News American Division v. State

Rodowsky, J., delivered the opinion of the Court. In this appeal we approve the trial court’s having permitted a newspaper to intervene in companion criminal cases for the limited purpose of opposing the accuseds’ request for an order restricting public comment by trial participants. On March 20, 1981 two employees of a Baltimore restaurant, who had opened the premises that morning, were found murdered. The defendants, George Green and Willie L. Green, were arrested that day.

A series of indictments, including two charges of murder and two charges of robbery with a deadly weapon against each defendant, were returned on March 23. The cases attracted considerable media attention in the Baltimore metropolitan area. Because of general publicity given to the cases, and particularly to statements made by the State’s Attorney for Baltimore City concerning the cases, the crime situation in Baltimore City and the correctional system, defense counsel on March 26 filed a motion in the criminal cases for an order that would prohibit the prosecutors from discussing the cases with the media, and would require discovery materials to be sealed. 1 On March 30, the News American Division of The Hearst Corporation (Hearst) filed a petition in the criminal cases requesting that it be allowed to be heard in opposition to the defense motion. Hearst publishes a daily newspaper in Baltimore City which is distributed within Maryland and adjoining states.

Hearst’s petition averred that "it has the ³³ duty and right under the Constitution and laws of the United States and the State of Maryland to gather and publish the news, including news concerning the activities and statements of public officials in connection with the investigation and prosecution of crime” and averred that the proposed order would cause it "irreparable damage.” By order of April 1, the trial court granted Hearst leave to intervene and be heard in the criminal case "with respect to issues raised in [Hearst’s] Petition of March 30, 1981.” The defense motion was heard on April 1, 27 and 29 with Hearst participating by way of oral argument and legal memorandum. On April 29, 1981 the court entered an order (the gag order) prohibiting counsel, parties, witnesses and court personnel from making extrajudicial statements for dissemination by means of public communication relating to certain aspects of the criminal cases. 2 This order, by its terms, remained in effect during the pendency of the cases against George and Willie Green. Sealing of the discovery material was denied. Hearst appealed to the Court of Special Appeals from the gag order and the Greens cross-appealed from the order allowing Hearst to intervene.

The intermediate appellate court held that Hearst could not be permitted to intervene in the criminal cases, so that Hearst’s appeal was dismissed and the order granting intervention was reversed. News American v. State, 49 Md. App. 422 , 431 A.2d 1387 (1981). We granted Hearst’s petition for certiorari which presented two questions, one procedural and one substantive: (1) whether the Court of Special Appeals erred in reversing the trial court’s order of intervention and in dismissing the appeal by Hearst; and (2) whether the gag order violated Hearst’s constitutional rights "as a prior restraint on freedom of speech and of the press and as a denial of access to information concerning judicial proceedings.” ³⁴ On the day certiorari was granted, Willie Green was convicted on the two charges of murder and on one of armed robbery. He was subsequently sentenced to two terms of life imprisonment, plus 20 years, all consecutive.

After Hearst’s appeal was argued in this Court, George Green pled guilty to four charges and was sentenced to two terms of life imprisonment and two terms of 20 years, all consecutive. Counsel for the Greens has subsequently moved to dismiss Hearst’s appeal as moot. Before addressing the mootness issue, some legal background should be stated. (i) The gag order in this case was modeled substantially on recommendations for a standing rule of court proposed to the Judicial Conference of the United States by its Committee on the Operation of the Jury System in a report on "The 'Free Press-Fair Trial’ Issue.” 45 F.R.D. 391 , 404-406 (1969). 3 That report considered that the Supreme Court in Sheppard v. Maxwell, 384 U.S. 333 , 86 S. Ct. 1507 , 16 L. Ed. 2d 600 (1966) had "laid down a mandate to the courts to deal with the problems caused by the impact of publicity on the jury system.” 45 F.R.D. at 395.

Sheppard affirmed the setting aside, on federal habeas corpus, of a state court murder conviction because the accused had been denied a fair trial due to the failure of the trial judge sufficiently to protect the accused from massive, pervasive and prejudicial publicity that attended his prosecution. Justice Clark for the Court there said: The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge’s failure to take any action .... Effective control of these sources — concededly within the court’s power — might well have prevented the divulgence of inaccurate infor ³⁵ mation, rumors, and accusations that made up much of the inflammatory publicity, at least after Sheppard’s indictment. More specifically, the trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters .... [Id. at 361, 86 S. Ct. at 1521 , 16 L. Ed. 2d at 619 .] The Court has not had occasion, following Sheppard, to decide a case involving an order of the type entered in the instant matter and, more specifically, where objection to such an order is made by the press.

However, other types of orders precipitated by concern over the effects of publicity on a fair trial have been considered by the Court on oppositions initiated by the press. Nebraska Press Association v. Stuart, 427 U.S. 539 , 96 S. Ct. 2791 , 49 L. Ed. 2d 683 (1976) struck down, as an invalid prior restraint, an order which directly prohibited the press from publishing information relating to confessions, admissions or other facts "strongly implicative” of the accused. In Gannett Co. v. DePasquale, 443 U.S. 368 , 99 S. Ct. 2898 , 61 L. Ed. 2d 608 (1979), it was held that members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend pretrial suppression hearings in criminal cases. That case resulted from a newspaper’s challenge to an order closing such a proceeding.

Gannett also assumed, arguendo, that the First and Fourteenth Amendments may guarantee the press access to judicial proceedings in some situations, but held that "this putative right” had been given "all appropriate deference” by the trial court in that case. Id. at 392 , 99 S. Ct. at 2912 , 61 L. Ed. 2d at 629 . It was noted that no spectators, including the petitioner’s reporter, objected when the closure motion was made, that the petitioner was given an opportunity to be heard, that the denial of access was only temporary and that the trial court had "balanced the 'constitutional rights of the press and the public’ against the 'defendants’ right to a fair trial.’ ” Id. As to this factor the Supreme Court said: ³⁶ The trial judge concluded after making this appraisal that the press and the public could be excluded from the suppression hearing and could be denied immediate access to a transcript, because an open proceeding would pose a "reasonable probability of prejudice to these defendants.” Thus, the trial court found that the representatives of the press did have a right of access of constitutional dimension, but held, under the circumstances of this case, that this right was outweighed by the defendants’ right to a fair trial.

In short, the closure decision was based "on an assessment of the competing societal interests involved ... rather than on any determination that First Amendment freedoms were not implicated.” [Id. at 392-93, 99 S. Ct. at 2912 , 61 L. Ed. 2d at 629 .] The springboard for Hearst’s substantive contentions in this case is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 , 100 S. Ct. 2814 , 65 L. Ed. 2d 973 (1980), which set aside a trial closure order entered without factual findings to support closure and without inquiry into alternative solutions for insuring fairness. Eight Justices sat, of whom seven concurred in the reversal. The opinion of the Chief Justice, joined by Justices White and Stevens, said in announcing the judgment: [T]he First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that amendment was adopted .... It is not crucial whether we describe this right to attend criminal trials to hear, see, and communicate observations concerning them as a "right of access,” ... or a "right to gather information,” for we have recognized that "without some protection for seeking out the news, freedom of the press could be eviscerated.” Branzburg v. Hayes, 408 U.S. 665, 681 [, 92 S. Ct. 2646, 2656 , 33 L. Ed. 2d 626, 639 ] ³⁷ (1972).

The explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily. [Id. at 576-77, 100 S. Ct. at 2827 , 65 L. Ed. 2d at 989 . (footnotes omitted).] This opinion concluded that the trial of a criminal case must be open to the public "[a]bsent an overriding interest articulated in findings.” Id. at 581 , 100 S. Ct. at 2830 , 65 L. Ed. 2d at 992 . In a concurring opinion by Justice Brennan, joined by Justice Marshall, the emphasis was on the "structural interest served in opening the judicial system to public inspection.” Id. at 592 , 100 S. Ct. at 2836 , 65 L. Ed. 2d at 1000 . Because the state statute relied upon to close the proceedings granted unfettered discretion, those Justices saw no need in Richmond Newspapers to be concerned with "Lw]hat countervailing interests might be sufficiently compelling to reverse this presumption of openness . ...” Id. at 598 , 100 S. Ct. at 2839 , 65 L. Ed. 2d at 1003-04 .

Justice Stewart concurred because the trial judge had given no recognition to the right of representatives of the press and public to be present at the murder trial. He also said that "while there exist many alternative ways to satisfy the constitutional demands of a fair trial, those demands may also sometimes justify limitations upon the unrestricted presence of spectators in the courtroom.” Id. at 600 , 100 S. Ct. at 2840 , 65 L. Ed. 2d at 1005 (footnotes omitted). Justice Blackmun, in his concurring opinion in Richmond Newspapers, accepted a First Amendment basis as his secondary position, but continued to believe that the analysis should more properly be placed on the Sixth Amendment, as he had done in his partially dissenting opinion in Gannett. There he recognized that the evaluation of a defendant’s closure request would entail a balancing of factors. 443 U.S. at 440-41 , 99 S. Ct. at 2936-37 , 61 L. Ed. 2d at 660-61 .

In its most recent decision on this general subject, the Court held to be unconstitutional a Massachusetts statute mandating that the trial of certain sex offenses be closed ³⁸ during the testimony of a victim who is under the age of eighteen. It was recognized that a state has a compelling interest in safeguarding the physical and psychological well-being of a minor, but that that interest does not justify mandatory closure. Again referring to the balancing of factors, the Court said: [I]t is clear that the circumstances of the particular case may affect the significance of the interest. A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. [Globe Newspaper Co. v. Superior Court, U.S., 102 S. Ct. 2613, 2621 , 73 L. Ed. 2d 248, 258 , 50 U.S.L.W. 4759 , 4762 (1982) (footnote omitted).] (ii) The substantive question presented by the petition for certiorari in this case is moot. 4 The gag order expired when the prosecution of George Green terminated.

There is no existing controversy between the parties and no effective remedy which this Court could provide, even if the gag order were erroneous in whole or in part. See Attorney General v. Anne Arundel County School Bus Contractors Association, 286 Md. 324 , 407 A.2d 749 (1979). A decision on the subsumed issue of whether and to what extent the public, including the press, has a First Amendment right of access to public statements which trial participants might desire to make, absent a gag order, would produce an opinion on an abstract proposition, which this Court does not sit to express. See Health Services Cost Review Commission v. Holy Cross Hospital of Silver Spring, Inc., 290 Md. 508, 552 , 431 A.2d 641, 663 (1981).

The views of this Court on that "sensitive ³⁹ question” are not "presently immediately pertinent.” Bishop v. Governor of Maryland, 281 Md. 521, 525 , 380 A.2d 220, 223 (1977). The extent to which any right of access, beyond that recognized in Richmond Newspapers, might affect the particular gag order entered in this case would, as the Supreme Court opinions indicate, require a balancing of factors. Decision on the merits would turn on the peculiar facts of the instant case. Thus the issue of the merits of the gag order does not fall within the exception to the mootness rule under which an opinion may be rendered " 'where the urgency of establishing a rule of future conduct in matters of important public concern is both imperative and manifest.’ ” District 1199E, National Union of Hospital and Health Care Employees, Division of R.W.D.S.U., AFL-CIO v. The Johns Hopkins Hospital, 293 Md. 343 , 350 n.2, 444 A.2d 448 , 451 n.2 (1982) (quoting State v. Ficker, 266 Md. 500, 507 , 295 A.2d 231, 235 (1972)).

On the other hand, the procedural question raised in the instant matter does fall within the exception to the mootness doctrine. The problem of the route to be taken by the press in an effort to protect against a claimed infringement of First Amendment rights is likely to be a recurring one, particularly in the wake of Richmond Newspapers. The scope of the procedural problem is not limited to gag orders against trial participants. A common procedural issue arises when the press seeks to contest orders closing pretrial proceedings, closing trials or portions of trials, and sealing records of court proceedings.

It is also of important, public concern that the trial courts and bar have an approved procedure to follow in such cases. Finally, there is a present necessity that the procedural question be addressed in this otherwise moot case. The opinion of the Court of Special Appeals would bar a motion by the press filed in the criminal case. That court has said the remedy lies "through a writ of mandamus, or mandatory injunction or declaratory judgment obtained from a court of competent jurisdiction.” News American v. State, supra, 49 Md. App. at 426 , 431 A.2d at 1389 .

Because we do not believe that view states the procedure to be followed,