It is well established that the core purpose of the First Amendment is to prohibit prior restraints upon the dissemination of information by the press. A prior restraint is a governmental restriction on publication before it occurs—including court orders prohibiting the news media from publishing information obtained in court. In creating and debating the First Amendment, the purpose of the framers of the Constitution was simple and direct: to avoid the system of prior restraints on publication practiced in England.[116] In North Carolina, as in many other states, the state constitution also makes clear that the government may not forbid citizens from speaking and publishing.[117] The N.C. Constitution states: “Freedom of speech and of the press are two of the great bulwarks of liberty and, therefore, shall never be restrained, but every person shall be held responsible for their abuse.”[118] As recognized by the Fourth Circuit, in the context of publishing what a reporter sees or hears inside or outside of a courtroom, once the “cat is out of the bag,” restraints on publication are impermissible.[119] It is simply not possible to unring a bell, or so the saying goes.
Notwithstanding the history and constitutional texts noted above, the prohibition against prior restraints on publication is not absolute. Both the U.S. Supreme Court and the N.C. Supreme Court have held that prior restraints are presumptively unconstitutional and that the party who asks a court to issue such an order bears a very heavy burden of justifying the imposition of such a restraint.[120] Indeed, the U.S. Supreme Court has never upheld a prior restraint upon speech.[121] Nevertheless, the Supreme Court has indicated that among the very narrow range of situations that might justify a prior restraint on publication are those in which publication would jeopardize a criminal defendant’s constitutional right to a fair trial.[122]
The U.S. Supreme Court first addressed the question of whether prior restraints on publication could be used to protect the right of a criminal defendant to a fair trial in Nebraska Press Association v. Stuart in 1976.[123] In that case, a state trial judge, in anticipation of a criminal defendant’s trial for the highly publicized murders of six people, entered an order that forbade newspapers, broadcasters, national networks and wire services from disseminating accounts of confessions made by the defendant and other information tending to implicate the defendant as the killer. The order was issued at the request of both the state’s attorney and the defendant. In granting the order, the trial judge reasoned that the “mass coverage by news media” and the “reasonable likelihood of prejudicial news . . . would make difficult, if not impossible, the impaneling of an impartial jury and tend to prevent a fair trial.”[124]
In reversing the state Supreme Court’s decision upholding the trial judge, the U.S. Supreme Court held that in order to justify an order forbidding the publication of information regarding a criminal case, a three-part test must be satisfied:
1) The nature and extent of pre-trial publicity must be such that it would necessarily impair the criminal defendant’s right to a fair trial;
2) There must exist no less restrictive alternative measures that would mitigate the effects of such publicity; and
3) The record must show that the issuance of a court order restraining the media from publishing the information would effectively prevent the harm.
The Supreme Court made clear that it was not fashioning an absolute ban on prior restraints. However, it went on to discuss the particular order and noted that the state court judge had failed to consider alternatives such as postponing the trial, changing the location of the trial and carefully questioning prospective jurors to ferret out persons unable to treat all parties fairly. Moreover, much of the information the judge sought to keep from being published had already been communicated by word of mouth in the tiny community of 850 persons where the crimes occurred.
Prior restraint orders are always of dubious constitutionality because the three-part test set out in Nebraska Press Association v. Stuart can almost never be satisfied.[125] Orders silencing the news media are rarely approved on appeal because there are generally alternatives a court can employ to ensure a fair trial and the burden and quality of proof required of a party seeking a prior restraint is very high.[126]
Moreover, in North Carolina, our General Assembly has adopted a law that specifically prohibits the entry of any court order that would prohibit the publication or broadcast of “any evidence, testimony, argument, ruling, verdict, decision, judgment, or other matter occurring in open court in any hearing, trial, or other proceeding.”[127] This statute provides that if any such order is entered, it may be ignored.[128]
[116] See Near v. Minnesota, 283 U.S. 697, 713-23 (1931).
[117] See, e.g., In re Minor, 463 S.E.2d 72 (N.C. 1995).
[118] N.C. Const. art. I, § 14.
[119] See In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990).
[120] See Nebraska Press Ass’n, 427 U.S. at 558; State v. Williams, 304 N.C. 394, 443-44 (1981). See also Near, 283 U.S. at 716 (“the protection even as to previous restraint is not absolutely unlimited”; hypothesizing “exceptional” cases such as publication of information relating to troop ship locations in time of war).
[121] The restraint imposed on CNN in connection with the drug trafficking trial of former Panamanian dictator Manuel Noriega generated much attention among the media and their advocates. In that case, CNN obtained tapes of telephone conversations between Noriega and his attorney and broadcast them. Noriega moved that CNN be ordered not to broadcast the tapes further. The federal trial judge handling the case granted an order temporarily restraining CNN from broadcasting the tapes until he could hold a hearing on the matter on the grounds that because the tapes concerned potentially privileged conversations between Noriega and his attorneys and because the tapes were not before him he could not perform the three-step analysis required by Nebraska Press Ass’n v. Stuart. United States v. Noriega, 752 F. Supp. 1032 (S.D. Fla. 1990). CNN then reportedly refused to turn over the tapes to the judge for review, continued broadcasting them and appealed unsuccessfully to the 11th Circuit Court of Appeals. See In re Cable News Network, Inc., 917 F.2d 1543 (11th Cir.1990). The U.S. Supreme Court refused to review the case. See Cable News Network, Inc. v. Noriega, 498 U.S. 976 (1990); see also United States v. Noriega, 752 F. Supp. 1045 (S.D. Fla.1990). Viewed in proper perspective, the Noriega case involves nothing more than the unremarkable requirement that in order to determine the merits of a particular controversy, a court must be able to make some judgment about the facts at issue. But see New York Times Co. v. United States, 403 U.S. 713, 715-17 (Black, J., concurring) (for an eloquent statement of the view that even a moment’s delay in considering the contentions of the party seeking imposition of a prior restraint violates the First Amendment). Where a party elects, rightly or wrongly, not to participate in making the facts clear for the court, it may very well find the court reluctant to exercise discretion in its favor.
[122] See Nebraska Press Ass’n, 427 U.S. at 565-67; cf. Florida Star v. BJF, 491 U.S. 524, 532-33 (1989).
[123] 427 U.S. 539 (1976).
[124] Id. at 542.
[125] For instance, in Schmitt v. The United Methodist Retirement Homes, Inc., 95 CVS 04877 (April 11, 1996), Superior Court Judge Narley L. Cashwell vacated an order prohibiting the release of videotapes as a prior restraint.
[126] For observations regarding means by which trial judges can effectively control court proceedings, thus avoiding the need for imposing prior restraints on the media, see Sheppard v. Maxwell, 384 U.S. 333, 350-63 (1966).
[127] N.C. Gen. Stat. § 7A-276.1.
[128] See id.
