# Amicus Curiae Brief — Ditter v. Philadelphia Newspapers, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1881%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 419 U.S. 1096 ## Text a wo eet LON LANL a ILE EIR pet EAD, 2 ~ oaldlal ia. Wy an Pad a PAD LION PIER - TRA RUNDE eta eaten clog eat MU: LIBRARY ss DEC 1 1 1974 SUPREME COURT, U. B IN THE : - Supreme Court of the United States | OctToBER TERM, 1974 \ 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. SBMA OIRIN 8S TELE PE RE TE 8 MITTS BE BY Oe a we we LS Det ANOS eel aire % 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. ADP wen Ue re rains nlifind trae hit olne bh iia to Pt 2 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. —— a. - 3 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- 2 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 te 255 eet hee oe i ; : x 4 | 2 3 3 i EL ARE LAP 3 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. eg CRD Fee ae | Se ed Sedan ie matinee , 4 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. ee aan eh ABEL TOR ES IDLE EEF SUERTE eo | rons a 'G i pSEah: Stal ee Bae i Bi Sia Ps le ae 6 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. ay aaa ie te ot ee a AS ene eC I 7 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- 5 . TEAR RA CFR iS IO RCP AIL PEE BOA IO EL EOD AGEL LM NK Sih ee ie Tt EM Soa ge RAMEN LPG HOLLIE GE ORENEL GMT 8 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1881%3A4. Public record. Not legal advice.