Baltimore Sun Co. v. State

MURPHY, Chief Judge. This case involves the extent to which a juvenile court can limit the media’s use of information when that court gives the media access to a previously confidential juvenile proceeding. We hold that while a court can place reasonable restrictions on ⁴⁴³ the media’s use of information obtained in a confidential juvenile proceeding, it cannot limit the media’s publication of information which it legitimately collected from other sources, and cannot condition access to the juvenile proceeding upon the media’s publication of material specified by the court. I This is the second time that issues arising from these proceedings have warranted our review.

See In re Maurice M., 314 Md. 391 , 550 A.2d 1135 (1988), rev’d, Maurice M. v. Bouknight, 493 U.S. 549 , 110 S.Ct. 900 , 107 L.Ed.2d 992 (1990). In our prior opinion, we set out the facts surrounding this case in detail. Id. at 394-97, 550 A.2d 1135 . On January 23, 1987, Maurice M., the three-month old son of Jacqueline Bouknight (Bouknight), was admitted to the hospital with a broken leg.

Following Maurice M.’s hospitalization, the Baltimore City Department of Social Services (DSS) filed a petition in the Circuit Court for Baltimore City (Division of Juvenile Causes), seeking a determination that Maurice M. was a child in need of assistance under Md.Code (1984) § 3-801(e) et seq. of the Courts & Judicial Proceedings Article. After a hearing on August 18, 1987, and based upon the child’s injuries and other indicia of abuse, Maurice M. was placed under an Order of Protective Supervision to the DSS. On April 18, 1988, the DSS filed a petition representing that Bouknight had failed to cooperate with it. The DSS also filed a Motion for Contempt, alleging that when its representatives made a home visit on April 7, 1988, they were told that Maurice “was in the care of an aunt” but that Bouknight refused to identify the aunt or provide the child’s whereabouts.

Following a hearing on the contempt motion, Bouknight was arrested and brought before the circuit court (Mitchell, J.). When Bouknight refused to reveal the whereabouts of her son, the court found her in civil contempt and entered an order specifying that Bouknight be jailed until she purged herself of the contempt by producing Maurice M. in court, revealing his ⁴⁴⁴ whereabouts to the court, or providing sufficient information about Maurice M. to the court, the DSS, or the police. Bouknight continued to refuse to divulge her son’s whereabouts, and remained in jail until this year. After arguments had been heard on the issues now before us, the court released Bouknight from jail subject to her compliance with certain conditions imposed upon her by the court in the exercise of its continuing jurisdiction over the case.

We are not here concerned with the substantive merits of the proceedings regarding Maurice M. Instead, we consider the validity of the conditions under which the court afforded media access to these juvenile proceedings. Prior to January, 1995, the court had determined that Maurice M.’s best interests were served by closing the proceedings to the media. On January 17, 1995, The Sun, a newspaper published in Baltimore, and other media representatives filed a motion for leave to intervene and for access to proceedings and certain papers filed in Maurice M.’s case. After a hearing, the court entered an order dated January 17, 1995 granting the media access to further proceedings on the condition that “[a]ny reference to the respondent shall not be to his full legal name; reference will be to ‘Maurice’ or ‘Maurice M.’ ” On January 26, 1995, The Sun published an article containing a computer-enhanced image of Maurice M. with a caption identifying the juvenile as “Maurice Bouknight.” The Sun obtained the computer-enhanced photograph from the Baltimore City Police Department. “Maurice Bouknight” is not Maurice M.’s legal name.

Following the article’s publication, the court conducted a hearing to determine whether The Sun’s publication of the photograph and identification of the child as “Maurice Bouknight” violated the court’s January 17 order. The Sun contended that the publication of the photograph was not a violation of the court’s order, and that its reference to Maurice M. as “Maurice Bouknight” was inadvertent. The court disagreed, viewing the caption on the photograph as “an attempt to get around the Order by publishing not his legal name, but ⁴⁴⁵ a name of identification.” It expressed surprise that the police department would release the photograph, stating that “it should know better.” On January 26, 1995, the court proposed to amend its existing order to provide that the child ... shall only be referred to as Maurice M. or Maurice. The last name of the child shall not be used in any way in publication, either in print or broadcast.

No likeness, photograph or visual representation of any kind of the child shall be used or displayed in any news media publications. The court placed a condition upon its issuance of the amended order by directing that its full text be published in all editions of The Sun on January 27,1995. The court said that “[a]bsent [publication of the order], frankly, we are prepared to deny your access.” When The Sun declined to print the court’s proposed order, the court, by order dated January 26, denied the media further access to the case. The Sun and other media representatives petitioned the court for reconsideration of its January 26 ruling.

On February 6, 1995, the court issued a memorandum and order in which it asserted that its original order of January 17 forbade the publication of any “photographic likeness” of Maurice M. The court identified the source of the photograph as the public affairs office of the Baltimore City Police Department, which had decided to distribute the photograph to the media without asking the court’s permission. Asserting that “the newspaper cannot obtain succor from the mistake of the Baltimore City Police Department in assuming it had the independent authority to release the photograph,” the court entered an order on February 6, 1995 allowing access to the proceedings for all media organizations except The Sun. The court said its decision to exclude The Sun was “based on [The Sun’s] deliberate editorial decision to disregard the order of the court, and its apparent unwillingness to abide by the laws pertaining to confidentiality with respect to juveniles in Maryland.” For all members of the media other than The ⁴⁴⁶ Sun, the court’s February 6 order allowed access to the proceedings on the conditions that “the media shall not print the full legal name of the Respondent, but may refer to him as ‘Maurice’ or ‘Maurice M.’” and that “[n]o likeness, photograph, or visual representation of any kind of the child as presented in court or made an exhibit shall be used or displayed in any news media publication.” The Sun appealed the juvenile court’s order to the Court of Special Appeals, asking it to reverse the lower court’s denial of access. Before the Court of Special Appeals issued a decision, we issued a writ of certiorari and brought the case to this Court.

Three parties have presented arguments in this case. The Sun contends that the juvenile court has imposed unconstitutional conditions upon media access to the proceedings. It argues that because the February 6 order does not apply to The Sun, the court’s January 26 order denying access is still in force. The Sun contends that conditioning further access to the proceedings upon the publication of the court’s proposed January 26 order was unconstitutional.

In addition, The Sun contends that the conditions placed in both the proposed January 26 order and the February 6 order unconstitutionally restrict the publication of lawfully obtained information. The Sun asks that we reform the court’s February 6 order to pass constitutional muster. The state contends that the court’s February 6 order replaced the January 26 order denying access, and that any issues relating to the February 6 order, and the proposed January 26 order that would have allowed conditional access, are moot. It argues that the February 6 order is constitutional and should be upheld.

Maurice M., appearing by counsel, argues that the proposed order of January 26 was unconstitutional, but agrees that the February 6 order cured those defects, and that the February 6 order should be upheld. Counsel for Maurice M. stressed that the publicity resulting from media access to the proceedings is most likely to benefit ⁴⁴⁷ Maurice M. by aiding the police in determining the minor’s whereabouts. II A Courts may close juvenile proceedings to the public in instances where closure would be impermissible in other court proceedings. Md.Code (1973, 1995 Repl., 1995 Supp.) § 3-812(e) of the Courts Article provides that in a juvenile proceeding, the court “may exclude the general public from a hearing, and admit only those persons having a direct interest in the proceeding and their representatives.” See also Md. Rule 910(b) (providing that hearings of juvenile causes “may be conducted out of the presence of all persons except those whose presence is necessary or desirable”).

In addition, court records pertaining to juveniles are held in confidence, and can only be divulged by court order, or for limited educational purposes. See § 3-828 of the Courts Article; Md.Rule 921(a). The Sun does not challenge the constitutionality of any of these statutes and rules. Nor does it contend that it has a right to attend juvenile proceedings in general, or these proceedings in particular.

Therefore, we need only determine whether the court’s discretion was properly exercised in this case. Although a juvenile court has the discretion to exclude the press from a juvenile proceeding, its discretion is not unlimited and must be exercised in accord with the purposes for which it was given and within applicable constitutional limitations. B The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom ... of the press.” The Supreme Court; “has interpreted these guarantees to afford special protection against orders that prohibit the publication or broadcast of particular information or commentary—orders that impose a ⁴⁴⁸ ‘previous’ or ‘prior’ restraint on speech.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556 , 96 S.Ct. 2791, 2801 , 49 L.Ed.2d 683 (1976). Because “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,” id. at 559 , 96 S.Ct. at 2803 , any prior restraint bears a heavy presumption against its constitutional validity.

Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 , 91 S.Ct. 1575, 1577-78 , 29 L.Ed.2d 1 (1971). Before a prior restraint can be deemed constitutional, a court must determine that the magnitude of the danger the restraint seeks to prevent, “discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” United States v. Dennis, 183 F.2d 201, 212 (2d Cir.1950) (Hand, J.), aff'd, 341 U.S. 494 , 71 S.Ct. 857 , 95 L.Ed. 1137 (1951), quoted in Nebraska Press Ass’n, supra, 427 U.S. at 562 , 96 S.Ct. at 2804 . The Supreme Court has conducted such balancing twice in the context of juvenile proceedings. In Okl.

Pub. Co. v. Dist. Court In & For Oklahoma Cty., 430 U.S. 308 , 97 S.Ct. 1045 , 51 L.Ed.2d 355 (1977), the Supreme Court reversed an order issued by a state trial court that enjoined newspapers from publishing the name or picture of a minor child involved in a juvenile proceeding. Even though juvenile hearings were presumptively closed under Oklahoma law, “members of the press were in fact present at the hearing with the full knowledge of the presiding judge, the prosecutor, and the defense counsel____ There is no evidence that petitioner acquired the information unlawfully or even without the State’s implicit approval.” Id. at 311 , 97 S.Ct. at 1047 .

The Court relied on Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496 , 95 S.Ct. 1029, 1046-47 , 43 L.Ed.2d 328 (1975), which held that the press may not be prohibited from “truthfully publishing information released to the public in official court records.” Id. at 496 , 95 S.Ct. at 1047 . In Smith v. Daily Mail Publishing Co., 443 U.S. 97 , 99 S.Ct. 2667 , 61 L.Ed.2d 399 (1979), the Court struck down a statute that made publication of a juvenile’s name in connection with juvenile proceedings a criminal offense unless court ⁴⁴⁹ approval was obtained before publication. In the Court’s view, it was unimportant whether the statute constituted a prior restraint. Id. at 101-02 , 99 S.Ct. at 2669-70 .

In summarizing its previous decisions, the Court stated that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Id. at 103 , 99 S.Ct. at 2671 . Even though previous cases “involved situations where the government itself provided or made possible press access to the information,” the Court determined “[t]hat factor is not controlling.” Id. The Court balanced the state’s interest in protecting the juvenile’s anonymity against the public interest in press access and “the important rights created by the First Amendment,” and found that “the constitutional right must prevail over the state’s interest in protecting [the anonymity of] juveniles.” Id. at 104 , 99 S.Ct. at 2671 . As a result, “[i]f the information is lawfully obtained, ... the state may not punish its publication except when necessary to further an interest more substantial than is present here.” Id.

Although these two cases provide the general principles with which our decision must comply, the Supreme Court has not spoken to the issue of what conditions can be placed upon the media when granting access to an otherwise closed juvenile proceeding. Several state courts have addressed this issue, however, and a rough consensus seems to be emerging. Courts have generally upheld orders allowing the media to attend juvenile proceedings even if those orders place conditions upon the media’s use of confidential information obtained at the proceedings. For example, in Austin Daily Herald v. Mork, 507 N.W.2d 854 (Minn.App.1993), the Minnesota Court of Appeals upheld an order permitting media representatives to attend an otherwise closed hearing on the condition that they not reveal the names of any juveniles or other confidential information revealed during the hearing.

The court characterized the order as a grant of “limited access” to the hearing, and therefore concluded that it was not a prior ⁴⁵⁰ restraint. Id. at 856 (relying on the Supreme Court’s ruling in Pell v. Procunier, 417 U.S. 817, 829-30 , 94 S.Ct. 2800, 2807-08 , 41 L.Ed.2d 495 (1974), that limiting media access to information does not constitute a prior restraint). The court specifically noted that “[t]he trial court has not restrained the media from publishing information already in their possession about the juveniles or information the media might later obtain from other sources.” Id. The conclusion reached in Mark is in accord with that reached by other courts.

See In re Minor, 149 Ill.2d 247 , 172 Ill.Dec. 382, 382-85 , 595 N.E.2d 1052, 1053-55 (Ill.1992) (upholding an order that allowed access to a juvenile proceeding only if media representatives signed a pledge not to reveal the juvenile’s name, and distinguishing cases where the identity of the juvenile was publicly revealed or obtained through routine reportorial techniques); State in Interest of H.N., 267 N.J.Super. 596 , 632 A.2d 537 (1993) (upholding order to the extent that it limited media use of information originating at the confidential juvenile proceeding); Edward A. Sherman Pub. Co. v. Goldberg, 443 A.2d 1252, 1259 (R.I.1982) (allowing the trial judge to order the media not to publish the name of a juvenile if the name was obtained from a judicial source); Matter of Hughes Cty. Action No. JUV 90-3, 452 N.W.2d 128 (S.D.1990) (allowing exclusion of media after “the media indicated that it would not preserve confidential information obtained at the juvenile proceedings if it were allowed to have access to such proceedings,” and not finding it unconstitutional that the trial judge would have allowed access on the condition that the minor’s identity not be revealed). On the other hand, judicial orders have been found unconstitutional when they reach beyond confidential information revealed in the juvenile proceeding and restrain media representatives attending the proceeding from publishing information that was obtained through otherwise lawfiil investigation.

For example, the Supreme Court of Rhode Island in Edward A. Sherman Pub. Co., supra, 443 A.2d at 1257-59 , examined an order that granted access to a juvenile hearing but prohibited attending media representatives from revealing a juvenile’s ⁴⁵¹ name. This order was upheld only to the extent that the name had not been lawfully obtained from non-judicial sources. The court stated that if ... the media have learned the name of the juvenile from non-judicial sources, as a result of their own investigations or under similar circumstances, the trial justice shall permit the representatives of the media to report, publish, or make public the name of such juvenile and shall permit the representatives of the media to attend the hearing or proceeding in the Family Court.

Id. at 1259 ; see also id. at 1257 (finding that the “portion of the order conditioning petitioners’ attendance at other juvenile proceedings upon their agreeing in advance not to publish the name of the juvenile is impermissibly overbroad, as well as an unconstitutional prior restraint on the press”). Other courts have reached similar conclusions. See San Bernardino County Dept. of Public Social Services v. Superior Court, 232 Cal.App.3d 188 , 283 Cal.Rptr. 332 (1991) (vacating an order granting access to a proceeding only upon compliance with a number of conditions because “apparently a significant reason ... the juvenile court decided to allow [the newspaper] to attend the proceedings was the court’s misguided belief that allowing the press admittance would somehow afford the court an avenue through which it could control the publicity surrounding this case”); In re A Minor, 127 Ill.2d 247 , 130 Ill.Dec. 225 , 537 N.E.2d 292 (1989) (vacating orders prohibiting a newspaper from publishing a juvenile’s name and barring it from the courtroom if the name were to be published, when the newspaper legally obtained the name “through lawful and ‘routine’ newspaper reporting techniques”); cf. State in Interest of H.N., supra, 632 A.2d at 538-39 (vacating order enjoining newspaper from printing identifying information obtained from public sources, but not directly dealing with the issue of conditional access to juvenile proceedings). One