Amicus Curiae Brief — Ditter v. Philadelphia Newspapers, Inc.

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DEC 1 1 1974 SUPREME COURT, U. B

IN THE :

- Supreme Court of the United States |

OctToBER TERM, 1974

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No. 74-546

THE Honoras_e J. WiLL1AM DitTer, JR.,

Petitioner,

v.,

PHILADELPHIA NEwspaPErs, Inc. and Susan Q.'

STRANAHAN, UNITED STATES OF AMERICA,

FREDERICK SCHIAVO,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

MOTION OF AMERICAN NEWSPAPER PUBLISHERS AS-

SOCIATION FOR LEAVE TO FILE BRIEF AMICUS

_CURIAE AND BRIEF AMICUS CURIAE OF THE AMER-

ICAN NEWSPAPER PUBLISHERS seeeeceemtaiieeel

ARTHUR B. Hanson

W. FRANK STICKLE, JR.

888 Seventeenth Street, N:W.

Washington, D. C. 20006

Attorneys for Amicus Curiae,

The American Newspaper

Publishers Association

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

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IN THE

Supreme Court of the United States:

OcToBER TERM, 1974

No. 74-546

THE HonorasB_e J. WiLLiam Ditter, JR.,

yet itioner,

Vv.

PHILADELPHIA Newspapers, INc. and Susan Q.

STRANAHAN, UNITED STaTesS OF AMERICA,

FREDERICK SCHIAVO,

Respondents.

Petition for a Writ of Certidcrari to the

United States Court of Appeals for the Third Circuit

MOTION OF AMERICAN NEWSPAPER PUBLISHERS AS-

SOCIATION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE

The American Newspaper Publishers Association

(hereinafter ‘‘AN PA’’) respectfully moves this Court

for leave to file the accompanying Brief Amicus Curiae

in opposition to the Petition for Writ of Certiorari

filed herein. The consents of the attorney for the

Petitioner and of the attorneys for Respondents Phila-

delphia Newspapers, Inc., Susan Q. Stranahan, and the

United States of America have been obtained, but the

attorney for Respondent Frederick Schiavo has failed

to respond to the ANPA’s request for consent to the

filing of a brief amicus curiae by the ANPA.

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The American Newspaper Publishers Association

is a non-projit membership corporation organized and

existing under the laws of the Commonwealth of Vir-

ginia. Its membership consists of approximately 1,140

daily newspapers and represents more than ninety

pereent of the total daily and Sunday newspaper cir-

culation in the United States. The Philadelphia

Inguirer and seventy-nine other newspapers located

throughout Pennsylvania hold membership in the

ANPA.

The Association concerns itself with matters of gen-

eral significance to the daily newspaper publishing

business and to the profession of journalism. In that

regard, the ANPA acts as a clearinghouse of infor-

mation for its members by disseminating bulletins and

research reports on all significant phases and develop-

ments of the newspaper business. Frequently, ANPA

has taken positions on publie matters which affect the

interests of its members.

The Association’s member newspapers, individually

and through the ANPA, are ever vigilant to protect

the publie’s right under the First Amendment to in-

formation concerning the activities of government and

matters of publie interest. The increasing frequency

with which trial courts throughout the nation have

been issuing orders aimed at restricting the content of

news reports concerning criminal trials ' has been, and

continues to be, of great concern to the ANPA and its

membership.

Through a brief amicus curiae submitted in support

of the appeal and petition of Philadelphia Newspapers,

1 Sve Graham, Gagging the Press in the Courtroom, The Wash-

ingten Post, Nov. 17, 1974, at C3.

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Inc. and Susan Q. Stranahan below, the ANPA urged

the Court of Appeals to vacate the order of the Dis-

trict Court. The Association argued that the District

Court’s order constituted an invalid prior restraint on

publication which resulted from a misconception of the

teaching of Sheppard vy. Maxwell, 384 U.S. 333 (1964 }.

Although the Court of Appeals, sitting en bane, dic

reverse the trial court’s order, it did so on procedural

grounds. In his Petition for a Writ of Certiorari, the

peticioner not only attacks the decision of the Court

of Appeals; he also asserts that the Court substantially

decided an important question of federal law which

has not been settled by this Court, namely the ap-

propriate balance which must be struck between the

free press guarantee of the First Amendment and the

fair trial guarantee of the Sixtft Amendment.

As a representative of over ninety percent of the

daily and Sunday hewspapers published in the nation,

and because of its interest in assuring an unfettered

press, the ANPA wishes to brietly set forth its views

on this latter issue.

WHeEkEFoRE, the American Newspaper Publishers

Association respectfully requests this Court to grant

this motion and permit it to file the Brief Amicus Cur-

lae submitted herewith.

Respectfully submitted,

ARTHUR B. Hanson

W. Frank Sticke, Jr.

888 Seventeenth Street, NW.

Washington, D. C. 20006

Attorneys for Amicus Curiae,

The American News paper

Publishers Association °

IN THE

Supreme Court of the United States

OcToBER TERM, 1974

No. 74-546

THe Honoras_e J. WiLLiaAM Ditter, JR.,

Petitioner,

v.

PHILADELPHIA NEWSPAPERS, Inc. and Susan Q.

STRANAHAN, UNITED STATES OF AMERICA,

FREDERICK SCHIAVO,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE OF THE AMERICAN

NEWSPAPER PUBLISHERS ASSOCIATION

PRELIMINARY STATEMENT

The American Newspaper Publishers Association

(hereinafter ‘‘ANPA*’) submits this-brief as amicus

Curiae in support of the Brief of Respondents Phila-

delphia Newspapers, Inc. and Susan Q. Stranahan in

Opposition to the Petition for a Writ of Certiorari.

INTEREST OF THE AMICUS CURIAE

As set forth in its motion for leave to file this brief,

the ANPA and its member newspapers have a signi-

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fieant concern for insuring that the First Amendment’s

guarantee of a free press shall not be abridged. The

order of the District Court from which the present

controversy stems was a serious breach of the limits

set forth in the First Amendment to prevent the gov-

ernment from interfering with the free flow of infor-

mation guaranteed by that Amendment. Beeause of

the importance of this issue as it relates to the question

sought to be placed before this Court by the Petition

for a Writ of Certiorari, the AN JAA desires to present

to this Court, for its assistance, the Association’s views

in regard to the important issues involved in this pro-

ceeding.

ARGUMENT

At the outset it must be pointed out that the ANPA

strongly supports and adopts the position of Respond-

ents Philadelphia Newspapers, Inc. and Susan Q.

Stranahan. We believe that their brief persuasively

and accurately indicates the jurisdictional inability of

Petitioner to seek review in this Court and the sensible

poliey determinations which make consideration of the

Petition inappropriate. Further, the cases cited in

Respondent's brief fully substantiate the exercise by-

the Court of Appeals of its supervisory powers in

establishing procedural guidelines.

The Association wishes to emphasize that the judg-

ment of the United States Court of Appeals for the

Third Cirenit did not substantially decide the im-

portant federal question coneerning the ‘‘ Free Press—

Fair Trial”? dichotomy. If this Court, however, is of

the opinion that the free press—fair trial issue so

pervaded the proceedings below as to require its eon-

sideration, your amicus wishes to set forth the ANP A’s

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views as to the constitutional invalidity of the trial

court’s silence order.

The Plurality and Concurring Opinions Below Did Not Decide

the Important Constitutional Question as to the Validity

of the Silence Order.

Neither the plurality opinion nor the concurring

opinion in the Court of Appea!s was based on a decision

resolving the conflict arising from a confrontation be-

tween the fundamental constitutional guarantees of

freedom of the press and the right of au accused to a

fair trial. The plurality, in the exercise of the Court’s

supervisory powers, found the oral silence order to be

procedurally deficient. The concurring judges found

the order invalid inasiauch as the trial judge had failed

to comply with the procedural requirements necessi-

tated whenever First Amendment rights are involved.*

In both opinions it is clear that the question as to the

proper balance to be struck between the guarantees of

the First and Sixth Amendments was ‘one which the

judges purposefully avoided. The plurality flatly

stated: ‘‘Our conelusion that this case showld be re-

versed on procedural grounds makes resolution of the

constitutional issue unnecessary.”’ (Slip opinion at 9;

citation omitted). Although the coneurring opinion

would have based the decision on Tirst Amendment

considerations, it also avoided tne free press—fair

trial question:

Also, we should hold, in my judgment, without

intimating any view as to the constitutionality of

2 The plurality opinion notes that the procedures which it im-

posed were especially necessary when First Amendment rights

were at stake (Slip opinion at 12), but it was not that issue which

compelled the plurality’s decision.

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a limited silence order issued after a hearing em-

bodying the procedural safeguards indicated, that

the order here must fall in any event because its

issuance was not preceded by the type of hearing

compelled by the First Amendment values at

stake. (Slip opinion at 27; emphasis supplied).

Petitioner asserts that, by establishing procedural

guidelines to be applied to orders such as that entered

by the trial court, the Court of Appeals has ‘‘created

new obstacles’’ and ‘‘denied tria! judges an essential

element”’ of the *‘power to comply with the dictates of

Sheppard v. Marwell,’”’ 384 U.S. 333 (1964). So con-

struing the effect of the decision, petitioner contends

that the Court gave preference to the First Amend-

ment’s guarantee of a free press over the Sixth Amend-

ment’s guarantee of fair trial, and thus did render a

decision on the constitutional questioa as to the balanc-

ing of the two rights.

If the Petitioner’s characterization of the effect of

the decision of the Court of Appeals were accepted, it

might appear that the constitutional question had been

decided. However, Petitioner’s characterizations are

unwarranted. By no stretch of the imagination can

it be said that the procedural rules imposed by the

Court of Appeals deny to trial judges the power to

issue silence orders. Those rules may create ‘‘obsta-

cles’’ to the issuance of such orders, but such ‘‘obsta-

cles’’ have long been recognized as essential when First

Amendment considerations are involved. See, e.g.,

Carroll v. Commissioners of Princess Anne, 393 U.S.

175 (1968) ; Freedman v. Maryland, 380 U.S. 51 (1965).

In light of the expressed intent of the Court of Ap-

peals to avoid consideration of the constitutional issue

and the obvious necessity for its imposition of proce-

dural safeguards, there can be no question that the

Court’s decision was not based on the resolution of an

important federal question.

Review of the Decision of the Court of Appeals Would Re-

— quire a Finding That the Trial Court's Order Was An

Unconstitutional Prior Restraint on the Press.

Although, as your amicus has indicated above, the

ANPA does not bélieve that the decision of the Court

of Appeals resolved the important free press — fair

trial question, the ANPA is concerned that the deci-

sion may be misapplied by other courts in the future.

For this reason, your amicus respectfully suggests that,

if this Court should grant the petition for certiorari,

review should be had of the fundamental constitutional

issue as to whether a trial court may ever issue a silence

order which restricts the freedom of the press. If such

a review were to be granted, the ANPA believes that

the anSwer to this question would have to be in the

negative.

Despite the clear statements by the Court of Appeals

that it was avoiding resolution of the free press — fair

trial issue, the fact that it was concern over that is-

sue which prompted the trial court to enter the silence

order will not be ignored by courts and attorneys in

the future. The argument will surely be made that the

Court of Appeals, by imposing the procedural safe-

guards which it did, implicitly recognized the ability of

a trial judge to restrict the coverage and/or the content

of news reports by the press. An order such as that

issued by the trial court in this case, however, is clearly

an unwarranted intrusion on what the press may pub-

lish about an ongoing criminal trial, representing a

flagrant prior restraint on the publication of matters

of public record and concern.

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Previous restraints on the publication of informa-

tion come before the courts with a heavy presumption

of invalidity. New York Times Co. v. United States,

403 U.S. 718 (1971). That presumption attaches to

any order such as that issued by the trial court below.

Petitioner asserts that: ‘‘Unlike prior restraints

against the media’s eriticism of government, tor ex-.

ampie, there is simply no discernible vindication of the

First Amendment to be found in respondents’ con-

duct.”’ (Petitioner’s Brief at 14}. This statement

flies in the face of the long Jine of decisions emanating

from this Court regarding efforts to restrict and pun-

ish press comment in regard to judicial proceedings.

E.g., Craig v. Harney, 331 U.S. 367 (1947); Penne-

kamp v. Florida, 328 U.S. 331 (1946); Bridges v. Cali-

fornia, 314 U.S. 252 (1941). In Sheppard v. Marwell,

supra, this Court recognized that publicity can have a

prejudicial effect in the context of a criminal trial;

nevertheless, recognizing the important role which the

press plays, the Court refused to consider restrictions

on the freedom of the press as a legitimate means of

preventing prejudice:

A responsible press has always been regarded

as the handmaiden of effective judicial adminis-

tration, especally in the criminal field.- Its fune-

tion in this regard is documented by an impressive

record of service over several centuries. The press

does not simply publish information about trials

but guards against the miscarriage of justice by

subjecting the police, prosecutors, and judicial

processes to extensive public scrutiny and criti-

cism. This Court has, therefore, been unwilling

to place any direct limitations on the freedom

traditionally exercised by the news media .. . 384

U.S. at 350.

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If the trial court believed that publication of infor-

mation concerning indictn ents pending against Mr.

Schiavo elsewhere possibly jeopardized the defendant’s

right to a fair trial, there were alternative remedies

available other than the drastic censorship order which

the court issued. The court could have sequestered the

jury or further cautioned the jury. Such measures

were suggested by this Court in Sheppard, and the

Committee on the Operation of the Jury System has

stressed that such techniques should be more liberally

utilized by the courts. Report of the Committee on

the Operation of the Jury System on the ‘Free Press

_— Fair Trial” Issue, 45 F.R.D. 391, 412-13 (1969).

That Committee also expressly condemned the use of

court orders to silence the press. 45 F.R.D. at 401-02.

Freedom of the press as guaranteed by the First

Amendment and fair trials as guaranteed by the Sixth

Amendment are fundamental rights in our constitu-

tional system; neither may be allowed to take prece-

dence over the other. For that reason, fear of the pos-

sible prejudicial effects of news coverage of a criminal

proceeding must never be allowed to lead to suppression

of the press in the exercise of that institution’s right

and duty to transmit information to the public. If

this Court should grait a review of the decision of the

Court of Appeals, the ANPA would earnestly suggest

that this Court strongly affirm that basie tenet of con-

stitutional jurisprudence.

CONCLUSION

It is respectfully urged that this Court deny the

petition for certiorari for the reasons previously stated.

Should this Court, however, decide to review the opin-

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ion below, your amicus suggests that primary consid-

eration should be given to the Free Press — Fair Trial

issue. :

Respectfully submitted,

ARTHUR B. HANSON

W. Frank STICKLE, JR. ;

888 Seventeenth Street, N.W.

Washington, D. C. 20006

(202) 298-6161

Aitorneys for Amicus Curiae,

The American Newspaper

Publishers Association