Record and brief — Federated Publications, Inc. v. Swedberg

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. WON

Supreme Court, U.S.

Ae €.

: MAR 24 1987

81-1769

ALEXANDER L STEWAS

CLERK

IN THE

Supreme Court of the United States

Octoper Term, 1982

No.

FEDERATED PUBLICATIONS, INC.,

Petitioner

HONORABLE BYRON L. SWEDBERG,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

Davis, WRIGHT, Topp, RIESE

& JONES

P. Cameron DeVore

Marshall J. Nelson

Daniel M. Waggoner

4200 Seattle-First National

Bank Building

Seattle, Washington 98154

Counsel for Petitioner

March 23, 1982

QUESTIONS PRESENTED

1. Whether it is constitutional under the First and

Fourteenth Amendments for a court to require the press to sign

“agreements” to follow specified guidelines in reporting on

hearings.

2. Whether a court may condition admission to a court-

room on the press’ “agreement” to sacrifice its First Amend-

ment rights.

3. Whether a requirement that the press agree to follow

specified guidelines in reporting on a hearing is a “reasonable

limitation on access” to a public court proceeding.

4. Whether a court, consistent with the First and

Fourteenth Amendments, may exclude members of the press

from a hearing while allowing attendance by the rest of the

public.

OPINION BELOW. .....

JURISDICTION

QUESTIONS PRESENTED

INDEX

CONSTITUTIONAL PROVISIONS INVOLVED.........

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

The Decision Below Sanctions a Prior Restraint

in Conflict with Nebraska Press Association v.

Stuart

A. The Decision Below Sanctioned an Order

Whose Purpose and Effect Was to Control

the Content of Speech

B. The Decision Below Fails in Its Attempt to

Distinguish Nebraska Press

Conditioned Access to the Courtroom Creates

an Unconstitutional Condition

The Exclusion of Members of the Press Based

on the Content of Their Publications Is Not a

“Reasonable Limitation on Access” Com-

parable to a Time, Place and Manner Restric-

tion

A. Reasonable Limitations on Access Must be

Content Neutral

B. Imposition of Content Sensitive Limita-

tions on Access Cannot Become the Pre-

ferred Alternative to Closure

Exclusion of the Press, But Not the Rest of the

Public, Violates the First and Fourteenth

Appendix

Opinion of the Washington State Supreme Court of

September 3, 1981

Opinion of the Washington State Supreme Court of

December 24, 1981, Denying Motion for Recon-

sideration

Listing of Parents, Subsidiaries and Affiliates in Com-

pliance with Rule 28.1 of the Supreme Court...............

UwWwWNN = = a

A-21

CITATIONS

Page

CASES:

Carey v. Brown, 447 U.S. 457 (1981) 19

Cox v. Louisiana, 397 U.S. 536 (1965) 10

Elrod v. Burns, 427 U.S. 347 (1976) 15

Federated Publications, Inc. v. Byron L. Smathers, 96

Wn.2d 13 (1981) passim

Fiske v. Kansas, 274 U.S. 380 (1927) 10

Gannett Co. v. Depasquale, 433 U.S. 368 ( 1979)........ passim

Harris v. McRae, 448 U.S. 297 (1980) 15

Hudgens v. NLRB, 424 U.S. 507 (1976) 18,19

Keene Publishin s+ v. Cheshire County Superior

Court, 119 N.H. 710, 406 A.2d 137 (1979) ............. 12

Landmark Communications, Inc. v. Virginia, 435

U.S. 829 (1978) 12

Near v. Minnesota, 283 U.S. 697 (1931) 10,12,13

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

(1976) passim

New York Times v. Sullivan, 376 U.S. 254 (1964) ...... 10

Oklahoma Publishing Co. v. District Court, 430 U.S.

308 (1977) 6

Pell v. Procunier, 417 U.S. 817 (1974) 21

Perry v. Sindermann, 408 U.S. 593 (1972) ........c-se00+0 14,15

Police Dept. of Chicago v. Mosley, 408 U.S. 92,

(1972) 19,22

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

(1980) passim

Sacramento Bee v. District Court, 656 F.2d 477, 482

o Cir. 1981) pet. for cert. filed, 50 U.S.L.W.

717 (1982) 5,6,7,20

Sherbert v. Verner, 374 U.S. 398 (1963) 15

Speiser v. Randall, 537 U.S. 513 (1958) 15

Smith v. Daily Mail Publishing Co., 442 U.S. 97

(1979) 12,22

State v. Simants, 194 Neb. 783, 236 I4.W. 2d 794

(1975) 9,10

United States ex. rel Bruno v. Herald, 408 F.2d 125

(2d Cir. 1969), cert denied, 412 U.S. 920 (1975)....

United States v. Powers, 622 F.2d 317 ( 8th Cir. ), cert

denied, 444 U.S. 387 (1980)

United States ex rel. Smallwood v. Lavalle, 377

Sg hae (E.D.N.Y.), aff'd 508 F.2d 837 (2d

ir.

University of Southern Mississippi, MCLU v. Univer-

. nf Southern Mississippi, 452 F.2d 564 ( Sth Cir.

Walker v. Birmingham. 388 U.S. 307 ( 1967) ..............

MISCELLANEOUS:

Emerson, The Doctrine of Prior Restraint, 20 Law &

Contemp. Problems 648 ( 1955)

Hale, Unconstitutional Conditions and Constitutional

Rights, 35 Colum. L. Rev. 321 (1935)

Karst, lity as a Central Principle in the First

pn Be mee, 43 U. Chicago L. Rev. 20 ( 1975)........

L. Tribe, American Constitutional Law ( 1978)...........

Proposed Rules of Criminal Procedure, 30 Crim. Law

Rep. 3001 (1981)

Van Alstyne, The Demise of the Right-Privilege Dis-

tinction in Constitutional Law, 81 Harv. L. Rev.

1439 (1968)

In THE

Supreme Court of the United States

OcToBER TERM, 1982

No.

FEDERATED PUBLICATIONS, INC.,

Petitioner

Vv.

HONORABLE BYRON L. SWEDBERG,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

The Petitioner, Federated Publications, Inc., respectfully

prays that a writ of certiorari be issued to review the judgment

and opinion of the Supreme Court of the State of Washington

entered in this proceeding on September 3, 1981.

OPINION BELOW

The opinion of the Washington Supreme Court is reported

at 96 Wn.2d 13 (1981), and is in the Appendix at A-1 through

A-18.

JURISDICTION

The judgment of the Washington Supreme Court was

entered on September 3, 1981. A timely motion for reconside-

ration was denied on December 24, 1981, and the petition for

certiorari was filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Whether it is constitutional under the First and

Fourteenth Amendments for a court to require the press to sign

“agreements” to follow specified guidelines in reporting on

hearings.

2. Whether a court may condition admission to a court-

room on the press’ “agreement” to sacrifice its First Amend-

ment rights.

3. Whether a requirement that the press agree to follow

specified guidelines in reporting on a hearing is a “reasonable

limitation on access” to a public court proceeding.

4. Whether a court, consistent with the First and

Fourteenth Amendments, may exclude members of the press

from a hearing while allowing attendance by the rest of the

public.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the portions of the First and Fourteenth

Amendments to the Constitution of the United States which

provide as follows:

Congress shall make no law... abridging the free-

dom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

Government for a redress of grievances.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

L Imposition of the Order Requiring an Agreement to

Report on the Court Proceedings Only in Accordance

with the Guidelines.

The State of Washington charged Veronica Compton with

attempted murder. The defendant Compton moved to exclude

the public and press from omnibus and suppression hearings in

the Superior Court of Whatcom County before the Honorable

Byron Swedberg and to seal certain portions of the records of

those hearings. The Prosecuting Attorney for Whatcom County

joined in the motions for closure and sealing.

Federated Publications, Inc., doing business as the Belling-

ham Herald (hereinafter “the Herald”), objected to the pro-

posed closure of the hearings under the United States and

Washington Constitutions. (The listing of parents, subsidiaries

and affiliates required by Rule 28.1 is in the Appendix at A-22.)

Judge Swedberg denied the motion for closure, but sua sponte

requested that members of the press wishing to attend the

hearings sign the following “agreement” to follow the

Washington Bench-Bar-Press Guidelines’ in their reports of the

proceedings:

BENCH-BAR-PRESS GUIDELINES FORM

This form is for the use of all media representa-

tives planning to attend the hearing in State v.

Veronica Lynn Compton, Whatcom County Cause

No. 80-1-00322-7, to be held at 1:30 p.m. in

Department No. 2 of the Whatcom County Superior

Court on the 19th day of December, 1930.

1. I have read the Bench-Bar-Press Guidelines

of 1974 which are attached to this form.

‘The Washington Bench-Bar-Press Guidelines are found in the decision

of the Washington Supreme Court in the Appendix at A-1! through A-14.

They were first drafted by a committee of some members of the bar and press

in the 1960's and thus do not address the issue of closure. Thirty-one other

states in the country have comparable guidelines that are voluntarily sup-

ported by the press, in conjunction with members of the judiciary and bar, as

part of a cooperative effort to insure coverage of judicial proceedings.

2. If I have not yet read the Bench-Bar-Press

Guidelines that are attached to this form, I shall do

so before I report in any manner on the hearing of

the above-mentioned matter.

3. I agree to follow the Bench-Bar-Press Guide-

iines of 1974 in any reporting of the proceedings in

the above-captioned matter at the hearing scheduled

on the 19th day of December, 1980, in Department

No. 2 of the Whatcom County Cause No. 80-1-

00322-7, to be held at 1:30 p.m.

4. As a representative of , lam

authorized to bind my news agency to follow the

Bench-Bar-Press Guidelines.

DATED this day of December, 1980.

(Signature )

Any members of the press not willing to sign the form,

prepared by the judge, or not willing to attend solely as

nonreporting members of the “public,” were excluded from the

hearings. No limitations were placed upon the general public,

either as to their attendance at the hearing or as to what they

might say to others about the hearing.

Some members of the press signed the form. The Herald

did not, although it noted in oral argument that it voluntarily

followed the Guidelines as a general editorial policy. Because

of its unwillingness to sign the form, the Herald was excluded

from the hearings.

Il. Federal Questions Presented to and Rejected by the

Washington Supreme Court.

The Herald commenced an original mandamus action in

the Washington State Supreme Court to challenge Judge

Swedberg’s actions in requiring members of the press to either

sign the “agreement” or be excluded from the hearings.

Because Judge Swedberg had denied the closure motions, the

Herald did not raise issues concerning the propriety of the

proposed closure of hearings. It argued that the “agreement”

operated as an unconstitutional prior restraint on publication

and that exclusion of the members of the press who would not

agree to follow the Guidelines was unconstitutional under the

First and Fourth Amendments to the United States Con-

stitution. The Washington Supreme Court reviewed Judge

Swedberg’s actions, although the case was technically moot,

because it found them capable of repetition, yet escaping

review

The Washington Court considered the Herald’s con-

stitutional arguments, but rejected them because it found

Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), to

be distinguishable. 96 Wn.2d at 19-22; Appendix at A-7

through A-10. Relying on Richmond Newspapers Inc. v.

Virginia, 448 U.S. 555 (1980), the court found Judge Swed-

berg’s conditions on entry to the courtroom to be merely

“reasonable limitations on access... .” Jd. at 22, 23; Appendix

at A-10 through A-11. Thus, the Herald’s claims under the

United States Constitution were squarely presented to the

Washington Supreme Court and rejected by it.

REASONS FOR GRANTING WRIT

L The Decision Below Sanctions a Prior Restraint in

Conflict with Nebraska Press Association v. Stuart.

Although there has been considerable controversy in the

lower courts 2 over the appropriate interpretation of this Court’s

seminal rulings in Richmond Newspapers, Inc. v. Virginia, supra,

and Gannett Co. v. Depasquale, 443 U.S. 368 (1979), one

benchmark has remained constant: the courts in certain circum-

stances may exclude the public and press from hearings, but

they may not dictate to the press how those proceedings are to

be reported to the public.

2 See, e.g., Sacramento Bee v. District Court, 656 F.2d 477 (%h Cir.

1981), petition for cert. filed, 30 U.S.L.W. 3717 (Docket #81-1563); United

States v. Powers, 622 F.2d 317 ( 8th Cir.), cert. denied, 444 U.S. 387 (1980).

Mr. Justice Powell, concurring in Gannett v. DePasquale,

443 U.S. at 399, emphasized the distinction between closure

orders and impermissible prior restraints:

Excluding all members of the press from the court-

room, however, differs substantially from the “gag

order” at issue in Nebraska Press,... [that] applied

to information irrespective of its source. In the

present case . . . we are confronted with a trial court’s

order that in effect denies access only to one, albeit

important source. It does not in any way tell the press

what it may and may not pr-blish.

(Emphasis added.) The order below, however, does indeed,

tell the press “what it may and may not publish.” It may

publish matters that are consistent with the Guidelines; it may

not publish matters in violation of them. Further, it applies

“irrespective of . . . source.” By the terms of the order, the

attendees were “to follow the ... Guidelines . . . in any report

of the ... hearing.” See also Oklahoma Publishing Co. v.

District Court, 430 U.S. 308 (1977) (striking down state court

injunction prohibiting news media from publishing name or

photograph of juvenile); Nebraska Press Association v. Stuart,

supra (unconstitutionality of gag order concerning coverage of

pre-trial hearing).

The decision below thus disregards this benchmark and the

fundamental prohibition of governmental control of the content

of speech. It seeks to accomplish through judicial control over

access to criminal hearings what this Court has held may not be

accomplished—i.e., judicial control over the content of press

reports.

Nor is the decision below an isolated instance. In Sacra-

mento Bee v. District Court, 656 F.2d 477, 482 (9th Cir. 1981),

3 The decision below is in direct conflict with the decisions of this Court,

particularly the decision in Nebraska Press Association v. Stuart. Thus,

summary reversal might be appropriate if this Court concludes full argument

is unnecessary.

petition for cert. filed, 50 U.S.L.W. 3717 (1982) (Docket #81-

1563), the Ninth Circuit suggested that a trial court in circum-

stances comparable to Judge Swedberg’s should seek the

agreement of the press concerning the “timing and scope of

coverage,” rather than closing a criminal trial. The first

alternative to closure was to be an acknowledgement by the

press “that immediate publication was unnecessary .. . .” Jd.

Similarly, the first published draft of proposed amend-

ments to the Federal Rules of Criminal Procedure would

include a provision allowing a “partial closure” of a hearing as

follows:

Whenever the court could otherwise order clo-

sure... , it may limit the persons permitted to attend

and condition such attendance upon agreement to the

court’s order restricting the time at which the person in

attendance may disclose to others matters occurring at

the proceeding or portion thereof partially closed.

30 Crim. Law Rep. 3001 (1981) (emphasis added).

The decision below, and these other developments, justify

issuance of a writ of certiorari to determine whether the

decisions of this Court in Nebraska Press, Gannett, and Rich-

mond Newspapers are being correctly interpreted as a grant of

authority to control what is published about trials.

A. The Decision Below Sanctioned an Order The Pur-

pose and Effect of Which Was to Control the Con-

tent of Speech.

Judge Swedberg’s order required members of the press to

sign an agreement dictated by the judge to “follow the Bench-

Bar-Press Guidelines in any reporting of the proceedings,” and

“to bind my news agency to follow the Bench-Bar-Press Guide-

lines.” (Emphasis added.) Judge Stuart’s order leading to this

Court’s decision in Nebraska Press Association v. Stuart, supra,

prohibited the “news media” from “disseminat[ ing] any infor-

mation concerning this matter . . . other than as set forth in the

Nebraska Bar-Press Guidelines.” 427 U.S. at 575 ( Brennan,

J. concurring) (emphasis added).

Both Juage Stuart’s order and Judge Swedberg’s order

were entered in anticipation of preliminary hearings, and both

attached copies of the state guidelines to the order. Nebraska

Press Association v. Stuart, 423 U.S. 1327 (opinion of Black-

mun, J. on Motion for Stay). Both orders aimed to control

what pretrial information would be published by the press.

Both attempted to incorporate voluntary “guidelines” in the

terms of the order.* Both permitted publication only if consistent

with the state guidelines; the guidelines, themselves, both were

permissive, not mandatory, in nature.

In granting a stay of Judge Stuart’s order, Mr. Justice

Blackmun ruled:

The most troublesome aspect of the District Court’s

restrictive order is its wholesale incorporation of the

Nebraska Bar-Press Guidelines for Disclosure and

Reporting of Information Relating to Imminent or

Pending Criminal Litigation. . . . . They are merely

suggestive and, accordingly, are necessarily vague.

To cite only one example, they state that the publica-

tion of 2 accused’s criminal record should be consid-

ered very carefully and should generally be avoided.

These phrases do not provide the substance of a

permissible court order in the First Amendment area.

423 US. at 1331.5 The Nebraska Supreme Court, too, ruled

against incorporation of the Guidelines:

We conclude that an order of the district court of

October 27, 1975 is void insofar as it incorporates the

voluntary guidelines and in certain other respects, in

that it impinges too greatly upon freedom of the

4 The Nebraska Press orders also listed specific matters which could not

be published by the press. 427 U.S. at 542-44. The Nebraska Bar-Press

Guidelines bear a close resemblance to the Washington Bench-Bar-Press

Guidelines.

5 The Washington Bench-Bar-Press guidelines include substantially the

same vague language as Mr. Justice Blackman's example. See e g., Guideline

3, Appendix at A-12. (“The public disclosure of [ pzior criminal charges and

convictions} may be highly prejudicial. .. . The publication of such

information should be carefully reviewed.” )

press. The guidelines were not intended to be con-

tractual, and cannot be enforced as if they were.

State v. Simants, 194 Neb. 783, 236 N.W.2d 794, 805 (1975)

(emphasis added ).

Because of the stay granted by Mr. Justice Blackmun and

the Nebraska Supreme Court’s own ruling against in-

corporation of the state guidelines, the order that finally

reached this Court for full consideration had been purged of

reference to the Bar-Press Guidelines. This Court, nevertheless,

addressed their incorporation into the order. The first two

footnotes of the Court’s opinion described the voluntary Guide-

lines in some detail and noted “Mr. Justice Blackmun’s careful

decision” staying the order “insofar as it incorporated the

admonitory Bar-Press Guidelines and prohibited reporting of

some other matters.” 427 U.S. at 542-44 n.1, 2. Mr. Justice

Brennan, concurring, addressed the voluntary nature of the

Guidelines in greater detail, and emphasized that the decision

to follow the Guidelines was solely a matter for the press:

“(T]he decision of what, when, and how to publish is for

editors, not judges.” Jd. at 613. He concluded that “[e]very

restrictive order imposed in this case was an unconstitutional

prior restraint on the freedom of the press. . . . “ Jd.

The rejection by this Court and the Nebraska Supreme

Court in Nebraska Press of the effort to bind the press to the

terms of voluntary Guidelines, is flatly at odds with the decision

of the Washington Supreme Court.

B. The Decisien Below Fails in Its Attempt to Dis-

tinguish Nebraska Press.

The decision below makes much of the voluntary nature of

the Bench-Bar-Press Guidelines in an attempt to distinguish

Judge Swedberg’s order from the orders before this Court in

Nebraska Press. 96 Wn.2d 20-22, Appendix at A-8 through A-

10. The argument relies on an assumed commitment on the

part of the press to support the Guidelines. If the press supports

such guidelines and subscribes to their language, why should

they not be made mandatory by court order? Such an argu-

ment, however, has already been rejected by both this Court

and the Nebraska Supreme Court.

As Mr. Justice Brennan noted in his concurrence to Neb-

raska Press, voluntary support by the press of the Guidelines

does not justify a court order to the press to follow the

Guidelines. 427 U.S. at 613. The Nebraska Supreme Court,

too, found that such voluntary support could not transform

Guidelines into a binding contract enforceable by the courts.

State v. Simants, supra, 236 N.W.2d at 805. Indeed, the very

purpose of such guidelines—to encourage cooperation among

the press, bar and judiciary—is destroyed when they are so

used by the courts.®

The Washington Supreme Court also placed reliance on

the alleged absence of “sanctions” against any person who

signed and then violated the “agreement” to follow the Guide-

lines. 96 Wn.2d at 22, Appendix at A-10. This reliance,

however, overlooks the real purpose and effect. of Judge

Swedberg’s order and gives too much weight to the possible

absence of the contempt sanction.’

Judge Swedberg’s purpose in entering the order clearly

was to cause restraint in publication of matters relating to the

pre-trial hearing, and to prohibit publication of such matters by

those who were unwilling to agree to the restraint. Otherwise

the order and agreement would be nullities.

The Guidelines do represent an acknowledgment by the

press of its role in protecting the rights of the accuced, and they

do have a substantial impact on the manner in which news-

Papers cover criminal proceedings. But when this voluntary

commitment is incorporated into an agreement with an officer

©The effects of this decision below on this cooperative process can

already be seen. The major media organizations in Washington State are

currently considering withdrawal of their support from the Guidelines.

7 This Court must make its own examination of the “substance” and

purpose of Judge Swedberg’s order to determine its actual “operation and

effect.” Near v. Minnesota, 283 U.S. 697, 708 (1931). The ability of this

Court to look at the actual purpose and effect of government actions to

determine if they function as prior restraints is a corollary to the general rule

that this Court may make an independent examination of the facts found

below to determine if constitutional rights are being violated. See, e.g., Cox v.

Louisiana, 379 U.S. 536, 544, n.8 (1965); New York Times v. Sullivan, 376

U.S. 254, 284, 285 (1964), Fiske v. Kansas, 274 U.S. 380 (1927).

of the State, a Superior Court Judge, the Guidelines are bound

to become mandatory in effect. A reporter who signs such a

written “agreement” with a trial judge is under heavy pressure

not to violate that document or the Guidelines. To assume that

a reporter and editor would violate such an undertaking

assumes that the press knowingly would go back on its word.

The threat of sanctions need not take the form of a direct

threat of contempt to have this effect. The prospect of future

encounters with the same judge, the probability of increased

courtroom closures and restricted access to information, and

even the probable loss of cooperation of the judge and his staff,

are all sufficient inducements growing out of the judge’s

inherent position of authority in matters relating to court

proceedings.®

Although the decision below suggests that contempt of

court might not be an appropriate sanction, the press must

logically conclude that under such an order anything they

publish about the proceeding will be at its peril. If a member of

the “public” who attends the trial and is not bound by the

court-drafted agreement advises a journalist as to what oc-

curred, may it be published? If the same member of the public

gives a speech adverting to what occurred in court, may the

press then print it? If one “non-cooperating” newspaper pub-

lishes what occurred in court, may those that sign the “agree-

ment” then do so? In all such situations—and in the myriad

variations likely to arise—if a court believed the “agreement”

had been violated, it would be expected to respond in some

fashion. The situation could well lead to examination of the

reporter and editor as to their sources and decision to report in

a manner contrary to the judge’s interpretation of the Guide-

lines. That this should be the result of the efforts at accom-

modation between the press and the courts embodied in

® The decision below recognizes that the Herald or other members of the

press might be “punished” for “violations” of the Guidelines by exclusion

from the courtroom in the future. One basis for Judge Swedberg’s order

requiring a written agreement to follow the Guidelines at the Compton

hearings was his experience of previous “violations” of the Guidelines by the

Herald. 96 Wn.2d at 21, Appendix at A-9.

voluntary press-bar guidelines would be utterly self-defeating

as well as contrary to the First Amendment.

The decisions of this and other courts show, in addition,

that the threat of the contempt sanction is not a prerequisite for

a finding of a prior restraint.9 In Nebraska Press, only members

of the press who had intervened directly in the criminal action

were subject to the court order. 427 U.S. at 556, n.9. Yet, this

Court analyzed the orders as prior restraints. Similarly, in

Keene Publishing Corp. v. Cheshire County Superior Court, 119

N.H. 710, 406 A.2d 137 (1979), the New Hampshire Supreme

Court found an impermissible prior restraint in a court’s

requirement that, as a condition on access to a pre-trial hearing,

a newspaper consult with its attorney regarding the manner of

coverage. The apparent “form” of such an order does not

control, when its “substance” is a prior restraint. Near v.

Minnesota, 283 U.S. 697, 708 (1931).

Even without practical or implied sanctions, Judge Swed-

berg’s order itself provided punishment for those members of

the press who did not agree to report on the proceedings as

Judge Swedberg wished. The order did not merely require

those who wished to attend to sign the agreement; it excluded

those members of the press who would not agree to follow the

Guidelines. The excluded members of the press were thus

subjected to a severe sanction solely because they would not

agree to report as the judge wished. They were denied entry to

an important, otherwise public proceeding in an ongoing and

significant criminal trial.!° Those who did attend were made

aware they might later be excluded from the courtroom if they

did not follow the Guidelines.

® The facial invalidity of the order a!so would not preciude application of

the contempt sanction by a court that felt its authority had been ignored. See

Walker v. Birmingham, 388 U.S. 307 (1967).

If the portion of Judge Swedberg’s order e~ 'uding the press who

would not sign the agreement is viewed in isolation, » .night be analyzed as a

form of “subsequent runishment” imposed on those who would not agree to

report as the court wished. Such subsequent punishment, nonetheless, would

be unconstitutional under this Court’s decisions in Smith v. Daily Mail

Publishing Co., 442 U.S. 97 (1979), and Landmark Communications, Inc. v.

Virginia, 435 U.S. 829 (1978).

The arrangement established by Judge Swedberg bears all

the hallmarks of a classic licensing scheme in which the censor

denies permission to publish because of the content of the

publication. The “license” here takes the anticipated form of

permission to enter the courtroom. If the press is willing to

abide by the government’s wishes, it is granted permission to

enter. But if the press refuses, it is denied the government's

permission. The “operation and effect” of the order, therefore,

is to establish an unconstitutional prior restraint. See Near v.

Minnesota, 283 U.S. 697, 708 (1931). Cf. University of

Southern Mississippi, MCLU v. University of Southern Mis-

sissippi, 452 F.2d 564 (5th Cir. 1971) (restriction on access to

facilities based on anticipated content of speech as prior

restraint).

This Court should prevent such erosion of the prohibitions

against government control of speech and the press. The power

of courts to control access to courtrooms cannot be allowed to

extend to control of the contents of reports of proceedings.

Otherwise, this Court’s careful distinction between control over

access and control of content will be destroyed.

Il. Conditioned Access to the Courtroom Creates an

Unconsitutional Condition.

The rationale underlying the decision below, and other

recent developments concerning the concept of “partial clo-

sure,” is expressed in the following excerpt from the opinion of

the Washington Supreme Court:

Inasmuch as the court had the authority. . .to exclude

all of the public, including the media, it had also the

included power to impose reasonable conditions up-

on attendance.

96 Wn.2d at 22, Appendix at A-10.

This assumption, that the governmeni’s general power to

withhold a privilege, such as attendance at a hearing, automati-

cally includes the lesser power to impose conditions on the

grant of the privilege, may have some precedent, and may be

correct if the conditions imposed do not require sacrifice of or a

penalty on the exercise of constitutional rights. But the

condition imposed here—an agreement to speak only as the

court wishes—violates the decisions of this Court which estab-

lish the doctrine against unconstitutional conditions. See

generally, Van Alstyne, The Demise of the Right-Privilege

Distinction in Constitutional Law, 81 Harv. L. Rev. 1439

(1968); Hale, Unconstitutional Conditions and Constitutional

Rights, 35 Colum. L. Rev. 321 (1935).

This Court’s recognition of the power of the courts to close

courtrooms inevitably raises recurring questions highlighted by

the decision below."!

Because a court has what it believes to be the greater

power to exclude the public and press from a pre-trial hearing,

does it have the supposedly lesser power to allow the press to

attend the hearing only on the condition that the press will

report on the proceeding according to the court’s wishes?

Must the constitutional right to publish freely be sacrificed

in order to have the privilege of attendance at judicial proceed-

ings?

May a court penalize members of the press who do not

agree with the court by excluding them from the hearing?

The fundamental principles enunciated in this Court’s

decisions require a negative answer to each of these questions.

For at least a quarter-century, this Court has

made clear that even though a person has no “right”

to a valuable government benefit and even though

the government may deny him the benefit for any

number of reasons, there are some reasons upon

The unconditional conditions doctrine raises special problems here.

The “privilege” of attending public court proceedings has constitutional

dimensions unlike, for instance, the “privilege” to receive welfare benefits.

Under any construction of Depasquale and Richmond Newspapers, attendance

at court proceedings cannot be characterized as a “privilege.”

The apparently “lesser” power to condition access on the agreement to

report on the proceedings according to the Court’s wishes, in fact, raises

greater constitutional problems than does the general authority to close

criminal proceedings. Moreover, the decision below does not show that the

“greater” power to close was present. See pp. 20, 21, infra.

which the government may not rely. It may not deny

a benefit to a person on a basis that infringes his

constitutionally protected interests—especially his in-

terest in the freedom of speech. For if the government

could deny a benefit to a person because of his

constitutionally protected speech or associations, his

exercise of those freedoms would in effect be penal-

ized and inhibited. This would allow the government

to “produce a result which [it] could not command

directly.” Speiser v. Randall, 357 U.S. 513, 526. Such

interference with constituional rights is impermis-

sible.

Perry v. Sindermann, 408 U.S. 593, 597 (1972) (emphasis

added ).

The prohibition against unconstitutional conditions has its

roots in cases such as Speiser v. Randall, 357 U.S. 513 (1958)

and Sherbert v. Verner, 374 U.S. 398 (1963). Speiser affirmed

that the State could not require the sacrifice of a constitutional

right, the right to speak freely and criticize the government, in

exchange for the grant of a tax exemption. Similarly, Sherbert

held that the government could not require a Seventh-Day

Adventist to give we her religious freedom in exchange for

unemployment compensation. See also Elrod v. Burns, 427

U.S. 347 (1976) (recipients of government jobs cannot be

required to sacrifice constitutionally protected speech and asso-

ciational rights).

The principle underlying all these cases is a simple one.

Even though the government may deny privileges to everyone,

it may not selectively penalize those who choose to exercise

constitutionally protected rights or grant them only to those

who sacrifice their rights; cf. Harris v. McRae, 448 U.s. 297,

317 n.19 (1980) (“[S]ubstantial constitutional question would

arise if Congress had attempted to withhold all Medicaid

benefits from an otherwise eligible candidate simply because

that candidate had exercised her constitutionally protected

freedom. . . .””).

Judge Swedberg’s order violates both branches of this

prohibition. Those members of the press who sign the agree-

ment have sacrificed their rights in exchange for the privilege of

entry to the hearing. Those members of the press, who, like the

Herald, do not sacrifice their rights, are penalized by exclusion

from the hearing.

Ill. The Exclusion of Members of the Press Based on the

Content of Their Publications Is Not a “Reasonable

Limitation on Access” Comparable to a Time, Place and

Manner Restriction.

The Washington Supreme Court relies heavily on the

proposition that a trial court may impose “reasonable limita-

tions . . . upon attendance at a judicial proceeding . . .” to

uphold Judge Swedberg’s order. 96 Wn.2d at 22, Appendix at

A-10. In support of this proposition, it quotes from the opinion

of the Court in Richmond Newspapers, Inc. v. Virginia:

Just as a government may impose reasonable time,

place, and manner restrictions upon the use of its

streets in the interest of such objectives as the free

flow of traffic, see, e.g., Cox v. New Hampshire, 312

U.S. 569 (1941), so may a trial judge in the interest

of the fair administration of justice, impose reason-

able limitations on access to a trial.

Id. at 22, 23, quoting Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555, 581, n.18. 1

A. Reasonable Limitations on Access Must be Content

Neutral.

The Washington Court’s reliance on Richmond Newspapers

is completely misplaced and fundamentally misconceives the

principles defining reasonable time, place, and manner restric-

tions. An examination of the entire footnote relied upon reveals

that the “reasonable limitations” approved by this Court in

Richmond Newspapers are at a polar extreme from the restric-

tion on content approved by the Washington Court.

2 The Washington Supreme Court incorrectly identified the quote as

coming from the concurring opinion of Mr. Justice White.

We have no occasion here to define the circum-

stances in which all or parts of a criminal trial may be

closed to the public, cf, e.g., 6 J. Wigmore, Evidence

§ 1835 (J. Chadburn rev. 1976), but our holding

today does not mean that the First Amendment rights

of the public and representatives of the press are

absolute. Just as a government may impose reason-

able time, place, and manner restrictions upon the

use of its streets in the interest of such objectives as

the free flow of traffic, see, e.g., Cox v. New Hamp-

Shire, 312 US 569, . . . (1941), so may a trial judge,

in the interest Of the fair administration of justice,

impose reasonable limitations on access to a trial.

“[ T]he question in a particular case is whether that

control is exerted so as not to deny or unwarrantedly

abridge . . . the opportunities for the communication

of thought and the discussion of public questions

immemorially associated with resort to public

places.” Id., at 574,.... It is far more important that

trials be conducted in a quiet and orderly setting than

it is to preserve that atmosphere on city streets.

Compare, e.g., Kovacs v. Cooper, 336 US 77, ...

(1949), with Jilinois v. Allen, 397 US 337, ...

(1970), and Estes v. Texas, 381 US 532... (1965).

Moreover, since courtrooms have limited capacity,

there may be occasions when not every person who

wishes to attend can be accommodated. In such

situations, reasonable restrictions on general access

are traditionally imposed, including preferentia! sea-

ting for media representatives. Cf Gannett, 443 US,

at 397-398, ... (Powell, J., concurring); Houchins v.

KQED, Inc., 438 US 1, 17, . . . (1978) (Stewart, J.,

concurring in judgment); id., at 32, . . . (Stevens, J.,

dissenting ).

448 US. at 581, n.18.

The substance of the footnote is that courts may impose

restrictions such as are necessary to avoid overcrowding or

disorderly conduct.'? Nothing in it sanctions “limitations” that

are based on the content of an attendee’s speech. Indeed, the

quote from Cox v. New Hampshire emphasizes that reasonable

limitations cannot be used “to deny or unwarrantedly abridge”

communication. Similiarly, Kovacs v. Cooper and Estes v.

Texas related to actual disruption, noise and disorder. They

did not involve attempts to control the content of reports about

judicial proceedings.

The analogy to “time, place, and manner restrictions”

highlights the fundamental error of the decision below. The

essence of such restrictions is that they have no relationship to

the content of speech and are not applied to discriminate

against speakers whose views are less acceptable to the govern-

ment. See generally L. Tribe, American Constitutional Law §§

12-2, 12-3 (1978). . This principle of content neutrality is

enunciated in numerous cases of this Court, several of which

spell out the crucial distinction between improper, content

sensitive restrictions, and acceptable, content neutral regu-

lations of time, place and manner. The decision below violates

the principle by sanctioning a content sensitive restriction.

[ W ]hile a municipality may constitutionally impose

reasonable time, place, and manner regulations on

the use of its streets and sidewalks for First Amend-

ment purposes, see Cox v. New Hampshire, 312 U.S.

569, 86 L. Ed. 1049, 61 S. Ct. 762, 133 A.L.R. 1396,

Poulos v. New Hampshire, 345 U.S. 395, 97 L. Ed.

1105, 73 S. Ct. 760, 30 A.L.R.2d 987, and may even

forbid altogether such use of some of its facilities, see

Adderley v. Florida, 385 U.S. 39, 17 L. Ed. 2d 149, 87

3Such regulations on access to courtrooms have been limited to

excluding spectators who threatened witnesses or disrupted the courtroom or

dealing with problems of overcrowding. See, e.g., Nebraska Press Associ-

ation, supra, at 544 (trial court also “set out a plan for attendance, seating and

courthouse traffic control during the trial”); United States ex rel. Bruno v.

Herald, 408 F.2d 125 (24 Cir. 1969), cert. denied, 397 U.S. 957 (1970)

(closure granted to protect witnesses); United States ex rei. Smallwood vy.

Lavalle, 377 F. Supp. 1148 (E.D.N.Y.), aff'd, 508 F.2d 837 (2d Cir. 1974),

cert. denied, 412 U.S. 920 (1975) (trial closed during testimony of witness

who feared reprisal ).

S. Ct. 242; what a municipality may not do under the

First and Fourteenth Amendments is to discriminate

in the regulation of expression on the basis of the

content of that expression, Erznoznik v. City of

Jacksonville, 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct.

2268. “[Ajbove all else, the First Amendment

means that government has no power to restrict

expression because of its message, its ideas, its subject

matter, or its content.” Police Dept. of Chicago v.

Mosley, 408 U.S. 92, 95, 33 L. ed. 2d 212, $2 S. Ct.

2286.

Hudgens v. NLRB, 424 U.S. 507, 520 (1976). This Court

recently applied these prohibitions in Carey v. Brown, 447 U.S.

457 (1981), and found unconstitutional a statute that improp-

erly differentiated between kinds of speech in its regulation of

picketing. The siatute was content sensitive under the prin-

ciples of Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96

(1972):

Necessarily, then, under the Equal Protection Clause,

not to mention the First Amendment, a government

may not grant the use of a forum to people whose views

it finds acceptable, but deny use to those wanting to

express less favorable or more controversial views. . . .

Selective exclusions from a public forum may not be

based on content alone, and may not be justified by

reference to content alone.

447 US. at 463. (Emphasis added. )

Reliance on such cases is especially appropriate in light of

this Court’s recognition that the courtroom is a public forum.

See Richmond Newspapers, 448 U.S. at 577, 578. THe court-

room is a forum for expression and receipt of communication

and cannot be closed to those who would express themselves in

a manner contrary to a court’s wishes.

Because of the recent and recurring nature of such prob-

lems and the substantial number of courtroom closures which

may produce similar difficulties, review by this Court at this

time is essential to ensure that “reasonable limitations on

access” are not confused with control of content.

B. Imposition of Content Sensitive Limitations on Ac-

cess Cannot Become the Preferred Alternative to

Closure.

The constitutional problems described above are ex-

acerbated by the cursory treatment given by the decision below

to other alternatives available to avoid closure. The Washing-

ton Court dismissed the alternatives to closure with a litany of

speculative problems that might be found in any case.

Continuance of the hearing was found to be inappropriate

because of the likely delay, although every continuance inevita-

bly causes delay. Severance was found unhelpful because “[i]t

may operate to the disadvantage of the prosecution in present-

ing its case”; such a comment can be made about any sev-

erance. A change of venue “entails inconvenience of witnesses,

counsel and the court itself... ,” but such “inconvenience”

does not have the constitutional stature of the rights being

abridged. An intensive voir dire was found to “engender

resentment;” thus one of the best alternatives to closure is

eliminated. Sequestration works only if the hearing is held so

close to the trial date that trial preparation is disrupted; again,

disruption of schedules assumes constitutional importance. Fi-

nally, jury admonitions possibly “may tend to focus the atten-

tion of the jurors” on the allegedly prejudicial material; this

“possibility” removes another valued tool of a trial judge and

again may exist in every case. 96 Wn.2d at 16-18; Appendix A-

4 through A-6.

To avoid the “inconveniences” inherent in these alterna-

tives, the trial judge chose an order that raises substantial

constitutional difficulties. As a result, an order to the media

requiring adherence to the Guidelines becomes the preferred

alternative. Cf. Sacramento Bee v. District Court, supra,

(request to press on “timing and scope” of coverage is pre-

ferred alternative). Such a preference, and the treatment of tlic

other alternatives, is entirely inappropriate under this Court’s

decisions. See Nebraska Press Ass’n v. Stuart, supra, 427 U.S.

at 563 (other alternatives available that do not raise con-

stitutional problems); Gannett v. DePasquale, supra, 443 U.S.

at 401 (Powell, J., concurring) (consideration of such alterna-

tives first); Richmond Newspapers v. Virginia, supra, 448 U.S. at

581 (other alternatives preferable to closure). Closure of the

courtroom, or such orders that control the media’s reporting on

court hearings, at least, should be imposed only after a careful

and genuine consideration of other alternatives that have less

impact on First Amendment rights.

IV. Exclusion of the Press, But Not the Rest of the Public,

Violates the First and Fourteenth Amendments.

Judge Swedberg’s order also discriminates based on the

means of communication because it applies only to members of

the press, not to members of the “public.” Under the terms of

the order, any private individual could have viewed the pro-

ceedings and told the public every detail by speaking from a

soapbox, while the press may only report according to the

Guidelines. Any member of the “public” may attend the

hearing, tell the press who did not “agree” to follow the

Guildines what occurred, and the press apparently may report

that information.

Judge Swedberg’s order thus violates the basic precept that

the press “enjoy[s] the same right of access as the public. . . .”

Richmond Newspapers v. Virginia, supra, 448 U.S. at 572-73.

See also id. at 586 n.2 (Brennan & Marshall, J.J., concurring)

(“the media’s right of access is at least equal to that of the

general rublic”). Access to information controlled by the

government simply may not be granted on a discriminatory

bass. See Pell v. Procunier, 417 U.S. 817, 834 (1974) (press

and public to have equal rights of access ).

The premise of this order is that the publication by the

press should be more restricted, because it is more effective in

reporting public events. '* This premise is irreconcilable with the

% The different treatment of the “public” also reveals the importance

placed by the decision below on the press’ general commitment to the

Guidelines. The public had not participated in preparation of the Guidelines,

while the press had. Thus, it was felt appropriate to enforce the Guidelines as

a contract against the press, but not the rest of the public.

recognized role and responsibility of the press to act as surro-

gate for the public in observing court proceedings. See

Richmond Newspapers v. Virginia, supra, 448 U.S. at 572-73.

This precept not only flows inevitably from the First

Amendment, but also is a requirement of the Equal Protection

clause of the Fourteenth Amendment. See Police Dept. of

Chicago v. Mosley, supra (applying both First Amendment and

Equal Protection principles); Karst, Equality as a Central

Principle in the First Amendment, 43 U. Chicago L. Rev. 20

(1975) (conjunction of First Amendment and Equal Protection

principles). Such an unequal application of government action

requires especially strict scrutiny because it impinges on

fundamental First Amendment rights. See generally L. Tribe,

supra, § 167 at 1002, 1003.

The unequal treatment of the “press” and “public” cannot

survive scrutiny. The violation by the decision below of these

established doctrines, in itself, would be grounds for summary

reversal.

Finally, exclusion of the press but not the public fails to

achieve the very purpose for exclusion. Members of the public

could attend the hearing and be interviewed by the excluded

members of the press, which could publish information with

impunity. Indeed, a member of the “public” could attend, and

then launch a telephone campaign, describing to potential

jurors the allegedly most prejudicial evidence. Cf. Nebraska

Press Ass’n v. Stuart, supra, 427 U.S. at 567 (information

distributed by rumor, even with gag order on press). Would a

broadcast interview of a member of the attending “public” by a

member of the press who signed the “agreement” violate the

court’s order? Would publication of a wire service story from

another source by a member of the press bound by the

“agreement” violate the court’s order? The order fails to survive

even the most minimal scrutiny, let alone the exacting scrutiny

required under the Equil Protection Clause, as it would not

accomplish its purpose—to control allegedly prejudicial publi-

city. See Nebraska Press Ass'n v. Stuart, supra, 427 U.S. at 566,

567 (assessment of probable efficacy of restraint); Smith v.

Daily Mail Publishing Co., 442 U.S. 97, 104, 105 (1979)

(statute failed to “accomplish its stated purpose” because of

differing treatment of newspapers and broadcast media).

These practical difficulties in enforcing such an order

illustrate the morass into which the decision below would thrust

the courts. Such problems of enforcement and discriminatory

impact are the inevitable results of any system which puts the

court in a censor’s role. See Emerson, The Doctrine of Prior

Restraint, 20 Law & Contemp. Problems 648 (1955) (consid-

erations underlying prohibition against prior restraint include

administrative and enforcement problems ).

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the Washington Supreme Court.

DATED this 23rd day of March, 1982.

Davis, WRIGHT, TopD, RIESE

& JONES

4200 Seattle-First National

Bank Building

Seattle, WA 98154

Attorneys for Petitioner

P. Cameron DeVore

Marshall J. Nelson

Daniel M. Waggoner

~ yipueddy :

[1]

[2]

[3]

[4]

A-l

[ No. 47453-2. En Banc. September 3, 1981.]

FEDERATED PUBLICATIONS, INC., Petitioner, v.

Byron L. SwEDBERG, as Judge of the

Superior Court for Whatcom

County, Respondent.

Criminal Law—Trial—Time of Trial—Speedy Trial

Rule—Purpose. CrR 3.3, the speedy trial rule, protects

the public’s interest in the prompt administration of

justice as well as the accused’s right to a speedy trial.

Criminal Law—Jury —Right to Trial by Jury—Bias. A

criminal defendant’s right to a jury trial necessitates that

the jury be unbiased and unprejudiced.

Open Government—Constitutional Law—Freedom of

Press—Prior Restraint—Restricted Access to Judicial

Proceeding. A limitation upon the news media’s access

to judicial proceedings which does not prohibit the

publication or other communication of courtroom events

does not constitute a prior restraint upon the exercise of

free speech.

Constitutional Law—Freedom of Press—Bench-Bar-

Press Guidelines—Purpose. The Bench-Bar-Press

Guidelines are intended to ensure the news media’s

responsible exercise of its constitutional freedoms while

simultaneously protecting the constitutional rights of the

parties to the action.

Criminal Law—Open Government—Constitutional

Law—Freedom of Press—Pretrial Hearing—Access of

News Media—Bench-Bar-Press Guidelines. A trial

court has the power to impose reasonable restrictions

upon news media attendance at a pretrial hearing in a

criminal case, including conditioning attendance upon

the willingness to sign an agreement to abide by the

Bench-Bar-Press Guidelines.

Do.tiver, J., BRACHTENBACH, C.J., and Utter and Dimmick,

JJ., dissent by separate opinion.

Nature of Action: A newspaper publisher brought an

original action to prohibit a superior court from conditioning

A-2

news media attendance at pretrial hearings in an attempted

murder prosecution upon the reporters’ willingness to sign a

written agreement to abide hy the Bench-Bar-Press Guidelines.

Supreme Court: Holding that the condition upon attend-

ance did not constitute a prior restraint and was reasonable, the

court denies the relief sought.

McCush, Kingsbury, O’Connor, Ludwigson, Thompson &

Hayes, by John S. Ludwigson, for petitioner.

Kenneth O. Eikenberry, Attorney General, and Kevin M.

Ryan, Assistant, for respondent.

ROSELLINI, J.—This case is before the court as a result of a

ruling by the Honorable Byron L. Swedberg in the case of State

v. Compton, Whatcom County cause No. 80-1-00322-7, where-

by he refused to grant a defense motion to close a suppression

and CrR 3.5 hearing to the public, but conditioned media

attendance upon the signing of an agreement to abide by the

Bench-Bar-Press Guidelines.

The defendant in the Compton case had been charged with

attempted murder. She was reputed to be the girlfriend of

Kenneth Bianchi, known as the “Hillside Strangler”. Bianchi’s

crimes were the subject of extensive news coverage locally,

regionally and even nationally. The defendant Compton’s

alleged crime also received considerable attention by the

media, although it did not reach the dimensions of the coverage

given the Bianchi case. The defendant’s motions were based

upon the substantial likelihood that prospective jurors would

read or watch publicity about the evidence discussed at the

hearing and would form improperly based opinions as to the

defendant’s guilt.

A representative of the petitioner, publisher of the Belling-

ham Herald, objected to the motions to close the hearing and

seal certain evidence, as did other representatives of the media

who were present.

The court heard argument and determined that publication

of detailed reports of the suppression and CrR 3.5 hearings

would prejudice the defendant’s right to a fair trial and that

other alternatives to closure would be ineffective. While he

A-3

denied the motion to close the hearing, the judge, after

questioning the media representatives as to whether they were

familiar with the Bench-Bar-Press Guidelines and were willing

to abide by them, imposed as a condition to media attendance

the signing of an agreement to abide by the guidelines. Some

representatives accepted this condition, signed the form of

agreement provided by the prosecutor, and attended the hear-

ing. The petitioner, through its agent, refused to sign and also

refused to agree that its reporters would attend the hearing as

members of the public and not in their professio.al capacity.

Pursuant to the court’s ruling, representatives of the petitioner

and others who refused to sign left the court.

The petitioner inaugurated this proceeding to determine

the propriety of the order insofar as it excluded media repre-

sentatives unwilling to sign a commitment to abide by the

Bench-Bar-Press Guidelines.

The Compton case was tried in March, and we realize that

our opinion here will have no effect on those proceedings. '

However, since it appears that the question is one which is

likely to arise again and which will continue to evade review,

we have taken cognizance of the petition.

In ruling on the closure motion, the trial court had in mind

this court’s opinion in Federated Publications, Inc. v. Kurtz, 94

Wn.2d 51, 615 P.2d 440 (1980), where we held that Const. art.

1, § 10 bestows upon the public (including the media) a right

of access to certain judicial proceedings, including the pretrial

hearing. 2 That right, we said, must be balanced against the

1 In spite of the innovative precautions taken by the trial judge, he found

it necessary to impanel a jury from Pierce County to ameliorate the effects of

pretrial publicity.

2 The United States Supreme Court had previously held, in Gannett Co.

v. DePasquale, 443 U.S. 368, 61 L. Ed. 2d 608, 99 S. Ct. 2898 (1979),

construing the Sixth Amendment, that preliminary hearings may be closed to

the public and the media in order to protect the defendant's right to a fair trial

under the United States Constitution. It has since held, in a plurality and

concurring opinions in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

65 L. Ed. 2d 973, 100 S. Ct. 2814 ( 1980), that the public and the press have a

First and Fourteenth Amendment right to attend criminal ‘rials, absent an

overriding interest, articulated in findings.

A-4

right of a person accused of a crime to be tried by an impartial

jury free from outside influence. When the accused makes a

showing that there is a likelihood of prejudice to his con-

stitutional rights if the hearing is open to the public, and the

objectors, if any, propose no acceptable and practical alterna-

tive to closure, the court may order closure, after giving due

consideration to the interests of the accused and the public.

The crder “must be no broader in its application or duration

than necessary to serve its purpose”. 94 Wn.2d at 64.

Certain alternatives to closure had been proposed by the

petitioner in that case, which is the same publisher that is

petitioning here. Suggested were continuance, severance,

change of venue, change of venire, voir dire, peremptory

challenges, sequestration of the jury and admonitions to the

jury. Those alternatives all involved some compromise of a

right or interest of the accused or the State. None of the

suggested alternatives involved the exercise of some restraint on

the part of the media.

[1] A continuance, if it is to be effective to allay the

prejudice engendered by prejudicial publicity, will almost in-

variably delay the trial far beyond the time contemplated by

CrR 3.3, which is designed to protect not only the right of the

accused to a speedy trial but the interest of the public in seeing

that the administration of justice is expedited. It also com-

promises the constitutional right of the accused to have a

speedy trial (Const. art. | § 22). It is noteworthy that the

constitutional provision which declares that justice shall be

administered openly also prescribes that it shall be done

without unnecessary delay (Const. art. 1, § 10).

Severance is an available alternative only when the prej-

udicial publicity affects 2 codefendant. It may operate to the

disadvantage of the prosecution in presenting its case.

A change of venue requires the accused to give up the right

to be tried by a jury of the county where the offense was

committed (Const. art. 1, § 22; U.S. Const. amend. 6). A

change of venue entails inconvenience of witnesses, counsel and

the court itself, as well as members of the community who may

wish to attend the trial. It is obviously for the benefit of the

A-5

latter, as well as that of the defendant, that the constitutional

requirement of openly administered justice was intended.

[2] The right to trial by jury includes the right to an

unbiased and unprejudiced jury. State v. Stiltner, 80 Wn.2d 47,

491 P.2d 1043 (1971). It is unlikely that a mere change of

venire will produce a jury unexposed to the prejudicial publicity

if it has been circulated throughout the county, as is the case

here.

It is conceivable that by intensive voir dire, all prejudiced

jurors may be eliminated. However, trial judges are aware that

veniremen are loath to admit prejudice, or perhaps unable to

recognize it, and intensive voir dire is apt to put the juror on the

defensive and engender resentment toward the client of the

attorney who pursues it. It is also unfair that an accused should

be forced to use all or most of his peremptory challenges to rid

the jury of persons who have read or heard of the prejudicial

publications.

Sequestration is not a viable alternative if the hearings are

held before the trial jury has been impaneled, and one objective

of the hearings, to enable the parties to learn whether the

evidence will be admitted and to prepare their cases accord-

ingly, will be defeated if the hearing is not far enough in

advance of the trial to allow for such preparation. In addition,

under CrR 4.5, providing for the omnibus hearing, there are

other matters which need to be resolved prior to the trial, such

as the question whether there should be a pretrial conference.

Finally, jury admonitions may tend to focus the attention

of the jurors upon the objectionable material, rather than to

cleanse their minds of its effects.

The trial judge undoubtedly had these considerations in

mind when he found that publicity with respect to the evidence

considered at the suppression hearing would prejudice the

defendant’s right to a fair trial and that there was no feasible

alternative to complete closure, other than partial closure. No

error has been assigned to those findings, the only contention of

the petitioner being that it was beyond the power of the court to

exclude from the courtroom those members of the media,

A-6

appearing in their professional capacity, who refused to sign an

agreement to abide by the Bench-Bar-Press Guidelines.

The theory of the petitioner is that the requirement im-

posed by the lower court constituted a prior restraint of the kind

which was found unconstitutional in Nebraska Press Ass'n v.

Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976).

In that case, a state district judge had entered an order

restraining members of the Nebraska Press Association from

publishing or broadcasting accounts of confessions or admis-

sions made by the accused or facts “strongly implicative” of the

accused in a widely reported murder of six persons. The court

held that an order of that kind—one which prohibited the

publication or broadcast of particular information or com-

mentary—was a “previous” or “prior” restraint on speech and

came before the court with a “ ‘heavy presumption against [ its}

constitutional validity’ ”, as a consequence of which there was

imposed upon the lower court a heavy burden of showing

justification for the restraint. Nebraska Press Ass’n, at 545. The

test to be applied, the court said, was that which was articulated

by Judge Learned Hand in United States v. Dennis, 183 F.2d

201, 212 (2d Cir. 1950), aff'd, 341 U.S. 494, 95 L. Ed. 1137, 71

S. Ct. 857 (1951). The question is whether “the gravity of the

‘evil,’ discounted by its improbabiiity, justifies such invasion of

free speech as is necessary to avoid the danger.”

[3] We need not decide whether the circumstances of this

case meet that test, as we are convinced that the order of the

court did not involve a prior restraint upon the exercise of free

speech.? There was no prohibition of publication or other

communication of events which transpired in the courtroom.

The Supreme Court has recently held, in Gannett Co. v.

DePasquale, 443 U.S. 368, 61 L. Ed. 2d 608, 99 S. Ct. 2898

(1979), that in order to safeguard the due process rights of the

3 For the same reason, the case of State ex rel. Superior Court v. Sperry,

79 Wn.2d 69, 483 P.2d 608 (1971), is inapposite. There a court’s order

prohibited publication of evidence produced at trial, and this court held that

the order was invalid, because it was broader than was necessary to

accomplish its purpose of securing a fair trial for the defendant.

A-7

accused, a trial judge has an affirmative constitutional duty to

minimize the effects of prejudicial pretrial publicity, and he may

take protective measures even when they are not strictly and

inescapably necessary. A majority of the court, speaking

through Mr. Justice Stewart, said:

Publicity concerning pretrial suppression hear-

ings such as the one involved in the present case

poses special risks of unfairness. The whole purpose

of such hearings is to screen out unreliable or illegally

obtained evidence and insure that this evidence does

not become known to the jury. Cf. Jackson v. Denno,

378 U. S. 368. Publicity concerning the proceedings

at a pretrial hearing, however, could influence public

opinion against a defendant and inform potential

jurors of inculpatory information wholly inadmissible

at the actual trial.

DePasquale, at 378.

Because of the difficulty in determining the actual effects of

such publicity on the fairness of the trial, the majority said that

closure of pretrial proceedings is often one of the most effective

methods that a trial judge can employ to attempt to insure that

the fairness of a trial will not be jeopardized by the dis-

semination of such information throughout the community

before the trial itself has even begun.

It was there contended that the public, including the press,

had a right under the Sixth Amendment, which provides for an

open trial, to attend the hearing. That right, the opinion said,

was a right of the defendant alone, and nowhere in the

constitution or in the common law could there be found a right

on the part of the public to attend a pretrial hearing.

While this court has found a right of the public to attend a

pretrial hearing, under the language of Const. art. 1, § 10, that

right is qualified by the court’s right and duty to see that the

defendant has a fair trial. The court may order closure, if the

objectors fail to demonstrate the availability of some practical

alternative.

A-8

Here the court found that the only alternatives which could

conceivably be effective in protecting the defendant’s rights

were to either close the hearing or exact a commitment from the

members of the media to abide by the Bench-Bar-Press Guide-

lines.

The Bench-Bar-Press Guidelines, insofar as they are rele-

vant here, are set forth in the appendix to this opinion. They

are, by definition, not a set of rules but rather principles which

guide the courts, lawyers and court personnel, as well as the

media, in protecting the rights of an accused and other litigants

to a fair trial, while at the same time respecting and preserving

the freedoms of speech and press guaranteed by the state and

federal constitutions. Under their express provisions, they

honor the right of the news media to report what occurs in the

course of the judicial proceeding.

[4] As was pointed out by Justice Finley in his concurring

opinion in State ex rel. Superior Court v. Sperry, 79 Wn.2d 69,

483 P.2d 608 (1971), responsible exercise of constitutional

freedoms, with regard for the constitutional rights of accused

persons and other litigants, is the essence of the guidelines.

It is true that these guidelines suggest the exercise of

caution in reporting matters which may be damaging to the

right of an accused to a fair trial, at a time when that risk is

greatest—that is, prior to the trial. Ordinarily, members of the

media who have declared their adherence to the guidelines do

exercise restraint in such reporting, but it had been the ex-

perience of the trial judge here that mere oral commitment had

not sufficed to produce that restraint. He recognized that by

admitting members of the press to such a sensitive proceeding,

even upon their written agreement to be guided by these

standards, he was placing the defendant’s interests in some

jeopardy. Yet he was willing to try this method of securing

compliance, as an experiment, to see if it would be effective in

protecting the defendant while at the same time allowing the

public, including the media, to attend the hearing. As we view

this measure, it was a good faith attempt to accommodate the

interests of both defendant and press which, hopefully, would

prove both practical and effective as an alternative to closure.

A-9

The petitioner’s objection to the ruling is grounded upon its

fear that, should it publish reports of the hearing, it would be

subject to contempt proceedings. Whether the contempt power

of the court could in other circumstances properly extend to

punishment for alleged violation of an agreement to adhere to a

set of standards as nonobligatory as these is a question which

has not been briefed and which we need not decide. It would,

however, be contrary to the spirit and intent of the Bench-Bar-

Press Guidelines to invoke such a remedy for their alleged

violation, and the comments of the lower court in making its

ruling indicate that the court was in agreement with that

principle. It issued no orders prohibiting publication, nor did it

threaten any sanctions if a person signing an agreement to

abide by the guidelines should thereafter ignore them. Its

ruling was simply that any media member not willing to put his

moral commitment in writing would be excluded from the

hearing.

[5] Inasmuch as the court had the authority, under our

holding in Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51,

615 P.2d 440 ( 1980), to exclude all of the public, including the

media, it had also the included power to impose reasonable

conditions upon attendance. The exaction of an agreement to

abide by standards which have gained the approval of all of the

media of mass communications in this state was not unreason-

able, particularly in view of the fact that the commitment is a

moral one, even when expressed in writing, and not enforceable

in a court of law.

The procedure may not prove effective, and it may be that

in cases of this kind the rights of the defendant can be secured

only by closing the suppression and CrR 3.5 hearings; but it

would be a disservice to the public, as well as the media, to

declare that a lesser measure, as innocuous as that employed

here, is beyond the reach of a court attempting in good faith to

accommodate the rights of all concerned.

That reasonable limitations may be imposed upon attend-

ance at a judicial proceeding was recognized in Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 65 L. Ed. 2d 973,

A-10

100 S. Ct. 2814 (1980) (Mr. Justice White, concurring). In a

footnote at page 581, he said:

Just as a government may impose reasonable

time, place, and manner restrictions upon the use of

its streets in the interest of such objectives as the free

flow of traffic, see, e. g., Cox v. New Hampshire, 312

U.S. 569 (1941), so may a trial judge, in the interest

of the fair administration of justice, impose reason-

able limitations on access to a trial.

Our conclusion is that the limitation imposed here was a

reasonable one, and the petition is accordingly denied.

STAFFORD, Hicks, WILLIAMS, and Dore, JJ., concur.

A-11

APPENDIX

BENCH-BAR-PRESS

PRINCIPLES AND GUIDELINES

1974

PREAMBLE

The Bench, Bar and Press (comprising all media of mass

communications) of Washington:

(a) Recognize that freedom of news media is one of the

fundamental liberties guaranteed by the First Amendment of

the Constitution of the United States and that this basic

freedom must be zealously preserved and responsibility ex-

ercised.

(b) Are obliged to preserve the principle of the presump-

tion of innocence for those accused of a crime until there has

been a finding of guilt in an appropriate court of justice.

to acquire and impart information about their mutual interests.

The right to disseminate information should be exercised with

discretion when public disclosures might jeopardize the ends of

justice.

(d) Have the responsibility to support the free flow of

information, consistent with the principles of the Constitution

and this Preamble.

To promote a better understanding between the Bench and

Bar of Washington and the Washington News Media, particu-

larly in their efforts to reconcile the constitutional guarantee of

freedom of the press and the right to a fair, impartial trial, the

following statement of principles mutually drawn and sub-

mitted for voluntary compliance, is recommended to all mem-

bers of these professions in Washington.

A-12

PRINCIPLES

1. The News Media have the right and responsibility to

print the truth. A free and responsible news media enhances

the administration of justice. Members of the Bench and Bar

should, within their respective codes of conduct and profes-

sional responsibility, cooperate with the news media in the

reporting of the administration of justice.

2. Parties to litigation have the right to have their causes

tried fairly by an impartial tribunal. Defendants in criminal

cases are guaranteed this right by the Constitutions of the

United States and the various states.

3. No trial should be influenced by the pressure of

publicity from news media nor from public clamor, and lawyers

and journalists share the responsibility to prevent the creation

of such pressures.

4. All news media should strive for objectivity and

accuracy. The public has a right to be informed. The accused

has a right to be judged in an atmosphere free from undue

prejudice.

5. The news media recognizes the responsibility of the

judge to preserve order in the court and to seek the ends of

justice by all those means available to him.

6. Decisions about handling the news rest with editors, but

in the exercise of news judgments the editor should remember

that:

(a) An accused person is presumed innocent until

proven guilty.

(b) Readers and listeners and viewers are potential

jurors.

lessly.

7. The public is entitled to know how justice is being

administered. However, no lawyer should exploit any medium

of public information to enhance his side of a pending case. It

follows that the public prosecutor should avoid taking unfair

A-13

advantage of his position as an important source of news; this

shall not be construed to limit his obligation to make available

information to which the public is entitled.

8. Proper journalistic and legal training should include

instruction in the meaning of constitutional rights to a fair trial,

freedom of press, and the role of both journalist and lawyer in

guarding these rights.

GUIDELINES FOR THE REPORTING OF CRIMINAL PROCEEDINGS

The proper administration of justice is the responsibility of

the judiciary, bar, the prosecution, law enforcement personnel,

news media and the public. None should relinquish its share in

that responsibility or attempt to override or regulate the

judgment of the other. None should condone injustices on the

ground that they are infrequent.

The greatest news interest is usually engendered during the

pretrial stage of a criminal case. It is then that the maximum

attention is received and the greatest impact is made upon the

public mind. It is then that the greatest danger to a fair trial

occurs. The bench, the bar and the news media must ex:rcise

good judgment to balance the possible release of prejud.cial

information with the real public interest. However, these

considerations are not necessarily applicable once a jury has

been empaneled in a case. It is inherent in the concept of

freedom of the press that the news media be free to report what

occurs in public proceedings, such as criminal trials. In the

course of the trial it is the responsibility of the bench to take

appropriate measures to insure that the deliberations of the jury

are based upon what is presented to them in court.

These guidelines are proposed as a means of balancing the

public’s right to be informed with the accused’s right to a fair

trial before an impartial jury.

1. It is appropriate to make public the following informa-

tion concerning the defendant:

(a) The defendant’s name, age, residence, employ-

ment, marital status, and similar background information,

A-14

there should be no restraint on biographical facts other

than accuracy, good taste and judgment.

(b) The substance or text of the charge, such as

complaint, indictment, information or, where appropriate,

the identity of the complaining party.

agency and the length of the investigation.

(d) The circumstances immediately surrounding an

arrest, including the time and place of arrest, resistance,

pursuit, possession and use of weapons, and a description

of items seized at the time of arrest.

2. The release of certain types of information by law

enforcement personnel, the bench and bar and the publication

thereof by news media generally tends to create dangers of

prejudice without serving a significant law enforcement or

public interest function. Therefore, all concerned should be

aware of the dangers of prejudice in making pretrial public

disclosures of the following:

(a) Opinions about a defendant's character. his guilt

or innocence.

(b) Admissions, confessions or the contents of a

statement or alibis attributable to a defendant.

dures, such as fingerprints, polygraph examinations, ballis-

tic tests, or laboratory tests.

(d) Statements concerning the credibility or antici-

pated testimony of prospective witnesses.

(e) Opinions concerning evidence or argument in the

case, whether or not it is anticipated that such evidence or

argument will be used at trial.

Exceptions may be in order if information to the public is

essential to the apprehension of a suspect, or where other public

interests will be served.

A-15

3. Prior criminal charges and convictions are matters of

public record and are available to the news media through

police agencies or court clerks. Law enforcement agencies

should make such information available to the news media

after a legitimate inquiry. The public disclosure of this

information by the news media may be highly prejudicial

without any significant addition to the public’s need to be

informed. The publication of such information should be

carefully reviewed.

4. Law enforcement and court personnel should not pre-

vent the photographing of defendants when they are in public

places outside the courtroom. They should not encourage

pictures or televising nor should they pose the defendant.

5. Photographs of a suspect may be released by law

enforcement personnel provided a valid law enforcement

function is served thereby. It is proper to disclose such

information as may be necessary to enlist public assistance

in apprehending fugitives from justice. Such disclosure

may include photographs as well as records of prior arrests

and convictions.

6. The news media are free to report what occurs in

the course of the judicial proceeding itself. The bench

should utilize available measures, such as cautionary in-

structions, sequestration of the jury and the holding of

hearings on evidence after the empaneling of the jury, to

insure that the jury’s deliberations are based upon evi-

dence presented to them in court.

7. Is is improper for members of the bench-bar-news

media or law enforcement agencies to make available to

the public any statement or information for the purpose of

influencing the outcome of a criminal trial.

8. Sensationalism should be avoided by all persons

and agencies connected with the trial or reporting of a

criminal case.

A-16

Do .tiver, J. (dissenting)—The document Judge Swed-

berg required a member of the press to sign before being

admitted to the courtroom is as follows:

BENCH-BAR-PRESS

GUIDELINES For u

This form is for the use of all media representatives

planning to attend the hearing in State v. Veronica Lynn

Compton, Whatcom County Cause No. 80-1-00322-7, to be

held at 1:30 p.m. in Department No. 2 of the Whatcom County

Superior Court on the 19th day of December, 1980.

1. I have read the Bench-Bar-Press Guidelines of 1974,

which are attached to this form.

2. If I have not yet read the Bench-Bar-Press Guidelines

that are attached to this form, I shall do so before I report in

any manner on the hearing of the above-mentioned matter.

3. I agree to follow the Bench-Bar-Press Guidelines of 1974

in any reporting of the proceedings in the above-captioned

matter at the hearing scheduled on the 19th day of December,

1980, in Department No. 2 of the Whatcom County Superior

Court at 1:30 p.m.

4. As a representative of

I am authorized to bind my news agency to follow the Bench-

Bar-Press Guidelines.

DaTeD THIS day of December, 1980.

( Signature )

In Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51, 615

P.2d 440 (1980), the court held that under certain circum-

stances the public could be excluded from a pretrial suppression

hearing. The majority here indicates that if the court has the

authority to exclude, it certainly has “the included power to

impose reasonable conditions upon attendance.” Majority opin-

ion, at 22. Even if this is so—which I do not concede—it is not

A-17

a “reasonable condition” for admittance to a courtroom for a

judge to limit what a newspaper may print or a radio or

television station may broadcast. See State ex rel. Superior

Court v. Sperry, 79 Wn.2d 69, 483 P.2d 608 (1971). This

action by the court compelling certain action by the press before

it is allowed to exercise its First Amendment rights is prior

restraint. See State v. Allen, 73 N.J. 132, 373 A.2d 377 (1977);

Keene Publishing Corp. v. Cheshire County Superior Court, 119

N.H. 710, 406 A.2d 137 (1979). Before prior restraint can be

invoked by a court, there is, as the majority correctly notes, a

heavy burden on the trial court of showing justification for the

restraint. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 49 L.

Ed. 2d 683, 96 S. Ct. 2791 (1976).

Whether this case is characterized as a Federated Publica-

tions, Inc. v. Kurtz case as does the majority, or a prior restraint

case, as I believe is correct, the burden for closure of the

courtroom or prior restraint was not met by the trial judge.

There is no question but that the Compton case generated

considerable local interest and received and would continue to

receive substantial news coverage. However, there is nothing in

the record, nor an allegation or showing to the trial judge, that

any of the news coverage of the case had been or was likely to

become sensational in nature or that anything had been

published in violation of the Bench-Bar-Press Guidelines.

Even the majority seems to be aware that there is no

factual basis for the trial judge’s ruling:

The trial judge undoubtedly had these consid-

erations in mind [those considerations spelled out by

the majority, but not by the trial judge] when he

found that publicity with respect to the evidence

considered at the suppression hearing would prej-

udice the defendant's right to a fair trial and that

there was no feasible alternative to complete closure,

other than partial closure.

Assuming this is a closure case, what are the standards

which must be met by the trial court? The guidelines are set out

A-18

in Federated Publications, Inc. v. Kurtz, supra at 62-65. Guide-

line 4 is particularly in point:

The court must weigh the competing interests of

the defendant and the public. In the present case, the

court, in granting the closure motion, entered findings

which detailed the prejudicial nature of the evidence

sought to be suppressed, by prior publication of

damaging ballistics evidence (which resulted in the

change of venue), and the fact of Herald circulation

in Skagit County. In their arguments in support of

the closure motion, both the prosecuting attorney and

defense counsel emphasized to the court their recog-

nition of the need for public dissemination of infor-

mation along with their fear that an impartial jury

could not be found if the suppression hearing testi-

mony were published. In our view, the trial judge

gave due consideration to both sides before he made

his ruling.

Federated Publications, at 64.

A review of the record in Federated Publications shows

there were extensive and detailed findings of fact, plus attached

exhibits which enabled the trial court to engage in the required

“weigh[ing of] the competing interests of the defendant and

the public.” Federated Publications, at 66.

In the case before us, there was the following: (1) In its

oral opinion, the trial court made the conclusory statements that

the likelihood of jeopardy to a fair trial is over-

whelmingly established . . . [T]he usual methods to

protect a fair trial such as voir dire, peremptory

challenges and others is not an adequate safeguard.

(2) The only other relevant document is the “Order on

Omnibus Motions” which reads in its entirety:

Tuts MATTER having come on regularly before

the above-entitled Court on the 19th day of Decem-

ber, 1980, and the defendant, VERONICA LYNN Com-

PTON, being personally present, and represented by

A-19

her attorney, WILLIAM JOHNSTON, and the State of

Washington being represented by Davin S.

MCEACHRAN, Prosecuting Attorney in and for What-

com County, State of Washington, and the Court

having heard argument of counsel, and being fully

advised in the premises, now, therefore,

It Is HEREBY ORDERED, ADJUDGED AND DECREED

that the defendant’s motion to continue the trial in

the above-captioned matter shall be and is hereby

granted, and the trial shall be set for March 9

through March 20, 1981, in Department No. 2 of the

above-entitled Court.

It Is FURTHER ORDERED, ADJUDGED AND De-

CREED that the defendant’s motion to obtain certified

copies of a search warrant, affidavit, and return shall

be and is hereby granted.

It Is HEREBY ORDERED, ADJUDGED AND DECREED

that the laws of the State of Washington shall apply

to the search and seizure of items in the defendant’s

residence in the State of California, and also to any

statements the defendant made to police officers in

the State of California.

It Is HEREBY ORDERED, ADJUDGED AND DECREED

that the defendant’s motion to reduce the bail set in

this matter shall be and is hereby denied.

It Is HEREBY ORDERED, ADJUDGED AND DECREED

that the defendant's motion for closure of the pre-

trial hearing relating to statements made by defend-

ant and testimony argument relating to the motion to

suppress shall be and is hereby denied, pursuant to

the following restrictions:

1. Representatives of the news media shall

be allowed to attend this hearing if they sign a

form indicating that they have read and under-

stand the Bench-Bar-Press Guidelines of 1974,

and will follow those guidelines in reporting on

the hearing in this case.

A-20

2. Those representatives of the news media

who will not agree to signing such a form shall

not be permitted to attend this hearing.

These statements and order by the trial court do not even

come close to meeting our requirements in Federated Publica-

tions, Inc. v. Kurtz, supra, for the closure of a courtroom in a

suppression hearing. Much less do they meet the standards of

the United States Supreme Court for prior restraint as arti-

culated in the Nebraska Press Ass'n case. See Keene Publishing

Corp v. Cheshire County Superior Court, supra. This court

should not allow the great freedoms of the First Amendment

and Const. art. 1, § 10 to be traduced in this manner.

While I believe on the merits the plaintiff should prevail,

my preference for disposition of this case would be to declare

the entire matter moot. As is pointed out by the majority, the

trial in question has been held so what we say here will be

meaningless in that context. As to the contention that this is a

dispute “capable of repetition, yet evading review” (see Neb-

raska Press Ass'n v. Stuart, supra at 546), 1 doubt that this is so.

Rather, I prefer to believe that an atmosphere of mutual regard

for the right of access to courtrooms, the right of free speech

and the rights of defendant may have developed in Whatcom

County, and that we would better serve that county and its

citizens, as well as those in other counties, by refusing to decide

a case that need not be decided.

I dissent.

BRACHTENBAC 4, C.J., and Utter and Dimmick, JJ., concur

with Do.tiver, J.

A-21

THE SUPREME COURT OF WASHINGTON

No. 47453-2

FEDERATED PUBLICATIONS, INC.,

Petitioner,

Vv.

Byron L. SWEDBERG, as Judge

of the Superior Court for Whatcom County,

Respondent.

ORDER

Denying Motion for Reconsideration

The Court having decided by majority vote that the

petitioner’s motion for reconsideration should be denied.

It is ordered that the motion be and it hereby is denied.

Dated this 24th day of December, 1981.

RosBert F. BRACHTENBACH

Chief Justice

A-22

Listing of Parents, Subsidiaries and Affiliates in com-

pliance with Rule 28.1 of the Supreme Court

State of

Name of Corporation Incorporation

ADS Holdings Inc. Delaware

Applied Display Services, Inc. Delaware

Binghamton Press Company, Inc. New York

California Newspapers, Inc. California

Cape Publications, Inc. Florida

Chillicothe Newspapers Inc. Ohio

The Cincinnati Enquirer, Inc. Ohio

Citizen Publishing Company Arizona

The Coffeyville Publishing Company, Inc. Kansas

Combined Communications Corporation Arizona

Combined Communications Corporation

of Kentucky, Inc. Arizona

Combined Communications Corporation

of Oklahoma, Inc. Oklahoma

Courier-News Co. New Jersey

Daily News Publishing Co., Inc. Virgin Islands

E! Paso Times, Inc. Delaware

Eleven-Fifty Corporation Delaware

Eller Electric Sign Co. Arizona

Elmira Star-Gazette, Inc. New York

Empire Nevada, Inc. Nevada

Equitable Publishing Company Pennsylvania

Fairpress, Inc. Delaware

Federated Publications, Inc. Delaware

Fort Collins Newspapers Inc. Colorado

The Fremont Messenger Company Ohio

Fremont Newspapers Inc. Nebraska

Gannett Co., Inc. Delaware

Gannett Community Television, Inc. Delaware

Gannett Edmonton Corp. New York

A-23

Name of Corporation

Gannett El Diario Subsidiary, Inc.

Gannett Florida Broadcasting, Inc.

Gannett Florida Corporation

Gannett Lansdale Subsidiary, Inc.

Gannett Nevada Supply Corporation

Gannett News Service, Inc.

Gannett Newspaper Advertising Sales, Inc.

Gannett Norwich Subsidiary, Inc.

Gannett Outdoor Co. of Arizona

Gannett Outdoor Co. of Connecticut

Gannett Outdoor Co. of Kansas City

Gannett Outdoor Co. of Michigan

Gannett Outdoor Co., Inc. of New Jersey

Gannett Outdoor Co., Inc. of Northern

California

Gannett Outdoor Co., Inc. of Southern

California

Gannett Outdoor Co. of Texas

Gannett Outdoor Sales Co., Inc.

Gannett Pacific Corporation

Gannett Reno Supply Corporation

Gannett Sampler Subsidiary, Inc.

Gannett Satellite Information Network, Inc.

Gannett Supply Corporation

Gateway Productions, Inc.

Globe Broadcasting Co.

Green Bay Newspapers Company

Green Bay Publishing Co., Inc.

Guam Publications, Incorporated

Hawaii Newspaper Agency, Inc.

Louis Harris International, Inc.

Huntington Publishing Company

A-24

Name of Corporation

Ithaca Journal-News, Inc.

Knoxville Journal Corporation

KPNX Broadcasting Company

Laser Graphic Systems Corporation

McClure Newspapers, Inc.

Mediacom, Inc.

Mediacom Industries, Inc.

Ministage, Inc.

National Research Center of The Arts, Inc.

The New Mexican, Inc.

New Tennessean, Inc.

News-Press Publishing Company

News Printing Company

Newspaper Printing Corporation

Newspaper Production Company

Newspaper Realty Company

Niagara Falls Gazette Publishing Corporation

Northwestern Publishing Company

Oakland Tribune, Inc.

Oklahoma Press Publishing Company

PIA Merchandising Co.

Pacific Media Inc.

Pacific and Southern Company, Inc.

Palladium Publishing Corporation

Pensacola News-Journal Inc.

Poughkeepsie Newspapers Inc.

Press-Citizen Company Inc.

Record-Herald, Inc.

Reno Newspapers, Inc.

Rockford Newspapers, Inc.

Delaware

Canada

Oklahoma

California

Delaware

Indiana

Florida

Delaware

New York

lowa

Wisconsin

Nevada

Delaware

Romo, Inc.

A-25

Name of Corporation

Salem County Sampler, Inc.

Salinas Newspapers Inc.

The Saratogian, Inc.

Seminole Citizen News, Inc.

Sioux Falls Newspapers Inc.

Southern New Jersey Newspapers Inc.

Southland Publishing Company

Speidel Newspapers Inc.

Springair, Inc.

Springfield Newspapers, Incorporated

St. Cloud Newspapers Inc.

The Statesman-Journal Company

Stockton Newspapers Inc.

The Sturgis Journal, Inc.

The Suburban Newspaper Group

The Sun Company of San Bernardino, California

Tennessean Newspapers, Inc.

Tennessee Continental Corporation

The Times Company

The Times-Herald Company

The Times Publishing Company, Limited

Trucking, Incorporated

Tucson Newspapers, Inc.

United Advertising Corporation

Utica Observer-Dispatch, Inc.

Valley of The Sun, Inc.

Visalia Newspapers Inc.

Westchester Rockland Newspapers, Inc.

WPTA-TV, Inc.

“UoM'sodd

Office Court, U

FILED

APR 29 1982

NO. 8 1 3 1 769 ALEXANDER L. STEVAS.

IN THE ,

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1981

Federated Publications, Inc.,

Petitioner,

Vv.

Honorable Byron L. Swedberg,

Respondent.

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

KENNETH O. EIKENBERRY

Attorney General

KEVIN M. RYAN

Assistant Attorney General

Temple of Justice

Olympia, Washington 98504

(206) 753-2693

Counsel for Respondent

INDEX

QUESTIONS PRESENTED ....+ «

STATEMENT OF THE CASE .... +

REASONS FOR DENYING WRIT ...

I. This Matter is not

Appropriate for Certiorari

Review by this Court ....

A. The Facts of the Case

and the Action of the

Trial Judge are Peculiar

GO Gee Geee w+ se«es

B. The Decision of the

Court Below is Consistent

with Federal Law and is

not in Conflict with any

Prior Decisions of this

Court or a Federal Court

Of Appeals ...+4+6s

II. The Decision of the

Trial Judge Reauiring

Members of the Media to

Promise to Abide by Bench-

Bar-Press Guidelines Prior

to Attending the Pretrial

Criminal Proceeding, did not

Constitute a Prior Restraint

on their First Amendment

PeOeGeee « « 0 64 0 eet

III. The Trial Judge's

Requirement for an Agreement

from Media Members Attending

the Pretrial Hearing was not

an Unconstitutional Condi-

tion on the Exercise of a

Constitutional Right .....

IV. The Request by the Court

for a Promise was Reasonable

Under the Circumstances and

did not Control the Content

of Any Publications by the

Med ia a . 7. . > . + 7 . > >.

V. The Conditional Admittance

of the Media to the Proceed-

ings was not a Denial of

Equal Protection ....++s-s

CONC LUS I ON 7 . * * > . . . . . *

-ii

CITATIONS

Adderly v. Florida, 385 U.S.

39 966) . t . . . . * + . .

Cohen v. Everett City Council,

85 Wn.2d 385, 535 P.2d

801 (1975) . . . . . . . . .

Federated Publications, Inc. v.

Kurtz, 94 Wn.2d 51, 615

P.2d 440 (1980) ...1, 9, 16,

Federated Publications, Inc. v.

Swedberg, 96 Wn.2d 13, 633

P.26 74 (1981) «. Se 6, Ail,

Gannett Co. v., DePasquale,

443 U.S. 368, 61 L.Ed.2d

608, 99 S.Ct.

2898 (1979) . .. . 8, 18, 20,

Nebraska Press Association v.

Stuart, 427 U.S. 539, 49

L.Ed.2d 683, 96 S.Ct. 2791

C3976) «© «@ «6 6 @ «@ o 6 oS,

Perry v. Sindermann, 408 U.S.

59 (1972) - + . - . * 7 > ”

Police Department of Chicago

v. Mosely, 409 U.S. 92

(1972) > ae Bay . . . . .

Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555

(1980) . . . ae . . . . . ”

. iii

12,

23,

14,

21,

10,

Seattle Times v. Ishikawa,

97 Wn.2d 30, 640 P.2d

pe BEC Se Ur

Speiser v. Randall, 357

U.S. 513 (1958)... .

United States ex rel.

Bruno v. Herald, 408

F.2d 125 (2nd Cir. 1969)

United States ex rel.

Smallwood v. Lavalle,

377 F.Supp. 1148 (E.D.

N.Y. 1974) . . . . + .

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

No, 81-1769

Federated Publications, Inc.,

Petitioner,

Honorable Byron L. Swedberg,

Respondent.

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

QUESTIONS PRESENTED

1. As an alternative to full

closure of a pretrial criminal

proceeding, may the trial judge

constitutionally require a media member

before entering the courtroom to sign

an agreement to follow Bench-Bar-Press

Guidelines in reporting on the subject

matter of the hearing they attend?

2. May a trial judge condition

admission to a pretrial criminal

proceeding on a promise by a media

member to observe state Bench-Bar-Press

Guidelines?

3. Is a court imposed requirement

that the press agree to follow these

guidelines in reporting on a pretrial

criminal hearing a “reasonable

limitation on access” to a pretrial

criminal proceeding?

4. May a trial judge, consistent

with the Pirst and Fourteenth

Amendments, conditionally admit members

of the press to a pretrial criminal

proceeding while allowing members of

the public to attend without condition.

STATEMENT OF THE CASE

The respondent, Judge Swedberg,

fundamentally agrees with the

petitioner's statement of the case with

the exception of its statement on page

4 of the petition that the

Bench-Bar-Press Guidelines form was

prepared by the trial judge. In fact,

the form was prepared by the county

prosecutor at the request of the judge.

In addition to the statement

offered by the petitioner, Judge

Swedberg would add the following:

At the time the matter in issue

came before the trial court, there had

already been considerable media

interest manifested in the proceedings

and the court determined that a

detailed publication of the matters to

be elicited during the hearing would

have created a substantial danger to

the defendant's right to a fair trial.

Cther methods of protecting this right,

less than severe than closure, had been

examined by the court and found

wanting. In addition, Federated

Publications, Inc., doing business as

the Bellingham Herald, which was

represented by an attorney before the

court on the question of closure, was a

newspaper well known to the bench of

Whatcom County, Washington. The

newspaper had recently been involved in

reporting a notorious murder case in

the County and, in the process, in the

view of the presiding judge in that

: case, had repeatedly violated the

Bench-Bar-Press Guidelines. Federated

Publications, Inc. v. Kurtz, 615 P.2d

440, 446-47, 94 Wn.2d 51, 63 (1980).

REASONS FOR DENYING WRIT

I. This Matter is not Appropriate

for Certiorari Review by this Court.

A. The Facts of the Case and

the Action of the Trial Judge

are Peculiar to this Case.

In analyzing the action of the

trial court, the Supreme Court of

Washington recognized that Judge

Swedberg was wrestling with the need to

protect the accused's fair trial right

and the requirement of the Washington

State Constitution, Article I, § 10 to

generally permit the public to attend

judicial proceedings. Federated

Publications, Inc. v. Swedberg, 96

Wn.2d 13, 20, 633 P.2d 74, 77 (1981)

(Petition for Cert., p. A-7). Given

this judicial prejudice against closure

of court proceedings, Judge Swedberg

might well have denied both the defense

and prosecution motion for closure but

for his previous experience with oral

commitments from the media. As the

State Supreme Court recognized:

". . « Ordinarily, members of

the media who have declared

their adherence to the

guidelines do exercise

restraint in such reporting,

but it had been the

experience of the trial judge

here that mere oral

commitment had not sufficed

to produce that restraint.

He recognized that by

admitting members of the

press to such a sensitive

proceeding, even upon their

written agreement to be

guided by these standards, he

was placing the defendant's

interest in some jeopardy.

Yet he was willing to try

this method of securing

compliance, as an experiment,

to see if it would be

effective in protecting the

defendant while at the same

time allowing the public,

including the media, to

attend the hearing. .. ."

78 (Petition for Cert.,

Pp- A-8).

This is a salient consideration

which the State Supreme Court relied

upon in part in sustaining the trial

judge's actions. Thus, it would seem

that the unigue circumstances

confronting the trial judge in this

case, given the experience of the

Whatcom County bench with the

Bellingham Herald resulting in a State

Supreme Court decision and the State

Constitutional provisions guaranteeing

open court proceedings, would be

unlikely to reoccur on any predictable

basis in the future.

B. The Decision of the Court

Below is Consistent with

Conflict with any Prior

Federal Court of Appeals.

In reaching its decision, the

court below analyzed the matter

substantially as follows. The question

of media coverage arose in connection

with the pretrial criminal hearing.

The need to exercise caution in

reporting matters which may be damaging

to the accused's right to fair trial is

most accute during that pretrial

period. This tenet is fundamental to

the Bench-Bar-Press Guidelines observed

in this state. See Petition for Cert.,

pp. A-13 and A-14. Gannett

Co. v. DePasquale, 443 U.S. 368, 61

L.Ed.2d 608, 99 S.Ct. 2898 (1979)

recognizes the affirmative

constitutional duty of the trial judge

to minimize the effects of prejudicial

pretrial publicity and his

responsibility to take protective

measures even when they are not

Strictly or inescapably necessary.

Article I, § 10 of the Constitution of

the State of Washington provides that:

"Justice in all cases shall

be administered openly, and

without uneccessary delay."

This requirement must be tempered by

the right of the accused to receive a

fair trial by an impartial jury.

Finally, the United States Supreme

Court had not expressly ruled that the

press has an absolute First Amendment

right to attend all court proceedings

regardless of the consequences tc a

defendant's fair trial right. The

Washington Supreme Court had held that

the State constitutional requirement

for open proceedings was not absolute

and would yield to the defendant's

right to an impartial jury. Federated

supra; cf., Seattle Times v. Ishikawa,

97 Wn.2d 30, 640 P.2d 716 (1982), Dore,

J., concurring. Finally, in Richmond

Newspapers, Inc. v. Virginia, 448

U.S. 555 (1980) the Supreme Court did

recognize that reasonable limitations

may be imposed upon the attendance at

judicial proceedings.

Reasoning thus, the court below

reached a decision that is fully

consistent with existing federal and

state law.

II. The Decision of the Trial

Judge Requiring Members of the Media to

romise to Abide Bench-Bar-Press

Guidelines Prior to Attending the

Pretrial Criminal Proceeding, not

Constitute a Prior Restraint on their

First Amendment Freedoms.

Throughout the petition, Federated

Publications, Inc. implicitly but

persistently, characterized Judge

Swedberg's order as a manifestation of

legal tyranny by dictating to the press

what it must or must not print. It,

therefore, analogizes Judge Swedberg's

ruling to the order condemned in

Nebraska Press Association v. Stuart,

427 U.S. 539, 49 L.Ed.2d 683, 96

S.Ct. 2791 (1976). In that case, the

state district court judge flatly

prohibited members of the Nebraska

Press Association from publishing or

broadcasting any accounts of

confessions or admissions made by the

accused in the case or any other facts

which strongly implicated the accused

with the murder of six persons.

In thie case, Judge Swedberg made

no. such order. The Washington Supreme

Court found that:

",. . « the order of the

court did not involve a prior

restraint upon the exercise

of free speech. There was no

prohibition of publication or

other communication of events

which transpired in the

courtroom." reostases

Publiecat baste’ ns

p- A-6). .

This conclusion is dictated by the

nature of the Guidelines themselves:

"They are, by definition, not

a set of rules but rather

principles which guide the

courts, lawyers and court

personnel, as well as the

media, in protecting the

rights of an accused and

other litigants to a fair

trial, while at the same time

respecting and preserving the

freedoms of speech and press

guaranteed by the state and

federal constitutions. Under

their express provisions,

they honor the right of the

news media to report what

occurs in the course of a

Inc. v. Swedberg, at 77,

(Petition for Cert., p. A-8).

Federated Publications, Inc. takes

some pains to raise the specter of a

potential contempt proceeding sisal

itself or other similarly situated

media groups should it breach ite

reporter's promise to follow the

guidelines and print something that

some court may think is inconsistent

with those guidelines. In truth, there

would be no basis for such an

apprehension, if indeed it existed.

First, the trial which gave rise to the

matter is long over and thus there

could not be any possibility of

contempt citations in this case now.

Secondly, the State Supreme Court

clearly indicated that contempt

proceedings for a breach of any

agreement of the type sought by Judge

Swedberg would be totally inappropriate

and could not be sustained.

". . « It would, however, be

contrary to the spirit and

intent of the Bench-Bar-Press

Guidelines to invoke such a

remedy for their alleged

violation, and the comments

of the lewer court in making

its ruling indicate that the

court was in agreement with

that principle. It issued no

orders prohibiting

publication, nor did it

threaten any sanctions if a

person signing an agreement

to abide by the guidelines

should thereafter ignore

them. Its ruling was simply

that any media member not

willing to put his moral

commitment in writing would

be excluded from the

hearing." Ibid., 633 P.2d at

77 (Petition for Cert.,

Pp- A-9).

The contrast between this case and

Stuart is clear. There was an order in

the Stuart case prohibitin™ certain

publications and the order was made

during the trial of the case. Here

there was simply a ruling by the court

that closure would be denied but that

interested media would have to make an

appropriate promise to observe

Bench-Bar-Press Guidelines which are

not rules, but principles, and which do

not actually prohibit any publication.

This court should note that we are here

concerned with a critical stage in a

criminal proceeding and that these

Guidelines are oriented primarily

towards those pretrial proceedings. It

is their primary purpose to encourage

restraint particulariy during the

pretrial stage of a criminal case so

that the public's right to be informed

might properly be balanced with the

accused's rages to a fair trial before

an impartial jury.

Petitioner sets up a parade of

horrors if this court allows the

@scision below to ravage the First

Amendment by suppressing the press and

by submitting reporters to intimidation

by inguisition. Petition for Cert.,

pe L1. If there is any clear

consequence of the media ignoring the

goals of the Guidelines, it is that of

closure of the pretrial proceedings

such as the closure which flowed from

the alleged practices of the petitioner

in an earlier case in the same county.

Federated Publications, Inc. v. Kurtz,

Supra.

Frankly, petitioner overstates the

circumstances. To give flesh to its

"prior costenint® argument, it suggests

that it has bea> abused by an

overbearing and tyrannical judge who

has forbidden it under pain of

uncertain punishment to publish as it

chooses. (Petition for Cert., p 14).

Yet it shows no concern that the total

unfettered discretion it seeks may have

had serious consequences for the deadly

earnest business of a trial for

attempted murder. The trial court

could not have been so singleminded.

The petitioner claims to have been

unceremoniously excluded from these

legal proceedings, the attendance at

and the publication of which is an

unmutable right of its calling.

(Petition for Cert., p. 15-16).

Surely, its wounds would have been all

the more severe had the court taken the

only other alternative open to it in

view of its findings, that of closure

of the proceedings entirely.

After considering all of his

alternatives, the trial judge found

that publicity with respect to the

evidence to be considered at the

suppression hearing would prejudice the

defendant's right to a fair trial and

that there was no feasible alternative

to complete closure. The petitioner

assigns no error to those findings.

However, instead of taking the simple,

but sure, course open to the court in

the light of the decisions of the

U.S. Supreme Court in Gannett and the

State Supreme Court in Kurtz, the judge

attempted a more discriminating course

which placed his faith and the possible

fate of the accused in the goodwill and

responsibility of the media. Instead

of this condemnation, the judge should

be commended for his efforts to keep

the hearing open.

Iii. The _ Trial Judge's

pequirement for an Agreement from Media

embers Attending the Pretrial Hearing

was not an Unconstitutional Condition

on the Exercise of a Constitutional

Right.

The petitioner suggests that the

Court has imposed a condition upon

attendance at the |

trial proceedings.

The condition, it says, was that the

media could not attend unless they

published what the Court wished.

Petition for Cert., p. 14. This, it

says, was to penalize members of the

press who do not agree with the Court.

Petition for Cert., p. 14. Surely, the

petitioner cai tiet be serious. This

case has nothing in common with the

likes of Speiser v. Randall, 357

U.S. 513 (1958) or Perry v. Sindermann,

408 U.S. 593 (1972). It is no

consequence to the judge in any

personal sense what the petitioner may

Or may not publish. However, it is the

Court's clear constitutional duty to

assure that the defendant in a criminal

trial has a fair hearing before an

impartial jury. A judge is dutybound

to see that those constitutional

guarantees are preserved to the

defendant even it is means restrictions

on the media or the public. It is on

that basis that closure was authorized

in Gannett. Here, the trial judge was

simply trying to fashion a remedy less

severe than closure that would allow

media attendance. The “condition” of

the agreement could not have been

enforced in any way. Therefore, had

the media not responded to the

opportunity, the Court would have had

to take the more drastic measure of

full closure of the proceedings.

This does not impose an

unconstitutional condition on the

exercise of a constitutional right.

The “condition” was essentially an

appeal to professional media ethics and

was rationally connected to the

preservation of another constitutional

right.

Circumstances and did not Control the

Content of Any Publications by the

Media.

Petitioner has argued that the

Constitution prohibits limitations on

access to public places, to include

courtrooms, except with respect to the

time, place and manner of access.

Petition for Cert., p. 16, et seq. That

is, the restrictions that may be

imposed on access Cannot have any

relationship to the content of the

"speech" that might occur as a result

of the access. That seems generally to

be true in cases where there is no

significant competing constitutional

consideration. See Adderly v. Florida,

385 U.S. 39 (1966) and Police

Department of Chicago v. Mosely, 409

U.S. 92 (1972). Again, the cases cited

by the petitioner in note 13, p. 18 of

its Petition, Nebraska Press

Association, supra; United States ex

rel. Bruno v. Herald, 408 F.2d 125 (2nd

F.Supp. 1148 (E.D.N.Y¥Y. 1974), all

involved restrictions or closures to

protect some interest other than that

of the accused's right to a fair trial

and they all involved trial proceedings

as opposed to pretrial proceedings.

That is the telling distinction

between those cases and the one at

hand. If a trial court, under proper

circumstances, cannot prohibit access

to certain pretrial criminal

proceedings, there will be situations

in which an accused will not be able to

effectively obtain a trial by an

impartial jury.

Petitioner complains that a court

cannot control the content of

publications. Closure of pretrial

proceedings is the ultimate control

over content and is permissible

(Gannett v. DePasguale, supra) but

cliosure is not a preferred alternative.

Therefore, a trial judge should be

encouraged to find a mechanism short of

closure which still does not operate as

a “prior restraint.” That mechanism

here at least was to be the conscience

and responsibility of the media which

attended the proceeding. The

mechanisms may be somewhat different in

another situation. Because the trial

court could not totally ignore the

possibility that the media might report

material damaging to the defendant's

right to an impartial jury, some action

seemed necessary. The court chose the

less intrusive device of seeking a

promise to observe the principles of

the voluntary guidelines which do not

actually prohibit publication or other

communication of events in the

courtroom. Petitioner argues that

Judge Swedberg's ruling was a “content

sensitive limitation on access" and can

not be preferred to closure. Petition

for Cert., pp. 20-21. Still they offer

no alternatives. Since the petitioner

chose not to challenge the findings of

the trial court with the respect to the

adequacy of other measures to protect

the accused's right to an impartial

jury, it is inappropriate for it to do

so now in a petition for writ of

certiorari.

V. The Conditional Admittance of

the Media to the Proceedings was not a

Denial of Equa rotection.

The State of Washington recognizes

an equal right of the press and the

public to access to court proceedings.

Article I, § 10, Constitution of the

State of Washington; Cohen v. Everett

City Council, 85 Wn.2d 385, 535 P.2d

801 (1975). However this right of

access is not absolute, particularly

when restrictions need to be imposed to

protect the defendant's right to a fair

trial. Gannett v. DePasgquale, supra,

Inc. v. Kurtz, supra. It is true that

the equal protection clause of the

Fourteenth Amendment requires that all

persons be treated substantially alike

by government. However, it is also

well established that classifications may be

set up and different individuals

treated differently when those

classifications are reasonably

necessary to advance a significant

governmental interest. Police

Department of Chicago v. Mosely, supra.

To the extent that Judge

Swedberg's ruling imposed a true

restriction on the media, and not upon

other members of the public, there is a

recognition of the media's potential to

impact adversely the processes of

justice. It is entirely appropriate

for the press to act as the surrogate

for the public in observing court

proceedings as indicated in Richmond

Newspapers v. Virginia, Supra, but in

so doing they have no more right to

Xeopardize the defendant's fair trial

rights than any other member of the

public might have. However, they do

have the power and the opportunity to

Go it more effectively. If the

petitioner is asking that a court

ignore this fact and not respond to it,

they are asking more than reason and

experience would allow. To distinguish

between media representative and the

general public in this context is

certainly reasonable and necessary if

an effective response is to be

fashioned.

CONCLUSION

For these reasons, a writ of

certiorari should not be issued to

review the judgment and opinion of the

Washington Supreme Court.

Respectfully submitted,

KENNETH O. EIKENBERRY

Attorney General

KEVIN M. RYAN

Assistant Attorney General

Attorneys for Respondent

.28

jauig Alday

$ AUONNEd

No. 81-1769

In THE

Supreme Court of the Wnited States

Ocroser Term, 1981

FEDERATED PUBLICATIONS, INC.,

Petitioner,

HONORABLE Byron L. SWEDBERG,

Respondent.

PETITIONER’S REPLY BRIEF

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

Of Counsel: P. CAMERON DeVore

Davis, Waicut, Topp, Riese & Jones

MARSHALL J. NELSON 4200 Seattle-First National Bank

Dante. M. WAGGONER Building

Seattle, Washington 98154

Counsel of Record for Petitioner

PAMDICK PRESS, WASHINGTON— 1801 M. OAK STREET, ARLINGTON, VA 22208— (703) 622-0888

This Matter is Particularly Appropriate for Cer-

tiorari Review by This Court oe

The Purpose and Effect of the Order Was to

Impose a Prior Restraint

The Response Fails to Respond to the Other

Contentions of the Petition

Conclusion

CITATIONS

CASES:

Pell v. Procunier, 417 U.S. 817 (1974)

Edward A. Sherman Publishing Co. v. Goldberg, No.

80-543-M.P. (R.L. Apr. 13, 1982)

Estes v. Texas, 381 U.S. 532 (1965)

Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51,

615 P.2d 440 (1980)

Federated Publications, Inc. v. Swedberg, 96 Wn.2d

13, 633 P.2d 74 (1981)

Gannett Co. v. DePasquale, 443 U.S. 368 (1979) .......

Keene Publishing v. Cheshire rr Superior Court,

119 N.H. 710, 406 A.2d 137 (1979)

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

241 (1974)

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

(1976), 423 U.S. 1319 (1975)

Oklahoma Publishing Co. v. District Court, 430 U.S.

308 (1977)

Oliver v. Postel, 30 N.Y.2d 71 (1972)

Poitein reese of Chicago v. Mosley, 408 U.S. 92

Riioel) Newspapers, Inc. v. Virginia, 448 U.S. 580

Sacramento Bee v. District Court, 656 F.2d 477 (9th

Cir. 1981), pet. for cert. filed, 50 U.S.L.W. 3717

(1982)

San Juan Star, 662 F.2d 108 ( ist Cir. 1981 )...............

ari Oana 194 Neb. 873, 236 N.W.2d 794

6,8

No. 81-1769

In THE

Supreme Court of the United States

Octoser Term, 1981

FEDERATED PUBLICATIONS, INC.,

Petitioner,

Vv.

HONORABLE Byron L. SWEDBERG,

Respondent.

PETITIONER’S REPLY BRIEF

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

The Response to the Petition for Writ of Certiorari (“Re-

sponse”) proceeds from the same fallacy that led to error in the

decision below, i.e., that the power to control access to a judicial

proceeding is the same as the power to dictate the manner in

which that proceeding shall be reported. As a result, it relies on

cases involving access to courtrooms and offers no attempt to

overcome the heavy presumption against prior restraints. The

judicial order sanctioned by the decision below undoubtedly

did tell the press what it may and may not publish; this

fundamental fact has not been and cannot be rebutted by the

Response.'

1 The listing of affiliates and subsidiaries required by Supreme Court

Rule 28.1 is found in the Appendix to the Petition for Certiorari at A-22

through A-25.

I. This Matter is Particularly Appropriate for Certiorari

Review by this Court.

The Response reflects the very soubuten that requires

resolution by this Court. It focuses on cases establishing the

power of trial courts to control access to hearings 2 and argues

that this power includes the power to impose a “less severe”

requirement that the press report on the proceedings as the trial

judge required. Response, pp. 20, 7-10, 17. It is this confusion,

and the assumption that control over access includes the power

to control the content of reports, that this Court should address

by issuance of a writ of certiorari.

The Response suggests that the issues presented by the

Petition are unique and “unlikely to reoccur on any predictable

basis in the future.” Response, p. 7. This suggestion, however,

ignores recent cases and developments in both state and federal

courts. These demonstrate that the problem not only is likely to

reoccur, but has arisen with disturbing frequency and resulted

in a confusing split of authority on the two primary issues in the

Petition.

The first issue involves the concept of conditioned access,

which posits that because a trial court may control access to its

proceedings, it may also control the manner in which they are

reported. This concept is the linchpin of the decision below and

has been addressed by federal courts of appeal, the highest

courts of several states, and a proposed federal criminal rule.

See Sacramento Bee v. District Court, 656 F.2d 477, 482 (9th

Cir. 1981), pet. for cert. filed, 50 US.L.W. 3717 (1982)

(suggestion that trial court seek agreement of press rather than

closing trial); In re San Juan Star, 662 F.2d 108, 114 (1st Cir.

1981) (power to deny access not necessarily including power to

condition access); Keene Publishing v. Cheshire County Superi-

or Court, 119 N.H. 710, 406 A.2d 137 (1979) (condition on

2 The Washington State Constitutional provision discussed in the Re-

sponse at pages 8 and 9 relates to the issue of access to pre-trial proceedings,

not to control of the content of repors of such proceedings. See, e.g.,

Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51, 615 P. 2d 440 (1980).

arguments the Herald has made in its Petition.

access unconstitutional prior restraint); Edward A. Sherman

Publishing Co. v. Goldberg, No. 80-543-M.P. (R.L Apr. 13,

1982) (request that press agree not to publish name of juvenile

as condition to access is unconstitutional prior restraint ); Com-

mittee on Rules of Practice and Procedure of the Judicial

Conference of the United States, Preliminary Draft of Proposed

Amendments to the Federal Rules of Criminal Procedure 65-75

(Oct. 1981), reprinted in 30 Criminal Reporter (BNA) 3001,

3019-22 (Oct. 21, 1981) (rule permitting court to condition

access upon agreement to postpone disclosure of matters oc-

curring at criminal proceedings). The decision below, these

cases, and the split in authority reflected by them require the

attention of this Court.

The second issue in the petition is raised by the transforma-

tion of Bench-Bar-Press guidelines into contracts enforceable as

prior restraints. This issue has already reached the Court once

in Nebraska Press Association v. Stuart, 423 U.S. 1319 (1975),

and the court found that such a transformation is uncon-

stitutional. See Petition for Certiorari, pp. 7-11. The Nebraska

Supreme Court, acting prior to the full hearing by this Court,

agreed that such guidelines cannot be enforced as contractual

promises against the press. State v. Simants, 194 Neb. 783, 236

N.W.2d 794, 805 (1975). Nonetheless, the decision below

relied upon the press’ voluntary moral commitment to the

Guidelines to give them binding effect as a prior restraint.

While such Guidelines exist, there will always be a temptation

for courts to “enforce” them. If this Court allows the tempta-

tion to be satisfied, such voluntary cooperative programs cannot

survive. See Brief of Amicus Curiae American Newspaper

Publishers Association, et al, pp. 3-8.

The Response suggests, too, that the decision below is

unique because the trial judge was merely reacting to the fact

that the Herald “had repeatedly violated the Bench-Bar-Press

Guidelines” in prior reports of other criminal proceedings.

Response at pp. 4, 6, 7, 16, 17. This acknowledgment by the

Response, however, only exacerbates the constitutional prob-

lems raised by the decision below. In essence, the Response

admits that the trial judge was punishing the Herald for its prior

“violations” by requiring it to sign an agreement or be excluded

from the hearing. Such punishment for accurate reports of

events in public proceedings unquestionably conflicts with the

decisions of this and other courts. See Oklahoma Publishing Co.

v. District Court, 430 U.S. 308 (1977) (unconstitutional pun-

ishment for publication of events in courthouse); Edward A.

Sherman Publishing Co. v. Goldberg, supra ( unconstitutional to

require agreement to not publish names of juvenile where

newspaper previously had done so; Oliver v. Postel, 30 N.Y.2d

71 (1972) (unconstitutional to punish press for prior publica-

tions by exclusion from courtroom). Even without the other

issues raised by the Petition, this “punishment” of the Herald

requires the grant of a writ of certiorari by the Court.

Il. The Purpose and Effect of the Order Was to impose a

Prior Restraint.

The Response argues there was no prior restraint because

the Washington Supreme Court found there to be none. It also

argues that Judge Swedberg’s Order is distinguishable from the

prior restraints before this Court in Nebraska Press. The first

argument obviously begs the question, and the attempt to

distinguish Nebraska Press fails because it ignores significant

portions of that opinion.

The gist of the attempt to distinguish Nebraska Press is the

theory that the case involved a trial, not a pre-trial proceeding

like that involved here, and that it involved a “flat prohibition”

on publication, unlike the use of the Guidelines here. Re-

sponse, p. 14. It is difficult to reconcile this theory with the

facts. As the opinion of this Court makes clear, all of the orders

in Nebraska Press were imposed in the same type of pre-trial

proceedings, and in conjunction with similar motions to close,

as were involved in the proceedings that led to this Petition.

The order at issue in this case expired by its own

terms when the jury was impaneled on January 7,

1976.

427 US. at 546. Thus, the Response is in error on this point.

Response, p. 14.

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ane tnal judge undoubtedly had these cousideranons in

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ant's right to a fair trial and that there was no feasible alternative

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considered at the supression hearnng would prejudice the defend-

Appendix to Petition for Ceruorari, A-5.

(footnote continues )

again ignores the distinction between control of access and

control of content. A prior restraint may appear “less severe”

because the press is allowed to obtain some information, but it

is more insidious because of the exercise of state control over

the editorial process. The immediate effect of Judge Swed-

berg’s order may appear “less severe,” but its purpose and

long-term results are far more damaging. The government, in

the form of a judge, arrogates to itself the editorial in-

dependence and discretion protected by the First Amendment.

See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

(1974) (protection of independent editorial discretion and

judgment of press).

The final argument offered by the Response is that there

could not have been a prior restraint because the State Supreme

Court found, after the fact, that contempt might be in-

appropriate as a sanction for violation of Judge Swedberg’s

order. Response, pp. 12-13.4 Even without the availability of

contempt, however, the Response has admitted that trial judges

can punish the press for “violations” of the Guidelines. A trial

judge need only take advantage of a later proceeding to exclude

that member of the press because of its prior “violation,” as did

(footnote continued)

This substitution of appellate “findings” after the fact cannot satisfy the

requirement of this Court that the trial judge actually considering such a

motion make adequate findings. See Richmond Newspapers, Inc. v. Virginia,

supra, 448 U.S. at 580, 581 (necessity of findings); Gannett Co. v. DePas-

quale, 443 U.S. 368, 392, 393 (1979) (balancing by trial judge); id, at 402,

n.4 (Powell, J., concurring) (importance of careful consideration of alterna-

tives); Nebraska Press Association v. Stuart, supra, 427 US. at 563-565

(importance of findings supported by evidence ).

4 The Response also argues at several points that Judge Swedberg was

simply making “an appeal to professional media ethics,” Response, p. 20.

This argument, however, ignores the inclusion of the requirement that the

press follow the guidelines in a judicial order, Petition for Certiorari,

Appendix at A-19, A-20, and the requirement in the “Agreement” that the

press “follow the Bench-Bar-Press Guidelines in any reporting of the proceed-

ings ....” Id. at A-16. The Herald and other members of the press were not

informed at the time of the hearing and reports on it that contempt might not

be a remedy for violations. The Response errs, too, in claiming that the

decision below expressly held contempt was not appropriate; the decision is

far from clear on that point.

the trial court and Washington Supreme Court in the decision

below. Response, pp. 4-6. The Response, itself, thus confirms

the fears of the Herald and others that would have prevented

them from violating the Guidelines after signing an agreement

to follow them.

The trial court undoubtedly sought to and did control the

press that agreed to sign and punished the Herald when it

would not. This is the paradigm of a licensing scheme and

should not escape review by this Court.

Ill. The Response Fails to Respond to the Other Contentions

of the Petition

The Petition for Certiorari contends that Judge Swedberg’s

Order created an unconstitutional condition; that exclusion of

the press, based on the content of publications, is not a

“reasonable limitation”; and that the selective exclusion of the

press, but not the rest of the public, violates the First Amend-

ment and the Equal Protection Clause of the Fourteenth

Amendment. As the Response fails to address these con-

tentions with any contrary authority, a detailed reply is not

required.

The Response lightly dismisses the argument that an

unconstitutional condition was imposed by Judge Swedberg,

but fails to explain why the doctrine does not apply. Response,

pp. 18-20. It simply responds to this contention by repeating

earlier arguments that the Order was “less severe than closure”

and that the agreement to follow the Guidelines could not be

enforced. Response, p.20. The Response thus does not, and

cannot, rebut the basic point that the trial judge conditioned

access by the press on an agreement to sacrifice constitutional

rights.

The Response accepts the fundamental proposition that

restrictions on access must not have a relationship to the content

of speech, but appears to argue that this rule does not apply

when the defendant’s right to a fair trial is involved in pretrial

proceedings. Response, pp. 21-22. It provides no authority,

’ however, for this novel theory. Instead, it incorrectly relies on

Nebraska Press as a case that did not deal with pretrial

proceedings or the defendant’s right to a fair trial. Response, p.

22. This is clearly in error. See discussion at pp. 4, 5, supra.5

Finally, the Response properly acknowledges that the trial

judge imposed different restrictions on the press than upon the

public and that the government must offer a carefully tailored

substantial interest to justify such unequal treatment affecting

First Amendment rights. Response, p. 26; Police Department of

Chicago v. Mosley, 408 U.S. 92, 99, 102 (1972). It fails,

however, to explain how the differing restrictions have been

carefully tailored. More importantly, it completely fails to

address the holdings of this Court that the press and public are

to have the same right of access to trials, where fair trial rights

were at stake. See, e.g., Richmond Newspapers v. Virginia,

supra, 448 U.S. at 572-73; id., at 586 (Brennan & Marshall, J.

J., concurring); Estes v. Texas, 381 U.S. 532, 540 (1965); ef.

Pell v. Procunier, 417 U.S. 817, 834 (1974) (general rule that

press and public do have same right of access to information

controlled by government).

The failure of the Response to offer justification or author-

ity for this disparate treatment raises particular problems

because exclusion of the press, but not the public, failed to

achieve the very purpose for exclusion. See Petition for

Certiorari, pp. 22-23. An Order that is not even effective

certainly cannot survive the exacting scrutiny required by the

Equal Protection Clause and the First Amendment.

5 It is interesting that the Response tries to distinguish pretrial proceed-

ings from trials when the very authority relied upon by the Washington court

in holding that Judge Swedberg’s action imposed a “reasonable limitation” is

a discussion of access to trials in Richmond Newspapers, Inc. v. Virginia, 448

US. 555, 581, 0.18.

CONCLUSION

For these reasons, a Writ of Certiorari should issue to

review the judgment and opinion of the Washington Supreme

Court.

DATED: May 7, 1982.

Respectfully submitted,

By P. CAMERON DeEVorE

Davis, WriGut, Topp, Riese & Jones

4200 Seattle-First National

Counsel of Record for Petitioner

Of Counsel:

MARSHALL J. ‘NELSON

DaNntiEL M. WAGGONER

~ Jeuig snowy

No. 81-1769

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

FEDERATED PUBLICATIONS, INC.,

Petitioner,

Vv.

HONORABLE BYRON L. SWEDBERG,

Respondent.

PETITION FOR A WRIT OF CERTIORIARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

BRIEF OF AMICUS CURIAE

Allied Daily Newspapers

Washington Newspaper Publishers Association

ROBERT A. SALTZSTEIN

WYATT, SALTZSTEIN, LIPSEN

AND HAMBERGER

1725 DeSales Street, N.W.

Washington, D.C. 20036

(202) 659-6540

Counsel of Record

PAUL R. CONRAD

Allied Daily Newspapers

2316 South State Street

Tacoma, Washington 98405

ALLEL, TE LEDC LD STA EES ECE EA LOGLO ALE SELLE ALLL LAE LA ET

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

(i)

TABLE OF CONTENTS

Page

EP OEE, ccccdeccceescseusecovsdnucuogue 1

Ed oc caceccosovenveokessbentuewss 2

ARGUMENT OF AMICUS CURIAE .................00eeeeee 4

I. Bench-bar-press programs of the various states have

proven useful in accommodating fair trial and free

SSD. iv cewhsddidcccvecéscvecssdateseeeeuer 4

Il. An essential ingredient of all bench-bar-press pro-

grams is voluntary participation — the freedom to

exercise independent judgment ..............0005 sence 7

Ill. To impose the Guidelines on a news organization

because they have been accorded previous voluntary

acceptance does violence to the spirit of voluntary ac-

ceptance, and ignores the tealities of the bench-bar-

SEED ca iicdondvcscoveseedebvetbosden 6604 11

IV. If bench-bar-press guidelines are incorporated in

court orders, news media organizations may limit or

withdraw their participation from bench-bar press

SEE ncndougadsnedeep cc cecvectessccsepeut ane 12

TE «2o<vilebes¢esbuesvees suet oducts }abeeeweneel 14

TABLE OF AUTHORITIES

Cases: Page

Federated Publications, Inc., v. Byron L. Swedberg,

Gp Pee Bay GED Pee POENOEED cov ccccccccncccecscs 8,9, 10, 11

Nebraska Press Association v. Stuart,

beth Usk cddun ss eke inakes sganaraniaee 4

(ii)

Page

State ex rel. Superior Court v. Sperry,

79 Wn.2d 69, 483 P.2d GOB (1971) . 2... cece eee 7

State v. Stiltner,

80 Wn.2d 47, 491 P.2d 1043. (1971) .. 2... cece cece ees 7

Miscellaneous:

American Bar Association, Fair Trial/Free Press

Voluntary Agreements (1974)... 2.0... c cece ene e nn enee 4,5

American Bar Association, The Rights of Fair Trial

and Free Press: The American Bar Association

ES 11

on eke eecetecenseesescepesces 5

Seattle Post-Intelligencer (March 21, 1982) ............60e secu 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-1969

FEDERATED PUBLICATIONS, INC.,

Petitioner,

Vv.

HONORABLE BYRON L. SWEDBERG,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

BRIEF OF AMICUS CURIAE

STATEMENT OF INTEREST

Allied Daily Newspapers is a voluntary trade associa-

tion of 53 general circulation daily newspapers in the states

of Washington, Oregon, Alaska, Idaho and Montana.

During the period that the Washington Bench-Bar-Press

Committee was formed and drafted its Statement of

Principles and Guidelines (1963-1966), Allied Daily News-

papers was solely a Washington state association of daily

newspapers, with representation on the Committee. This

relationship has continued despite the evolution of Allied

Daily Newspapers into a regional organization, a process

which began in 1970.

In 1966 Allied Daily Newspapers formally endorsed the

Statement of Principles and Guidelines as adopted by the

Committee. Allied Daily Newspapers has been represented

on the Committee throughout its existence. Allied’s ex-

ecutive director has served as the Committee’s secretary

throughout that time, and has been the repository of the

Committee’s minutes and records.

The Washington Newspaper Publishers Association is a

voluntary trade association of 123 community newspapers

in the state of Washington, most of them published less

frequently than daily. It too has been represented on the

Washington Bench-Bar-Press Committee since its forma-

tion, and formally endorsed the Committee’s Statement of

Principles and Guidelines in 1966.

SUMMARY OF ARGUMENT

Amici file this brief to offer additional perspective on

the history of the Washington Bench-Bar-Press Commit-

tee and its Statement of Principles and Guidelines, and the

relationships of the state’s judges, lawyers and news media

organizations, so central to this petition.

Bench-bar-press programs, which have proven effective

in accommodating fair trial and free press concerns, have

come into being through the voluntary acceptance of self-

restraint by the participating interest groups. The press,

the bench and bar, each bearing responsibility for preser-

vation of certain rights enumerated in the U.S. Constitu-

tion and the constitutions of their various states, could not

and would not participate in these programs on other than

a voluntary basis for to do so would be to impair those

constitutional freedoms.

For a trial judge to condition attendance at a pretrial

hearing on the signing of an assurance that a news media

organization will “follow” a vague and imprecise set of

guidelines destroys the voluntary relationship under which

they were conceived. The news media organization is faced

with a prior restraint not only because there is implied the

sanction of contempt citation, but also because the pro-

cedure places the journalist and his organization in the

position of having to choose between giving up the right to

attend and report an open court proceeding, and agreeing

to report the proceeding according to standards subject to

widely divergent interpretation. The very character of the

bench-bar-press program, relying as it does on com-

munication and understanding between press and

judiciary, dictates against a news organization making a

promise to a judge when that promise is so fraught with

the likelihood of misunderstanding.

To find Judge Swedberg’s procedure “reasonable”

because news media organizations had previously accepted

the Statement of Principles and Guidelines ignores the

character of that acceptance.

News media organizations in all states where voluntary

bench-bar-press programs have developed will have to

reconsider their acceptance of fair trial - free press

guidelines if those guidelines can be imposed as a condi-

tion precedent to court attendance, based upon their prior

acceptance by the media.

ARGUMENT OF AMICUS CURIAE

I. BENCH-BAR-PRESS PROGRAMS OF THE

VARIOUS STATES HAVE PROVEN USEFUL IN

ACCOMMODATING FAIR TRIAL AND FREE

PRESS CONCERNS.

At least 26 states have some form ef voluntary bench-

bar-press program established to “strengthen constitu-

tional safeguards in the administration of criminal

justice.” In 23 of these states, bench-bar-press groups have

entered into voluntary written agreements based on the

ethical principles mutually recognized by the participants.

See Fair Trial/Free Press Voluntary Agreements, (hand-

book published by the American Bar Association) (1974).

As early as 1968, the Americar Bar Association, through

its Legal Advisory Committee on Fair Trial and Free

Press, announced it would encourage state initiative

toward voluntary programs. In 1969, the American Socie-

ty of Newspaper Editors joined with the ABA to en-

courage media participation in the voluntary state fair trial

and free press agreements.

As Mr. Justice Brennan, concurring in Nebraska Press

Association v. Stuart, 427 U.S. 539 at 539 (1976) observed,

“Voluntary codes such as the Nebraska Bar-Press

Guidelines are a commendable acknowledgment by the

media that constitutional prerogatives bring enormous

responsibilities, and I would encourage continuation of

such voluntary cooperative efforts between the bar and the

media.”

Washington was one of the first of the states to bring

together representatives of the judiciary, the bar and news

media organizations to explore ways voluntary coopera-

tion might serve to minimize prejudicial pretrial reporting

of the criminal justice processes. At the suggestion of the

trial judges’ association, the chief justice of the

Washington Supreme Court invited representatives of the

news media, the state bar, and the various levels of

Washington courts, to meet and consider formation of an

ongoing committee. It was formed early in 1964, adopted

by-laws, and set about drafting a Statement of Principles

and Guidelines. Each interest group was represented on

the drafting subcommittees. In addition to preparing the

guidelines for the Reporting of Criminal Proceedings

which are at issue here, the Committee approved similar

guidelines for the reporting of juvenile proceedings and

civil proceedings.

This original Statement of Principles and Guidelines,

“mutually drawn and submitted for voluntary

compliance”, later received formal approval and endosse-

ment by the Washington State Bar Association, Allied

Daily Newspapers, the Washington Newspaper Publishers

Association, the Washington State Association of Broad-

casters, the Superior Court Judges’ Association and the

Washington State Magistrates’ Association.

The Committee has continued to function, meeting at

least annually and usually more often. It has added to and

amended the Guidelines on several occasions, although

these changes have not been submitted to or been formally

approved by the participating organizations. The Commit-

tee has conducted seminars on fair trial and free press

issues throughout the state. The Committee has also formed

a Liaison Subcommittee within its membership to serve

on an on-call basis, to advise and counsel with judges,

members of the bar, law enforcement agencies and news

media organizations when fair trial - free press issues have

threatened to precipitate confrontations.

This program has received national recognition for its

success. See Fair Trial/Free Press Voluntary Agreements,

supra. See also APME News, (March 1980). The programs

of other states have had similar success. An opinion survey

conducted by the American Bar Association in 1974,

among bar officials and news media personnel in the 23

states having some form of formalized voluntary agrce-

ment for bar-media cooperation, established:

1. “The voluntary agreements are being ‘generally

followed’.”

2. “The agreements have been ‘effective in helping

protect the guarantees of fair trial and free press’.”

3. “The agreements have helped to ‘improve bar-

nedia relations and understanding’.” Fair

Trial/Free Press Voluntary Agreements, supra at

52.

While effectiveness is difficult to measure objectively, all

of the studies of the bench-bar-press programs suggest a

positive influence. Certainly this has been the experience

in Washington. News media organizations in the state

have cited numerous instances in which the Guidelines

have influenced their coverage of criminal prosecutions.

In the early years of the program there was great skep-

ticism, but adherence to the self-restraint urged by the

Statement of Principles and Guidelines was evident. Print

and broadcast media became sensitive to publication or

broadcast of highly prejudicial evidence prior to selection

of juries. The occasional lapses inkerent in a voluntary

program were excused because experience taught that so

long as most of the media in a community were sensitive to

publication or broadcast of the highly prejudicial informa-

tion, there remained an ample supply of prospective jurors

in the jurisdiction — the ultimate measure of success of a

bench-bar-press program.

Il. AN ESSENTIAL INGREDIENT OF ALL BENCH-

BAR-PRESS PROGRAMS IS VOLUNTARY PAR-

TICIPATION — THE FREEDOM TO EXERCISE

INDEPENDENT JUGDMENT.

The bench-bar-press program in Washington would

never have come into being without the understanding that

participation was completely voluntary. We think the

same could be said of most, if not all, of the existing state

programs. The press approaches restraints — even self-

restraint — with a caution born of experience. No matter

how sincere their interest in comity of relations with the

bench and bar, journalists are loathe to commit

themselves to any publicly-declared code of conduct or

guidelines, application of which may, in specific instances,

give rise to dispute as to whether those guidelines were

honored. Furthermore, from the start of the bench-bar-

press program in Washington and nationally, there has

been a second and larger concern: That what has been

agreed to on a voluntary basis might, in some way, be con-

verted into a mandatory rule or order.

What had been vague concerns of the news media were

confirmed when Judge Swedberg, in an order from the

bench, offered Herald reporters the alternative of signing

a written agreement that they would “follow the Bench-

‘As a matter of convenience, the Committee’s Statement of Prin-

ciples and Guidelines have been published in desk copies of the

Washington Rules of Court, but with an attendant explanation of

their voluntary character. And while the Statement of Principles and

Guidelines have been referred to in judicial opinions on more than one

occasion, their voluntary character has been made clear. See State ex

rel. Superior Court v. Sperry, 79 Wn.2d 69, 483 P.2d 608 (1971); State

v. Stiltner, 80 Wn.2d 47, 491 P.2d 1043 (1971). Trial judges have on

occasion made reference to the Guidelines when requesting coopera-

tion of news media organizations. But prior to the occasion of Judge

Swedberg’s use of the Guidelines, they had not been the subject of any

judicial orders.

Bar-Press Guidelines of 1974 in any reporting of the pro-

ceedings” in his court, or enter his courtroom only as non-

reporting members of the public. Judge Swedberg’s action

showed a fundamental misunderstanding of the delicate

nature of the bench-bar-press program. It is one thing for

a journalist or news media organization to offer to exer-

cise seif-restraints. It is quite another for a judge to order a

written promise to follow specific guidelines, or even to

abide by a set of vague and general standards, in reporting

what occurred in the courtroom. The difference is between

voluntary self-restraint and judicially-imposed prior

restraint — between and independent editorial decision

and arrogation of that decision by the government.

The Washington Supreme Court in its majority opinion

also failed to appreciate these relationships:

Whether the contempt power of the court

could in other circumstances properly extend to

punishment for alleged violation of an agreement

to adhere to a set of standards as nonobligatory

as these is a question which has not been briefed

and which we need not decide. It would,

however, be contrary to the spirit and intent of

the Bench-Bar-Press Guidelines to invoke such a

remedy for their alleged violation, and the com-

ments of the lower court in making its ruling in-

dicate that the court was in agreement with that

principle. It issued no orders prohibiting publica-

tion, nor did it threaten any sanctions if a person

signing an agreement to abide by the guidelines

should thereafter ignore them. Its ruling was

simply that any media member not willing to put

his moral commitment in writing would be ex-

cluded from the hearing.

96 Wn.2d at 21. It would be indeed “contrary to the spirit

and intent of the Bench-Bar-Press Guidelines to invoke

such a remedy” but it was just as “contrary” for the

Guidelines to be employed in a court in the first place. If

Judge Swedberg’s use of a written and signed assurance

had any meaning at all, it was to, at least for this hearing,

give the Guidelines an impact greater than the self-

restraint inherent in the press’ support of them.

Granted Judge Swedberg made no specific mention of

the power of contempt. But at the same time nothing he

said sheathed that power. The Herald, and any other news

media organization, would reasonably assume that,

should there be disagreement as to whether its reports of

the hearing conformed to the court’s interpretation of the

Guidelines, Judge Swedberg could cite the reporters if he

so elected.

And room for disagreement there certainly was. For one

example, among the many which can be conceived, the

Guidelines caution:

“... all concerned should be aware of the

dangers of prejudice in making pretrial public

disclosures of the following:

(a) Opinions about a defendant’s character,

his guilt or innocence.

(b) Admissions, confessions or the contents

of a statement or alibis attributable to a

defendant .. .”

If a news report of the proceeding in Judge Swedberg’s

court alluded to the defendant’s statement, could a

reporter safely assume that Judge Swedberg would credit

the newspaper’s staff with being “aware of the dangers of

prejudice”, or must the journalist assume that the court

would interpret this as a prohibition against any reporting

of such a statement?

Contempt aside, it is one thing for a judge to complain

that a news report seems to be at odds with a voluntary set

of guidelines, and quite another for him to complain that

“you broke your written promise to me.” Eighteen years of

bench-bar-press dialogue in Washington would have no

meaning if a newspaper were to enter into Judge

Swedberg’s written promise with cynical disregard of this

possibility of misunderstanding as to just what constitutes

“following” the Guidelines. There has been a long and

good faith effort on the part of all participants in the

Washington program to anticipate and avoid

misunderstandings, and the confrontations which so often

arise from them. If a judge asks a newspaper for a unique,

written promise; and if giving that promise can result in

honest disagreement and unresolvable questions of good

faith compliance, then that promise should not and will

not be lightly given.

These considerations may not seem to be the stuff from

which court rulings are ordinarily made, but we submit

that they were the considerations which news media

organizations had to quickly weigh, given a choice bet-

ween being admitted to Judge Swedberg s courtroom the

next morning cr not. That some signed and some did not

should not bc surprising. That some perceived of this “ex-

periment”, as the Washington Supreme Court characteriz-

ed it, as a very real form of prior restraint should be readi-

ly understood. See 96 Wn.2d at 21.

il. TO IMPOSE THE GUIDELINES ON A NEWS

ORGANIZATION BECAUSE THEY HAVE BEEN

ACCORDED PREVIOUS VOLUNTARY ACCEP-

TANCE DOES VIOLENCE TO THE SPIRIT OF

VOLUNTARY ACCEPTANCE, AND IGNORES

THE REALITIES OF THE BENCH-BAR-PRESS

RELATIONSHIP.

Neither the Herald’s, nor any other newspaper’s repor-

ting and editorial staff has ever been asked to make a for-

mal commitment to the Guidelines. Thus the following

statement by the Washington Court is based on a fun-

damental misconception:

The exaction of an agreement to abide by stan-

dards which have gained the approval of all of

the media of mass communications in this state

was not unreasonable. . .

96 Wn.2d at 22. To characterize the Washington Bench-

Bar-Press Guidelines as having “gained the approval of all

of the media of mass communications in this state” does

not precisely reflect history. In general, yes, the Guidelines

have wide acceptance. But in the context of an agreement

between a judge and a reporter, or a judge and a news

media organization, this “approval” must be put in

perspective. Neither Judge Swedberg nor the Bellingham

Herald were signatories to the Guidelines. Both belonged

to organizations which had given their endorsement to the

original guidelines some fourteen years earlier. Subse-

quent additions and amendments had not been similarly

endorsed by these organizations but had simply been pro-

mulgated by the Committee.

Even more important in this context is the lack of any

agreement between Judge Swedberg and the Herald as to

what the Guidelines mean. There could be wide

divergences in the interpretation of the Guidelines’ vague

wording and yet the Herald, by signing Judge Swedberg’s

“Bench-Bar-Press Guidelines Form”, would be commit-

ting itself to, presumably, his interpretation of those

guidelines. When the news media organizations represen-

ting the state’s newspapers and broadcast stations “ap-

proved” of the Guidelines, it was with the understanding

they are voluntary. When Judge Swedberg incorporated

them in his order, this signalled a different understanding

of their character. What other differences might there also

be? An agreement presupposes common understanding of

the terms of the agreement. For the “approval”, on which

the Washington Court relies, to be a valid basis for asking

media organizations to sign this written promise, it would

seem essential that Judge Swedberg go over the Guidelines

in detail with the reporters, to be certain the parties to the

agreement had this common understanding. No such

review was provided for.

IV. IF BENCH-BAR-PRESS GUIDELINES ARE IN-

CORPORATED IN COURT ORDERS, NEWS

MEDIA ORGANIZATIONS MAY LIMIT OR

WITHDRAW THEIR PARTICIPATION FROM

BENCH-BAR-PRESS PROGRAMS.

If the ruling of the Washington Supreme Court is allow-

ed to stand, signalling some significant difference between

what Judge Stuart did in Nebraska Press Association, and

what Judge Swedberg did here, there is certain to be a

temptation for other trial judges to use this handy device

in their courtrooms.? The Washington Court invites such a

course by characterizing Judge Swedberg’s procedure as:

?The American Bar Association’s Adjunct Committee on Fair Trial

and Free Press has anticipated this possibility. In an information

manual prepared and published by the Standing Committee on

Association Communications of the American Bar Association, entitled

The Rights of Fair Trial and Free Press: The American Bar Associa-

tion Standards (1981), the Committee urges:

. . . a good faith attempt to accommodate the

interests of both defendant and press which,

hopefuly, would be both practical and effective

as an alternative to closure.

96 Wn.2d at 21. But of course a prior restraint would

always be more “effective” than closure. Left in this

posture, journalists and their organizations throughout

the country may well withdraw their commitment to the

bench-bar-press process. In the special history of the

adoption process of the Guidelines in Washington State, if

a news organization’s alleged prior “approval” of the

Guidelines is one of the Washington Court’s justifications

for upholding the imposition of those Guidelines through

a written agreemer*, then withdrawal of that approval is

one obvious course which local journalists may follow.

One newspaper has already done so. See Seattle Post-

Intelligencer, (March 21, 1982, at B-6). These amici and

other local press associations are actively considering tak-

ing a similar course, while continuing their participation in

the bench-bar-press process.

1. Mutual education of lawyers and news media, and, in

the law and journalism schools, wider understanding of

the problems and how they can be alleviated;

2. Encouragement of continuing bar-media conference

groups to consider voluntary compliance and to discuss

ways to deal with particular local problems as they arise;

3. The exercise of caution on the part of the courts to

avoid going beyond the intent of the standards and to

guard against imposing upon the news media restraints

not contemplated by the standards and not demanded

by the requirements of courtroom decorum; and

4. Voluntary action by law enforcement agencies to ac-

quaint their personnel with the standards, and also to

avoid withholding from the news media information

about crime which the standards intend should be

released promptly. (Emphasis added)

CONCLUSION

The survival of bench-bar-press programs, not only in

Washington but nationwide, may depend on this Court’s

grant of certiorari to review Judge Swedberg’s actions.

Without an authoritative determination of the consti-

tionality of those actions, journalists as well as judges and

members of the bar will be left in limbo. If journalists con-

tinue to support such guidelines, can a court then impose

the requirements of written agreement to them as a condi-

tion precedent to attendance at a hearing or trial? Does

self-restraint by the press in following such guidelines pro-

vide a rationale for transformation of them into prior

restraints? Only this Court can provide satisfactory

answers to these questions.

Allied Daily Newspapers and the Washington

Newspaper Publishers Association respectfully request

that this Court grant the petition for a writ of certiorari to

review the decision of the Washington Supreme Court.

DATED this 22nd Day of April, 1982.

ROBERT A. SALTZSTEIN

WYATT, SALTZSTEIN, LIPSEN

AND HAMBERGER

1725 DeSales Street, N.W.

Washington, D.C. 20036

(202) 659-6540

Counsel of Record

PAUL R. CONRAD

Allied Daily Newspapers

2316 South State Street

Tacoma, Washington 98405

Supreme Court, U.S.

No. 81-1769 FILED

APR 23

IN THE 1982

SUPREME COURT OF THE UNITED STATES=: v stevas

CLERK

October Term, 1981

FEDERATED PUBLICATIONS, INC.,

Petitioner

HONORABLE BYRON L. SWEDBERG,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

BRIEF OF AMICI CURIAE

AMERICAN NEWSPAPER PUBLISHERS

ASSOCIATION, AMERICAN SOCIETY OF

NEWSPAPER EDITORS, NATIONAL ASSOCIATION

OF BROADCASTERS, NATIONAL NEWSPAPER

ASSOCIATION, RADIO-TELEVISION NEWS

DIRECTORS ASSOCIATION, REPORTERS

COMMITTEE FOR FREEDOM OF THE PRESS, AND

SOCIETY OF PROFESSIONAL JOURNALISTS,

SIGMA DELTA CHI

Of Counsel: James C. Goodale

John G. Koeltl DEBEVOISE & PLIMPTON

Gary W. Kubek 299 Park Avenue

New York, New York 10171

(212) 752-6400

Counsel of Record for

Amici Curiae

(Names and addresses of

other counsel are listed

on the inside cover)

April 22, 1982

THE LEGAL INTELLIGENCER, 10th & SPRING GARDEN STREETS, PHILA, PA 19123 (215) 236-2000

W. TERRY MAGUIRE, Esq.

Box 17407

Dulles International Airport

Washington, D.C. 20041

Attorney for American

Newspaper Publishers Association

RICHARD G. SCHMIDT, JR., Esq.

Cohn & Marks

1332 New Hampshire Avenue

Washington, D.C. 20036

Attorney for American Society

of Newspaper Editors

ERWIN G. KRASNOW, Esq.

STEPHEN E. NEVAS, Esq.

1771 N Street, N.W.

Washington, D.C. 20036

Attorneys for National

Association of Broadcasters

ARTHUR SACKLER, Esq.

Suite 400

1627 K Street, N.W.

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