The Ohio Supreme Court struck down a gag order on April 13, 2010, that had been imposed by an Ohio state trial court judge. In State ex rel. Toledo Blade Co. v. Henry County Court of Common Pleas, No. 2010-01, 2010 Ohio LEXIS 865 (Ohio April 13, 2010), the court ruled that the judge's attempt to keep news media from reporting on a criminal trial was "patently unconstitutional," and struck down the gag order by applying U.S. Supreme Court precedent and rejecting the trial court's argument that advances in media technology had rendered the precedent obsolete.
The gag order arose after Ohio officials charged Jayme Schwenkmeyer and her boyfriend, David Knepley, with involuntary manslaughter and child endangerment following the death of Schwenkmeyer's 13-month-old daughter from a drug overdose. Schwenkmeyer and Knepley were indicted jointly, but Judge Keith Muehlfeld granted a motion from the two defendants that they be tried separately.
Muehlfeld scheduled Knepley's jury trial to begin on July 20, 2009, and Schwenkmeyer's to begin on July 27, 2009. On July 20, 2009, Muehlfeld granted a motion from Schwenkmeyer to prohibit the media from reporting about the trial proceedings in Knepley's case until the jury was impaneled for her trial, although Muehlfeld's order permitted members of the media to have access to Knepley's trial. Muehlfeld's order stated that he considered the order necessary to prevent tainting the jury pool in the second case.
The trials were later rescheduled and the order of defendants was reversed, with Schwenkmeyer's trial to begin on Dec. 7, 2009, and Knepley's to start on Feb. 8, 2010. On December 2, Knepley moved for an order to prevent the media from reporting on Schwenkmeyer's case. Muehlfeld granted that motion as well.
"[M]embers of the print and broadcast media shall be permitted access to the trial proceedings in . . . State v. Schwenkmeyer . . . HOWEVER any and all print or broadcast media shall be PROHIBITED from the published or broadcast reporting of such trial proceedings until a jury is impaneled for the trial in State v. Knepley," Muehlfeld's Dec. 4, 2009 order stated, according to the Supreme Court's opinion.
After a mistrial in Schwenkmeyer's first trial, Muehlfeld rescheduled it and amended his December 4 gag order to "permit the print or broadcast media to report that a defense motion for mistrial was granted by the Court in the State v. Schwenkmeyer trial on Dec. 10, 2009," but reiterated that the gag order remained in effect for Schwenkmeyer's rescheduled trial.
According to the Supreme Court's opinion, The Toledo Blade learned about the order in January 2010, and sent a letter to Muehlfeld requesting that he reconsider his gag order.
On January 26, Muehlfeld held a hearing on The Blade's request for reconsideration, at which Knepley's counsel asserted that the gag order issued by the court upon his motion "was absolutely necessary for [his] client to receive a fair trial in his case," arguing that the trial took place in a small town, and if the media were allowed to report on Schwenkmeyer's trial before a jury was impaneled for his trial, "it would taint the jury pool that's already small."
Muehlfeld ratified his December 4 order, stating that the press and public's First Amendment rights are "derivative in nature" and "abstract," whereas the defendants' fair-trial rights are "very real interests" that "have a direct impact."
On Jan. 27, 2010, The Blade filed a motion with the Ohio Supreme Court to prevent the enforcement of Muehlfeld's order, and the court issued a temporary stay on the challenged portions of Muehlfeld's order the same day.
"The phrase 'prior restraint' is a term of art referring to judicial orders or administrative rules that operate to forbid expression before it takes place," the court said in its unanimous, unsigned, April 13 opinion. "The court's gag order here is a prior restraint because it attempts to forbid the media from reporting about the first trial until the jury is impaneled for the second trial, and it was issued before either trial had commenced."
"Although prior restraints are not unconstitutional per se, there is a heavy presumption against their constitutional validity," the court continued. "This is because prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.. . . Prior restraints are simply repugnant to the basic values of an open society in that they tend to encourage indiscriminate censorship in a way that subsequent punishments do not."
The court cited the First Amendment to the U.S. Constitution and §§ 11 and 16 of Article I in the Ohio Constitution as creating a "qualified right of public access to court proceedings." The court also said that the Sixth Amendment to the U.S. Constitution and § 10 of Article I of the Ohio Constitution guaranteed a criminal defendant's right to a fair trial. "Pervasive, unfair, and prejudicial media coverage of a criminal trial can sometimes deprive a criminal defendant of this constitutional right," the court stated.
"In the seminal case interpreting the interplay between these two important constitutional rights, the United States Supreme Court struck down gag orders attempting to prevent further publicity about a defendant accused of murdering six members of a family in a small Nebraska town," the court said, referring to Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976). In Nebraska Press, the U.S. Supreme Court held that justification for a prior restraint required a court to adequately consider "a) the nature and extent of pretrial news coverage; b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and c) how effectively a restraining order would operate to prevent the threatened danger."
The court then applied the Nebraska Press standards to Muehlfeld's gag order and found it unconstitutional, rejecting the argument that technological advances had undercut the reasoning of the 1976 case.
"Notwithstanding respondents' suggestion that Nebraska Press may no longer be viable because of revolutionary changes in the delivery of information to the public, e.g., the emergence of the Internet, they cite no case that has retreated from the test set forth in that case to evaluate gag orders against the media. Nor have they submitted any evidentiary support for these claims," the opinion said. "Although it has been fairly noted that 'Nebraska Press was decided in 1965 [sic] without the Internet or other forms of mass communication now readily available to the public,' . . . if courts base their constitutional interpretations on the rapidly changing concept of technology, our constitutional rights would be in the hands of unpredictable technological trends instead of in the hands of sound judicial reasoning."
"We will decline to draw, and then redraw, constitutional lines based on the particular media or technology used," the court stated, citing the recent U.S. Supreme Court case Citizens United v. F.E.C., 130 S. Ct. 876 (2010).
In applying the Nebraska Press test, the Ohio Supreme Court first found that Muehlfeld had not found sufficient evidence to issue the order. "In the absence of any properly introduced evidence, there is no reason for a trial court to [conclude] that there will be prejudicial publicity and to presume that such publicity will create a threat to the administration of justice," the court's opinion said.
The court also criticized Muehlfeld's statements asserting that a criminal defendant's constitutional right to a fair trial should be accorded priority over the media's constitutional rights of free speech and press. The court cited former Supreme Court Justice Hugo Black in Bridges v. California, 314 U.S. 252 (1941), stating that "free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them."
"The judge's refusal to accord equal importance and priority to the media's First Amendment rights was thus plainly erroneous," the Ohio Supreme Court concluded.
The court also stated that the limited duration of the gag order did not affect its constitutionality, that Muehlfeld had overstated the prejudicial effect of pretrial publicity, and that Muehlfeld did not adequately address the possibility of using alternatives to the gag order.
"For all of these reasons, Judge Muehlfeld's gag order is patently unconstitutional," the court concluded.
The Blade praised the decision in an April 15 editorial. "This decision affirms the media's right to do their jobs without undue restrictions and, more important, the public's right to receive timely information about public events," the editorial stated.
- JACOB PARSLEY
SILHA FELLOW AND BULLETIN EDITOR