THE STATE OF SOUTH CAROLINA
In The Supreme Court
Ex Parte: The State
Record Co., Inc., Appellant,
In Re: State of South
B.J. Quattlebaum, Respondent.
Appeal From Lexington County
Thomas W. Cooper, Jr., Judge
Opinion No. 24831
Heard October 22, 1997 - Filed August 31, 1998
Jay Bender and Kirby D. Shealy, III, of Baker,
Barwick, Ravenel & Bender, of Columbia, for
Joseph M. McCullouch, Jr., of Columbia, A.
Camden Lewis of Lewis, Babcock & Hawkins, of
Columbia, Katharine E. Evatt and Donald V.
Myers, of Lexington, for respondent.
WALLER, A.,J.: This is an appeal of a temporary restraining
order prohibiting the media from disseminating the contents of a videotape
containing a privileged communication between the defendant herein, B.J.
Quattlebaum, and his attorney. The State-Record Co., Inc. (The
State,/Newspaper) appeals. We affirm,
Quattlebaum was indicted for murder, armed robbery, assault and
battery with intent to kill and possession of a firearm during commission of
a violent crime; the State sought the death penalty. While he was
imprisoned at the Lexington County Detention Center, a privileged
conversation between Quattlebaum and his attorney was surreptitiously
recorded.1 The videotape was thereafter disseminated to WIS-TV, a Columbia
television station.2 Upon learning of the videotape and its dissemination to
the media, Quattlebaum moved for a temporary restraining order (TRO)
prohibiting dissemination or characterization of its audio content. On August
18, 1997, the circuit court granted an ex parte TRO, pending a hearing the
following day, prohibiting all trial participants and all media from
disseminating the substance and details of the privileged communication.
Counsel for The State was notified by telephone and a copy of the order was
served on it the same day.
After a hearing on August 19, 1997,3 the circuit court continued its
order in effect until such time as a jury was empaneled and sequestered in
Quattlebaum's case.4 The circuit court's order specifically notes that it does
not "prohibit the reporting of the invasion of the attorney client privilege;"
nor does it "restrain or prohibit [publication of] the identity of the individuals
involved or the nature of the charges in the case." It simply prohibits the
2The manner of its distribution is unknown and is not an issue on
3The State attended the hearing.
4 The order on appeal has effectively expired since Quattlebaum was
tried, convicted and sentenced to death while this appeal was pending.
However, the fact that Quattlebaum has now been tried does not render our
decision moot. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546, 96
S.Ct. 2791, 2797, 49 L.Ed.2d 683 (court's jurisdiction is not defeated simply
because the order attacked has expired, if the underlying dispute between the
parties is one capable of repetition, yet evading review).
"dissemination of the contents of the communication or the characterization
of its contents."
1. Did the circuit court have subject matter jurisdiction to
issue the temporary restraining order?
2. Did the circuit court have personal jurisdiction over
3. Did the court err in imposing a prior restraint?
1. SUBJECT MATTER JURISDICTION
Initially, The State contends the court of general sessions is without
subject matter jurisdiction to issue an injunction.5 We disagree.
The general rule that a court in a criminal case will not issue an
injunction is subject to the exception that a court, once having obtained
jurisdiction of a cause of action, has inherent power to do all things
reasonably necessary to the administration of justice in the case before it.
42 Am. Jur. 2d Injunctions § 11 (1969). The United States Supreme Court
has recently recognized the inherent authority of a court to protect its
proceedings. See Degen v. United States, ___U.S. ___, 116 S. Ct. 1777, 135
L. Ed. 2d 102 (1996) (courts invested with judicial power have inherent
authority to protect their proceedings in course of discharging their
traditional responsibilities). We find it patent that a court of general sessions
has subject matter jurisdiction to issue an injunction, if necessary, to protect
Franks, 214 S.C. 525, 53 S.E.2d 608 (1949). Franks relied on Section 565,
Code of 1942, later codified at S.C. Code Ann. § 15-55-10, which was repealed
upon enactment of the South Carolina Rules of Civil Procedure (SCRCP ) (in
effect at the time of this action). Accordingly, Franks and section 15-55-10
2. PERSONAL JURISDICTION
The State next argues the circuit court was without personal
jurisdiction to bind it. We disagree.
Under Rule 65(d) of the South Carolina Rules of Civil Procedure
(SCRCP), every order granting a restraining order is binding on the parties
and "those persons in active concert or participation with them who receive
actual notice of the order by personal service or otherwise."6 Here, the only
known media entity in possession of the videotape at the time Quattlebaum
sought a TRO was WIS-TV, which was named and served with the motion
for a TRO. We agree with the circuit court that The State was "in active
concert" with WIS and had actual notice of the order so as to be bound by it.
We find no error in the circuit court's assertion of personal jurisdiction over
3. PRIOR RESTRAINT7
The State next contends the circuit court erred in issuing a prior
restraint as Quattlebaum failed to meet his burden of justifying its necessity.
We disagree. Under the extremely limited factual circumstances of this case,
we find the circuit court properly enjoined dissemination of the privileged
communication between Quattlebaum and his attorney.
This Court is faced with a profound dilemma: whether to uphold a prior
restraint upon the media's First Amendment8 right of free speech, a task
which carries with it an extremely heavy burden upon the party seeking to
issued in this case, may be issued without notice.
7Some courts draw a distinction between a "gag order" restricting
merely trial participants, which is not characterized as a prior restraint, and
one directly restraining the media itself. See, e.g., United States v. Davis,
904 F. Supp. 564 (E.D. La. 1995); Application of Dow Jones & Co., 842 F.2d
603, 609 (2d Cir.), cert. denied, 488 U.S. 946 (1988). The order on appeal
directly enjoins the media. Accordingly, it is clearly properly characterized
as a prior restraint.
8U.S. CONST. amend. I; S.C. CONST. art. I, § 2.
limit the speech9; or whether to invalidate the prior restraint placing in
jeopardy the fundamental right of a defendant to a fair trial pursuant to the
Sixth Amendment.10 We are faced with the added quandary that the
information sought to be disseminated by the media is a privileged
communication between a criminal defendant and his attorney.11
2791, 2801-03, 49 L. Ed. 2d 683, 695-98 (1976); Near v. Minnesota, 283 U.S.
697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) (setting forth presumption of
unconstitutionality of prior restraints).
10 U.S. CONST. amend. VI; S.C. CONST. art. 1, § 14.
11 We note, at the outset, that there is very little precedent regarding
a balancing of the competing interests in this regard. Only one case, United
States v. Noriega, has involved violation of the attorney client privilege.
There have been a series of opinions in Noriega. The first was issued by the
United States District Court for the Southern District of Florida. United
States v. Noriega, 752 F. Supp. 1032 (S.D. Fla. 1990) (Noriega 1). In Noriega
1, the district court temporarily enjoined Cable News Network (CNN) from
broadcasting tape recordings of privileged telephone conversations between
Manuel Noriega and his defense team, until such time as the tape recordings
could be reviewed by a federal magistrate to ascertain whether the
defendant's right to a fair trial would be jeopardized by publication of the
contents. The Eleventh Circuit affirmed the grant of the temporary
injunction on the ground that CNN's failure to produce the tape recording
had prevented the district court from balancing the defendant's right to a fair
trial with CNN's First Amendment rights. United States v. Noriega, 917
F.2d 1543 (11th Cir. 1990) (Noriega 2). The United States Supreme Court
denied certiorari. Cable News Network, Inc. v. Noriega, 498 U.S. 976, 111
S. Ct. 451, 112 L. Ed. 2d 432 (1990). Thereafter, the district court held
Noriega had not met his burden of demonstrating the necessity of a
permanent injunction, in part because a portion of the privileged attorney-
client conversation had already been broadcast by CNN (such that it was
moot), and that the remaining portion of the privileged conversation was
simply not so prejudicial as to warrant a prior restraint. United States v.
Noriega, 752 F. Supp. 1045 (S.D. Fla. 1990) (Noriega 3). The court in
Noriega 3 also found Noriega's claim that his Sixth Amendment right to
effective assistance of counsel was jeopardized insufficient to justify the
continued prior restraint, since alternative measures were available through
which to prevent prosecutorial tainting. Id.
To date, the United States Supreme Court has declined to assign
priorities between the First Amendment right of free press and the Sixth
Amendment right to a fair trial.12 In Nebraska Press Ass'n v. Stuart, 427
U.S. 539, 561, 96 S. Ct. 2791, 2803-04, 49 L. Ed. 2d 683, 699 (1976), the
Court specifically declined to rule on the issue, stating:
The authors of the Bill of Rights did not undertake to assign
priorities as between the First Amendment and Sixth Amendment
rights, ranking one as superior to the other. In this case,
petitioners would have us declare the right of an accused
subordinate to their right to publish in all circumstances. . . .
[I]t is not for us to rewrite the Constitution by undertaking what
they declined to do. It is unnecessary, after nearly two centuries,
to establish a priority applicable in all circumstances.
Notwithstanding its reluctance to assign priorities between the
competing interests, the Court has recognized that the right of a defendant
to a fair trial is "the most fundamental of all freedoms--[which] must be
maintained at all costs." Estes v. State of Texas, 381 U.S. 532, 540, 85 S. Ct.
1628, 1632, 14 L. Ed. 2d 543, 549 (1965). More recently, the Court noted
that "No right ranks higher than the right of an accused to a fair trial."
Press Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508, 104
S. Ct. 819, 823, 78 L. Ed. 2d 629, 637 (1984).
The Nebraska Press Court recognized a trial court's duty to protect the
defendant's constitutional right to a fair trial from the impact of pretrial
courts have held that a defendant's Sixth Amendment right to a fair trial is
superior to the right of free speech and that, where the two rights collide, the
latter must give way to the former. Application of Dow Jones & Co., 842
F.2d 603 (2d Cir.), cert. denied, 488 U.S. 496 (1988) (when exercise of free
press rights actually tramples on Sixth Amendment rights, former must yield
to the latter); United States v. Davis 904 F. Supp. 564 (E.D. La. 1995);
Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert.
denied, 427 U.S. 912 (19-16); News Journal Corp. v. Foxman, 939 F.2d 1499
(11th Cir. 1991) (when First Amendment claims impinge on Sixth
Amendment right to trial by impartial jury, asserted First Amendment
freedoms must yield to the 'most fundamental of all freedoms,' the right to
a fair trial for the accused); Mockaitis v. Harcleroad, 938 F. Supp. 1516 (D.
Or. 1996), rev'd on other grounds, 104 F.3d 1522 (9th Cir. 1997).
Due process requires that the accused receive a trial by an
impartial jury free from outside influences. . . . [T]he trial courts
must take strong measures to ensure that the balance is never
weighed against the accused . . . . where there is a reasonable
likelihood that prejudicial news prior to trial will prevent a fair
trial, the judge should [take such measures as continuance,
change of venue, sequestration, or a new trial]. . . But we must
remember that reversals are but palliatives; the cure lies in
those remedial measures that will prevent the prejudice at its
inception. The courts must take such steps by rule and
regulation that will protect their processes from prejudicial
427 U.S. at 552-53, 96 S. Ct. at 2800, 49 L. Ed. 2d at 694 (emphasis
supplied) (citing Shepard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L.
Ed. 2d 600 (1966). See also Noriega, 752 F. Supp. at 1049-51.
Citing Learned Hand,13 Nebraska Press established a three-prong
balancing test to determine whether a prior restraint is justified:
1. The nature and extent of pretrial publicity;
2. Whether other measures would be likely to mitigate the
effects of unrestrained pretrial publicity; and
3. How effectively a restraining order would operate to
prevent the threatened danger.
427 U.S. at 562-68, 96 S. Ct. at 2804-07, 49 L. Ed. 2d at 699-703. Nebraska
Press specifically noted that "[t]he precise terms of the restraining order are
also important." Id. at 562, 96 S. Ct. at 2804, 49 L. Ed. 2d at 699.
We find the remedial measures employed by the trial court here were
such invasion of free speech as is necessary to avoid the danger." 427 U.S.
at 562, 96 S. Ct. at 2804, 49 L. Ed. 2d at 699 (emphasis supplied) (citing
United States v. Davis, 183 F.2d 201, 212 (2d Cir. 1950), aff'd, 341 U.S. 494
necessary to guarantee Quattlebaum's right to a fair trial.14 Moreover, the
restraint imposed by the trial court was as narrowly tailored, both in scope
and duration, as was possible under the circumstances.
Here, as to the first element, although Quattlebaum's case was not
extremely "sensational," it was a death penalty case which received media
attention throughout the state due, in large part, to the videotape in
question. We find sufficient evidence in the record from which to conclude
the pretrial publicity in this case had the potential to impair the
Quattlebaum's right to a fair trial. Accord Nebraska Press, 427 U.S. at 562-
63, 96 S. Ct. at 2804, 49 L. Ed. 2d at 700 (notwithstanding impact of
publicity is "of necessity speculative," dealing as a court must with factors
unknown and unknowable, court could reasonably conclude, based on common
human experience, that publicity might impair defendant's right to a fair
Further, we find the third prong of Nebraska Press is met in this case.
Undoubtedly, the prior restraint prevented prospective jurors from learning
the contents of the privileged communication contained on the videotape.
Clearly, it prevented the threatened danger to Quattlebaum's right to a fair
The most troubling element of Nebraska Press is the second prong,
whether "other measures would be likely to mitigate the effects of
unrestrained pretrial publicity." The problem with application of this factor
effects of pretrial publicity, the only measure certain to ensure Quattlebaum's
fundamental right to a fair trial was imposition of the prior restraint,
15 Unlike the situation in Nebraska Press, the prior restraint here was
manageable because the only known media sources in possession of the
videotape were local media television stations and newspapers. Since all
parties and media in possession of the tape were restrained from disclosing
its contents, the territorial problems espoused by the Court in Nebraska
Press were much less troublesome. The fact that people may have speculated
as to the contents of the videotape in question is simply insufficient to rule
that Quattlebaum had not met his burden of demonstrating a prior restraint
would prevent the threat to his right to a fair trial. On the contrary, this is
one of those "unknown and unknowable" ramifications which we find,
justifies the trial court's conclusion that the prior restraint would prevent the
harm in this case.
is that it is simply untenable to suggest that other measures would not, in
any case, be "likely to mitigate" the effects of pretrial publicity. It could
always be argued that other measures would, to some degree, "mitigate" the
effects of pretrial publicity.16 "Mitigate" is defined as "to make less severe,
alleviate. . . ." NEW WEBSTER'S DICTIONARY AND THESAURUS 640
(1993). Although alternate measures might "make less severe" the effects of
pretrial publicity, they could not, in this case, ensure Quattlebaum's right to
a fair trial. Were we to premise our analysis solely upon whether other
measures would be "likely to mitigate" the effects of pretrial publicity, then
we can conceive of no situation which would meet the elements of Nebraska
Press. We do not believe the Supreme Court intended the second prong of
Nebraska Press to be read in isolation so as to foreclose the possibility, in all
circumstances, of a prior restraint. Had it intended such a result, it would
have imposed an absolute ban on prior restraints. Indeed, a majority of the
Court specifically declined to do so,17 stating:
However difficult it may be, we need not rule out the
is questionable whether the test could ever be met. See L. Tribe, American
Constitutional Law 858-59 (2d Ed. 1988) (Supreme Court's confidence that
alternatives to prior restraints on media will adequately deter any adverse
impact of publicity suggests that Nebraska Press acts as "a virtual bar to
prior restraints" on the press); Bernabe-Riefkohl, Prior Restraints on the
Media and The Right to a Fair Trial: A Proposal for a New Standard, 84 Ky.
L.J. 259, 290-91 (1995-96) (standard of Nebraska Press is almost impossible
to meet as a defendant cannot demonstrate that twelve impartial jurors
cannot be found or that alternative measures will not eliminate risks).
17 At least four of the justices in Nebraska Press advocated a position
that a prior restraint on the press could, in no circumstances, be justified.
See 427 U.S. at 570, 96 S. Ct. at 2808, 49 L. Ed. 2d at 704 (Justice White
concurring); Id. at 572, 96 S. Ct. at 2809, 49 L. Ed. 2d at 705 (Justices
Brennan, Stewart and Marshall concurring). See also Peterson, A First
Amendment-Sixth Amendment Dilemma: Manuel Noriega Pushes the
American Judicial System to the Outer Limits of the First Amendment, 25
J. Marshall L. Rev. 563, 579 (1992) (noting that concurrences in Nebraska
Press test makes prior restraints on publication of information already
obtained an impossible order to justify); Bernabe-Riefkohl, supra note 16, at
267 (suggesting standard set forth by Supreme Court is inoperable and
confusing, and courts should adopt absolute rule against the use of prior
possibility of showing the kind of threat to fair trial
rights that would possess the requisite degree of
certainty to justify restraint. This Court has
frequently denied that First Amendment rights are
absolute and has consistently rejected the proposition
that a prior restraint can never be employed.
427 U.S. at 570, 96 S. Ct. at 2808, 49 L. Ed. 2d at 704.
Rather, as we view the Nebraska Press test, it must be viewed in its
entirety, with a view toward ensuring a defendant's fundamental right to a
fair trial, and not merely with an eye toward "mitigating the effects" of
pretrial publicity. As noted previously, the Nebraska Press Court, specifically
noted that such invasion of free speech as is necessary to avoid the danger
is permissible. See supra note13. 18 We find the limited prior restraint
18 A number of courts and commentators have recognized that the
"alternative measures" suggested by Nebraska Press are, in reality,
insufficient. As one court has noted, "[e]mphatic jury instructions to
disregard prejudicial publicity is an unsatisfactory solution.") Davis, 904 F.
Supp. at 569. See also KUTV v. Wilkinson, 686 P.2d 456 (Utah 1984)
(finding neither sequestration nor voir dire were sufficient alternatives to
imposition of restraining order). Additionally, it has been argued that other
alternatives do not sufficiently safeguard the right to a fair trial:
Postponement may encroach on the accused's right of a speedy
trial and may actually increase publicity in a case of great public
interest; change of venue involves delay presenting the problems
associated with postponement, local communities have an interest
in local adjudication, and a highly publicized criminal case likely
will cause prejudicial information to be disseminated nationally,
rendering change of venue ineffective; voir dire cannot remove
individuals who have read previous newspaper accounts and a
larger jury pool may result in a greater number of people who
have been exposed to prejudicial publicity or to a delay in voir
dire with an enhanced opportunity for improper publicity to
occur; jury sequestration is not only a drastic measure, requiring
the jurors to compensate for the publicized actions of trial
participants, but also lengthy jury sequestration can cause the
bias of resentment, the desire to end deliberation, and cannot
remove prejudice from publicity prior to impanelment and jury
instructions may be ineffective regardless of pretrial publicity
imposed here was necessary to avoid the potential prejudice to Quattlebaum
as would ensue from disclosure of the videotape. Were we to hold otherwise,
the contents of the videotape in question could have been disclosed and the
substance of the privileged communication with his attorney divulged. Once
disclosed, although other measures might have alleviated the prejudice to
Quattlebaum, his right to a fair trial could not have been guaranteed.19 In
our view, the United States Supreme Court did not intend such a result in
establishing the Nebraska Press test. Accordingly, we find the threat of
prejudice to Quattlebaum's right to a fair trial justified the prior restraint
Our decision to affirm the circuit court's issuance of a temporary
restraining order is bolstered by the uncertainty of the precise standard
necessary to justify a prior restraint in cases in which the defendant claims,
not only that pretrial publicity threatens his right to a fair trial, but also
that his attorney client privilege has been violated, thereby jeopardizing his
right to effective assistance of counsel.20 We refer to the uncertainty created
by the decisions of the District Court, and the Eleventh Circuit Court of
Appeals, in United States v. Noriega. See supra note 11.
As noted in Footnote 11, the Noriega cases involved the recording of
publicized criminal trial .may not highlight precisely the issues
the jurors are being instructed not to consider.
Stabile, Free Press-Fair Trial: Can They Be Reconciled in a Highly Publicized
Criminal Case, 79 Geo. L.J. 337, 343-45 (1990). See also Isaacson, Fair Trial
and Free Press: An Opportunity for Coexistence, 29 Stan. L.R. 561 (1990)
(recognizing inadequacy of alternative measures set forth in Nebraska Press
and Sheppard v. Maxwell); Davis, 904 F. Supp. at 568-69.
190nce a privileged communication has been disclosed to the public, it
can never be recalled and the right to a fair trial may have been forever
jeopardized. Accord United States v. Davis, 904 F.Supp. 564, 569 (E.D. La.
1995) (it is difficult, if not impossible, to "unring a bell").
20 In Noriega 3, the District Court. on remand, analyzed the claims as
two separate prongs: the defendant's Sixth Amendment right to a fair trial,
and his Sixth Amendment right to effective assistance of counsel. It applied
the three prong Nebraska Press test to both rights.
Manuel Noriega's privileged telephone calls with his attorneys while in prison
in Florida. The United States District Court for the Southern District of
Florida temporarily restrained CNN, which had gained possession of the
tapes, from broadcasting the recordings until it could determine whether
broadcasting the tapes would prejudice Noriega's trial. 752 F. Supp. 1032
(S.D. Fla. 1990) (Noriega 1). Clearly, this does not comport with the
Nebraska Press three-prong test as that test requires a showing of prejudice
in the first instance before a prior restraint is ever justified. Nonetheless,
the Eleventh Circuit upheld the restraining order. 917 F.2d 1543 (11th Cir.
1990) (Noriega 2). 21 In doing so, the Eleventh Circuit noted that "the
determination of whether the telephonic communications between Noriega
and his defense counsel are privileged, while not necessarily dispositive of
whether such communication should be publicly broadcast, would be relevant
to the District Court's assessment of potential harm to Noriega's right to a
fair trial." Id. at 1551. The Supreme Court denied certiorari, over the
dissent of Justices Marshall and O'Connor. 498 U.S. 976, 111 S. Ct. 451, 112
L. Ed. 2d 432 (1990).
In light of the opinions in Noriega 1 and 2, it is uncertain precisely
how the Supreme Court would rule if faced directly with the issue of a prior
restraint in the context of the media's threatened disclosure of confidential
conversations obtained in violation of the attorney client privilege. At least
one commentator has speculated that the denial of certiorari in Noriega
leaves open the possibility that the Nebraska Press standard is open to
revision. See Splichal and Bunker, The Supreme Court and Prior Restraint
Doctrine: An Ominous Shift?, 3-SPG Media L. & Pol'y 9, 11, 12 (1994)
(speculating that alarm expressed in dissenting opinion in Supreme Court's
denial of certiorari suggests a majority of the Court might be willing to give
judges a freer reign in balancing First Amendment principles with fair trial
concerns). Accordingly, in light of the confusion surrounding the Noriega
cases, 22 we find the matter is better left to the United States Supreme Court
Nebraska Press test in Noriega 1 and Noriega 2. See Peterson, supra note
17, at 563; Splichal and Bunker, The Supreme Court and Prior Restraint
Doctrine: An Ominous Shift?, 3-SPG Media L. & Pol'y 9 (1994); Schweiker,
United States v. Noriega: Conflicts Between the First Amendment and
Rights to a Fair Trial and Privacy, 1993 U. Chi. Legal F. 369, 374 (1993).
22Although the Eleventh Circuit ultimately concluded Noriega was not
entitled to continuation of the restraining order, 752 F. Supp. 1045 (11th Cir.
1990) (Noriega 3), that decision was based in large part on the fact that the
for resolution. Should that Court wish to establish an alternative standard
from that set forth in Nebraska Press, or to adopt an absolute ban on prior
restraints, it is free to do so.
It is difficult to conceive of a situation in which the rights of a
defendant to a fair trial were more at jeopardy than the instant case.23 If
Quattlebaum's Sixth Amendment rights were insufficient to justify imposition.
of the prior restraint in this case, we can think of no situation in which a
prior restraint would ever be justified or in which alternative measures would
not be found sufficient to mitigate any threatened prejudice. Since Nebraska
Press did not foreclose the possibility that there may be situations in which
a prior restraint is justified, we find the egregious circumstances of this case
sufficient to warrant imposition of the extremely limited temporary
restraining order imposed by the circuit court.24 Any contrary holding would
potentially have denied Quattlebaum's fundamental right to a fair trial and
have been shocking to the universal sense of justice; such a result will not
be endorsed by this Court. Accordingly, the judgment below is
FINNEY, C.J., MOORE and BURNETT, JJ., concur. TOAL, A.J., concurring
and dissenting in separate opinion.
client ambit, one of which had already been broadcast by CNN, and the other
of which was so "cryptic and disjointed" that Noriega's counsel conceded it
was not prejudicial insofar as impaneling an impartial jury was concerned.
Id. at 1053. Noriega 3 sheds no light on the appropriate standard to be
applied in cases such as that presently before the Court.
23 Unfortunately, both this Court's and the lower court's hands are
somewhat "tied" in this case in that it is impossible, without disclosing the
contents of the videotape, to accurately portray the potential prejudice to
24As noted previously, the order on appeal does not prohibit publication
of the existence of the videotape, or the fact of the invasion of the attorney
client privilege. It does not even prohibit the videotape itself from being
aired by the media; it merely restricts dissemination of the contents of the
privileged communication itself, or the characterization of the contents.
TOAL, A.J.: I concur as to the majority's discussion of subject matter
jurisdiction and personal jurisdiction, but dissent as to the validity of the
At the outset it is essential to understand that all prior restraints are
not equal. It is also important to understand what the present prior
restraint is, and what it is not. The prior restraint here is a judicial
restraint on the disclosure by the press of an attorney's private consultation
with his client. By restraining publication, the trial court has attempted to
protect and preserve the integrity of a criminal trial and the constitutional
values which inhere therein. What this prior restraint is not is an executive,
legislative, or judicial prior restraint of the expression of an opinion. It is
also not a permanent restraint on the publication of the attorney-client
The First Amendment to the United States Constitution provides,
"Congress shall make no law . . . abridging the freedom of speech, or of the
press . . ." U.S. Const. amend. I. On its face, the provision seems to apply
only to legislative abridgements of free speech, restricting as it does
congressional action.1d The application of the First Amendment to judicial
prior restraints is a late twentieth century phenomenon.2d Although the
history of the drafting of the First Amendment, as well as the literal
language of the amendment itself, suggest that it was intended solely as a
Nw. U. L. Rev. 1156 (1986)(arguing that a First Amendment basis for
striking down judicial prior restraints rests on a "shaky foundation" and that
the Fourteenth Amendment due process clause would be the better source for
restricting state courts in this regard).
2d The Supreme Court's first case involving a judicial prior restraint was
Carroll v. President of Princess Anne County, 393 U.S. 175, 89 S. Ct. 347, 21
L. Ed. 2d 325 (1968). In Carroll, the trial court issued an order restraining
a white supremacist organization from holding, for more than ten months,
rallies or meetings that would tend to disturb and endanger the citizens of
the county. The judicial proceedings held to consider the order were
conducted ex parte with no notice being given to the white supremacist
group. The Supreme Court ultimately struck down the judicial prior
restraint, stating, "The issuance of an injunction which aborts a scheduled
rally or public meeting, even if the restraint is of short duration, is a matter
of importance and consequence in view of the First Amendment's imperative."
393 U.S. at 184, 89 S. Ct. at 353, 21 L. Ed. 2d at 333.
limitation on legislative restraints of speech and the press, today it is
assumed that this language encompasses judicial restraints. In modern First
Amendment litigation no one questions whether or not the prohibition against
judicial prior restraints might be limited to orders based on statutes.
Perhaps the time has passed when such a question could be seriously
addressed by an appellate court. But what should legitimately be revisited
in the view of the majority, and in my view, is whether or not the same
analysis should be applied to all judicial prior restraints.
A fair trial is guaranteed to litigants in both civil and criminal
disputes. Does it make a difference whether the judicial prior restraint is
simply a device to prevent premature publicity of matters at issue in a civil
or criminal trial as opposed the prior restraint at issue in the instant capital
murder case where the court also seeks to safeguard such constitutional
values such as the protection against self-incrimination, the right to an
attorney of the defendant's choosing, and the right to a speedy trial?
Presently, the rigid Nebraska Press test is the only tool trial judges
have to address questions of prior restraint, whether legislative or judicial,
whether in the criminal or civil context, and whether in the high-profile
capital murder case or misdemeanor traffic court. While there is a certain
elegant simplicity in "bright line" tests from the standpoint of appellate
judges, such tests really do not give meaningful and practical guidance to
In high-profile criminal cases, trial judges frequently encounter a media
frenzy which they must deal with in a matter of hours. In this case, the
police taped defendant's very first conversation with his lawyer, just after he
was arrested for murder. The prosecution retained this tape for over a year
unbeknownst to defendant or his lawyer. The tape was leaked to the largest
television station in the area from which defendant's jury would be selected.
The possibility of a tainted jury venire was very real. The trial judge
proposed to solve this dilemma by restraining the media from publishing the
attorney-client conversation until the jury had been empaneled. The
television station involved here was responsible enough to voluntarily restrain
publication of the surreptitiously taped attorney-client conference until a
hearing could be held.
The Nebraska Press test requires the trial court to make detailed
findings on all available alternatives. This may be unrealistic in the real
world of high-profile criminal trials. Additionally, it forces the trial judge to
make choices between other constitutional values. It may always be possible
to posit other "possible" alternatives to judicial prior restraints. If a trial
judge has to eliminate all other alternatives (a crystal ball exercise since
none of the "alternatives" will have been put into play), then in reality there
exists an absolute prohibition against any prior restraint. Are the protections
of the Fifth and Sixth Amendments thus sacrificed to the demands of the
modern day media for instant public dissemination of any information to
which it falls privy no matter the impact on the fairness of the trial? In the
final analysis, Nebraska Press, for all its language to the contrary, may have
effectively established the constitutional doctrine that the First Amendment
trumps the Fifth, Sixth, and Fourteenth Amendments.
The majority opinion is a scholarly and thoughtful review of the leading
authorities on the question of whether a prior restraint of the press can ever
be ordered by a trial judge in this country. The majority argues that the
application of the Nebraska Press test here damages the defendant's most
fundamental due process rights in three important respects. First, the
sanctity of his attorney-client privilege has been invaded. Second, his Fifth
Amendment right against compulsory self-incrimination has potentially been
compromised. Finally, the selection of the normal alternatives to the prior
restraint, including continuance of the case until public attention abates,
change of venue to a locale not so infected with the pre-trial publicity, and
voir dire questioning of the jury to eliminate any biased jurors, impairs the
defendant's right to a speedy trial by a jury of his peers.
As noted above, I agree with the majority that the Nebraska Press test
should be revisited by the Supreme Court. A standard must be formulated
that adequately addresses the pressures and complex constitutional concerns
that accompany a high-profile murder case. That said, I find myself
compelled to dissent under the current state of the law. Further, the
majority's proposed standard falls short of the kind of sophisticated test
required in this situation. Although more flexibility in issuing a prior
restraint may be deserving in a case such as this, it should not result in a
"rubber stamped" restraint whenever there is any potential prejudice to the
defendant. An examination of less restrictive alternatives must remain part
of the analysis.
As discussed by the majority, in this century the United States
Supreme Court has consistently interpreted the First Amendment as
mandating a "heavy presumption" against the constitutional validity of prior
restraints. Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S. Ct.
1575, 29 L. Ed. 2d 1 (1971); Carroll v. President of Princess Anne County,
393 U.S. 175, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1968); Near v. Minnesota ex.
rel. Olson, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931). This
presumption is largely the result of Justice Oliver Wendell Holmes's famous
declaration in Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 558,
51 L. Ed. 879 (1907): "[T]he main purpose of [the First Amendment] is to
prevent all such previous restraints upon publications as had been practiced
by other governments."3d The question before this Court is at what point
must this "heavy presumption" give way to a defendant's right to a fair trial.
In Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791,
49 L. Ed. 2d 683 (1976), the United States Supreme Court addressed this
very issue. The defendant was charged with murdering six members of a
family in the small town of Sutherland, Nebraska, a town of about 850
people. Due to the notoriety of the case, the trial court issued an order
prohibiting the press from publishing specific aspects of the trial. The
Nebraska Supreme Court upheld the restraint with some modifications. The
United States Supreme Court reversed, finding the prior restraint invalid
under its three-prong test.
In this case, the majority questions the second prong of the Nebraska
Press test. The majority states that under this prong no situation can be
conceived of in which a prior restraint would be justified because alternative
measures would almost always be likely to mitigate the effects of pretrial
publicity. The majority asserts that such a standard is untenable as it would
be impossible for a court to ensure a defendant's Sixth Amendment right to
a fair trial. I share the majority's concern and agree that the second prong
of the Nebraska Press test should not be read in isolation. The test itself
does not require invalidation of a prior restraint solely because other
measures might mitigate the effects of the pretrial publicity. It is a
balancing test. A court must consider the degree to which other measures
will mitigate the adverse effects of the pretrial news coverage in light of the
nature and extent of that publicity. See Nebraska Press, 427 U.S. at 569, 96
S. Ct. at 2807, 49 L. Ed. 2d at 703 ("We cannot say on this record that
alternatives to a prior restraint on petitioners would not have sufficiently
mitigated the adverse effects of pretrial publicity so as to make prior
Blackstone's Commentaries: "The liberty of the press is indeed essential to
the nature of a free state; but this consists in laying no previous restraints
upon publications, and not in freedom from censure for criminal matter when
published." 4 William Blackstone, Commentaries 151; see G. Edward White,
Justice Holmes and the Modernization of Free Speech Jurisprudence: The
Human Dimension, 80 Cal. L. Rev. 391, 398 (1992).
restraint unnecessary."). The presumption, however, is heavily in favor of
using alternative measures. As noted by the Court in Nebraska Press, "our
conclusion [that the prior restraint is invalid] is not simply a result of
assessing the adequacy of the showing made in this case; it results in part
from the problems inherent in meeting the heavy burden of demonstrating,
in advance of trial, that without prior restraint a fair trial will be denied."
Nebraska Press, 427 U.S. at 569, 96 S. Ct. at 2807-08, 49 L. Ed. 2d at 703.
In this case, there is little doubt that other measures might mitigate
the effects of the pretrial publicity. The pertinent question under Nebraska
Press is whether such alternatives would sufficiently mitigate those effects.
Under the current state of the law, I am compelled to answer yes to this
The Supreme Court's first prior restraint decision was Near v.
Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357, which involved a
legislative restraint on publication. By invalidating the restraint, the Court
in Near echoed Holmes's earlier proclamation in Patterson that the primary
objective of the First Amendment was to avoid prior restraints. Quoting
James Madison, the Court stated, "'This security of the freedom of the press
requires that it should be exempt not only from previous restraint by the
Executive, as in Great Britain, but from legislative restraint also."' Near, 283
U.S. at 714, 51 S. Ct. at 630, 75 L. Ed. at 1366. The Court further observed,
"The preliminary freedom [of the press] extends as well to the false as the
true. " Id.
It was not until 1968 that the Supreme Court added to its First
Amendment jurisprudence a presumption against judicial prior restraints.
See Carroll v. President of Princess Anne County, 393 U.S. 175, 89 S. Ct.
347, 21 L. Ed. 2d 325. The Court's invalidation of judicial prior restraints
came without an explanation of why the First Amendment was applicable to
such orders. Id. (simply concluding that there is a "heavy presumption"
against prior restraints under the First Amendment). In New York Times
Company v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822
(1971), the government sought to enjoin the New York Times and the
Washington Post from publishing a classified study of the Vietnam war.
Despite the weighty countervailing interest of national security, the Supreme
Court refused to sustain the judicial prior restraint. In a concurring opinion,
Justice Black borrowed James Madison's remarks concerning the Bill of
Rights: "'the freedom of the press, as one of the great bulwarks of liberty,
shall be inviolable."' New York Times, 403 U.S. at 716, 91 S. Ct. at 2142, 29
L. Ed. 2d at 826.
The majority emphasizes that the Supreme Court in Nebraska Press
declined to assign priorities between the First and Sixth Amendments. As
such, the majority seeks to take advantage of this apparent indecision by
suggesting the primacy of the Sixth Amendment. The majority notes that "a
number of lower courts have held that a defendant's Sixth Amendment right
to a fair trial is superior to the right of free speech and that, where the two
rights collide, the latter must give way to the former." However, none of the
cases cited by the majority involved prior restraints.4d In fact, these cases
explicitly distinguished prior restraints from other restrictions on freedom of
expression and acknowledged the virtual per se invalidity of the former.
In News Journal Corporation v. Foxman, 939 F.2d 1499 (11th Cir.
1991), the Eleventh Circuit faced the question of whether a trial court could
limit extrajudicial commentary of trial participants. Citing Nebraska Press,
the Eleventh Circuit noted that such orders were less restrictive than prior
restraints on the press for averting the effects of prejudicial pretrial publicity.
The court further recognized that there was a "heavy presumption" against
prior restraints. See Foxman, 939 F.2d at 1512 (citing Nebraska Press). The
S. Ct. 1628, 14 L. Ed. 2d 543 (1965) and Press Enterprise Co. v. Superior
Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)
are also unavailing. In Estes, the Supreme Court faced the issue of whether
television cameras in the courtroom violated the defendant's due process
rights under the Fourteenth Amendment. The issue had nothing to do with
the validity of a prior restraint. The only remedy available to the defendant
was a reversal of his conviction. Finding the defendant's due process rights
were violated, the Court stated, "We have always held that the atmosphere
essential to the preservation of a fair trial -- the most fundamental of all
freedoms -- must be maintained at all costs." 381 U.S. at 540, 85 S. Ct. at
1632, 14 L. Ed. 2d at 549. The Court then observed, "Our approach has been
through rules, contempt proceedings and reversal of convictions obtained
under unfair conditions." Id. The Court in no way intimated that it
intended to elevate an accused's right to a fair trial above the well
established presumption against prior restraints.
In Press Enterprise, the Court dealt with the right of the public to
attend voir dire proceedings in a criminal case. The case did not deal with
a prior restraint. The Court invalidated the trial court's order to close the
proceedings and vindicated the public's right to attend the proceedings. The
Court found that the trial judge had failed to consider alternatives to closure
and did not make findings sufficiently specific for review by an appellate
court reiterated the Supreme Court's recommendation to use measures other
than prior restraints in mitigating the effects of pretrial publicity.
Consequently, the Eleventh Circuit found the restriction on extrajudicial
statements to be an acceptable alternative.5d
Like the court in Foxman, the Second Circuit in Application of Dow
Jones & Company 842 F.2d 603 (2d Cir. 1988), cert. denied, 488 U.S. 946,
109 S. Ct. 377, 102 L. Ed. 2d 365 (1988), addressed the constitutionality of
a lower court order restricting extrajudicial statements by trial participants.
In distinguishing prior restraints from the restriction before it, the court
[T]here is a substantial difference between a restraining order
directed against the press -- a form of censorship which the First
Amendment sought to abolish from these shores -- and the order
here directed solely against trial participants and challenged only
by the press. The distinction is critical.
The most offensive aspect of a prior restraint is the censorship
involved by forbidding the dissemination of information already
known to the press and therefore public. A prior restraint
deprives the public of specific news because it prevents
publication. Although the restraining order in this case limits
the flow of information readily available to the news agencies --
and for that reason might have an effect similar to that of a prior
restraint -- the fact that the order is not directed at the news
agencies and that they therefore cannot be haled into court for
violating its terms deflates what would otherwise be a serious
concern regarding judicial censorship of the press. For this
reason the order is considerably less intrusive of First
Amendment rights than one directly aimed at the press.
Foxman, 842 F.2d at 608.
These cases demonstrate that while it may be permissible for a court
to restrict some First Amendment freedoms in order to protect a defendant's
right to a fair trial, it is almost never acceptable for a court to impose a prior
a Highly Publicized Criminal Case? 79 Geo. L. J. 337 (1990).
restraint.6d At most, the two interests share equal prominence in the
The Supreme Court in Nebraska Press sought to reconcile these
interests without creating an arbitrary hierarchy. First, the Court recognized
that "[a] prior restraint, . . . by definition, has an immediate and irreversible
sanction." Nebraska Press, 427 U.S. at 559, 96 S. Ct. at 2803, 49 L. Ed. 2d
at 697-98. Conversely, pretrial publicity does not inflict an immediate injury
but only poses "a risk that [the publicity will] have some adverse impact on
the attitudes of those who might be called as jurors." Id. at 569, 96 S. Ct.
at 2807, 49 L. Ed. 2d at 703 (emphasis added). In other words, any injury
to the defendant is measured by probability; whereas, the prior restraint is
a present transgression of a core constitutional right. By employing the
remedial measures suggested in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct.
1507, 16 L. Ed. 2d 600 (1966),7d the prior restraint is immediately rectified
and any future risk of not having a fair trial is cured. This is exactly what
the second prong of the Nebraska Press test attempts to achieve. See U.S.
v. Noriega, 752 F. Supp. 1045, 1054 (S.D. Fla. 1990)("lf nothing else,
Nebraska Press stands for the proposition that speculative harm falls well
short of the showing necessity for the imposition of a prior restraint.").
As discussed above, any injury to Quattlebaum is measured solely by
probability. All the while, the constitutional infirmity of the prior restraint
persists. Therefore, to justify such an immediate and profound infringement
of the First Amendment, Nebraska Press requires a finding that, absent the
prior restraint, the defendant will be denied a fair trial. The record here
simply does not support such a conclusion. The trial court's consideration of
alternative measures was, at best, cursory. The trial court failed to make
1975)(finding that there was no prior restraint, and therefore, the court did
not have to begin its examination with a "heavy presumption" against
validity); United States v. Davis, 904 F. Supp. 564 (E.D. La. 1995); Stabile,
79 Geo. L. J. at 341 ("While it may be permissible to restrict freedom of
expression in order to protect a defendant's right to a fair trial, not all means
of restriction are acceptable.").
7dThese measures include: (1) change of trial venue to a place less
exposed to the publicity; (2) postponement of the trial; (3) questioning of
prospective jurors; (4) jury sequestration; and (5) clear instructions to the jury
to decide issues only on the evidence. See Nebraska Press, 427 U.S. at 563-
64, 96 S. Ct. at 805, 49 L. Ed. 2d at 700.
specific findings regarding the degree to which other measures would
mitigate the effects of the pretrial publicity.8d Such findings are basic to the
balancing required by Nebraska Press. If the trial court had explored each
of the alternatives, it would have had to conclude that the prior restraint was
Finally, the majority asserts that its decision to affirm the restraining
order is "bolstered by the uncertainty of the precise standard necessary to
justify a prior restraint in cases in which the defendant claims, not only that
pretrial publicity threatens his right to a fair trial, but also that his attorney-
client privilege has been violated, thereby jeopardizing his right to effective
assistance of counsel." Again, I join the majority's frustration in not having
a more suitable test with which to address the unique and profound
constitutional concerns presented in this case. Nevertheless, under current
case law, I remain compelled to conclude that the prior restraint here must
be struck down.
In United States v. Noriega, 752 F. Supp. 1032 (S.D. Fla. 1990)
(Noriega I), the federal district court faced the question of whether to restrain
the publication of privileged conversations between Noriega and his defense
team. The court imposed a temporary restraining order until it could review
the tapes. The Eleventh Circuit affirmed the district court's order. 917 F.2d
1543 (11th Cir. 1990) (Noriega II). The majority suggests that Noriega I and
Noriega II create doubt as to the applicability of the Nebraska Press test in
cases involving privileged communications. In Noriega III, the district court
explicitly sought to dispel such an interpretation. 752 F. Supp. 1045 (S.D.
Fla. 1990). The court stated that "[i]n order to make the factual findings
mandated by Nebraska Press, it was necessary to review the subject tapes."
752 F. Supp. at 1049. The court further noted that it had to contend with
CNN's refusal to produce the tapes, and as a result, the court imposed the
temporary restraining order. However, the court emphasized that its decision
was not a comment on the priority between Noriega's First- and Sixth
Amendment rights. Id. at 1051 ("the court had not then concluded that
Noriega's Sixth Amendment right to a fair trial out-weighed CNN's First
of that privileged communication, or its characterization would make it much
more unlikely that the defendant could obtain a fair and impartial trial,
given even all the protections that our system has in place to ensure a fair
and impartial trial."
9d Even the majority admits that this case is not "extremely sensational."
Amendment right to be free of prior restraints on publication . . . .").
In Noriega III, the district court summarized the inquiry mandated by
the Eleventh Circuit in Noriega II:
[T]he fact that conversations may or may not fall within the
protections of the [attorney-client] privilege has no bearing on
whether Noriega's right to an impartial jury will be clearly and
irreparably harmed by publication . . . .Guaranteeing Noriega's
right to counsel involves an equally serious but much narrower
inquiry. There, the court is concerned only with the extent to
which the publication of legitimately privileged communications
would prejudice Noriega's defense were those protected
conversations to fall into the hands of the prosecution.
Id. at 1051-52 (emphasis added). Thus, the significance of the attorney-client
privilege is limited to a determination of whether the prosecution would be
prohibited from obtaining the communications; and if so, whether the
communications would have prejudiced the defendant's case if actually viewed
by the prosecution. Even if a defendant could establish prejudice as a result
of the prosecution gaining access to the conversations, a court would be
required to explore less intrusive alternatives in order to avoid the prior
restraint. Id. at 1054. ("Even if Noriega were able to meet his burden of
establishing demonstrable prejudice upon the prosecution's gaining access to
these conversations, the court would in all likelihood refrain from imposing
a prior restraint on the press.").10d
Freedom of the press from prior restraints is the quintessential right
under the First Amendment. However, the presumption against prior
restraints must not eviscerate those rights guaranteed by the Fifth, Sixth,
and Fourteenth Amendments. A more sophisticated test is required in order
to effectively address the complex constitutional concerns that may arise in
any given criminal trial. The prerogative to change the prior restraint
standards is the province of the United States Supreme Court. The majority
makes a thoughtful and practical challenge to the current Nebraska Press
test. I join the majority's plea for a change, but until the Supreme Court
revises the current test, it binds us.
10d The court noted that other less drastic alternatives included
sequestration of the prosecution and dismissing members of the prosecution
team or excluding evidence and witnesses.
For the foregoing reasons, I respectfully dissent.