NEWS AMERICAN DIV., HEARST CORP. v. State

Gilbert, C. J., delivered the opinion of the Court. — HISTORY OF THE CASE — This case appeared initially in this Court as an appeal from a so-called "gag order” passed by the Criminal Court of Baltimore (Pines, J.) dated April 29, 1981. 1 The order was sought by George Green and Willie Green (the Greens), appellees and cross-appellants, and defendants in a criminal proceeding involving allegations of a double murder, robbery, and related offenses. The Greens were upset by what they apparently felt was the prosecution’s attempt to try its case against them in the media. ⁴²⁴ The appellant, News American Division, The Hearst Corporation (News American) intervened in the Criminal Court and opposed the passage of the "gag-order.” Following Judge Pines’ signing of the order, the News American appealed to this Court and filed a motion requesting that the exigencies of the situation suggested that the appeal be advanced so ⁴²⁵ that we might hear and determine it as expeditiously as possible. The Greens appealed the Criminal Court’s having allowed the News American to intervene in the first instance. While the appeal was pending before this Court, the State filed a suggestion of removal, and the Criminal Court (Dorf, J.) removed the matter to the Garrett County Circuit Court for trial.

Thus, when the appeal was argued, we dismissed it as moot because the order of the Criminal Court was effective during the pendency of the Green case before that court only. Consequently, since it was removed to Garrett County, the "gag-order” was no longer viable. Shortly after we dismissed the appeal as moot, the State’s Attorney for Baltimore City withdrew his request for removal. In so doing, he breathed new life into the "gag-order.” The News American, in light of the resurrection of the "gag-order,” promptly moved for a reconsideration of our dismissal.

Over the objection of the Greens we decided to grant the motion of the News American and to hear the case on its merits. — ISSUES ON APPEAL — The appellant, News American, sees the issue before us as one of constitutional magnitude. It asserts: "The trial court’s order of April 29,1981, violates rights guaranteed by the Constitution of the United States and the Constitution of Maryland as a prior restraint on freedom of speech and of the press and as a denial of access to information concerning judicial proceedings.” The Greens have a somewhat different view of the question before the Court. They aver that: The News American should not have been allowed to intervene in the criminal case and that the trial judge erred in permitting the News American to intervene. ⁴²⁶ — HOLDING OF THE COURT — For the reasons stated infra, we hold that the News American should not have been allowed to intervene in the criminal case between the State of Maryland and the appellees-cross appellants, George and Willie Green. That is not to say that the newspaper was without a way to seek relief from the order of the Criminal Court of Baltimore.

The remedy, however, lies, not by way of direct intervention in the criminal case, but rather through a writ of mandamus, or mandatory injunction or declaratory judgment obtained from a court of competent jurisdiction. — THE LAW — The News American contends that although "the issue of the media’s right to intervene in a criminal case has never been expressly addressed by a Maryland appellate decision ... this court has impliedly held that the media may be permitted to intervene in a criminal case and appeal from an order adversely affecting their rights.” To support that statement, the newspaper cites the recent case of Patuxent Publishing Corp. v. State, 48 Md. App. 689 , 429 A.2d 554 (1981), but they draw a far greater conclusion from Patuxent Publishing than is warranted. In Patuxent, the trial court allowed the media to intervene so that the media might mount a challenge to the court’s entry of a "gag-order” and also an attack upon a second order that closed the "gag-order” hearing to the public. The standing of the media to intervene in the criminal case was neither raised in the trial court nor in this Court. Because it was not raised, it was not considered.

We think that to deduce implicit approval of the media’s right to intervene in a criminal case from an unraised and undecided issue is akin to presuming waiver from a silent record, and that is impermissible. Johnson v. Zerbst, 304 U.S. 458 , 58 S. Ct. 1019 , 82 L. Ed. 1461 (1938). Undoubtedly, the public and the press have a right of access to criminal trials. The Supreme Court of the United ⁴²⁷ States has said that that right is "implicit in the guarantees of the First Amendment.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 , 100 S. Ct. 2814 , 65 L. Ed. 2d 973 (1980).

Even absent the Constitutional provision, the right existed at common law and, thus, has been part of Maryland legal history since its founding in 1634. Following the Revolutionary War, the right to a public trial continued to be vested in the people and the press. See Maryland Constitution, Declaration of Rights, Article V. While the press, as members of the general public, are entitled to a forum to assert their First Amendment rights, they possess "no special standing” or status to challenge court orders limiting access of the public and press to criminal proceedings. "Their privilege to attend court proceedings is neither greater nor lesser than that of members of the general public, for their status derives from the rights of the general public for whom they merely act as surrogate and as witness to what the general public could itself witness were it able to be present.” Oxnard Publishing Co. v. Superior Court of Ventura County, 68 Cal.

Rptr. 83 , 88 (1968). The press, however, needs no special standing because as members of the general public, they have an absolute right to seek access to the criminal courts. Id.; Wrather-Alvarez Broadcasting, Inc., v. Hewicker, 147 Cal. App. 2d 509 , 305 P.2d 236 (1957); Kirstowsky and Hearst Publishing Co. v. Superior Court of Sonoma County, 143 Cal.

App. 2d 745 , 300 P.2d 163 (1956); E. W. Scripps Co. v. Fulton, 100 Ohio App. 157 , 125 N.E.2d 896 (1955). The Court of Appeals of New York, in United Press Association v. Valente, 308 N.Y. 71 , 123 N.E.2d 777 (1954), passed upon a matter wherein United Press had instituted an action in the nature of a writ of prohibition to restrain a judge in a criminal case from enforcing an order that excluded the general public and the press from the courtroom during the presentation of the people’s case. The trial court’s order was grounded on the theory that public decency required the exclusion. The Court of Appeals of New York, in agreeing, stated: ⁴²⁸ "The fact that petitioners are in the business of disseminating news gives them no special right or privilege, not possessed by other members of the public.

Since the only rights they assert are those supposedly given 'every citizen’ to attend court sessions, ... they are in no position to claim any right or privilege not common to 'every [other] citizen.’ ” (Citation omitted.) 123 N.E.2d at 783 . On the reverse side of the coin from the public-press access to the criminal courts is the ever important right of the accused to a fair and impartial trial. It sometimes happens that the right of the public and press collide head-on with the accused’s right to a fair trial. When that occurs, the trial judge must undertake a delicate balancing of the respective rights of the public and press vis-á-vis those of the defendant, so as to resolve the matter in a way that protects the rights and privileges of both interests.

We think that is precisely what Judge Pines endeavored to do in the instant case. 2 Neither the public nor the press has been excluded from the courtroom during the trial of the Greens. The restraint order by the judge is directed to a particular class of persons, namely the lawyers and allied court personnel. The order prevents them from making any extra-judicial announcements, pronouncements, or comments about the case to the public or the media. Although some "news sources” have been muffled, there is nothing in the order that prevents the media from publishing what they may learn about the case.

Cf. State v. Simants, 194 Neb. 783 , 236 N.W.2d 794 (1975), rev’d on other grounds sub nom. Nebraska Press Association v. Stuart, 427 U.S. 539 , 96 S. Ct. 2791 , 49 L. Ed. 2d 683 (1976). ⁴²⁹ — THIRD PARTY INTERVENTION IN CRIMINAL PROCEEDINGS — Thus far, we have discussed the right vel non of the media to challenge a court order excluding the public and the press from a trial. We now turn our attention to consideration of the dispositive issue in this appeal, the right vel non of any third party to intervene directly in a criminal prosecution.

In Central South Carolina Chapter, Society of Professional Journalist, Sigma Delta Chi v. U.S. District Court for the District of South Carolina, 551 F.2d 559 (4th Cir. 1977), cert. denied, 434 U.S. 1022 , 98 S. Ct. 749 , 54 L. Ed. 2d 771 (1978), the district court judge entered