The Ventura County Star reports that a superior court judge yesterday issued a gag order ordering it to halt the printing of an article about the case of a man being held for the murder last year of a 6-year-old boy in Newbury Park. This extraordinarily rare prior restraint is the latest twist in a struggle by the paper for more than a year to print the facts about the crime.
Although California law presumes that search warrants and the affidavits that support them are public, these were immediately sealed and in the fall of last year The Star asked that they be unsealed.
Attorneys for both the prosecution and the defense had argued against their release, saying that details from sworn statements included in the warrants could harm the investigation and make it harder to find an impartial jury.
Judge Kevin Riley ultimately agreed that they be released but in a highly edited form, with many pages left blank. His decision was immediately appealed by the Public Defenders Office.
It took until late November for the 2nd Appellate District Court to issue an order releasing the documents.
After the Appellate Courts decision in late November, a reporter from The Star attempted to view the warrants but was twice turned away saying he needed a court order. On a third visit, during which he handed over a copy of the Appellate Courts order, he was given an unredacted copy of the warrant to read. Judge Rileys order concerns the details in those court records.
The same information was aired by a local radio station last week. An added irritant, says David Giles, an attorney for E.W. Scripps Co., which owns the newspaper, is that "the court did not even give the Star an opportunity to assert its First Amendment rights before issuing the blatantly unconstitutional order. Obviously we will challenge this ruling."
The U.S. Supreme Court held more than 30 years ago that a judge's order to the press to stop publication of information about a capital murder case that might deny the defendant a fair trial violated the First Amendment because the judge failed to make express findings that the no-publish order would be effective in averting the feared prejudice, and that all of the following alternatives would be inadequate or unworkable:
- change of trial venue to a place less exposed to intense publicity;
- postponement of the trial to allow public attention to subside;
- searching questioning of prospective jurors;
- emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court.;
- sequestration of the jury; and
- gag orders to participants not to speak to the press.
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).