it will

be reconsidered upon request if fears of juror distraction

prove unfounded.

4. Also in paragraph 3, we construe the “environs” of

the United States District Court in Columbia, South Carolina

as meaning inside the courthouse.

: Gasque, as we use the word, refers to any or all defendants.

5. Once a jury is empaneled at the inception of the trial,

the district court may find that parts of the May 31st order

are no longer necessary to ensure a fair trial or juror impar-

tiality. If, for example, the jury were sequestered, access

of the press to trial participants may no longer pose the

same threat to the conduct of a fair trial. We leave this

matter to the district court in the first instance, believing

that our intervention at this point would be premature.

Since the petition for mandamus is in all but minor re-

spects denied on the merits, it follows that petitioners’ mo-

tion for a stay pending appeal to this court is likewise de-

nied.

The mandate will issue forthwith because the criminal

trial is due to commence May 23, 1977.3

3 The parties have requested that we dispose of this appeal as

soon as possible and filed briefs. The government has waived oral

argument, but the plaintiffs have indicated a desire for it. In order

to dispose of the case at once, we have decided the case on the

briefs and the record.

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CENTRAL SOUTH CAROLINA CHAPTER, SOCIETY

OF PROFESSIONAL JOURNALISTS, SIGMA DELTA

CHI: ROBERT HITT, individually as news reporters

and as members, officers and directors of the Central

South Carolina Chapter, Society of Professional Jour-

nalists, Sigma Delta Chi; SOUTH CAROLINA BROAD- Civil Action

CASTERS ASSOCIATION: DR. RICHARD URAY, No. 77-575

individually and as Executive Manager of the South

Carolina Broadcasters Association; SOUTH CAROLINA

PRESS ASSOCIATION: THE ENTERPRISE, INC.:

EDWARD M. SWEATT, individually as President of

the South Carolina Press Association and as a share-

holder and member of the Board of Directors of The

Enterprise, Inc.; and CAROLYN KAY HARRIS,

THE HONORABLE J. ROBERT MARTIN, JR..,

United States District Court for the District of

South Carolina; J. ELLIOTT WILLIAMS, United

States Marshal for the District of South Carolina;

and MILLER C. FOSTER, JR., United States

Clerk for the District of Scuth Carolina.

[Filed May 2, 1977]

10a

ORDER

This matter is before the Court upon the above captioned

parties' cross-motions for summary judgment upon the plead-

ings pursuant to a complaint for injunctive and declaratory

relief seeking to void an order issued by this Court on May

31, 1976 in the criminal case of United States v. J. Ralph

Gasque, et al., No. 76-104. The plaintiffs, with the excep-

tion of one who is a newspaper subscriber, are newsmen,

journalists and news media establishments. The order is-

sued May 3lst reads as follows:

“For reasons appearing to the Court it is Ordered

that the above captioned case is scheduled for trial

in the United States District Courtroom, Columbia,

South Carolina, on June 21, 1976. It is further

ordered that .

(1) Extra judicial statements by trial participants in

the trial, including lawyers, parties, witnesses, jurors

and court officials, which might divulge prejudicial

matter not of public record in the case are prohibited.

(2) All participants in the trial, including lawyers, par-

ties, witnesses, jurors and other officials shall avoid

mingling with or being in the proximity of reporters,

photographers and others in the entrances to and the

hallways in the courthouse building, including the

sidewalks adjacent thereto, both in entering and leav-

ing the courtroom and the courthouse during the re-

cesses in the trial.

| Although the plaintiffs have named this Court as a party defen-

dant in the captioning of this action, this Court will address the claims

raised in the complaint in light of the possible collateral consequences

a determination may have on the pending criminal case before this

Court which is the subject of the May 31st order now under attack

and in light of the unique posture of these cases.

(3) The names and addresses of prospective jurors are

not to be released except on Order of the Court, and

no photographs shall be taken and no sketch made of

any juror within the environs of the Court.

(4) All witnesses are prohibited from news interviews

during the trial period.

(5) The United States Marshal at the direction of the

Court will allocate seating of spectators and representa-

tives of the news media, provided, however,

(a) No member of the public or news media rep-

resentative shall be permitted at any time within

the bar railing, except to specific seats designated

for their use.

(b) Allocation of seats to the news media repre-

senatives, if there be an excess of requests, will

take into account any pooling arrangement that

may be agreeable among the newsmen.”

The plaintiffs do not contest the validity of section five

of the May 3lst order in this action. They do, however,

contest the remaining portions of the order and contend

that it constitutes a prior restraint on freedom of the press

in violation of their First Amendment rights accorded by

the United States Constitution. As the basis of their conten-

tions, the plaintiffs assert that the order has effectively des-

troyed the right of the press to print the news by destroy-

ing its right to gather news from important sources, a right

they contend is necessarily a First Amendment corollary to

the right to report public proceedings and the conduct of

public officials. Additionally, the plaintiffs contend that the

order was issued in violation of their constitutional due pro-

cess right to be served notice and to be heard prior to its is-

suance and that the order suffers from vagueness and over-

breadth.

12a

The claims asserted by the plaintiffs are new to this Court

only in the sense that this is the first and only proceeding

before this Court to which it may properly address the same.

Prior to the instant action, the identical plaintiffs had insti-

tuted an appeal or in the alternative a petition for a writ

of mandamus attacking the provisions of the May 31st or-

der in the United States Court of Appeals for the Fourth

Circuit. As it was apparent to that Court that the complain-

ants were not parties to the criminal proceedings against J.

Ralph Gasque and his codefendants and that their right to

relief from the order was far from clear and indisputable,

it dismissed the appeal and denied, in the alternative, the

petition for mandamus. A stay order which had been pre-

viously issued against the criminal case by the Court of Ap-

peals was dissolved as well. Central South Carolina Chapter,

Society of Professional Journalists, Sigma Delta Chi, et.al. v.

United States District Court for the District of South Caro-

lina, et.al., F.2d (4 Cir. 1-13-77).

The plaintiffs now seek independent recourse against the

provisions of the May 3ist order, apart from the proceed-

ings of the criminal case, by way of a motion to stay or

preliminary injunction of the order and by way of perma-

nent injunctive and declaratory relief against the same. That

complaint was served on the interested parties named as de-

fendants and an answer and memorandum has since been

submitted by the United States District Attorney for the

District of South Carolina. The answer, entitled motion to

dismiss pursuant to Rule 12(b), F.R.Civ.P. or in the alterna-

tive, motion for summary judgment pursuant to Rule 56,

F.R.Civ.P. was filed on behalf of the named defendants,

Williams, Foster and on behalf of Thomas Lydon, who re-

cently succeeded Mark Buyck as the District Attorney for

the District of South Carolina. In reply, the plaintiffs have

13a

filed a pleading and memorandum entitled opposition to

motion to dismiss and cross-motion for summary judgment.

The plaintiff also requested in that pleading that this Court

enter a final order as promptly as possible in recognition

of the urgency of the issues raised in the complaint.

It is immediately recognized and agreed to by the parties

that there are no disputed facts and that the issues raised

and joined by the pleadings, affidavits and exhibits at-

tached thereto and the previous proceedings before the Court

of Appeals are purely legal questions and that the motion

for a stay or preliminary injunction may be determined by

this Court in absence of an evidentiary hearing without pre-

judice to any of the interests involved.” It is also apparent

that the action for permanent injunctive and declaratory re-

lief should be advanced and expedited in order that a final

determination in this matter be made with some urgency.

The issues raised thereto are also without factual dispute

or controversy and are purely legal questions so as to sup-

port the consolidation of this action for a final determina-

tion in the absence of a hearing without prejudice to any

of the interests involved and as agreeable by the parties.

Accordingly, the remainder of this order will be devoted to

the merits of the claims raised that the May 3lst order con-

2 The plaintiffs had earlier submitted a letter to this Court request-

ing an evidentiary hearing upon the motion for a stay or preliminary

injunction. The government’s answer to the complaint followed shortly

thereafter and contended that there was no necessity for a hearing as

the matters raised and joined by the pleadings were purely legal ques-

tions. Therefore, this Court found it appropriate to issue an order

on April 19, 1977 requiring an expedited reply from the plaintiffs in-

cluding pleadings, if any, which would support a showing of the ne-

cessity for a hearing. As indicated the plaintiffs have agreed the mat-

ters raised may be resolved without a hearing.

l4a

stitutes a prior restraint against the press in violation of the

First Amendment and that the order was issued in violation

of the plaintiffs’ Fifth Amendment due process rights to

notice and a hearing and that the order suffers from vague-

ness and overbreadth.

There first appears to be a serious question of standing

for the plaintiffs to assert this action. The concept of

standing focuses on the party seeking to get his complaint

before a federal court and not on the issues he wishes to

have adjudicated. The standing question is whether the

plaintiff has alleged such a personal stake in the outcome

of the controversy to warrant his invocation of federal

court jurisdiction and to justify exercise of the court’s re-

medial powers on his behalf. The relevant inquiry, assum-

ing justiciability of the claim, is whether the plaintiff has

shown injury to himself that is likely to be redressed by a

favorable decision. Absent such a showing, exercise of its

power by a federal court would be gratuitous and thus in-

consistent with the Article III limitation of the Constitu-

tion. Simon v. Eastern Kentucky Welfare Rights Organiza-

tion, 426 US 26 (1976). The concept of standing has also

been said to focus upon the inquiry whether “the interest

sought to be protected by the complainant is arguably with-

in the zone of interests to be protected or regulated by

statute or constitutional guarantee in question” Data Pro-

cessing Service v. Camp, 397 US 150 (1970); CB.S. ».

Young, 522 F.2d 234 (7 Cir.1975).

Turning to the latter concept of standing first, it is imme-

diately recognized that this is not a case of direct restraint

upon the right of the public or the press to publish or speak

what it knows, but is rather a restraint upon trial partici-

pants in a criminal case (none of which are plaintiffs in this

15a

civil action) to prohibit the trial participants from divulging

extrajudicial prejudicial matters not of public record in the

pending criminal case. The plaintiffs contend that such a

restraint destroys its right to publish news by destroying its

right to gather news. They argue that the right to gather

news is a necessary First Amendment corollary to the right

to publish and report public proceedings or in other words,

that the interest in gathering news is within the zone of in-

terests to be protected by the constitutional right to pub-

lish and speak.

While C.B.S. v. Young (supra) would appear to stand for

the proposition that the news media have standing to assert

a claim that restraints on trial participants in a civil case

deny access to potential sources of information and there-

fore deny members of the press their constitutional right

to gather news, this Court would find the case of question-

able authority. CB.S. relies on dicta from Branzburg v.

Hayes, 408 US 665 (1972) that newsgathering is not with-

out some First Amendment protection, thus the conclusion

that the news media has standing to assert the claim that

any news gathering restraints raise constitutional First Amend-

ment issues. However, Branzburg also indicated that the First

Amendment does not guarantee the press a constitutional

right of special access to information not available to the

public generally, citing Zemel v. Rusk, 381 US 1 (1965) or

stated differently that the right to speak and publish guaran-

teed by the First Amendment does not carry with it the un-

restrained right to gather information. Branzburg also cited

with approval Sheppard v. Maxwell, 384 US. 333 (1966)

wherein it was stated that “a trial court might well have

proscribed extrajudicial statements by any lawyer, party,

witness or court official which divulged prejudicial informa-

tion.”

l6a

Most courts have addressed the question of the news me-

dia’s right of access to particular information in terms of

equal protection, finding that if the public has a right to

certain information then the press, which has no greater or

lesser right is also entitled to the information. Pell v. Procu-

nier, 411 US 817 (1974); Saxbe v. Washington Post Co., 417

US 843 (1974), see also Judge Winter’s dissent, US v. Steel-

hammer, F.2d , (4 Cir.8-22-76). This Court believes

in light of Branzburg, Zemel, Sheppard, Pell and Saxbe that

any right to particular information apart from equal protec-

tion considerations is factually limited to information which

could be categorized as “public information” such as public

records, McCoy v. Providence Journal, 190 F.2d 260 (lst

Cir. 1961) cert.den. 324 US 894, records filed with the Clerk

of Court. /n Re Washington Post, et.al. (US v. Mandel),

F.2d (4 Cir.8-19-76) and the transpirations of a

public trials, Craig v. Harney, 331 US 367 (1947).

As Mr. Justice Stewart stated in an address on the sub-

ject of the news media’s right to know in 1974:

“So far as the Constitution goes, the autonomous

press may publish what it knows, and may seek to

learn what it can. But this autonomy cuts both ways.

The press is free to do battle against secrecy and decep-

tion in government. But the press cannot expect from

the Constitution any guarantee that it will succeed.

There is no constitutional right to have access to par-

ticular government information or to require openness

from the bureacracy .... The Constitution in other

words establishes the contest, not its resolution. (em-

phasis added) United States v. Mitchell, 386 F.Supp.

639 (D.C.D.C. 1975).

17a

Because the information particularly sought in connection

with this civil action does not fall into the class and cate-

gory of public information this Court does not find that the

press has any First Amendment right to gather it.

Turning to the former concept of standing, this Court’s

order of May 31st does not prohibit the public or press

from doing anything but only limits the participants in the

criminal case from conducting themselves in certain manners

and therefore neither the public nor the press has suffered

any personal injury other than the generalized complaint that

they have been denied their “right” to know.* When the

asserted harm or injury, if any, is a “generalized grievance”

shared in substantially equal measure by all or a large class

of citizens, that harm alone, if any, normally does not war-

rant exercise of jurisdiction. Warth v. Seldin, 422 US 490

(1975). The plaintiffs here make no allegation that the pur-

ported injury sustained by them is no greater nor lesser than

the public’s at large since the injury which they contend is

proscribed by the Constitution is no more than the lack of

knowledge of certain purportedly newsworthy information.

Further, the plaintiffs make no allegation or showing that

even if no order existed that the alleged injury would be

diminished. Although the plaintiffs aver that the trial par-

ticipants will not talk to them as a result of the May 3lst

order, it is merely speculation that the trial participants

would voluntarily disclose such information to the plain-

tiffs in absence of the order. Simon (supra)

3 As was noted in Branzburg at ftn 22, citing Zemel, there are few

restrictions on action which could not be clothed by ingenious argu-

ment in the garb of decreased data flow.

18a

Accordingly, this Court finds that the plaintiffs have no

standing to assert the particular claims raised herein since

they have no right to the particular information sought and

since their purported injury is shared by the public in gen-

eral and is speculatively remedial.

If it were arguable that the plaintiffs do in face have

standing to assert their claims then it is apparent to this

Court that they are not entitled to the relief they seek.

This Court has always recognized that “Courts are a branch

of government and a criminal proceeding involving officials

holding high positions of public trust must peculiarly re-

main open for the closest scrutiny and discussion by citi-

zens.” United States v. Mitchell (supra). It must also be

recognized that our system of government in guaranteeing

rights to its various citizens also guarantees any citizen ac-

cused of a crime the right to a fair and impartial trial, a

guarantee which the government has a duty to assure all its

citizens. As recognized in Estes v. Texas, 381 U.S. 532

(1965), a fair trial, “the most fundamental of all freedoms”

must be maintained at all costs. While there is no question

that “what transpires in the courtroom is public property,”

Craig v. Harney, 331 US 367 (1947) the Court also has the

duty and authority to assure to the extent possible that

prejudicial evidence will not be presented to prospective ju-

rors prior to the trial of a criminal case in order to assure

that the defendant is tried before the public by a fair and

impartial jury.4 While it is conceded that any order of the

4 The United States Supreme Court has interpreted the require-

ment of an impartial jury to mean that “the conclusions to be

reached in a case will be induced only by evidence and argument

in open court, and not by any outside influence, whether of private

talk or public print.” Patterson v. Colorado ex rel Attorney Gen-

eral 205 US 454 (1907).

19a

Court which is issued to assure a criminal defendant of a

fair trial that directly prohibits or restrains publication of

information already gained or commentary on judicial pro-

ceedings held in public is a prior restraint in violation of

the First Amendment and must be justified by a clear and

present danger that the defendants’ right to a fair trial is

in jeopardy; the clear and present danger test does not ap-

ply when the Court issues an order such as the May 31st

order which does not constitute a prior restraint on the

press’ or public’s right to speak or publish but only restrains

the trial participants from certain conduct thereby proscrib-

ing the flow of prejudicial information to be gained by non

trial participants. Recently, the United States Supreme

Court in Nebraska Press Assoc. v. Stuart, 427 US 539 (1976)

has stated that the trial judge must take strong measures to

insure that an accused is accorded a fair and impartial trial,

' citing Sheppard and that “where there is a reasonable like-

lihood that prejudicial news prior to trial will prevent a fair

trial’, the trial judge should continue the case, transfer it,

sequester the jury, or see that neither “the accused, witness,

court staff, nor enforcement officers coming under jurisdic-

tion of the Court should be permitted to frustrate its func-

tions.”

Although the Nebraska case may be read that to permit

a prior restraint of information already in the hands of the

press or public, is to require a clear and present danger to

a fair trial, Nebraska has approved the standard set out in

Sheppard that extrajudicial statements of trial participants

which divulge prejudicial information may be proscribed if

there is a reasonable likelihood that prejudicial news prior

to trial will jeopardize the defendants right to a fair trial.*

5 This Court found that there was a substantial likelihood of such

when it issued the May 31st order.

20a

The Report of the Kaufman Committee on the operation

of the Jury System on the “Free Press-Fair Trial” Issue, 45

F.R.D. 391 (1968) as adopted by the Judicial Conference

of the United States is of like effect. See also United States

v. Tijerina, 412 F.2d 666 (10 Cir. 1969) cert..den. 396 US

990; Farr v. Pitchess, 522 F.2d 464 (9 Cir. 1975) cert.den.

427 US 912 (1976). The conclusion to be drawn from read-

ing Nebraska is that proscriptions on trial participants’ pre-

judicial statements in a criminal trial are not to be consid-

ered as prior restraints on non-trial participants’ First Amend-

ment rights to publish and comment upon judicial proceed-

ing and that proscriptions on trial participants’ prejudicial

statements are to be judged by the Sheppard standard as it

regulates the conduct of the participants in the trial.

Prior to entering the May 3lst order, from the Court’s

reading of various newspapers within the State of South Car-

olina and watching and listening to reports on the broad-

cast media, this Court took notice of the widely publicized

and sensational nature of the criminal case against J. Ralph

Gasgue, a state senator, and his co-defendants. The publi-

city was and remains extensive as can readily be evidenced

by the collected newspaper clippings presented by the plain-

tiffs in this action and those presented in the previous pro-

ceedings before the Court of Appeals and this collection rep-

resents only a portion of the total continuing publicity. The

Court has also taken notice of the numerous and extraordi-

nary inquiries made by representatives of the press and news

media to this Court concerning this particular criminal case.

The Court has also taken notice, that the information con-

tained in the media reports contrary to the assertions of the

plaintiffs, is unrestrained and often of a prejudicial nature

and would be inadmissable evidence at a trial. All such in-

formation, particularly prejudicial information, that is widely

_—

2la

disseminated has the effect of making more difficult the se-

lection of an impartial jury. Selection becomes particularly

more difficult when statements of trial participants in par-

ticular are widely published. Thus in widely publicized or

sensational cases, such as this criminal case, where the state-

ments of trial participants are likely to appear in a widely

disseminated manner, there is a substantial likelihood that

prospective jurors are unwittingly exposed to statements

constituting prejudicial inadmissable evidence that would

jeopardize the defendants’ right to a fair trial. To the ex-

tent that the Court has authority, it is the duty of the

Court to prevent that kind of jury prejudice. This Court

considered numerous factors pertaining to the extent and

nature of the pretrial news coverage of this criminal case

and considered whether other measures® would be likely to

mitigate the effects of likely dissemination of unrestrained

comment by the trial participants in this criminal case and

concluded and remains convinced that the proscribed preju-

dicial extrajudicial statements of trial participants are likely

to appear in a widely disseminated manner and that with-

out such restraint upon the trial participants as imposed by

the May 3lst order, there is a substantial likelihood that

the defendants would be denied a fair trial. Inasmuch as

this Court has determined that the defendants’ right to a

fair trial is in substantial likelihood of jeopardy without the

May 3lst restraint on trial participants, the plaintiffs are

not entitled to the relief they seek that the order be va-

cated and the May 31st order will continue to remain in

full force and effect.

6 Although the ideal would be to place prospective jurors in se-

questration prior to trial it is simply not practical.

22a

The plaintiffs also contend that the May 3lst order is

vague and overbroad. Specifically, the plaintiffs contend

that such terms as “mingling” and “the environs of the

court” are not defined and that the order is capable of be-

ing read to prohibit conduct that could not reasonably be

deemed to represent a threat to the defendants’ right to a

fair trial on the integrity of the Court. The term “ming-

ling” is found in the second paragraph of the May 3lst or-

der and prohibits specified persons (trial participants) from

“mingling or being in the proximity of reporters, photograph-

ers and others” (non-trial participants) while in the court-

house or on courthouse grounds. That paragraph of the or-

der is no broader than necessary to its appropriate purpose

to assure orderliness in and around the courthouse and to

effectuate the ban on extrajudicial prejudicial statements by

trial partiapants and the Court has the authority to issue

such an order in these circumstances. See “Free Press-Fair

Trial” at p. 410. Neither is the term “mingling” vague

since it has understandable connotation that trial partici-

pants are to avoid situations or confrontations that might

compromise the ban on their statements. The term “envi-

rons of the court,” a term broad enough and specific enough

to encompass the courthouse and its grounds which are ex-

pected to be fully utilized for this criminal proceeding, is

found in paragraph three of the May 31st order which pro-

hibits photographs’ from being taken or sketch of any ju-

7 The ban on photographs is also consistent with Rule 53, F.R.Crim.

P. which prohibits the taking of photographs in the courtroom during

the progress of judicial proceedings and is also consistent with the gen-

eral standing order of this Court issued May 14, 1969. Further, the

plaintiffs admit in their reply brief they do not challenge the ban on

photographs.

23a

ror within the environs of the court. It must be noted that

sketching is not prohibited per se, but only in so far as it

relates to jurors. The reason for the limited ban on sketch-

ing jurors i. U.at for the most part, jurors are new to the

courtroom and have a very solemn duty to hear the evi-

dence of the case. From past experience of juror complaints

and this Court’s own observations, the Court found that ju-

rors are distracted and feel uneasy when they realize that

they have become the subject of an artist. Certainly the

Court has the authority to prevent activity which distracts

the jury from their duty under law. See “Free Press-Fair

Trial” at p. 411.8 At this point, it should also be noted

that this Court finds that there is no right by the plaintiffs

as members of the press or the public in general to obtain

the names and addresses of the prospective jurors in advance

of trial as prohibited also by paragraph three of the May 3lst

order. The management of the jury is a function solely with-

in the authority of the trial court and when the venire is

called in open court, there is no question that upon the seat-

ing of a juror in a case that his identity will then become a

public record.

Neither does the Court feel that the May 31st order un-

reasonably abridges any public right to know or media

right to information since the right, if any, is not denied

but merely delayed for a limited period. A defendant is

only brought to trial after an indictment by a Grand Jury.

The indictment is returned in open court and is a public

record. The trial of a defendant is held in open court to

8 While the Court is aware it has allowed unlimited sketching in

other cases, those cases have not been the subject of extensive pre-

trial publicity as this criminal case or the subject of such public in-

terest.

24a

which all members of the public and media have a right to

attend and hear the testimony of the witnesses. Finally,

the May 3lst order has no purpose or life beyond the trial

of the case and no restriction upon any trial participant af-

ter the trial of the case. This Court’s order unlike that is-

sued in CBS v. Young (supra) which incidentally was a civil

as opposed to a criminal case, is very limited in purpose time

and people affected to assure the defendants a fair trial. It

prohibits no conduct other than that which would in sub-

stantial likelihood jeopardize the defendants’ right to a fair

trial and is specifically and narrowly drawn to encompass

only certain types of conduct. After the trial anyone can

do or say anything they please but until that time comes,

the provisions of the May 3l1st order will remain in full force

and effect.

Finally, the plaintiffs contend that the May 3lst order

was issued without prior notice and hearing to the plaintiffs

in contravention of their Fifth Amendment right to due pro-

cess. This Court does not agree that the news media and

public should be given notice and an opportunity to be

heard before a Court should be permitted to issue such an

order as the May 31st order.?

9 The plaintiffs cite US v. Schiavo, 504 F.2d 1 (3rd Cir. 1974)

cert.den. sub. nom. Ditter v. Philadelphia Newspapers Inc., 419 US

1096 for the proposition that they are entitled to prior notice and

hearing. In Schiavo, the trial judge issued a collateral order in a cri-

minal case directly against the press who were non-parties to the cri-

minal case but parties to the collateral order since that order prohib-

ited the press from publishing and reportirig upon certain statements.

The May 31st order in this case does not restrict the press from pub-

lishing or reporting at all and is only directed at the conduct of trial

participants in the criminal case.

25a

This Court, in imposing the restrictions of the May 3\st

order has followed the recommendations of the Kaufman

Committee, “Free Press-Fair Trial” as adopted by the Judi-

cial Conference of the United States and has not violated

established legal concepts in implementing such order.

Accordingly ,

IT IS ORDERED that the plaintiffs complaint be and the

same is hereby dismissed. The May 31st 1976, order issued

by this Court in United States v. J. Ralph Gasque, et.al,

No. 76-104 will continue to remain in full force and effect

Let copies of this order be sent to the parties.

/s/ J. Robert Martin, Jr.

UNITED STATES DISTRICT JUDGE

TRUE COPY

Test:

MILLER C. FOSTER, JR., CLERK

/s{ Joyce Kirby

By: Deputy Clerk

10 i is of significant note that this Court, since the inception of

this criminal case and forthcoming inquiries by the press, has continu-

ously informed members of the press and public, some of who are

plaintiffs to this complaint, that it will be available during the trial

to clarify, explain or consider otherwise provisions of the May 31st

order they deem necessitate such if they would make a presentation

through an appropriate representative committee. Upon an appro-

priate inquiry, this Court will then examine any provision of the or-

der that merits clarification, explanation or consideration otherwise in

light of the requisites of the trial.

26a

APPENDIX D

HARRISON AND PLEICONES

ATTORNEYS AND COUNSELLORS AT LAW

1010 Barringer Building

P. O. Box 11408

Columbia, South Carolina 29211

TELEPHONE:

James C. Harrison, Jr. 803/256-0215

Costa M. Pleicones 256-0216

May 24, 1977

Honorable J. Robert Martin, Jr.

United States Courthouse

Columbia, South Carolina 29201

In re: Central South Carolina Chapter,

Society of Professional Journalists,

Sigma Delta Chi, et al. v. The

Honorable J. Robert Martin, Jr.,

et al.

Dear Judge Martin:

We understand that a jury has been selected and has been

sequestered in the criminal trial of the Government vs.

Ralph Gasque.

We therefore respectfully urge that, in consonance with the

spirit of the Order of the Fourth Circuit Court of Appeals

decided May 17, 1976, and in view of the Sequestration of

the jury, reconsideration be given by the Court to all facets

of its Order dated May 31, 1976.

Very truly yours,

HARRISON AND PLEICONES

JCHjr/Ifj James C. Harrison, Jr.

cc: Wistar D. Stuckey, Esquire

David R. Boyd, Esquire

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.