ARKANSAS DEMOCRAT GAZZETTE v. Zimmerman

Citations: 20 S.W.3d 301; 341 Ark. 771; 28 Media L. Rep. (BNA) 2321; 2000 Ark. LEXIS 348Docket: 00-641

Court: Supreme Court of Arkansas; June 29, 2000; Arkansas; State Supreme Court

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The Arkansas Supreme Court ruled on June 29, 2000, in a case involving media petitioners (Arkansas Democrat-Gazette, Arkansas Press Association, Associated Press, KFSM-TV, Morning News of Northwest Arkansas, and Northwest Arkansas Times) seeking a writ of mandamus against Juvenile Judge Stacey Zimmerman, who had issued a broad gag order on May 18, 2000, during juvenile proceedings for Michael Nichols, a 12-year-old charged with attempted capital murder. The gag order prohibited the media from releasing names or photographs of Nichols, his family, the victim, and the victim's family, limiting published information to what was stated on the record during court hearings. The court found the gag order constituted an unconstitutional prior restraint on the press due to its excessive scope and granted the petitioners' request for modification. Following the initial gag order, a Democrat-Gazette photographer captured and published images of Nichols’s parents and Nichols himself, wearing a coat over his head while being escorted by police. At a subsequent hearing on May 20, Judge Zimmerman modified the order to allow the release of photographs taken before the gag order but maintained restrictions on future media dissemination regarding the juvenile and the victim.

The judge, exercising her statutory authority, modified her prior order regarding the dissemination of photographs related to a juvenile defendant, emphasizing the need to balance public knowledge with confidentiality as mandated by the Juvenile Code. The modifications, documented in an order dated June 2, 2000, included the following key points: 

1. The court could not restrict the dissemination of the juvenile's name and photograph published before May 18, 2000.
2. The court reiterated its prohibition on media dissemination of images of the juvenile defendant and other juveniles present in the courthouse, as well as images of the defendant's and victim's families.
3. Court personnel, including staff, prosecutors, and defense attorneys, were prohibited from discussing case specifics with the media while proceedings were ongoing.

Following a motion by the juvenile defendant's attorney, a hearing was scheduled for May 25, 2000, to address potential contempt of court against the Democrat-Gazette for violating the gag order. After the hearing, the judge found the newspaper in contempt and imposed a $100 fine, while also closing further proceedings in the case to the public. The media's motion to intervene was denied, with the court suggesting that they pursue a writ of mandamus for relief. 

On June 5, 2000, a detailed order reaffirming the gag order was issued. The adjudication hearing commenced on June 6, 2000, with the court allowing public attendance at the defendant's request, although restrictions on recording and the sealing of the case file remained. Meanwhile, the media filed a petition for a writ of mandamus on May 31, 2000, which was expedited but not granted a stay of the gag order. The excerpt concludes with a discussion of the standards for issuing a writ of mandamus, emphasizing the need for a clear right to relief and the absence of other remedies.

A writ of mandamus cannot be used to control or review discretionary matters, as established in Saunders v. Neuse. Conversely, a writ of prohibition prevents a lower court from acting without jurisdiction, while a writ of certiorari is appropriate in cases of clear abuse of discretion by a trial judge when no other remedy exists. The court has issued these writs to void prior restraints on the press in specific cases, such as Ark. Gazette Co. v. Lofton, where mandamus was deemed appropriate due to judicial censorship. In Brown v. Kimbrough, a writ of prohibition was justified against a potential injunction on obscenity sales, as the court had not yet acted. However, the current case differs because Judge Zimmerman has already issued a gag order, making prohibition inappropriate since it cannot undo actions that have been taken. Previous rulings support that mandamus can address irreparable harm when the trial court exceeds its authority, as seen in Commercial Printing Co. v. Lee, where exclusion of the press from jury selection was challenged.

In Wood v. Goodson, the court determined that certiorari is the appropriate remedy for challenging a gag order imposed by a trial judge rather than a writ of mandamus, as the latter cannot control a trial court's discretion. The case involved a judge's order preventing the press from publishing a jury verdict due to pending additional charges against the defendant. The court ruled that such a gag order is a prior restraint on the media, which violates the First Amendment and Arkansas Constitution protections for freedom of the press. Prior restraints are subject to strict scrutiny and must show a clear and imminent threat to the fair administration of justice to be upheld. While the Supreme Court has not recognized a constitutional right of access to juvenile proceedings, it has affirmed the public's right to access adult criminal trials, noting that this right is not absolute and can be restricted to protect overriding interests. The seminal case on prior restraints is Nebraska Press Assoc. v. Stuart, where the court issued a gag order prohibiting the media from disclosing specific evidence related to a defendant, which was affirmed by the Nebraska Supreme Court.

The Court reversed the Nebraska Supreme Court ruling, emphasizing the need to balance the trial court's legitimate concern for the defendant's fair trial rights with First Amendment freedoms. It reiterated that prior restraints on speech are the most serious infringement of these rights. The Court ruled that prohibiting the press from reporting on evidence presented during an open preliminary hearing violated established principles, as the press has the right to report courtroom events. The County Court was not aware that closure of the preliminary hearing was an option until clarified by the Nebraska Supreme Court, but once a public hearing occurred, prior restraint could not apply.

In a related case, Oklahoma Publ'g Co. v. Dist. Court, the Supreme Court addressed the publication of information obtained during an open juvenile hearing. The court had issued an injunction against the media from publishing the name and photograph of a minor involved in the proceedings, citing state statutes that mandated juvenile hearings to be private unless ordered public. The Supreme Court, however, did not assess the constitutionality of those statutes but rather focused on whether the First and Fourteenth Amendments allowed a court to restrict the publication of information acquired during open proceedings. Citing previous rulings, the Court underscored that once media are present in a courtroom, they cannot be barred from revealing lawfully obtained information. The presence of the press was acknowledged by the court officials, and no objections were raised to their presence or the photographing of the juvenile, rendering the state's restraint on publication untenable.

Petitioner did not unlawfully acquire information regarding a juvenile, as the juvenile's name and picture were publicly disclosed in relation to a criminal prosecution, similar to the case of Cox Broadcasting involving the name of a rape victim. The District Court's order restricting press freedom violates the First and Fourteenth Amendments. In Smith v. Daily Mail Publishing Co., the Supreme Court addressed a West Virginia law criminalizing the publication of a juvenile's name without court approval, emphasizing that prior restraints and penal sanctions on lawfully obtained information require a compelling state interest for justification. The Court found that protecting a juvenile's anonymity, while important, did not warrant criminal penalties and failed constitutional scrutiny.

Judge Zimmerman's gag order on photography is expansive, affecting individuals including the families of Nichols and Sergeant Lovett, and encompasses areas beyond the courthouse, barring photos of juveniles entering or leaving the building as well as their families. The order aims to uphold the Arkansas Juvenile Code's objectives of maintaining juvenile confidentiality and facilitating rehabilitation, as per Ark. Code Ann. 9-27-348, which prohibits publishing information identifying juveniles without juvenile court permission. Additionally, it references Administrative Order Number 6, which restricts photography in juvenile court and allows judges to manage photography in adjacent areas to maintain the decorum of proceedings.

The judge had the option to close juvenile proceedings entirely but chose to open the Nichols detention hearing under Ark. Code Ann. 9-27-325(i), which generally allows for open hearings in delinquency cases. She issued a narrowly tailored gag order aimed at balancing public and media rights against the juvenile's rights, restricting photographs of Nichols, Lovett, and their families entering or leaving the courthouse. The court noted that while confidentiality and rehabilitation are central to the Juvenile Code, it questioned whether the judge's gag orders exceeded what was necessary for this case. 

The media did not challenge the constitutionality of the Arkansas Juvenile Code's provisions on juvenile identity dissemination nor the judge’s authority to protect courtroom participants. However, they contested the prohibition on taking photographs in public spaces. Key points include the fact that juvenile proceedings were initially open on May 18 and May 20 but closed on May 25, only to be reopened again on June 6 at Nichols’s request. Crucially, a photograph of Nichols published before the May 18 gag order means that his identity was already in the public domain, undermining the confidentiality policy.

Consequently, the court concluded that there was no compelling state interest justifying further restrictions on the media regarding additional photographs of Nichols. The court also raised questions about the scope of restrictions on other juveniles, victims, and families, as well as the definitions of "any juveniles" and "families" in this context.

The media does not challenge the definition of 'any juveniles,' leaving it unaddressed, but raises concerns regarding the vague term 'families,' which Judge Zimmerman is instructed to clarify. Judge Zimmerman is authorized to exclude photographs from areas immediately adjacent to her courtroom under Administrative Order Number 6; however, this order does not extend to public streets and sidewalks outside the courthouse. The media contests the gag order's prohibition on photographs in these public areas, referencing the Seventh Circuit's ruling in Dorfman v. Meiszner, which found a similar prohibition unconstitutional under the First Amendment. The court agrees with this precedent, asserting that while the juvenile judge must protect participants from harassment and uphold courtroom dignity, once juvenile proceedings are public, there is no compelling state interest to justify preventing the photographing of individuals entering or leaving the courthouse. The current case does not involve a closure of juvenile proceedings or a prior gag order. The court finds the judge's order overly broad and a prior restraint of media, indicating a clear abuse of discretion. A writ of certiorari is issued to Judge Zimmerman, directing her to revise the order dated May 20, 2000, entered on June 2, 2000, to align with this opinion. Judge Thornton did not participate.