Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, March 23, 2005

Federal Appeals Court Rules Media Can Publish Juror Names in Quattrone Trial

The U. S. 2nd Circuit has again reversed one of U. S. District Court judge Richard Owen's rulings in the Frank Quattrone case, this time on the matter of the media's publication of the names of jurors hearing the proceeding. In an effort to avoid the same outcome as in the high profile trial of defendant of Dennis Kozlowski, Judge Owen had barred the press from publishing the names of the jurors. "On April 13, 2004, in a colloquy before the start of voir dire, Judge Owen informed counsel that he would order the press to refrain from publicly revealing any juror's name. The government advised the district court that the press was likely to contest the order, but Judge Owen remained firm in his position, stating that he wished to avoid a mistrial as had occurred in the Kozlowski case. During jury selection, Judge Owen stated in open court the full names of the first twelve potential jurors. The judge then declared, "Ladies and gentlemen of the jury panel, and any members of the media, should there be any in the room or outside of the room and have notice of what I'm about to say, I am preserving that it's an order of this Court that no member of the press or a media organization is to divulge at any time until further order of this Court the name of any prospective or selected juror. And that's to anybody who has notice of it, and I'm sure that's going to be communicated around." Before jury selection resumed the following morning, counsel for several media organizations submitted a letter objecting to the court's order and requesting an immediate opportunity to be heard. The court agreed to hold a hearing at the end of the day. Throughout that day, the court continued to identify prospective jurors by name in open court. The judge addressed the media's objections in a hearing on the record held in his robing room at the end of the day. In explaining the order, Judge Owen left no doubt that his primary concern was the possibility of a repeat of the Kozlowski incident, in which, Judge Owen explained, a six-month trial was "absolutely destroyed"; and "blown out of the water by a publication of [a juror's] name."; ...Clarifying that the restrictions on the press would "terminate[] the minute the case is over,"; and emphasizing the need to "give[] both the prosecution and the defense the fairest possible trial,"; the court refused to vacate its earlier order prohibiting the publication of jurors' names.... A coalition of news organizations appealed."

After finding that it had jurisdiction to hear the appeal, the 2d Circuit turned to the merits. Examining first the prior restraint issue, the court held that "[a]s to the first prong of Nebraska Press, we note that the district court did not make factual findings that publicity in this case would impair defendant's Sixth Amendment right to a fair trial. On the contrary, Judge Owen acknowledged that there had been no instance of juror harassment in Quattrone's first trial and stated that he "respected and trusted" that the media organizations were not planning to disrupt the second trial....The court appears to have based the prior restraint entirely on the incidents of the Kozlowski trial. While it is not improper for a district judge to take into account his or her "common human experience" or to make reasonable "speculations" in assessing the likely impact of news coverage... , a judge may not impose a prior restraint based solely on incidents that occurred in a completely separate and unrelated, albeit temporally proximate, trial....Second, though the district court considered and rejected the possibility of an anonymous jury, the record does not demonstrate sufficient consideration of measures other than a prior restraint that could have mitigated the effects of the perceived harm....We intimate no view on whether such measures would have been prudent or permissible under the facts of this case. We merely note that the district court did not, as required, sufficiently consider possible alternatives to issuing a prior restraint, "one of the most extraordinary remedies known to our jurisprudence."....The third prong of Nebraska Press, which relates to the "efficacy" of a prior restraint, presents a somewhat closer question. ... Intuitively, the imposition of a prior restraint on the publication of jurors' identities seems likely to reduce the risk of juror harassment or other disruption of the trial. We find it significant, however, that the jurors' names here were read aloud in open court. Regardless of restrictions on the press, therefore, any member of the public present in the courtroom could have learned the jurors' names and disseminated that information as widely as possible....

"Thus, the ability of the court's order to satisfy the third prong of Nebraska Press is dubious at best. Finally, we note that the lack of notice or opportunity to be heard normally renders a prior restraint invalid. .... Here, the district court erred by failing to give prior notice and by waiting a full day after imposition of the prior restraint before granting a hearing on its merits. Given the district court's failure to satisfy the three-prong Nebraska Press inquiry and its failure to grant prior notice to the media, we conclude that the court's order constituted an unlawful prior restraint in violation of appellants' First Amendment rights. The district court's order barring publication of jurors' names not only subjected appellants to a prior restraint on speech, but also infringed their freedom to publish information disclosed in open court. This imposed an independent constitutional harm on appellants and rendered the district court's violation of the First Amendment even more plain. As the Supreme Court explained in Craig v. Harney, 331 U.S. 367, 91 L. Ed. 1546 (1947):

A trial is a public event. What transpires in the court room is public property. . . . Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.

We need not address what exceptional circumstances, if any, could justify a departure from the doctrine barring restrictions on the publication of information revealed in open court. It suffices to hold that the record is devoid of facts that could justify creating such an exception in this case."

Read the entire opinion here.

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