Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, March 4, 2008

Media May Interview Ready and Willing Jurors As To Likely Verdict: Texas Appellate Court

The Texas First District Court of Appeal has ruled that the media has the right to interview ready and willing former jurors in a trial as to their likely verdicts, except when the press's right to do so is outweighed by the defendant's Sixth Amendment right, or the jurors' right to privacy, right to be free from harrassment, or the necessity to protect juror deliberations.

The trial court in a case involving an explosion at a BP plant in 2005 had ordered the jurors not to speak to the press after a settlement had been reached, since approximately 1200 cases were still pending. "[T]he trial court was concerned about additional pretrial publicity interfering with the parties’ rights to a fair trial by making the task of selecting future juries even more difficult, particularly because the jurors had not heard all the evidence. Therefore, the trial court admonished the jurors, “I am going to forbid you from speaking to anybody in the media or anybody other than myself or the lawyers or their employees until after all cases have settled.”

The Houston Chronicle challenged the gag order as an unconstitutional prior restraint.

"The trial court declined to rescind the gag order, but instead signed a written order limiting the time period of the restriction on the jurors’ speech. In the order, the trial court found that (1) no final judgment or nonsuit was reached in the subject trial and that numerous other claims in the consolidated litigation remained outstanding; (2) media coverage of the discharged jurors’ impressions about the evidence, trial, or disclosure of what their votes would have been, based upon the incomplete trial record, posed a threat to the administration of justice in the remaining, pending cases; and (3) the temporary restriction on discharged jurors’ speech was the least restrictive means available to prevent the potential harm. The trial court, therefore, ordered that “discharged jurors are under an instruction not to speak or disclose to the press, media, or others about their views of the evidence and/or their impressions of what their vote would have been if the evidence had concluded on the day that the jurors were discharged until on or after January 2, 2008 unless such order is extended upon motion of any party for good cause shown.”
Said the appellate court:
"The First Amendment provides, “Congress shall make no law … abridging the freedom of speech, or of the press … .” U. S. Const. amend. I. Similarly, article I, section 8, provides that “no law shall ever be passed curtailing the liberty of speech or of the press.” Tex. Const. art. I, §8. The parties have not argued that the right to gather news under the Texas constitution is broader than that afforded by the United States constitution. In fact, at oral argument they directed our attention to federal precedent. In light of the nearly identical language in the two charters, we find that the right to gather news under the Texas constitution is coextensive with that right under the United States constitution. ...As a Texas appellate court construing the constitutionality of a Texas district court order restricting the rights of Texas citizens, we apply Texas law, i.e., Davenport. However, we also look to well-reasoned and persuasive federal authority to inform our analysis of the relator's right to gather news. ...News organizations may receive, investigate, and report on public trial proceedings, but they generally have no right to information not available to the public generally.,,,In Express-News, the Fifth Circuit held a local federal district court rule prohibiting any person from interviewing any juror concerning the deliberations or verdict of the jury, except by leave of court, to be unconstitutional as applied to the interviews sought. Id. at 808. In particular, the court of appeals held that the rule violated the newspaper's constitutional right to gather news. Id. The court of appeals noted the relationship between freedom of the press and the right to gather news: The first amendment's broad shield for freedom of speech and of the press is not limited to the right to talk and to print. The value of these rights would be circumscribed were those who wish to disseminate information denied access to it, for freedom to speak is of little value if there is nothing to say. Therefore, the Supreme Court recognized in Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. Ct. 2646, 2656, 33 L.Ed.2d 626, 639 (1972), that news-gathering is entitled to first amendment protection, for “without some protection for seeking out the news, freedom of the press could be eviscerated.”... The court also noted the relationship between the right to gather news and the public's right to receive the news: Government-imposed secrecy denies the free flow of information and ideas not only to the press but also to the public. The public right to receive information has been repeatedly recognized and applied to a vast variety of information. The judiciary, like the legislative and judicial branches, is an agency of democratic government. The public has no less a right under the first amendment to receive information about the operation of the nation's courts than it has to know how other governmental agencies work and to receive other ideas and information....Finally, the court of appeals observed that the right to gather news is not absolute, and may sometimes be outweighed by competing interests, like a criminal defendant's Sixth Amendment right to a fair trial, or a discharged juror's right to privacy and protection against harassment.... But even in these instances, a court rule cannot restrict the journalistic right to gather news unless it is narrowly tailored to prevent a substantial threat to the administration of justice....In addition, the court of appeals stated that discharged jurors are under no obligation to speak....Restrictions on juror speech have rarely been found to be constitutionally permissible; the restrictions have been limited to situations, such as protecting the secrecy of juror deliberations, protecting the privacy of jurors, and preserving a defendant's sixth amendment right to a fair trial in criminal cases....We conclude that the right to gather news generally includes the right of the press to interview willing, discharged jurors, except when outweighed by a compelling government interest, such as the need to protect the sanctity of jury deliberations, a juror's right to privacy and to be free from harassment, or a defendant's Sixth Amendment right to a fair trial....
"The trial court restricted the discharged jurors’ right to speak to “the press, media, or others,” because it concluded that the additional, incremental publicity would cause imminent and irreparable harm to the judicial process by making it even more difficult to empanel a jury. But no findings or evidence show that the additional, incremental publicity from juror interviews would cause imminent and irreparable harm to the judicial process....To satisfy the second prong of Davenport, the prior restraint must be the least restrictive means possible to prevent the threatened imminent and irreparable harm to the judicial process.... Other than voir dire, nothing in the record shows that the trial court considered other less restrictive means, such as continuance or change of venue....Pretrial publicity does not necessarily create such harm to the judicial process as to outweigh the media's right to gather news....
The record does not show that interviews of the discharged jurors would preclude the selection of an impartial jury or that measures less restrictive than a gag order would be ineffective...."
The case is In re Hearst Newspapers, 241 SW3d 190 (Tex. Ct App. 1st Dct. 2007).

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