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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Ex Parte: The State

Record Co., Inc., Appellant,

v.

In Re: State of South

Carolina

vs.

B.J. Quattlebaum, Respondent.

Appeal From Lexington County

Thomas W. Cooper, Jr., Judge

Opinion No. 24831

Heard October 22, 1997 - Filed August 31, 1998

AFFIRMED

Jay Bender and Kirby D. Shealy, III, of Baker,

Barwick, Ravenel & Bender, of Columbia, for

appellant.

Joseph M. McCullouch, Jr., of Columbia, A.

Camden Lewis of Lewis, Babcock & Hawkins, of

Columbia, Katharine E. Evatt and Donald V.

Myers, of Lexington, for respondent.

WALLER, A.,J.: This is an appeal of a temporary restraining

order prohibiting the media from disseminating the contents of a videotape

containing a privileged communication between the defendant herein, B.J.

p.3

Quattlebaum, and his attorney. The State-Record Co., Inc. (The

State,/Newspaper) appeals. We affirm,

FACTS

Quattlebaum was indicted for murder, armed robbery, assault and

battery with intent to kill and possession of a firearm during commission of

a violent crime; the State sought the death penalty. While he was

imprisoned at the Lexington County Detention Center, a privileged

conversation between Quattlebaum and his attorney was surreptitiously

recorded.1 The videotape was thereafter disseminated to WIS-TV, a Columbia

television station.2 Upon learning of the videotape and its dissemination to

the media, Quattlebaum moved for a temporary restraining order (TRO)

prohibiting dissemination or characterization of its audio content. On August

18, 1997, the circuit court granted an ex parte TRO, pending a hearing the

following day, prohibiting all trial participants and all media from

disseminating the substance and details of the privileged communication.

Counsel for The State was notified by telephone and a copy of the order was

served on it the same day.

After a hearing on August 19, 1997,3 the circuit court continued its

order in effect until such time as a jury was empaneled and sequestered in

Quattlebaum's case.4 The circuit court's order specifically notes that it does

not "prohibit the reporting of the invasion of the attorney client privilege;"

nor does it "restrain or prohibit [publication of] the identity of the individuals

involved or the nature of the charges in the case." It simply prohibits the

client communication.

2The manner of its distribution is unknown and is not an issue on

appeal.

3The State attended the hearing.

4 The order on appeal has effectively expired since Quattlebaum was

tried, convicted and sentenced to death while this appeal was pending.

However, the fact that Quattlebaum has now been tried does not render our

decision moot. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546, 96

S.Ct. 2791, 2797, 49 L.Ed.2d 683 (court's jurisdiction is not defeated simply

because the order attacked has expired, if the underlying dispute between the

parties is one capable of repetition, yet evading review).

p.4

"dissemination of the contents of the communication or the characterization

of its contents."

ISSUES

1. Did the circuit court have subject matter jurisdiction to

issue the temporary restraining order?

2. Did the circuit court have personal jurisdiction over

Newspaper?

3. Did the court err in imposing a prior restraint?

1. SUBJECT MATTER JURISDICTION

Initially, The State contends the court of general sessions is without

subject matter jurisdiction to issue an injunction.5 We disagree.

The general rule that a court in a criminal case will not issue an

injunction is subject to the exception that a court, once having obtained

jurisdiction of a cause of action, has inherent power to do all things

reasonably necessary to the administration of justice in the case before it.

42 Am. Jur. 2d Injunctions § 11 (1969). The United States Supreme Court

has recently recognized the inherent authority of a court to protect its

proceedings. See Degen v. United States, ___U.S. ___, 116 S. Ct. 1777, 135

L. Ed. 2d 102 (1996) (courts invested with judicial power have inherent

authority to protect their proceedings in course of discharging their

traditional responsibilities). We find it patent that a court of general sessions

has subject matter jurisdiction to issue an injunction, if necessary, to protect

its proceedings.

Franks, 214 S.C. 525, 53 S.E.2d 608 (1949). Franks relied on Section 565,

Code of 1942, later codified at S.C. Code Ann. § 15-55-10, which was repealed

upon enactment of the South Carolina Rules of Civil Procedure (SCRCP ) (in

effect at the time of this action). Accordingly, Franks and section 15-55-10

are inapplicable.

p.5

2. PERSONAL JURISDICTION

The State next argues the circuit court was without personal

jurisdiction to bind it. We disagree.

Under Rule 65(d) of the South Carolina Rules of Civil Procedure

(SCRCP), every order granting a restraining order is binding on the parties

and "those persons in active concert or participation with them who receive

actual notice of the order by personal service or otherwise."6 Here, the only

known media entity in possession of the videotape at the time Quattlebaum

sought a TRO was WIS-TV, which was named and served with the motion

for a TRO. We agree with the circuit court that The State was "in active

concert" with WIS and had actual notice of the order so as to be bound by it.

We find no error in the circuit court's assertion of personal jurisdiction over

The State.

3. PRIOR RESTRAINT7

The State next contends the circuit court erred in issuing a prior

restraint as Quattlebaum failed to meet his burden of justifying its necessity.

We disagree. Under the extremely limited factual circumstances of this case,

we find the circuit court properly enjoined dissemination of the privileged

communication between Quattlebaum and his attorney.

This Court is faced with a profound dilemma: whether to uphold a prior

restraint upon the media's First Amendment8 right of free speech, a task

which carries with it an extremely heavy burden upon the party seeking to

issued in this case, may be issued without notice.

7Some courts draw a distinction between a "gag order" restricting

merely trial participants, which is not characterized as a prior restraint, and

one directly restraining the media itself. See, e.g., United States v. Davis,

904 F. Supp. 564 (E.D. La. 1995); Application of Dow Jones & Co., 842 F.2d

603, 609 (2d Cir.), cert. denied, 488 U.S. 946 (1988). The order on appeal

directly enjoins the media. Accordingly, it is clearly properly characterized

as a prior restraint.

8U.S. CONST. amend. I; S.C. CONST. art. I, § 2.

p.6

limit the speech9; or whether to invalidate the prior restraint placing in

jeopardy the fundamental right of a defendant to a fair trial pursuant to the

Sixth Amendment.10 We are faced with the added quandary that the

information sought to be disseminated by the media is a privileged

communication between a criminal defendant and his attorney.11

2791, 2801-03, 49 L. Ed. 2d 683, 695-98 (1976); Near v. Minnesota, 283 U.S.

697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) (setting forth presumption of

unconstitutionality of prior restraints).

10 U.S. CONST. amend. VI; S.C. CONST. art. 1, § 14.

11 We note, at the outset, that there is very little precedent regarding

a balancing of the competing interests in this regard. Only one case, United

States v. Noriega, has involved violation of the attorney client privilege.

There have been a series of opinions in Noriega. The first was issued by the

United States District Court for the Southern District of Florida. United

States v. Noriega, 752 F. Supp. 1032 (S.D. Fla. 1990) (Noriega 1). In Noriega

1, the district court temporarily enjoined Cable News Network (CNN) from

broadcasting tape recordings of privileged telephone conversations between

Manuel Noriega and his defense team, until such time as the tape recordings

could be reviewed by a federal magistrate to ascertain whether the

defendant's right to a fair trial would be jeopardized by publication of the

contents. The Eleventh Circuit affirmed the grant of the temporary

injunction on the ground that CNN's failure to produce the tape recording

had prevented the district court from balancing the defendant's right to a fair

trial with CNN's First Amendment rights. United States v. Noriega, 917

F.2d 1543 (11th Cir. 1990) (Noriega 2). The United States Supreme Court

denied certiorari. Cable News Network, Inc. v. Noriega, 498 U.S. 976, 111

S. Ct. 451, 112 L. Ed. 2d 432 (1990). Thereafter, the district court held

Noriega had not met his burden of demonstrating the necessity of a

permanent injunction, in part because a portion of the privileged attorney-

client conversation had already been broadcast by CNN (such that it was

moot), and that the remaining portion of the privileged conversation was

simply not so prejudicial as to warrant a prior restraint. United States v.

Noriega, 752 F. Supp. 1045 (S.D. Fla. 1990) (Noriega 3). The court in

Noriega 3 also found Noriega's claim that his Sixth Amendment right to

effective assistance of counsel was jeopardized insufficient to justify the

continued prior restraint, since alternative measures were available through

which to prevent prosecutorial tainting. Id.

p.7

To date, the United States Supreme Court has declined to assign

priorities between the First Amendment right of free press and the Sixth

Amendment right to a fair trial.12 In Nebraska Press Ass'n v. Stuart, 427

U.S. 539, 561, 96 S. Ct. 2791, 2803-04, 49 L. Ed. 2d 683, 699 (1976), the

Court specifically declined to rule on the issue, stating:

The authors of the Bill of Rights did not undertake to assign

priorities as between the First Amendment and Sixth Amendment

rights, ranking one as superior to the other. In this case,

petitioners would have us declare the right of an accused

subordinate to their right to publish in all circumstances. . . .

[I]t is not for us to rewrite the Constitution by undertaking what

they declined to do. It is unnecessary, after nearly two centuries,

to establish a priority applicable in all circumstances.

Notwithstanding its reluctance to assign priorities between the

competing interests, the Court has recognized that the right of a defendant

to a fair trial is "the most fundamental of all freedoms--[which] must be

maintained at all costs." Estes v. State of Texas, 381 U.S. 532, 540, 85 S. Ct.

1628, 1632, 14 L. Ed. 2d 543, 549 (1965). More recently, the Court noted

that "No right ranks higher than the right of an accused to a fair trial."

Press Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508, 104

S. Ct. 819, 823, 78 L. Ed. 2d 629, 637 (1984).

The Nebraska Press Court recognized a trial court's duty to protect the

defendant's constitutional right to a fair trial from the impact of pretrial

publicity:

courts have held that a defendant's Sixth Amendment right to a fair trial is

superior to the right of free speech and that, where the two rights collide, the

latter must give way to the former. Application of Dow Jones & Co., 842

F.2d 603 (2d Cir.), cert. denied, 488 U.S. 496 (1988) (when exercise of free

press rights actually tramples on Sixth Amendment rights, former must yield

to the latter); United States v. Davis 904 F. Supp. 564 (E.D. La. 1995);

Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert.

denied, 427 U.S. 912 (19-16); News Journal Corp. v. Foxman, 939 F.2d 1499

(11th Cir. 1991) (when First Amendment claims impinge on Sixth

Amendment right to trial by impartial jury, asserted First Amendment

freedoms must yield to the 'most fundamental of all freedoms,' the right to

a fair trial for the accused); Mockaitis v. Harcleroad, 938 F. Supp. 1516 (D.

Or. 1996), rev'd on other grounds, 104 F.3d 1522 (9th Cir. 1997).

p.8

Due process requires that the accused receive a trial by an

impartial jury free from outside influences. . . . [T]he trial courts

must take strong measures to ensure that the balance is never

weighed against the accused . . . . where there is a reasonable

likelihood that prejudicial news prior to trial will prevent a fair

trial, the judge should [take such measures as continuance,

change of venue, sequestration, or a new trial]. . . But we must

remember that reversals are but palliatives; the cure lies in

those remedial measures that will prevent the prejudice at its

inception. The courts must take such steps by rule and

regulation that will protect their processes from prejudicial

outside interferences.

427 U.S. at 552-53, 96 S. Ct. at 2800, 49 L. Ed. 2d at 694 (emphasis

supplied) (citing Shepard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L.

Ed. 2d 600 (1966). See also Noriega, 752 F. Supp. at 1049-51.

Citing Learned Hand,13 Nebraska Press established a three-prong

balancing test to determine whether a prior restraint is justified:

1. The nature and extent of pretrial publicity;

2. Whether other measures would be likely to mitigate the

effects of unrestrained pretrial publicity; and

3. How effectively a restraining order would operate to

prevent the threatened danger.

427 U.S. at 562-68, 96 S. Ct. at 2804-07, 49 L. Ed. 2d at 699-703. Nebraska

Press specifically noted that "[t]he precise terms of the restraining order are

also important." Id. at 562, 96 S. Ct. at 2804, 49 L. Ed. 2d at 699.

We find the remedial measures employed by the trial court here were

such invasion of free speech as is necessary to avoid the danger." 427 U.S.

at 562, 96 S. Ct. at 2804, 49 L. Ed. 2d at 699 (emphasis supplied) (citing

United States v. Davis, 183 F.2d 201, 212 (2d Cir. 1950), aff'd, 341 U.S. 494

(1951)).

p.9

necessary to guarantee Quattlebaum's right to a fair trial.14 Moreover, the

restraint imposed by the trial court was as narrowly tailored, both in scope

and duration, as was possible under the circumstances.

Here, as to the first element, although Quattlebaum's case was not

extremely "sensational," it was a death penalty case which received media

attention throughout the state due, in large part, to the videotape in

question. We find sufficient evidence in the record from which to conclude

the pretrial publicity in this case had the potential to impair the

Quattlebaum's right to a fair trial. Accord Nebraska Press, 427 U.S. at 562-

63, 96 S. Ct. at 2804, 49 L. Ed. 2d at 700 (notwithstanding impact of

publicity is "of necessity speculative," dealing as a court must with factors

unknown and unknowable, court could reasonably conclude, based on common

human experience, that publicity might impair defendant's right to a fair

trial).

Further, we find the third prong of Nebraska Press is met in this case.

Undoubtedly, the prior restraint prevented prospective jurors from learning

the contents of the privileged communication contained on the videotape.

Clearly, it prevented the threatened danger to Quattlebaum's right to a fair

trial.15

The most troubling element of Nebraska Press is the second prong,

whether "other measures would be likely to mitigate the effects of

unrestrained pretrial publicity." The problem with application of this factor

effects of pretrial publicity, the only measure certain to ensure Quattlebaum's

fundamental right to a fair trial was imposition of the prior restraint,

15 Unlike the situation in Nebraska Press, the prior restraint here was

manageable because the only known media sources in possession of the

videotape were local media television stations and newspapers. Since all

parties and media in possession of the tape were restrained from disclosing

its contents, the territorial problems espoused by the Court in Nebraska

Press were much less troublesome. The fact that people may have speculated

as to the contents of the videotape in question is simply insufficient to rule

that Quattlebaum had not met his burden of demonstrating a prior restraint

would prevent the threat to his right to a fair trial. On the contrary, this is

one of those "unknown and unknowable" ramifications which we find,

justifies the trial court's conclusion that the prior restraint would prevent the

harm in this case.

p.10

is that it is simply untenable to suggest that other measures would not, in

any case, be "likely to mitigate" the effects of pretrial publicity. It could

always be argued that other measures would, to some degree, "mitigate" the

effects of pretrial publicity.16 "Mitigate" is defined as "to make less severe,

alleviate. . . ." NEW WEBSTER'S DICTIONARY AND THESAURUS 640

(1993). Although alternate measures might "make less severe" the effects of

pretrial publicity, they could not, in this case, ensure Quattlebaum's right to

a fair trial. Were we to premise our analysis solely upon whether other

measures would be "likely to mitigate" the effects of pretrial publicity, then

we can conceive of no situation which would meet the elements of Nebraska

Press. We do not believe the Supreme Court intended the second prong of

Nebraska Press to be read in isolation so as to foreclose the possibility, in all

circumstances, of a prior restraint. Had it intended such a result, it would

have imposed an absolute ban on prior restraints. Indeed, a majority of the

Court specifically declined to do so,17 stating:

However difficult it may be, we need not rule out the

is questionable whether the test could ever be met. See L. Tribe, American

Constitutional Law 858-59 (2d Ed. 1988) (Supreme Court's confidence that

alternatives to prior restraints on media will adequately deter any adverse

impact of publicity suggests that Nebraska Press acts as "a virtual bar to

prior restraints" on the press); Bernabe-Riefkohl, Prior Restraints on the

Media and The Right to a Fair Trial: A Proposal for a New Standard, 84 Ky.

L.J. 259, 290-91 (1995-96) (standard of Nebraska Press is almost impossible

to meet as a defendant cannot demonstrate that twelve impartial jurors

cannot be found or that alternative measures will not eliminate risks).

17 At least four of the justices in Nebraska Press advocated a position

that a prior restraint on the press could, in no circumstances, be justified.

See 427 U.S. at 570, 96 S. Ct. at 2808, 49 L. Ed. 2d at 704 (Justice White

concurring); Id. at 572, 96 S. Ct. at 2809, 49 L. Ed. 2d at 705 (Justices

Brennan, Stewart and Marshall concurring). See also Peterson, A First

Amendment-Sixth Amendment Dilemma: Manuel Noriega Pushes the

American Judicial System to the Outer Limits of the First Amendment, 25

J. Marshall L. Rev. 563, 579 (1992) (noting that concurrences in Nebraska

Press test makes prior restraints on publication of information already

obtained an impossible order to justify); Bernabe-Riefkohl, supra note 16, at

267 (suggesting standard set forth by Supreme Court is inoperable and

confusing, and courts should adopt absolute rule against the use of prior

restraints).

p.11

possibility of showing the kind of threat to fair trial

rights that would possess the requisite degree of

certainty to justify restraint. This Court has

frequently denied that First Amendment rights are

absolute and has consistently rejected the proposition

that a prior restraint can never be employed.

427 U.S. at 570, 96 S. Ct. at 2808, 49 L. Ed. 2d at 704.

Rather, as we view the Nebraska Press test, it must be viewed in its

entirety, with a view toward ensuring a defendant's fundamental right to a

fair trial, and not merely with an eye toward "mitigating the effects" of

pretrial publicity. As noted previously, the Nebraska Press Court, specifically

noted that such invasion of free speech as is necessary to avoid the danger

is permissible. See supra note13. 18 We find the limited prior restraint

18 A number of courts and commentators have recognized that the

"alternative measures" suggested by Nebraska Press are, in reality,

insufficient. As one court has noted, "[e]mphatic jury instructions to

disregard prejudicial publicity is an unsatisfactory solution.") Davis, 904 F.

Supp. at 569. See also KUTV v. Wilkinson, 686 P.2d 456 (Utah 1984)

(finding neither sequestration nor voir dire were sufficient alternatives to

imposition of restraining order). Additionally, it has been argued that other

alternatives do not sufficiently safeguard the right to a fair trial:

Postponement may encroach on the accused's right of a speedy

trial and may actually increase publicity in a case of great public

interest; change of venue involves delay presenting the problems

associated with postponement, local communities have an interest

in local adjudication, and a highly publicized criminal case likely

will cause prejudicial information to be disseminated nationally,

rendering change of venue ineffective; voir dire cannot remove

individuals who have read previous newspaper accounts and a

larger jury pool may result in a greater number of people who

have been exposed to prejudicial publicity or to a delay in voir

dire with an enhanced opportunity for improper publicity to

occur; jury sequestration is not only a drastic measure, requiring

the jurors to compensate for the publicized actions of trial

participants, but also lengthy jury sequestration can cause the

bias of resentment, the desire to end deliberation, and cannot

remove prejudice from publicity prior to impanelment and jury

instructions may be ineffective regardless of pretrial publicity

p.12

imposed here was necessary to avoid the potential prejudice to Quattlebaum

as would ensue from disclosure of the videotape. Were we to hold otherwise,

the contents of the videotape in question could have been disclosed and the

substance of the privileged communication with his attorney divulged. Once

disclosed, although other measures might have alleviated the prejudice to

Quattlebaum, his right to a fair trial could not have been guaranteed.19 In

our view, the United States Supreme Court did not intend such a result in

establishing the Nebraska Press test. Accordingly, we find the threat of

prejudice to Quattlebaum's right to a fair trial justified the prior restraint

here.

Our decision to affirm the circuit court's issuance of a temporary

restraining order is bolstered by the uncertainty of the precise standard

necessary to justify a prior restraint in cases in which the defendant claims,

not only that pretrial publicity threatens his right to a fair trial, but also

that his attorney client privilege has been violated, thereby jeopardizing his

right to effective assistance of counsel.20 We refer to the uncertainty created

by the decisions of the District Court, and the Eleventh Circuit Court of

Appeals, in United States v. Noriega. See supra note 11.

As noted in Footnote 11, the Noriega cases involved the recording of

publicized criminal trial .may not highlight precisely the issues

the jurors are being instructed not to consider.

Stabile, Free Press-Fair Trial: Can They Be Reconciled in a Highly Publicized

Criminal Case, 79 Geo. L.J. 337, 343-45 (1990). See also Isaacson, Fair Trial

and Free Press: An Opportunity for Coexistence, 29 Stan. L.R. 561 (1990)

(recognizing inadequacy of alternative measures set forth in Nebraska Press

and Sheppard v. Maxwell); Davis, 904 F. Supp. at 568-69.

190nce a privileged communication has been disclosed to the public, it

can never be recalled and the right to a fair trial may have been forever

jeopardized. Accord United States v. Davis, 904 F.Supp. 564, 569 (E.D. La.

1995) (it is difficult, if not impossible, to "unring a bell").

20 In Noriega 3, the District Court. on remand, analyzed the claims as

two separate prongs: the defendant's Sixth Amendment right to a fair trial,

and his Sixth Amendment right to effective assistance of counsel. It applied

the three prong Nebraska Press test to both rights.

p.13

Manuel Noriega's privileged telephone calls with his attorneys while in prison

in Florida. The United States District Court for the Southern District of

Florida temporarily restrained CNN, which had gained possession of the

tapes, from broadcasting the recordings until it could determine whether

broadcasting the tapes would prejudice Noriega's trial. 752 F. Supp. 1032

(S.D. Fla. 1990) (Noriega 1). Clearly, this does not comport with the

Nebraska Press three-prong test as that test requires a showing of prejudice

in the first instance before a prior restraint is ever justified. Nonetheless,

the Eleventh Circuit upheld the restraining order. 917 F.2d 1543 (11th Cir.

1990) (Noriega 2). 21 In doing so, the Eleventh Circuit noted that "the

determination of whether the telephonic communications between Noriega

and his defense counsel are privileged, while not necessarily dispositive of

whether such communication should be publicly broadcast, would be relevant

to the District Court's assessment of potential harm to Noriega's right to a

fair trial." Id. at 1551. The Supreme Court denied certiorari, over the

dissent of Justices Marshall and O'Connor. 498 U.S. 976, 111 S. Ct. 451, 112

L. Ed. 2d 432 (1990).

In light of the opinions in Noriega 1 and 2, it is uncertain precisely

how the Supreme Court would rule if faced directly with the issue of a prior

restraint in the context of the media's threatened disclosure of confidential

conversations obtained in violation of the attorney client privilege. At least

one commentator has speculated that the denial of certiorari in Noriega

leaves open the possibility that the Nebraska Press standard is open to

revision. See Splichal and Bunker, The Supreme Court and Prior Restraint

Doctrine: An Ominous Shift?, 3-SPG Media L. & Pol'y 9, 11, 12 (1994)

(speculating that alarm expressed in dissenting opinion in Supreme Court's

denial of certiorari suggests a majority of the Court might be willing to give

judges a freer reign in balancing First Amendment principles with fair trial

concerns). Accordingly, in light of the confusion surrounding the Noriega

cases, 22 we find the matter is better left to the United States Supreme Court

Nebraska Press test in Noriega 1 and Noriega 2. See Peterson, supra note

17, at 563; Splichal and Bunker, The Supreme Court and Prior Restraint

Doctrine: An Ominous Shift?, 3-SPG Media L. & Pol'y 9 (1994); Schweiker,

United States v. Noriega: Conflicts Between the First Amendment and

Rights to a Fair Trial and Privacy, 1993 U. Chi. Legal F. 369, 374 (1993).

22Although the Eleventh Circuit ultimately concluded Noriega was not

entitled to continuation of the restraining order, 752 F. Supp. 1045 (11th Cir.

1990) (Noriega 3), that decision was based in large part on the fact that the

p.14

for resolution. Should that Court wish to establish an alternative standard

from that set forth in Nebraska Press, or to adopt an absolute ban on prior

restraints, it is free to do so.

CONCLUSION

It is difficult to conceive of a situation in which the rights of a

defendant to a fair trial were more at jeopardy than the instant case.23 If

Quattlebaum's Sixth Amendment rights were insufficient to justify imposition.

of the prior restraint in this case, we can think of no situation in which a

prior restraint would ever be justified or in which alternative measures would

not be found sufficient to mitigate any threatened prejudice. Since Nebraska

Press did not foreclose the possibility that there may be situations in which

a prior restraint is justified, we find the egregious circumstances of this case

sufficient to warrant imposition of the extremely limited temporary

restraining order imposed by the circuit court.24 Any contrary holding would

potentially have denied Quattlebaum's fundamental right to a fair trial and

have been shocking to the universal sense of justice; such a result will not

be endorsed by this Court. Accordingly, the judgment below is

AFFIRMED.

FINNEY, C.J., MOORE and BURNETT, JJ., concur. TOAL, A.J., concurring

and dissenting in separate opinion.

client ambit, one of which had already been broadcast by CNN, and the other

of which was so "cryptic and disjointed" that Noriega's counsel conceded it

was not prejudicial insofar as impaneling an impartial jury was concerned.

Id. at 1053. Noriega 3 sheds no light on the appropriate standard to be

applied in cases such as that presently before the Court.

23 Unfortunately, both this Court's and the lower court's hands are

somewhat "tied" in this case in that it is impossible, without disclosing the

contents of the videotape, to accurately portray the potential prejudice to

Quattlebaum.

24As noted previously, the order on appeal does not prohibit publication

of the existence of the videotape, or the fact of the invasion of the attorney

client privilege. It does not even prohibit the videotape itself from being

aired by the media; it merely restricts dissemination of the contents of the

privileged communication itself, or the characterization of the contents.

p.15

TOAL, A.J.: I concur as to the majority's discussion of subject matter

jurisdiction and personal jurisdiction, but dissent as to the validity of the

prior restraint.

At the outset it is essential to understand that all prior restraints are

not equal. It is also important to understand what the present prior

restraint is, and what it is not. The prior restraint here is a judicial

restraint on the disclosure by the press of an attorney's private consultation

with his client. By restraining publication, the trial court has attempted to

protect and preserve the integrity of a criminal trial and the constitutional

values which inhere therein. What this prior restraint is not is an executive,

legislative, or judicial prior restraint of the expression of an opinion. It is

also not a permanent restraint on the publication of the attorney-client

conference.

The First Amendment to the United States Constitution provides,

"Congress shall make no law . . . abridging the freedom of speech, or of the

press . . ." U.S. Const. amend. I. On its face, the provision seems to apply

only to legislative abridgements of free speech, restricting as it does

congressional action.1d The application of the First Amendment to judicial

R2">

prior restraints is a late twentieth century phenomenon.2d Although the

history of the drafting of the First Amendment, as well as the literal

language of the amendment itself, suggest that it was intended solely as a

Nw. U. L. Rev. 1156 (1986)(arguing that a First Amendment basis for

striking down judicial prior restraints rests on a "shaky foundation" and that

the Fourteenth Amendment due process clause would be the better source for

restricting state courts in this regard).

2d The Supreme Court's first case involving a judicial prior restraint was

Carroll v. President of Princess Anne County, 393 U.S. 175, 89 S. Ct. 347, 21

L. Ed. 2d 325 (1968). In Carroll, the trial court issued an order restraining

a white supremacist organization from holding, for more than ten months,

rallies or meetings that would tend to disturb and endanger the citizens of

the county. The judicial proceedings held to consider the order were

conducted ex parte with no notice being given to the white supremacist

group. The Supreme Court ultimately struck down the judicial prior

restraint, stating, "The issuance of an injunction which aborts a scheduled

rally or public meeting, even if the restraint is of short duration, is a matter

of importance and consequence in view of the First Amendment's imperative."

393 U.S. at 184, 89 S. Ct. at 353, 21 L. Ed. 2d at 333.

p.16

limitation on legislative restraints of speech and the press, today it is

assumed that this language encompasses judicial restraints. In modern First

Amendment litigation no one questions whether or not the prohibition against

judicial prior restraints might be limited to orders based on statutes.

Perhaps the time has passed when such a question could be seriously

addressed by an appellate court. But what should legitimately be revisited

in the view of the majority, and in my view, is whether or not the same

analysis should be applied to all judicial prior restraints.

A fair trial is guaranteed to litigants in both civil and criminal

disputes. Does it make a difference whether the judicial prior restraint is

simply a device to prevent premature publicity of matters at issue in a civil

or criminal trial as opposed the prior restraint at issue in the instant capital

murder case where the court also seeks to safeguard such constitutional

values such as the protection against self-incrimination, the right to an

attorney of the defendant's choosing, and the right to a speedy trial?

Presently, the rigid Nebraska Press test is the only tool trial judges

have to address questions of prior restraint, whether legislative or judicial,

whether in the criminal or civil context, and whether in the high-profile

capital murder case or misdemeanor traffic court. While there is a certain

elegant simplicity in "bright line" tests from the standpoint of appellate

judges, such tests really do not give meaningful and practical guidance to

trial judges.

In high-profile criminal cases, trial judges frequently encounter a media

frenzy which they must deal with in a matter of hours. In this case, the

police taped defendant's very first conversation with his lawyer, just after he

was arrested for murder. The prosecution retained this tape for over a year

unbeknownst to defendant or his lawyer. The tape was leaked to the largest

television station in the area from which defendant's jury would be selected.

The possibility of a tainted jury venire was very real. The trial judge

proposed to solve this dilemma by restraining the media from publishing the

attorney-client conversation until the jury had been empaneled. The

television station involved here was responsible enough to voluntarily restrain

publication of the surreptitiously taped attorney-client conference until a

hearing could be held.

The Nebraska Press test requires the trial court to make detailed

findings on all available alternatives. This may be unrealistic in the real

world of high-profile criminal trials. Additionally, it forces the trial judge to

make choices between other constitutional values. It may always be possible

p.17

to posit other "possible" alternatives to judicial prior restraints. If a trial

judge has to eliminate all other alternatives (a crystal ball exercise since

none of the "alternatives" will have been put into play), then in reality there

exists an absolute prohibition against any prior restraint. Are the protections

of the Fifth and Sixth Amendments thus sacrificed to the demands of the

modern day media for instant public dissemination of any information to

which it falls privy no matter the impact on the fairness of the trial? In the

final analysis, Nebraska Press, for all its language to the contrary, may have

effectively established the constitutional doctrine that the First Amendment

trumps the Fifth, Sixth, and Fourteenth Amendments.

The majority opinion is a scholarly and thoughtful review of the leading

authorities on the question of whether a prior restraint of the press can ever

be ordered by a trial judge in this country. The majority argues that the

application of the Nebraska Press test here damages the defendant's most

fundamental due process rights in three important respects. First, the

sanctity of his attorney-client privilege has been invaded. Second, his Fifth

Amendment right against compulsory self-incrimination has potentially been

compromised. Finally, the selection of the normal alternatives to the prior

restraint, including continuance of the case until public attention abates,

change of venue to a locale not so infected with the pre-trial publicity, and

voir dire questioning of the jury to eliminate any biased jurors, impairs the

defendant's right to a speedy trial by a jury of his peers.

As noted above, I agree with the majority that the Nebraska Press test

should be revisited by the Supreme Court. A standard must be formulated

that adequately addresses the pressures and complex constitutional concerns

that accompany a high-profile murder case. That said, I find myself

compelled to dissent under the current state of the law. Further, the

majority's proposed standard falls short of the kind of sophisticated test

required in this situation. Although more flexibility in issuing a prior

restraint may be deserving in a case such as this, it should not result in a

"rubber stamped" restraint whenever there is any potential prejudice to the

defendant. An examination of less restrictive alternatives must remain part

of the analysis.

As discussed by the majority, in this century the United States

Supreme Court has consistently interpreted the First Amendment as

mandating a "heavy presumption" against the constitutional validity of prior

restraints. Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S. Ct.

1575, 29 L. Ed. 2d 1 (1971); Carroll v. President of Princess Anne County,

393 U.S. 175, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1968); Near v. Minnesota ex.

p.18

rel. Olson, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931). This

presumption is largely the result of Justice Oliver Wendell Holmes's famous

declaration in Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 558,

51 L. Ed. 879 (1907): "[T]he main purpose of [the First Amendment] is to

prevent all such previous restraints upon publications as had been practiced

by other governments."3d The question before this Court is at what point

must this "heavy presumption" give way to a defendant's right to a fair trial.

In Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791,

49 L. Ed. 2d 683 (1976), the United States Supreme Court addressed this

very issue. The defendant was charged with murdering six members of a

family in the small town of Sutherland, Nebraska, a town of about 850

people. Due to the notoriety of the case, the trial court issued an order

prohibiting the press from publishing specific aspects of the trial. The

Nebraska Supreme Court upheld the restraint with some modifications. The

United States Supreme Court reversed, finding the prior restraint invalid

under its three-prong test.

In this case, the majority questions the second prong of the Nebraska

Press test. The majority states that under this prong no situation can be

conceived of in which a prior restraint would be justified because alternative

measures would almost always be likely to mitigate the effects of pretrial

publicity. The majority asserts that such a standard is untenable as it would

be impossible for a court to ensure a defendant's Sixth Amendment right to

a fair trial. I share the majority's concern and agree that the second prong

of the Nebraska Press test should not be read in isolation. The test itself

does not require invalidation of a prior restraint solely because other

measures might mitigate the effects of the pretrial publicity. It is a

balancing test. A court must consider the degree to which other measures

will mitigate the adverse effects of the pretrial news coverage in light of the

nature and extent of that publicity. See Nebraska Press, 427 U.S. at 569, 96

S. Ct. at 2807, 49 L. Ed. 2d at 703 ("We cannot say on this record that

alternatives to a prior restraint on petitioners would not have sufficiently

mitigated the adverse effects of pretrial publicity so as to make prior

Blackstone's Commentaries: "The liberty of the press is indeed essential to

the nature of a free state; but this consists in laying no previous restraints

upon publications, and not in freedom from censure for criminal matter when

published." 4 William Blackstone, Commentaries 151; see G. Edward White,

Justice Holmes and the Modernization of Free Speech Jurisprudence: The

Human Dimension, 80 Cal. L. Rev. 391, 398 (1992).

p.19

restraint unnecessary."). The presumption, however, is heavily in favor of

using alternative measures. As noted by the Court in Nebraska Press, "our

conclusion [that the prior restraint is invalid] is not simply a result of

assessing the adequacy of the showing made in this case; it results in part

from the problems inherent in meeting the heavy burden of demonstrating,

in advance of trial, that without prior restraint a fair trial will be denied."

Nebraska Press, 427 U.S. at 569, 96 S. Ct. at 2807-08, 49 L. Ed. 2d at 703.

In this case, there is little doubt that other measures might mitigate

the effects of the pretrial publicity. The pertinent question under Nebraska

Press is whether such alternatives would sufficiently mitigate those effects.

Under the current state of the law, I am compelled to answer yes to this

question.

The Supreme Court's first prior restraint decision was Near v.

Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357, which involved a

legislative restraint on publication. By invalidating the restraint, the Court

in Near echoed Holmes's earlier proclamation in Patterson that the primary

objective of the First Amendment was to avoid prior restraints. Quoting

James Madison, the Court stated, "'This security of the freedom of the press

requires that it should be exempt not only from previous restraint by the

Executive, as in Great Britain, but from legislative restraint also."' Near, 283

U.S. at 714, 51 S. Ct. at 630, 75 L. Ed. at 1366. The Court further observed,

"The preliminary freedom [of the press] extends as well to the false as the

true. " Id.

It was not until 1968 that the Supreme Court added to its First

Amendment jurisprudence a presumption against judicial prior restraints.

See Carroll v. President of Princess Anne County, 393 U.S. 175, 89 S. Ct.

347, 21 L. Ed. 2d 325. The Court's invalidation of judicial prior restraints

came without an explanation of why the First Amendment was applicable to

such orders. Id. (simply concluding that there is a "heavy presumption"

against prior restraints under the First Amendment). In New York Times

Company v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822

(1971), the government sought to enjoin the New York Times and the

Washington Post from publishing a classified study of the Vietnam war.

Despite the weighty countervailing interest of national security, the Supreme

Court refused to sustain the judicial prior restraint. In a concurring opinion,

Justice Black borrowed James Madison's remarks concerning the Bill of

Rights: "'the freedom of the press, as one of the great bulwarks of liberty,

shall be inviolable."' New York Times, 403 U.S. at 716, 91 S. Ct. at 2142, 29

L. Ed. 2d at 826.

p.20

The majority emphasizes that the Supreme Court in Nebraska Press

declined to assign priorities between the First and Sixth Amendments. As

such, the majority seeks to take advantage of this apparent indecision by

suggesting the primacy of the Sixth Amendment. The majority notes that "a

number of lower courts have held that a defendant's Sixth Amendment right

to a fair trial is superior to the right of free speech and that, where the two

rights collide, the latter must give way to the former." However, none of the

cases cited by the majority involved prior restraints.4d In fact, these cases

explicitly distinguished prior restraints from other restrictions on freedom of

expression and acknowledged the virtual per se invalidity of the former.

In News Journal Corporation v. Foxman, 939 F.2d 1499 (11th Cir.

1991), the Eleventh Circuit faced the question of whether a trial court could

limit extrajudicial commentary of trial participants. Citing Nebraska Press,

the Eleventh Circuit noted that such orders were less restrictive than prior

restraints on the press for averting the effects of prejudicial pretrial publicity.

The court further recognized that there was a "heavy presumption" against

prior restraints. See Foxman, 939 F.2d at 1512 (citing Nebraska Press). The

S. Ct. 1628, 14 L. Ed. 2d 543 (1965) and Press Enterprise Co. v. Superior

Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)

are also unavailing. In Estes, the Supreme Court faced the issue of whether

television cameras in the courtroom violated the defendant's due process

rights under the Fourteenth Amendment. The issue had nothing to do with

the validity of a prior restraint. The only remedy available to the defendant

was a reversal of his conviction. Finding the defendant's due process rights

were violated, the Court stated, "We have always held that the atmosphere

essential to the preservation of a fair trial -- the most fundamental of all

freedoms -- must be maintained at all costs." 381 U.S. at 540, 85 S. Ct. at

1632, 14 L. Ed. 2d at 549. The Court then observed, "Our approach has been

through rules, contempt proceedings and reversal of convictions obtained

under unfair conditions." Id. The Court in no way intimated that it

intended to elevate an accused's right to a fair trial above the well

established presumption against prior restraints.

In Press Enterprise, the Court dealt with the right of the public to

attend voir dire proceedings in a criminal case. The case did not deal with

a prior restraint. The Court invalidated the trial court's order to close the

proceedings and vindicated the public's right to attend the proceedings. The

Court found that the trial judge had failed to consider alternatives to closure

and did not make findings sufficiently specific for review by an appellate

court.

p.21

court reiterated the Supreme Court's recommendation to use measures other

than prior restraints in mitigating the effects of pretrial publicity.

Consequently, the Eleventh Circuit found the restriction on extrajudicial

statements to be an acceptable alternative.5d

Like the court in Foxman, the Second Circuit in Application of Dow

Jones & Company 842 F.2d 603 (2d Cir. 1988), cert. denied, 488 U.S. 946,

109 S. Ct. 377, 102 L. Ed. 2d 365 (1988), addressed the constitutionality of

a lower court order restricting extrajudicial statements by trial participants.

In distinguishing prior restraints from the restriction before it, the court

stated,

[T]here is a substantial difference between a restraining order

directed against the press -- a form of censorship which the First

Amendment sought to abolish from these shores -- and the order

here directed solely against trial participants and challenged only

by the press. The distinction is critical.

The most offensive aspect of a prior restraint is the censorship

involved by forbidding the dissemination of information already

known to the press and therefore public. A prior restraint

deprives the public of specific news because it prevents

publication. Although the restraining order in this case limits

the flow of information readily available to the news agencies --

and for that reason might have an effect similar to that of a prior

restraint -- the fact that the order is not directed at the news

agencies and that they therefore cannot be haled into court for

violating its terms deflates what would otherwise be a serious

concern regarding judicial censorship of the press. For this

reason the order is considerably less intrusive of First

Amendment rights than one directly aimed at the press.

Foxman, 842 F.2d at 608.

These cases demonstrate that while it may be permissible for a court

to restrict some First Amendment freedoms in order to protect a defendant's

right to a fair trial, it is almost never acceptable for a court to impose a prior

a Highly Publicized Criminal Case? 79 Geo. L. J. 337 (1990).

p.22

restraint.6d At most, the two interests share equal prominence in the

Constitution.

The Supreme Court in Nebraska Press sought to reconcile these

interests without creating an arbitrary hierarchy. First, the Court recognized

that "[a] prior restraint, . . . by definition, has an immediate and irreversible

sanction." Nebraska Press, 427 U.S. at 559, 96 S. Ct. at 2803, 49 L. Ed. 2d

at 697-98. Conversely, pretrial publicity does not inflict an immediate injury

but only poses "a risk that [the publicity will] have some adverse impact on

the attitudes of those who might be called as jurors." Id. at 569, 96 S. Ct.

at 2807, 49 L. Ed. 2d at 703 (emphasis added). In other words, any injury

to the defendant is measured by probability; whereas, the prior restraint is

a present transgression of a core constitutional right. By employing the

remedial measures suggested in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct.

1507, 16 L. Ed. 2d 600 (1966),7d the prior restraint is immediately rectified

and any future risk of not having a fair trial is cured. This is exactly what

the second prong of the Nebraska Press test attempts to achieve. See U.S.

v. Noriega, 752 F. Supp. 1045, 1054 (S.D. Fla. 1990)("lf nothing else,

Nebraska Press stands for the proposition that speculative harm falls well

short of the showing necessity for the imposition of a prior restraint.").

As discussed above, any injury to Quattlebaum is measured solely by

probability. All the while, the constitutional infirmity of the prior restraint

persists. Therefore, to justify such an immediate and profound infringement

of the First Amendment, Nebraska Press requires a finding that, absent the

prior restraint, the defendant will be denied a fair trial. The record here

simply does not support such a conclusion. The trial court's consideration of

alternative measures was, at best, cursory. The trial court failed to make

1975)(finding that there was no prior restraint, and therefore, the court did

not have to begin its examination with a "heavy presumption" against

validity); United States v. Davis, 904 F. Supp. 564 (E.D. La. 1995); Stabile,

79 Geo. L. J. at 341 ("While it may be permissible to restrict freedom of

expression in order to protect a defendant's right to a fair trial, not all means

of restriction are acceptable.").

7dThese measures include: (1) change of trial venue to a place less

exposed to the publicity; (2) postponement of the trial; (3) questioning of

prospective jurors; (4) jury sequestration; and (5) clear instructions to the jury

to decide issues only on the evidence. See Nebraska Press, 427 U.S. at 563-

64, 96 S. Ct. at 805, 49 L. Ed. 2d at 700.

p.23

specific findings regarding the degree to which other measures would

mitigate the effects of the pretrial publicity.8d Such findings are basic to the

balancing required by Nebraska Press. If the trial court had explored each

of the alternatives, it would have had to conclude that the prior restraint was

not necessary.9d

Finally, the majority asserts that its decision to affirm the restraining

order is "bolstered by the uncertainty of the precise standard necessary to

justify a prior restraint in cases in which the defendant claims, not only that

pretrial publicity threatens his right to a fair trial, but also that his attorney-

client privilege has been violated, thereby jeopardizing his right to effective

assistance of counsel." Again, I join the majority's frustration in not having

a more suitable test with which to address the unique and profound

constitutional concerns presented in this case. Nevertheless, under current

case law, I remain compelled to conclude that the prior restraint here must

be struck down.

In United States v. Noriega, 752 F. Supp. 1032 (S.D. Fla. 1990)

(Noriega I), the federal district court faced the question of whether to restrain

the publication of privileged conversations between Noriega and his defense

team. The court imposed a temporary restraining order until it could review

the tapes. The Eleventh Circuit affirmed the district court's order. 917 F.2d

1543 (11th Cir. 1990) (Noriega II). The majority suggests that Noriega I and

Noriega II create doubt as to the applicability of the Nebraska Press test in

cases involving privileged communications. In Noriega III, the district court

explicitly sought to dispel such an interpretation. 752 F. Supp. 1045 (S.D.

Fla. 1990). The court stated that "[i]n order to make the factual findings

mandated by Nebraska Press, it was necessary to review the subject tapes."

752 F. Supp. at 1049. The court further noted that it had to contend with

CNN's refusal to produce the tapes, and as a result, the court imposed the

temporary restraining order. However, the court emphasized that its decision

was not a comment on the priority between Noriega's First- and Sixth

Amendment rights. Id. at 1051 ("the court had not then concluded that

Noriega's Sixth Amendment right to a fair trial out-weighed CNN's First

of that privileged communication, or its characterization would make it much

more unlikely that the defendant could obtain a fair and impartial trial,

given even all the protections that our system has in place to ensure a fair

and impartial trial."

9d Even the majority admits that this case is not "extremely sensational."

p.2 4

Amendment right to be free of prior restraints on publication . . . .").

In Noriega III, the district court summarized the inquiry mandated by

the Eleventh Circuit in Noriega II:

[T]he fact that conversations may or may not fall within the

protections of the [attorney-client] privilege has no bearing on

whether Noriega's right to an impartial jury will be clearly and

irreparably harmed by publication . . . .Guaranteeing Noriega's

right to counsel involves an equally serious but much narrower

inquiry. There, the court is concerned only with the extent to

which the publication of legitimately privileged communications

would prejudice Noriega's defense were those protected

conversations to fall into the hands of the prosecution.

Id. at 1051-52 (emphasis added). Thus, the significance of the attorney-client

privilege is limited to a determination of whether the prosecution would be

prohibited from obtaining the communications; and if so, whether the

communications would have prejudiced the defendant's case if actually viewed

by the prosecution. Even if a defendant could establish prejudice as a result

of the prosecution gaining access to the conversations, a court would be

required to explore less intrusive alternatives in order to avoid the prior

restraint. Id. at 1054. ("Even if Noriega were able to meet his burden of

establishing demonstrable prejudice upon the prosecution's gaining access to

these conversations, the court would in all likelihood refrain from imposing

a prior restraint on the press.").10d

Freedom of the press from prior restraints is the quintessential right

under the First Amendment. However, the presumption against prior

restraints must not eviscerate those rights guaranteed by the Fifth, Sixth,

and Fourteenth Amendments. A more sophisticated test is required in order

to effectively address the complex constitutional concerns that may arise in

any given criminal trial. The prerogative to change the prior restraint

standards is the province of the United States Supreme Court. The majority

makes a thoughtful and practical challenge to the current Nebraska Press

test. I join the majority's plea for a change, but until the Supreme Court

revises the current test, it binds us.

10d The court noted that other less drastic alternatives included

sequestration of the prosecution and dismissing members of the prosecution

team or excluding evidence and witnesses.

p.25

For the foregoing reasons, I respectfully dissent.

26