96-509

No. 96-509

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA, EX REL.,

THE MISSOULIAN,

Relators,

v.

MONTANA TWENTY-FIRST JUDICIAL DISTRICT

COURT RAVALLI COUNTY, and THE HONORABLE

JEFFREY H. LANGTON, Presiding District Judge,

Respondents.

ORIGINAL PROCEEDING: Supervisory Control

COUNSEL OF RECORD:

For Relator:

Steven S. Carey; Carey, Meismer & McKeon,

Missoula, Montana (argued)

For Respondents:

David E. Stenerson (argued), Kirk Krutilla,

Attorneys at Law, Hamilton, Montana

Hon. Joe Mazurek, Attorney General, Elizabeth

L. Griffing, Ass't Attorney General, Helena,

Montana

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Submitted: December 5, 1996

Decided: March 6, 1997

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

 

 

 Kippy Joe Hill was charged with deliberate homicide for the

death of Laurel Elaine Camper which occurred on June 29, 1996. In

Justice Court, Hill filed a motion for an order prohibiting

dissemination of evidentiary material to the news media. On the

same day that the motion was filed, the Justice Court entered an

order barring the Ravalli County Sheriff's office, the Ravalli

County Attorney's office and anyone else involved in the

investigation, prosecution or defense of the matter, from

providing any factual or evidentiary information concerning the

case to the public or the press. 

 After entry of the above order by the Justice Court, the State

filed an Information against Hill in the Twenty-First Judicial

District Court. Hill then requested that the District Court adopt

the Justice Court order prohibiting dissemination of any

evidentiary information to the press or public. The State opposed

the motion and moved to quash the Justice Court order. A brief

hearing was conducted on August 14, 1996, wherein the court

proposed issuing a restrictive order tailored more narrowly than 

the Justice Court order. The State agreed with the court's

proposal. The District Court then entered an order requiring that

certain restrictions on pretrial and trial publicity be followed in

conformity with Rule 3.6 of the Rules of Professional Conduct. The

court's order (hereinafter referred to as "participant gag order")

applied the Rule, not just to attorneys, but to the defendant,

defense witnesses, prosecution witnesses, court staff and all law

enforcement officers. Three days later, the District Court

followed up its order with a Memorandum reiterating its

restrictions and also directing that no evidentiary material was to

be filed with the court unless it were under seal. 

 The Missoulian, a local newspaper, filed an Application for

Writ of Supervisory Control asking this Court to assume original

jurisdiction of this matter to correct the District Court's

mistakes of law in issuing the restrictive order and in requiring

that any filings referencing evidence in the case be submitted

under seal. In an order dated October 17, 1996, we ordered

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briefing in the matter and on November 21, 1996 entertained oral

argument. We reverse the restrictive order and remand for further

proceedings. 

 Factual Background

 Neither the Justice Court nor the District Court took any

evidence or made any factual findings with regard to their

respective restrictive orders. Thus, the record before this Court

consists solely of the pleadings and the District Court's

"Restrictive Order" of August 16, 1996 and subsequent "Memorandum

and Order" dated August 19, 1996. 

Appropriateness of Writ of Supervisory Control 

 Article VII, Section 2 of the Montana Constitution gives this

Court "original jurisdiction, to issue, hear, and determine writs

. . . ." Supervisory control is appropriate where the district

court is proceeding under a mistake of law, and in so doing is

causing a gross injustice. State ex rel. Forsyth v. District Court

(1985), 216 Mont. 480, 484, 701 P.2d 1346, 1348 (overruled on other

grounds); State ex rel. Fitzgerald v. District Court (1985), 217

Mont. 106, 114, 703 P.2d 148, 153-54. 

 Recently, in State ex rel. Mazurek v. District Court (Mont.

1996), 922 P.2d 474, 476-77, 53 St.Rep. 678, 679, we stated:

 "Supervisory control is an extraordinary remedy, to

 be exercised only in extraordinary circumstances. We

 have said . . . that to justify such a writ an exigency

 or emergency must be shown to exist, or that a gross

 injustice would result from a denial of the writ, and the

 absence of other adequate relief. . . . [Supervisory

 control] has its own appropriate functions, and, without

 undertaking to define particularly what these functions

 are, we think one of them is to enable this court to

 control the course of litigation in the [district] courts

 where those courts are proceeding within their

 jurisdiction, but by mistake of law, or willful disregard

 of it, are doing a gross injustice, and there is no

 appeal or the remedy by appeal is inadequate. . . ." 

 State ex rel. Forsyth v. District Court (1985), 216 Mont.

 480, 484, 701 P.2d 1346, 1348 (quoting State ex rel.

 O'Sullivan v. District Court (1946), 119 Mont. 429,

 431-32, 175 P.2d 763, 764); accord State ex rel. Mapes v.

 District Court (1991), 250 Mont. 524, 528-29, 822 P.2d

 91, 94. 

 It is significant to note that we have issued writs of

supervisory control in other cases involving media challenges to

court-imposed restrictions on access to information about the

criminal trial process. Great Falls Tribune v. District Court

(1980), 186 Mont. 433, 608 P.2d 116 and State ex rel. Smith v.

District Court (1982), 201 Mont. 376, 654 P.2d 982. We determine

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that the Missoulian's petition presents legal issues which are

appropriate for us to resolve through a writ of supervisory

control. 

Questions Presented

 Although the Missoulian submits the same arguments for the

reversal of the court's participant gag order and of the court's

sealing of evidentiary documents, the requirement that filings be

under seal presents an issue separate and distinct from the issue

presented by the participant gag order. We determine that the

District Court order presents the following two distinct questions

for our consideration:

 I Did the court's order violate Article II, Section 9

 of the Montana Constitution and 46-11-701, MCA, when it

 directed that no evidentiary material could be filed with

 the court unless it were under seal?

 

 II Did the court's order violate the First Amendment to

 the United States Constitution, Article II, Section 9 of

 the Montana Constitution and 46-11-701, MCA, when it

 directed that the defense counsel and staff, defendant,

 county attorney and staff, court staff, and all law

 enforcement officers be bound by the Rules of

 Professional Responsibility regarding restrictions on

 pretrial publicity and trial publicity? 

 

Discussion

 

 I Did the court's order violate Article II, Section 9

 of the Montana Constitution and 46-11-701, MCA, when it

 directed that no evidentiary material could be filed with

 the court unless it were under seal? 

 In its Memorandum and Order of August 19, 1996, the District

Court ordered that:

 no further evidentiary material be filed with the Court

 unless it is under seal. Motions or briefs shall not

 refer to evidentiary matters not already of public record

 as of this date in the Court file except in general

 terms.

 

 The Missoulian alleges that the District Court erred in not

complying with the requirements of 46-11-701(3), MCA, before

ordering that all future documents referring to evidentiary matters

be filed under seal. Section 46-11-701(3), MCA, provides:

 The judge may close a preliminary hearing, bail

 hearing, or any other pretrial proceeding, including a

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 hearing on a motion to suppress, and may seal the record

 only if:

 (a) the dissemination of information from the

 pretrial proceeding and its record would create a clear

 and present danger to the fairness of the trial; and

 (b) the prejudicial effect of the information on 

 trial fairness cannot be avoided by any reasonable

 alternative means. 

 

 Although not articulated in its brief, the Missoulian presumes

that the "any other pretrial proceeding" language in subsection (3)

includes the filing of court documents. Although "any other

pretrial proceeding" could be construed as limited to proceedings

in court it could also be construed to include filings of documents

pertinent to the pretrial process as a whole. We hold that

"pretrial proceeding" as used throughout 46-11-701, MCA, is

ambiguous, and we must therefore look beyond the plain words of the

statute to determine its meaning. When legislative intent cannot

be determined from the plain words of a statute the court must

examine the legislative history of the statute. Christenot v.

State, Dept. Of Commerce (1995), 272 Mont. 396, 401, 901 P.2d 545,

548 (citing Lewis & Clark County v. State, Dept. Of Commerce

(1986), 224 Mont. 223, 226, 728 P.2d 1348, 1350).

 Section 46-11-701, MCA, was enacted in 1991 in response to our

decision in State ex rel. Smith v. District Court (1982), 201 Mont.

376, 654 P.2d 982, in which we addressed a request to exclude the

press from a pretrial suppression hearing. Defendant Smith asked

this Court to close the evidentiary hearing to the public and the

press on the grounds that his fair trial rights would be

substantially affected by dissemination of evidence that might be

suppressed. Smith, 654 P.2d at 984. We held that, under the Right

to Know provision of Article II, Section 9 of the Montana

Constitution and the right of access recognized under the First and

Fourteenth Amendments to the United States Constitution, the public

and press can be excluded from a pretrial suppression hearing "only

if dissemination of information acquired at the hearing would

create a clear and present danger to the fairness of defendant's

trial and no reasonable alternative means can be utilized to avoid

the prejudicial effect of such information." Smith, 654 P.2d at

987. In arriving at that conclusion, we adopted, in toto, Standard

8-3.2 of the American Bar Association Standards for Criminal

Justice (2nd ed. 1978) as the appropriate test to reconcile the

competing interests of public access and trial fairness. That

Standard was later codified as 46-11-701, MCA. 

 The text containing the history of ABA Standard 8-3.2 states

explicitly that "the standard governs both the closing of pretrial

proceedings and the sealing of court records." (Emphasis added.) 

Given that the legislature adopted the standard in toto it follows

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that the legislature intended 46-11-701, MCA, to comport with the

directives of the Standard. Furthermore, the policy reason behind

closing the pretrial suppression hearing in Smith, that of

preventing possibly inadmissable evidence from prejudicing

potential jurors, is equally applicable to the sealing of

evidentiary materials submitted in various court documents normally

accessible to the public. We hold, therefore, that "pretrial

proceedings," as used in 46-11-701, MCA, includes all documents

filed in conjunction with the pretrial process, regardless of

whether they constitute "records" of a specific court hearing. In

the present case, the record, although sparse, makes it abundantly

evident that the District Court did not comply with the explicit

requirements of 46-11-701(3), MCA. That is, the court did not

conduct an evidentiary hearing and determine that dissemination of

information contained in court filings would present a clear and

present danger to trial fairness. Neither did the court consider

reasonable alternatives to imposing a blanket order sealing all

documents containing reference to evidentiary matters. 

 In fairness to the trial court, it should be noted that the

order was entered with the consent of counsel for the State and for

the defendant. Thus, given the consent of the parties, there would

appear to be no basis for faulting the court for failure to hold an

evidentiary hearing and make appropriate findings. However,

consent of the parties cannot serve to override the clear intent of

 46-11-701, MCA, to balance the public's right to know with the

defendant's right to a fair trial. This balancing can only be

accomplished by including the media in the process even though the

media is not a "party" to the proceeding in the usual sense of that

term. Section 46-11-701(1), MCA, specifically requires that the

trial judge "shall seek the voluntary cooperation of the news media

in delaying dissemination of potentially prejudicial information

until the impaneling of the jury or until an earlier time

consistent with the administration of justice." In the context of

a decision to seal court records, that means that the judge must

allow the media to be heard as to whether there are any "reasonable

alternative means" available to sealing the records. Section 46-

11-701(3)(b), MCA. The parties cannot, by agreement, obviate this

requirement. Given that the District Court did not have the

benefit of any precedent from this Court interpreting 46-11-701,

MCA, we understand why the court proceeded to act on the basis of

consent of the parties. We determine, however, that such a

procedure fails to comply with the requirements of 46-11-701,

MCA, which not only requires specific findings by the court but

also requires that the media be allowed to participate in the

decision making process. 

 Additionally, the Montana Constitution provides the public,

including the media, with a "right to know" under Article II,

Section 9 of the Montana Constitution. Smith, 654 P.2d at 985;

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Great Falls Tribune, 608 P.2d at 119. The Right to Know provision

provides:

 No person shall be deprived of the right to examine

 documents or to observe the deliberations of all public

 bodies or agencies of state government and its

 subdivisions, except in cases in which the demand of

 individual privacy clearly exceeds the merits of public

 disclosure.

The court order in question requires that no evidentiary materials

can be "filed with the court" except under seal. When a paper is

"filed with the court," it is filed with the clerk of court. The

clerk of court is a "public body" of the county, which, in turn, is

a subdivision of state government. As such, filings with the clerk

of court fall within the Right to Know provision of Article II,

Section 9 of the Montana Constitution. Associated Press v. State

of Montana (1991), 250 Mont. 299, 820 P.2d 421 (overruled in part

on other grounds). In Associated Press we held that a statutory

requirement that all affidavits filed in support of a motion for

leave to file a criminal charge or warrant be filed under seal was

an unconstitutional infringement of the publicþs right to know

under Article II, Section 9 of the Montana Constitution. 

Associated Press, 820 P.2d at 423. Evidentiary materials "filed

with the court" likewise fall within the Right to Know provision.

 Because the public has a constitutionally protected right to

examine public documents, and a defendant has a constitutionally

protected right to a fair trial under Article II, Section 24 of the

Montana Constitution, a district court's decision to seal court

records must satisfy the standard set out in 46-11-701(3), MCA,

which balances these competing interests. Accordingly, we reverse

the court's order requiring the filing of documents under seal and

remand for further proceedings consistent with our holding above. 

 II Did the court's order violate the First Amendment to

 the United States Constitution, Article II, Section 9 of

 the Montana Constitution and 46-11-701, MCA, when it

 directed that the defense counsel and staff, defendant,

 county attorney and staff, court staff, and all law

 enforcement officers be bound by the Rules of

 Professional Responsibility regarding restrictions on

 pretrial publicity and trial publicity? 

 For purposes of this discussion, we refer to the media's

"right to know" but we note that this right is derivative from, and

no greater than, the public's right to know under Article II,

Section 9 of the Montana Constitution. 

 We begin our analysis of this issue by examining our two prior

decisions in which we addressed the interplay between the

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defendant's right to a fair trial and the public's right to know

guaranteed by Article II, Section 9 of the Montana Constitution.

 In 1980 we decided Great Falls Tribune v. District Court

(1980), 186 Mont. 433, 608 P.2d 116, in which a district court

ordered that individual voir dire examination of prospective jurors

in a criminal case be closed to the press and the public. The

Tribune sought a writ of supervisory control directing the court to

allow the newspaper reporter to attend and observe or to hold a

hearing and issue findings of fact and conclusions of law showing

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

allowing the media access. We issued an order directing the

district court to hold a hearing and submit findings and

conclusions to this Court concerning its reasons for closing the

voir dire exam. Great Falls Tribune, 608 P.2d at 118. The

district court conducted a hearing and, in its findings and

conclusions, rejected various alternatives (sequestration of

prospective jurors, change of venue and continuance of trial date)

to closure of voir dire. The court based the closure on its

finding of substantial prejudicial pretrial publicity,

misstatements of fact, disclosure of defendant's prior criminal

record and disclosure of evidence not generally known to the

public. Great Falls Tribune, 608 P.2d at 118. 

 In rejecting the district court's rationale for closure, we

noted that, although the United States Supreme Court had held that

the press has no federal constitutional right to access to a

suppression hearing, Gannett Co., Inc. v. DePasqualle (1979), 443

U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608, the analysis is

considerably different under the Right to Know provision of Article

II, Section 9 of the Montana Constitution, which guarantees that

any person has the constitutional right to observe court

proceedings unless the demands of individual privacy clearly exceed

the merits of public disclosure. We held that: 

 Closure of judicial proceedings breeds suspicion and

 mistrust in the minds of the public and representatives

 of the media. Such closure is simply censorship at the

 source -- a denial of the right to know. 

Great Falls Tribune, 608 P.2d at 119. We also held that the

public's right to know under Article II, Section 9 of the Montana

Constitution had to be balanced against the defendant's right to a

speedy trial by an impartial jury under Article II, Section 24 of

the Montana Constitution. Great Falls Tribune, 608 P.2d at 119. 

In applying that balancing test to the case under consideration, we

were unable to see how closing the voir dire examination to the

public was necessary to guarantee the right to a fair trial. In

reaching that conclusion, we noted a further distinction between

the case presented and the Gannett case. In contrast to Gannett,

which involved a pretrial suppression hearing, the Great Falls

Tribune case involved closure of voir dire which is an integral

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part of the trial itself. 

 Closing any part of the trial is simply the first step

 down that primrose path that leads to destruction of

 those societal values that open, public trials promote. 

 Nothing short of strict and irreparable necessity to

 ensure defendant's right to a fair trial should suffice. 

 

Great Falls Tribune, 608 P.2d at 121 (emphasis added). We vacated

the order and ordered that the public and the press be allowed to

attend the voir dire examination. 

 Two years later in Smith, we adopted Standard 8-3.2 of the

ABA, governing closure of trial proceedings. Smith, 654 P.2d at

987. In Smith, the defendant in a criminal prosecution applied for

a writ of supervisory control seeking to exclude the public and

media from a pretrial suppression hearing. We first analyzed the

effect of United States Supreme Court decisions, rendered since our

previous decision in Great Falls Tribune, regarding the interface

between a defendant's constitutional right to a fair trial and the

right of the public and press to observe criminal proceedings. 

Smith, 654 P.2d at 985. In Richmond Newspapers, Inc. v. Virginia

(1980), 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973, the United

States Supreme Court recognized the public and press' right of

access to criminal trials under the First Amendment and applied to

the states through the Fourteenth Amendment. We noted that,

although the Court had construed the First and Fourteenth

Amendments as providing a right of access to criminal trials, a

right of access to pretrial criminal proceedings had not been

recognized in the federal courts.

 In contrast, the broad language contained in the Great

 Falls Tribune case, "that any person has the

 constitutional right to observe court proceedings,"

 [citation omitted] most certainly encompasses pretrial

 proceedings as well as the actual trial. 

Smith, 654 P.2d at 986.

 We jettisoned the "strict and irreparable necessity" standard

from Great Falls Tribune and adopted the ABA Standard as the

appropriate test to reconcile the competing interests of public

access and trial fairness. Thus, based upon the Right to Know

provision of Article II, Section 9 of the Montana Constitution and

the right of access recognized under the First and Fourteenth

Amendments to the United States Constitution, we held 

 that the public and press may be excluded from a pretrial

 suppression hearing only if dissemination of information

 acquired at the hearing would create a clear and present

 danger to the fairness of defendant's trial and no

 reasonable alternative means can be utilized to avoid the

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 prejudicial effect of such information.

Smith, 654 P.2d at 987. 

 We also specifically encouraged trial judges to seek the

voluntary cooperation of the news media before invoking closure. 

Finally, in the context of Smith's motion to suppress evidence due

to an allegedly illegal search, we required the district court and

the parties to consider the efficacy of entering a prehearing

protective order forbidding mention during the hearing of specific

items of evidence sought to be suppressed. In remanding for a

hearing under the standard set forth, we concluded: "Only if the

trial court finds that there is a 'clear and present danger' and

that less restrictive alternatives, including a protective order,

cannot protect defendant's right to a fair trial, should closure be

ordered." Smith, 654 P.2d at 988. 

 Having summarized our two decisions involving fair trial and

public access, it is important to point out that the case sub

judice is distinguishable from both Smith and Great Falls Tribune

in that it does not involve a trial court order closing a pretrial

or trial "proceeding." Rather, the present case involves an order

prohibiting the parties, their attorneys, court staff, and members

of law enforcement from disseminating information about the case,

other than as permitted under Rule 3.6 of the Montana Rules of

Professional Conduct. Such trial participant gag orders are

distinguishable from closure of court proceedings. In Section I of

this Opinion we held that "pretrial proceedings" as used in 46-

11-701, MCA, encompasses the filing of all documents with the

court. The gag order, on the other hand, restricts participants

from discussing the case outside of the courtroom. This

restriction cannot be said to constitute part of the pretrial

proceedings in that the restriction does not pertain to any

official documents or statements that constitute part of the court

record in the case. Since a participant gag order does not

implicate "pretrial proceedings" it is not subject to the scrutiny

of 46-11-701, MCA. Therefore, the District Court did not err by

issuing a participant gag order without satisfying the requirements

of 46-11-701, MCA. Nevertheless, we must still address the

question of whether the participant gag order violates the media's

First Amendment rights or its right to know under Article II,

Section 9 of the Montana Constitution. 

The Doctrine of Prior Restraint 

 The first question we address is whether the court's order,

which indirectly restrains the media's access to certain sources of

information regarding the trial proceedings, constitutes a prior

restraint, thereby violating the media's First Amendment rights. 

The doctrine of prior restraint on publication finds its roots in

the United States Supreme Court decision in Near v. Minnesota ex

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

which the Court struck down a statute which allowed Minnesota to

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enjoin publication of malicious, scandalous and defamatory

newspapers. The Court stated: "it has been generally, if not

universally, considered that it is the chief purpose of the

[freedom of press] guaranty to prevent previous restraints upon

publication." Near, 283 U.S. at 713. The Court held that the

order entered pursuant to the Minnesota statute was an

unconstitutional prior restraint of the press.

 A court may impose a prior restraint on the media for the

purpose of protecting the integrity of criminal proceedings only if

"the gravity of the 'evil,' discounted by its improbability,

justifies such invasion of free speech as is necessary to avoid the

danger." Nebraska Press Ass'n v. Stuart (1976), 427 U.S. 539, 562,

96 S.Ct. 2791, 2804, 49 L.Ed.2d 683, 699. The Court in Nebraska

Press Ass'n held that a court order prohibiting publication of a

criminal defendant's confession constituted an unconstitutional

prior restraint on publication. In expressing its concerns about

prior restraints, the Court stated, "[i]f it can be said that

threat of criminal or civil sanctions after publication 'chills'

speech, prior restraint 'freezes' it at least for the time." 

Nebraska Press Ass'n, 427 U.S. at 559. The Court in Nebraska Press

Ass'n relied on "[p]rofessional studies . . . recommending that

trial courts in appropriate cases limit what the contending

lawyers, the police, and witnesses may say to anyone[,]" Nebraska

Press Ass'n, 427 U.S. at 564, thereby intimating that, in lieu of

prior restraints on the media, restraints on trial participants may

be an appropriate means for minimizing prejudicial communications

concerning trial proceedings.

 In the wake of Nebraska Press Ass'n, there has been

considerable disagreement as to whether participant gag orders are

prior restraints on the media. Those cases holding that such

orders are prior restraints on the media are typified by the Tenth

Circuit decision in Journal Publishing Co. v. Mechem (10th Cir.

1986), 801 F.2d 1233. The Tenth Circuit, in response to a

publisher's challenge, held that a court order which prohibited

jurors from post-trial interviews with the media was an

unconstitutional restraint upon the publisher's First Amendment

right to gather news. See also CBS, Inc. v. Young (6th Cir. 1975),

522 F.2d 234 (holding that a participant gag order was a prior

restraint on CBS' right to gather news); Connecticut Magazine v.

Moraghan (D.Conn. 1987), 676 F.Supp. 38 (holding that a gag order

directed at the trial attorneys constituted a prior restraint on

the right to gather news and derivatively on publication and was

therefore unconstitutional). 

 Other courts take the view that an order which is not directed

at the media does not constitute a prior restraint on publication.

The Second Circuit employed this rationale in Dow Jones & Co. v.

Simon (2nd Cir. 1988), 842 F.2d 603, cert. denied, 488 U.S. 946. 

In Dow Jones, the trial court had prohibited parties and attorneys

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from making extrajudicial statements to the media. Media

organizations challenged the order as being a prior restraint of

their right to gather news. Dow Jones, 842 F.2d at 608. The

Circuit Court held that the determination of whether a gag order

constitutes a prior restraint depends upon the status of the

challenging party. A gag order constitutes a prior restraint when

challenged by the "individual gagged," but not when challenged by

a "third party." Dow Jones, 842 F.2d at 609. The court

acknowledged that the order in question limited the "flow of

information readily available to the news agencies. . . ." Dow

Jones, 842 F.2d at 608. Nonetheless, it held that the order was

less intrusive upon the media than an order which directly

threatened to sanction the media. While an order directed at the

media would be examined under the prior restraint standard, an

indirect restraint would be permitted upon a showing of "a

'reasonable likelihood' that pretrial publicity [would] prejudice

a fair trial." Dow Jones, 842 F.2d at 610. In Dow Jones, the

order in question was buttressed by evidence of a threat to the

administration of justice and evidence that the lower court had

considered less restrictive alternatives such as change of venue,

postponement of trial, extensive voir dire and jury sequestration. 

Dow Jones, 842 F.2d at 611. 

 The Second Circuit distinguished prior restraints from

participant gag orders by pointing out that participant gag orders

lack the "most offensive aspect of a prior restraint [which] is the

censorship involved by forbidding the dissemination of information

already known to the press and therefore public." Dow Jones, 842

F.2d at 608. It is this right to engage in the editorial process

free from government intervention which is the core of the

constitutional guarantee of a free press. Although participant gag

orders impede the flow of communication, they do not intrude upon

the prerogative of the media to publish that which it knows. Thus,

the Second Circuit held that participant gag orders are not subject

to the same level of scrutiny as direct restraints against the

press and will be upheld if "reasonable." Dow Jones, 842 F.2d at

609-610.

 We agree with the Second Circuit that prior restraint analysis

is dependent upon the status of the party bringing the challenge. 

Additionally, prior restraint analysis is dependent on whether the

restraint impacts the media's prerogative to publish that which it

knows as opposed to its ability to acquire new information. 

 While an order restraining the trial participants from

communicating with the press may be a prior restraint upon the

participants as communicators, it is not a prior restraint upon the

press. Since a gag order imposed on trial participants does not

"prohibit the publication or broadcast of particular information or

commentary," it does not constitute a "previous" or "prior"

restraint upon publication of speech. Nebraska Press Ass'n, 427

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U.S. at 556. The distinction between restraining orders directed

at trial participants challenged by the press and those challenged

by the trial participants themselves is illustrated by two

decisions from the Ninth Circuit Court of Appeals involving the

same restraining order. Compare Radio and Television News Ass'n v.

United States District Court (9th Cir. 1986), 781 F.2d 1443

(holding that a restraining order not directed at the press does

not restrain the press' First Amendment rights) with Levine v.

United States District Court (9th Cir. 1985), 764 F.2d 590, 595

(holding that "the district court's order is properly characterized

as a prior restraint" on counsel's First Amendment right to free

speech). 

 As one commentator has observed, the Radio and Television

decision illustrates that the prior restraint doctrine does not

accommodate receiverþs rights and is "insensitive to restriction of

the communication process as a whole." Note, A Prior Restraint by

Any Other Name: The Judicial Response to Media Challenges of Gag

Orders Directed at Trial Participants, 88 Mich. L. Rev. 1171, 1181

(1990). The same commentator correctly notes that the prior

restraint doctrine, in that it focuses solely on the communicator

rather than the receiver of the communication, does not extend any

protection to the communication process as a whole. 

 Given that the prior restraint doctrine protects only the

rights of the communicator, another means of protecting the

communication process as a whole, and the rights of receivers of

information in particular, must be employed to safeguard the entire

bundle of rights guaranteed by the First Amendment to the United

States Constitution and Article II, Section 7 of the Montana

Constitution. 

 The primary purpose of the First Amendment to the United

States Constitution is to encourage and protect an "unfettered

interchange of ideas for the bringing about of political and social

changes. . . ." New York Times Company v. Sullivan (1964), 376

U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686, 700. In other

words, the First Amendment protects not just speech itself but the

entire process of communication, including the exchange of ideas

and information between speaker and listener. 

 Although the United States Constitution, unlike the Montana

Constitution, does not specifically guarantee a "right to know," a

right to receive information has been recognized under First

Amendment principles. See Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Counsel, Inc. (1976), 425 U.S. 748, 96

S.Ct. 1817, 48 L.Ed.2d 346, in which the Court invalidated a

statute which prohibited pharmacists from advertising prices of

prescriptions. In holding that the ban violated consumersþ First

Amendment rights to receive information, the Court extended First

Amendment protection "to the communication, to its source and to

its recipients both." Virginia Bd. of Pharmacy, 425 U.S. at 756. 

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See also Red Lion Broadcasting Co. v. F.C.C. (1969), 395 U.S. 367,

89 S.Ct. 1794, 23 L.Ed.2d 371, in which the Court required

broadcasters to provide equal air time to competing political

interests, holding that the "right of the viewers and listeners,

not the right of broadcasters, . . . is paramount." Red Lion, 396

U.S. at 390. 

 Recognition of the recipient's rights is particularly

compelling in Montana where there exists, in addition to the right

to free speech found in the First Amendment to the United States

Constitution and in Article II, Section 7 of the Montana

Constitution, the "Right to Know" provision of Article II, Section

9 of the Montana Constitution.

 The "Right to Know" provision grants the citizens of this

state the right of access to all public documents and deliberations

of public bodies. The contents of a communication which a trial

participant might wish to make outside the courtroom or prior to

trial, could be, under most circumstances, considered private

communication rather than a governmental proceeding and thus not

subject to the publicþs right to know. However, Article II,

Section 9's guarantee of a right to know grants the public an

interest in receiving information about the criminal process. 

Great Falls Tribune, 608 P.2d at 119; Smith, 654 P.2d at 986. This

interest is broader than mere access to in-court proceedings or

official court filings. Rather, the public has a right to receive

information about the entire criminal law process. We hold that

the right to know extends to receiving any information which

pertains to the criminal law process, regardless of whether that

information emanates directly from the courthouse or indirectly

from those who are participating in the system as law enforcement

officers, attorneys, parties or witnesses and who may wish to

communicate with the public or the press about the process. 

 Our holding that the public and press have a right to know

about the entire criminal law process is buttressed by the Ohio

Supreme Court decision in State ex rel. National Broadcasting

Company, Inc. v. Court of Common Pleas (Ohio 1990), 556 N.E.2d

1120. The Ohio Supreme Court held that a participant gag order,

similar to the order at bar, violated the public's right of access

to criminal proceedings under both the federal and state

constitutions. In a previous case, the Ohio court had established

that a newspaper had standing to challenge a trial court order

prohibiting the public and reporters from pretrial hearings. The

court in NBC, Inc. held that the same reasoning applied "with no

less force to the criminal case as a whole," even though an order

not directed at the media was a "lesser restriction" on access. 

NBC, Inc., 556 N.E.2d at 1124. 

 The Ohio Supreme Court relied on the United States Supreme

Court decision in Press-Enterprise Co. v. Superior Court of

California (1986), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1, which

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held that the media had a First Amendment right of access to a

transcript of a preliminary hearing, where the defendant could not

show a "substantial probability" that his right to a fair trial

would be prejudiced by releasing the information. PressEnterprise, 478 U.S. at 14-15. The Court in Press-Enterprise based

its holding on the federal constitutional right of access to

proceedings which have "historically been open to the press and

general public" and in which "public access plays a significant

positive role in the functioning of the particular process in

question." Press-Enterprise, 478 U.S. at 8. The Ohio Supreme

Court, relying on Globe Newspaper Co. v. Superior Court (1982), 457

U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248, held that "[c]riminal

trials have historically been open to the public, and public access

has always been considered essential to the fair and orderly

administration of our criminal justice system." NBC, Inc., 556

N.E.2d at 1124. The Ohio Supreme Court further recognized that the

"open courts" provision of the Ohio Constitution also embraced a

right of access. NBC, Inc., 556 N.E.2d at 1124. Because both

federal and state constitutional principles recognized a right of

access to criminal proceedings "as a whole," the court held that

the participant gag order as challenged by the media was subject to

scrutiny under the test established in Press-Enterprise for

determining the constitutionality of restrictions on access to

criminal trial proceedings. NBC, Inc., 556 N.E.2d at 1125. 

 We hold that participant gag orders, including the one at bar,

do not constitute prior restraints on publication, and therefore

are not subject to traditional prior restraint analysis. And,

although 46-11-701, MCA, contains a standard for reviewing

indirect restraints on the media, its provisions govern only access

to official court proceedings and documents. Although participant

gag orders are also an indirect restraint on the media, the

restraint is not as intrusive as in the case of closure of

proceedings which cuts off the media's access to official court

proceedings. For this reason, a lesser level of scrutiny should be

adopted to determine the constitutionality of a participant gag

order. The level of scrutiny must protect both the defendant's

right to a fair trial and the media's right to know under Article

II, Section 9 of the Montana Constitution and the media's right to

free speech under the First Amendment to the United States

Constitution and Article II, Section 7 of the Montana Constitution.

 Having recognized that Article II, Section 9 of the Montana

Constitution guarantees the media a right to receive information

about criminal proceedings, it is implicit that the media should

not have information about the trial process restricted except to

the extent that restrictions are required to protect the

defendantþs right to an impartial jury under Article II, Section

24. 

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 As indicated above, the "clear and present danger" standard

employed by the prior restraint on publication doctrine is by

definition and historical usage directed at the rights of the

communicator rather than the recipient and thus does not adequately

protect the media's right to receive information; that is, its

right to "know" as opposed to its right to publish that which it

already knows. Accordingly, we decline to employ the common law

"clear and present danger" standard in evaluating a participant gag

order challenged by the media. We likewise decline to employ the

statutory "clear and present danger" standard used in 46-11-

701(3), MCA, because we hold that the media has a lesser interest

in communicating with trial participants than in accessing 

official court documents or court proceedings. By the same token,

we find the "reasonableness" standard used by the Second Circuit in

the Dow Jones decision too lenient a standard to adequately protect

the right to know under Article II, Section 9.

 As we recognized in Great Falls Tribune, the publicþs right to

know under Article II, Section 9 must be balanced against the

defendantþs right to an impartial jury under Article II, Section

24. In the context of a participant gag order, this balancing

should be accomplished pursuant to a heightened scrutiny standard. 

Similar to the heightened scrutiny standard applied by courts for

constitutional equal protection analysis, a heightened scrutiny

standard applied to participant gag orders eliminates the stark

choice between judging gag orders on either a reasonableness test

or a "clear and present danger" test. The "clear and present

danger test," in effect, treats first amendment rights as

paramount; thus making it difficult to truly "balance" such rights

against the right to a fair trial. As Justice White expressed in

his concurring opinion in Nebraska Press Ass'n, "there is grave

doubt" that a prior restraint on the press would ever be justified

under the "clear and present danger" test. Nebraska Press Ass'n,

427 U.S. at 570-71 (White, J., concurring). A heightened scrutiny

standard employs a middle-ground approach which accommodates the

competing interests of free speech and fair trial rights. 

 Consistent with the Ohio Supreme Court's use of a heightened

scrutiny test for the issuance of gag orders, we hold that where

the rights of the accused to a fair trial are asserted, a gag order

may issue only when the following conditions have been met: (1) the

press and general public must be given an opportunity to be heard

on the question before issuance of the order; (2) the court

describes what reasonable alternatives have been considered and

explains why those reasonable alternatives cannot adequately

protect the defendant's fair trial rights; (3) the order is

narrowly tailored to serve the interest of protecting the

defendant's fair trial rights; and (4) the court has made specific

findings that there is a substantial probability that the

defendant's right to a fair trial will be prejudiced by publicity

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that the gag order would otherwise prevent. This test grants more

protection to the defendant than allowed under traditional prior

restraint analysis and at the same time guarantees greater

protection of the public's right to know under Article II, Section

9 of the Montana Constitution than offered by a reasonableness

test. First, the participant speech in question must pose a

substantial probability of harm to the trial process as compared

with posing a clear and present danger to the trial process as is

required to uphold a prior restraint or to close proceedings under

 46-11-701, MCA. Secondly, unlike the reasonableness test, the

heightened scrutiny test requires an order to be narrowly drawn. 

Broad sweeping gag orders which restrict "all counsel and Court

personnel, all parties concerned with this litigation, whether

plaintiffs or defendants, their relatives, close friends, and

associates" from discussing the case "in any manner whatsoever"

with the media will not pass muster. CBS, Inc., 522 F.2d at 236.

 Employing a heightened scrutiny standard to participant gag

orders challenged by the media protects the media's First Amendment

rights as receivers of information and protects its "right to know"

guaranteed under Article II, Section 9 of the Montana Constitution.

Summary

 In summary, prior restraints on publication consist of court

imposed restrictions (1) which are directed at the media, and (2)

which intrude upon the media's editorial process by interfering

with its right to publish material which it already possesses. 

Prior restraints are subject to the "clear and present danger" test

established in New York Times. 

 Indirect restraints of the media include (without limitation):

 (1) Restraints which are aimed at the media's ability to

gather information or to access official proceedings but which do

not intrude upon the media's prerogative to publish or edit

information already in its possession. Examples include orders

which prohibit the press from attending voir dire examinations or

pretrial suppression hearings. Such restrictions are not "prior

restraints" on publication but are, nonetheless, subject to the

"clear and present danger" standard under Smith, 654 P.2d 982 and

 46-11-701, MCA. 

 (2) Restraints which are not directed at the media but at the

sources of information; for example, participant gag orders. 

Although such restrictions infringe upon the media's ability to

access news and thus the public's right to know, they are not

"prior restraints" upon the media's right to edit or publish that

which it knows.

 On a continuum, the participant gag order is not as intrusive

as a "prior restraint" upon publication nor as intrusive as an

order restricting news sources through closure of court proceedings

or sealing of court documents, both of which trigger a "clear and

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present danger" test. The participant gag order does, nonetheless,

impinge upon the media's right to access news and thereby further

the public's right to know. Such orders are, thus, subject to a

heightened scrutiny analysis.

Conclusion 

 We HEREBY reverse the District Court's Restrictive Order and

subsequent Memorandum and Order and remand for further proceedings 

consistent with this Opinion including application of the standard

set forth in 46-11-701, MCA, to any decision to seal court

documents and application of the heightened scrutiny standard to

the issuance of any participant gag order. Without necessarily

approving of the use of a Rule of Professional Conduct to regulate

trial participant speech, we note for the District Court's

consideration that Rule 3.6 of the Montana Rules of Professional

Conduct no longer comports with the ABA Model Rule 3.6. The ABA

Model Rule 3.6 was modified in 1994 in response to the United

States Supreme Court's criticism of the Rule in Gentile v. State

Bar of Nevada (1991), 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d

888. The Court found that in applying a Nevada Supreme Court rule

nearly identical to ABA Model Rule 3.6, "[t]he lawyer has no

principle for determining when his remarks pass from the safe

harbor of the general to the forbidden sea of the elaborated." 

Gentile, 501 U.S. at 1048-49. The new version of the ABA Model

Rule 3.6 clarified the list of presumptive statements that an

attorney was allowed to make under the previous Rule and provided

the attorney with a right of reply. Model Rules of Professional Conduct

Rule 3.6(c) (1994). In the event the District Court issues a

restrictive order upon remand, it should evaluate whether the

unmodified Rule 3.6 of the Montana Rules of Professional Conduct is

an appropriate model upon which to base a restrictive order in

light of the ABA modification of the Rule. 

 /S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

Justice James C. Nelson dissents as follows:

 I agree that the District Court's August 16, 1996 Restrictive

Order should be reversed. I concur in our discussion and analysis

as to the appropriateness of supervisory control and as to Issue 1.

I respectfully dissent from our decision that the trial participant

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or indirect gag order imposed by the court in this case is not a

prior restraint on the media's right to gather news and to publish

and, derivatively, on the public's right to know and receive

information. To the contrary, I conclude that such a gag order is

a de facto prior restraint that presents the same evil of

"censorship at the source" which we heretofore condemned in Great

Falls Tribune v. District Court (1980), 186 Mont. 433, 438, 608

P.2d 116, 119, and that traditional prior restraint analysis is,

therefore, required.

 Before setting out the legal analysis of my disagreement with

our decision on Issue 2, I will make one general observation. The

trial participant gag order issued by the District Court in this

case is, as far as I can tell, unprecedented in Montana. If this

case involved something akin to the trial of O.J. Simpson, Rodney

King, Timothy McVeigh, Theodore Kaczynski or the Menendez brothers,

I might understand (though not necessarily agree with) the trial

court's concern that what is now commonly referred to as the "media

circus" of cameras, equipment, satellite dishes, reporters and

commentators, all in search of ratings and a story to sell, might

prejudice the accused's right to a fair trial. The fact is,

however, O.J. Simpson, Kippy Joe Hill is not!

 There is absolutely no evidence in the meager record of this

case to date that would support a conclusion that Kippy Joe Hill's

right to a fair trial was threatened either at the time the

indirect gag orders were issued by the Justice and District Courts

or that his rights are presently in jeopardy. The charges against

Mr. Hill are, in fact, no more "high profile" or of greater public

interest than a multitude of other homicide cases that have been

tried over the decades or that are presently pending in Montana's

courts. Quite to the contrary, there have been numerous homicide

cases in Montana that have garnered infinitely more interest and

ink than this case. See, for example, Duncan McKenzie, "The

Mountain Men," Larry Moore, Ronald Smith, Becky Richards, Dewey

Coleman, Bernard Fitzpatrick, Gene Austad, the Kills on Top

brothers, Terry Langford, Brett Byers, James Egelhoff, Fred Van

Dyken, Douglas Turner, William Gollehon--the list could go on and

on. Yet, each of those cases was prosecuted and defended without

resort to the sort of preemptive strike against freedom of speech,

freedom of the press and the public's right to know and to receive

information that the trial participant gag order imposed in this

case clearly presents. Indeed, at oral argument, Mr. Hill's

defense counsel readily conceded that there was nothing unique

about this homicide case. 

 Now, unfortunately, there is. For the first time we approve

the use of trial participant gag orders by courts in criminal

proceedings. While, I am not usually impressed by "slippery slope"

arguments, I do have that concern here. Gag orders are simply too

easy to impose. The one issued here by the Justice Court was

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imposed ex parte; the second one was imposed by the District Court

and affected probably more than twenty people, including lawyers,

witnesses, law enforcement and clerks, without so much as an

evidentiary hearing or any input from the media, apparently simply

because the defense counsel and the prosecutor agreed that these

trial participants should be gagged. 

 Like the majority, I am not necessarily critical of the

District Judge's handling of this matter in view of counsels'

agreement and our lack of precedent, but the fact remains, this

case ably demonstrates how it is all too easy to violate

fundamental rights of free speech, free press and the public's

right to know and to receive information with a well-meaning 

stroke of a pen.

 Furthermore, even under the four-part approach which we have

adopted, a court anxious to maintain the appearance of tight

control over the case and counsel, fearful that its rulings may be

publicly criticized, concerned over the threat of adverse pretrial

publicity, determined to preemptively head off change of venue

problems and the possibility of having to sequester the jury with

the attendant impact on the local treasury, and set on making sure

that the case is tried locally, will find little difficulty in

gagging at least some of the trial participants. I greatly fear

that although we have not allowed the "primrose path that leads to

destruction of those societal values that open, public trials

promote" to advance into the courtroom, Great Falls Tribune, 608

P.2d at 121, we have now effectively paved precisely such a route

from the courthouse door to the reporter's desk.

 Having made that general observation, I must next admit to

being mystified with our reasoning and discussion of Issue 2 and

with our holding that trial participant gag orders, including the

one at bar, do not constitute prior restraints on publication, and,

therefore, are not subject to traditional prior restraint analysis. 

We first acknowledge the vaunted position of the public's and

media's right to receive information about the entire criminal law

process under Montana's Constitution--rights which are even more 

extensive and jealously guarded than such rights under the federal

constitution. With that, I heartily agree. We then, however,

conclude that trial participant gag orders are not prior restraints

because they do not infringe upon the media's "right to edit or

publish that which it knows." How this latter conclusion follows

from the first is not clear. In fact, in my view, it does not

track at all.

 Admittedly, I have no background whatsoever in journalism.

Notwithstanding, I have always understood that "news" is

"gathered." That is, the information which the media reports

concerning a person or event must be first obtained by the reporter

from someone, from some document or thing, or from some personal

observation. News information that appears in the print and

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broadcast media does not, in "Big Bang" fashion, spring

spontaneously into existence from the void, bringing with its

creation the time, places, people and events reported. There must

be a source; and the quantity and quality of the news (ineffective

or biased reporting aside) is completely dependent upon the

quantity and quality of the sources of information available. No

source; no news.

 Again, without trying to be overly simplistic, it seems to me

that if we tell the press "you can edit and publish what you know"

and then, in the next breath, allow those sources of information

from which the media traditionally gathers its information to be

silenced on any but the most serious and compelling grounds which

clearly prejudice the defendant's fair trial right, we have

effectively precluded the press from "knowing," and, therefore,

being able to "edit" or "publish" much of anything. We have handed

a thirsty man an empty cup with the admonition "drink all you want;

but the well is off limits." In short, as we have discussed the

terms at issue here, the distinction between a direct prior

restraint (where the media is gagged) and an indirect prior

restraint (where the media's sources are gagged) is one without a

substantive difference. An indirect prior restraint is, de facto, 

a prior restraint, nonetheless. 

 Furthermore, making prior restraint analysis dependent upon

the status of the party bringing the challenge is simply smoke and

mirrors. It is purely a legal fiction with no foothold in reality. 

If the court imposes a gag order on trial participants--no matter

what the level of scrutiny or what sort of test it uses--the end

result is precisely the same and is equally intrusive and

offensive: the media is prohibited from gathering and publishing

the news and the public is prohibited from receiving it. The

fundamental rights of both are denied. It is for precisely this

reason that I would require the highest level of scrutiny and the

imposition of the clear and present danger standard--traditional

prior restraint analysis--before I would allow a trial participant

gag order to be imposed. 

 As the majority intimates, it appears clear, from a historical

perspective, that the rise of the use of gag orders on trial

participants followed in response to the U.S. Supreme Court's

decision in Nebraska Press Ass'n v. Stuart (1976), 427 U.S. 539, 96

S.Ct. 2791, 49 L.Ed.2d 683. That case held that a gag order imposed

on the media directly and which prohibited publication--in that

case of the defendant's confession--constituted an unconstitutional

prior restraint on free speech. It was in that case that the

three-part test was articulated that eventually became the basis

for the procedure set out in our opinion in State ex rel. Smith v.

District Court (1982), 201 Mont. 376, 654 P.2d 982, and in 46-11-

701, MCA. Unfortunately, relying on dictum in Nebraska Press Ass'n

that in some circumstances limits may be imposed on what the

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contending lawyers, police and witnesses may say to anyone, courts

seeking to quash perceived prejudicial pretrial publicity have

sought to do indirectly what they were prohibited from doing

directly. 

 That dictum found its genesis in a pre-Nebraska Press Ass'n

case, Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16

L.Ed.2d 600. Like the "media circus" cases referred to earlier

(and unlike the instant case), the homicide trial in Sheppard was

characterized as having taken place in the "atmosphere of a 'Roman

holiday' for the news media . . .." Sheppard, 384 U.S. at 356. 

The U.S. Supreme Court, critical of the state trial judge's

handling of the publicity, again in dictum, suggested that the

judge "might well have proscribed extrajudicial statements by any

lawyer, party, witness, or court official which divulged

prejudicial matters. . .." Sheppard, 384 U.S. at 361. 

 Importantly, the suggestion in Sheppard and in Nebraska Press

Ass'n that indirect gag orders might in some cases be permissible

was never anything more than dicta and in each case was simply

thrown into the discussion of preferred less restrictive

alternatives that might have been available to the trial court

under the specific facts of the cases at issue. This is evident

from the Supreme Court's comment in Nebraska Press Ass'n which

cited to Sheppard:

 At oral argument petitioners' counsel asserted that

 judicially imposed restraints on lawyers and others would

 be subject to challenge as interfering with press rights

 to news sources. [Citations omitted.] We are not now

 confronted with such issues. [Emphasis added.]

Nebraska Press Ass'n, 427 U.S. at 564 n.8. Neither case is proper 

authority for indirect gag orders, and I strongly disagree with our

citation to Nebraska Pres Ass'n for that proposition.

 Unfortunately, this dicta has taken on a life of its own and

has been interpreted as being directive by those courts seeking an

easy way to avoid the rule against direct gag orders. The result

has been that in the decades since there has been a proliferation

of orders restraining trial participants as a means of indirectly

restraining the press, notwithstanding the availability of other

options suggested by both Sheppard and Nebraska Press Ass'n. See

Sheryl A. Bjork, Indirect Gag Orders and the Doctrine of Prior

Restraint, 44 U. Miami L. Rev. 165, 176 (1989). Indeed, this trend 

has accelerated because of highly publicized cases. In response to

the "media circus" cases mentioned earlier, at least one

commentator has gone so far as to recommend the very sort of

preemptive strike approach that the Justice and District Courts

utilized in the instant case--i.e. the trial court should impose a

gag order on trial participants immediately after the commencement

of proceedings and then rely on voir dire to insure that jurors can

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render an impartial verdict despite outside influences. This

commentator maintains that traditional protections such as juror

sequestration and change of venue are either violative of jurors'

rights or just plain worthless given the immediate, wide-spread

coverage of news events. See Charles H. Whitebread & Darrell W.

Contreras, Free Press v. Fair Trial: Protecting the Criminal

Defendant's Rights in a Highly Publicized Trial by Applying the

Sheppard-Mu'Min Remedy, 69 S. Cal. L. Rev. 1587, 1620 (1996). 

 Again, it deserves repeating that the instant case never was

and is not now the sort of "high profile," "media circus" case that

has typified the use of and has fueled the continuing debate over

the imposition of trial participant gag orders. That fact makes it 

even more unfortunate that we have chosen the instant low-profile

case as the vehicle for approving a practice that is fundamentally

based upon highly questionable legal authority.

 Moreover, as the majority acknowledges, there is a conflict in

the courts and in the circuits as to the appropriate standard under

which indirect gag orders are issued. The courts which have upheld

the issuance of gag orders on trial participants basically have

employed a "reasonable likelihood" standard of review which only

requires that the court evaluate whether it is reasonably likely

that the pretrial publicity will jeopardize the accusedþs right to

a fair trial. On the other hand, the courts which have struck down

trial-participant gag orders have done so on the basis of the

"clear and present danger" or "serious and imminent threat" test,

which requires that the court reach an inescapable conclusion that

speech will be prejudicial and that the threat of prejudice must be

"present or imminent." This has also been characterized as the

"high threshold test." See 69 S. Cal. L. Rev. at 1609 n.141.

 Dissatisfied with either approach, we have now adopted from

National Broadcasting Company, Inc. v. Court of Common Pleas (Ohio

1990), 556 N.E.2d 1120, what in theory, at least, is supposed to be

a middle tier test with a level of scrutiny--"substantial

probability"--that is higher than "reasonable likelihood" but lower

than "clear and present danger." 

 At the outset, I note that the Ohio Supreme Court's decision

was based primarily upon the U.S. Supreme Court's decisions in

Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 100

S.Ct. 2814, 65 L.Ed.2d 973; Globe Newspaper Co. v. Superior Court

of California (1982), 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248;

Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 104

S.Ct. 819, 78 L.Ed.2d 629; and Press-Enterprise Co. v. Superior

Court (1986), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1. Those

cases did not involve trial participant gag orders, but, rather,

dealt with media access to court proceedings or records of one sort

or another--matters, which I presume from our analysis under Issue

1, would, in Montana, be covered by the "clear and present danger"

test. Accordingly, for whatever reason the Ohio Court adopted the

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substantial probability test to resolve the indirect gag order

question at issue there (and its rationale is more conclusory than

explanatory), I fail to see how the authority underpinning the Ohio

Court's decision would, likewise, support our adoption of this

approach in Montana. If we relied on the same authority as did the

Ohio Supreme Court, we would have to conclude that, in Montana, the

higher "clear and present danger" test would govern since Montana 

protects the right of access to information by the public and the

media even more jealously than does the federal government.

 Moreover, having extensively discussed the evils of prior

restraint and the importance of freedom of speech, freedom of the

press and the public's right to know and to receive information

which are specially protected under Montana's Constitution and our

prior case law, and, having concluded that the "First Amendment

protects not just speech itself but the entire process of

communication, including the exchange of ideas and information

between speaker and listener," I cannot understand how this new

test--which makes it easier for a judge to gag the sources of

information traditionally relied upon by the media--serves to

protect, much less advance, any of those aforementioned fundamental

constitutional rights or the communication process or the exchange

of ideas to which we refer.

 Finally, and most importantly, the guts of this new test

requires a showing--presumably by the person seeking the gag order-

-that "there is a substantial probability that the defendant's

right to a fair trial will be prejudiced by publicity that the gag

order would otherwise prevent." How exactly the "substantial

probability" standard which we embrace differs from the "reasonable

likelihood" standard which we reject is not clear, although, in

conclusory fashion, the Ohio case and the federal cases which use

it assume that there is a difference. Arguendo, if there is a

distinction, it is a fine one, indeed.

 More to the point, I suggest that simply using this different

terminology will not necessarily assist the trial court in making

its highly subjective judgment nor will it guarantee the heightened

scrutiny which the majority agrees should be brought to bear in the

court's decision-making process. Under the best of circumstances,

the court's assessment of the impact of pretrial publicity at the

time when indirect gag orders will most likely issue--very early in

the case--can amount to little more than a clairvoyant inquiry into

how media coverage might adversely affect a defendant's right to a

fair trial at a stage when it is impossible to actually know. The

Court must make a conclusion that is "of necessity speculative,

dealing . . . with factors unknown and unknowable." Nebraska Press

Ass'n, 427 U.S. at 563. Whether the test is "substantial

probability" or "reasonable likelihood" makes little practical

difference given the paucity of information that will most likely

be available at the early stage of the proceedings at which the

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court will be required to make its decision. 

 Furthermore, given the fundamental importance of the free

speech, free press and freedom of information rights that

definitely will be lost by the imposition of an indirect gag order

versus the speculative nature of the defendant's fair trial rights

that might be lost if the order is not imposed, I would opt not to

cloud what has been historically a bright-line two-tiered approach

with an indistinct middle-tier analysis of questionable lineage and

doubtful efficacy. In my view, we should adhere to the "clear and

present danger" standard for the imposition of trial participant

gag orders. I believe this to be the better approach for the

following reasons. 

 First, as I have stated above, I conclude that indirect gag

orders are de facto prior restraints and that traditional prior

restraint analysis is, therefore, required. While it is argued

that trial participant gag orders only vicariously affect the

press, the whole reason why trial courts issue such orders is to

prevent the public dissemination of information. Accordingly, the

intended and the real casualties of an indirect gag order are the

media's access to information and the public's right to receive it.

 In this regard, the whole focus of trial participant gag order

cases is placed improperly on who is restrained, rather than on

what is restrained. An indirect gag order effectively restrains

expression in general--precisely the evil that the seminal case on

prior restraint, Near v. Minnesota ex rel. Olson (1931), 283 U.S.

697, 51 S.Ct. 625, 75 L.Ed. 1357, and later Nebraska Press Ass'n,

sought to prohibit. The result is the loss of public debate that

New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710,

11 L.Ed.2d 686, indicated was the primary concern of the First

Amendment. To say that the press is free to publish information

"it knows" but that the judiciary can dry up the sources of that

information sanctions not only a preemptive strike on First

Amendment, Article II, Section 7 and Article II, Section 9 rights,

but disingenuously exalts form over substance.

 Second, as pointed out in our discussion of Issue 1, this

Court and the Montana Legislature have already specifically adopted

the "clear and present danger" test with regard to pretrial court

proceedings and records. Smith, 654 P.2d at 987-88; 46-11-

701(3)(a) and (6). While neither Smith nor the statute

specifically deal with the issue of trial participant gag orders,

based upon Article II, Section 9 of the Montana Constitution, this

Court and the Legislature have already established that any

restraint on the right of access of the public and press to

pretrial criminal proceedings must be reviewed under this highest

level of scrutiny. 

 As indirect gag orders are de facto prior restraints on the

First Amendment and Article II, Section 9 rights of the press and

public, it is wholly inconsistent with existing Montana case and

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statutory law to adopt some sort of lesser standard of review with

respect to the imposition of such orders simply because they impact

what is said or disseminated outside the courtroom. 

 Moreover, the fact that Montana has already adopted this test

in relation to closing pretrial proceedings and sealing court

records and the fact that we have re-affirmed the use of this test

in those circumstances (see our discussion under Issue 1) belies

the majority's expression of concern that application of the clear

and present danger standard to judge requests for indirect gag

orders would treat First Amendment rights as paramount. If use of

this test does not render the rights to free speech, press and to

know and receive information paramount in the former setting, there

is no rational basis for concluding that using it in the latter

context will either. The rights of the press, public and the

defendant can be "balanced," if that is required, in either event.

 Third, there are deleterious effects and serious consequences

attendant to silencing trial participants that strongly militate

against the imposition of indirect gag orders in all but the most

clear cut and threatening of circumstances. All citizens,

including criminal defendants, have a fundamental constitutional

right of free speech under the federal and Montana constitutions. 

That right is obviously abridged by an indirect gag order. A

defendant or his attorney may wish to go to the media with a

perceived misuse of the judicial process or abuse by the

prosecution; defendants who are public officials may wish to

exonerate or explain themselves to their constituents; the

defendant may wish to try to salvage his reputation and rebut the

charges at a time when public and media attention are most focused

upon him--waiting to be acquitted may not serve that same purpose.

Since either side may call any witness who has any knowledge of the

case, a gag order involving witnesses may have the potential of

stifling a wide range of people and commentary--again, likely 20 or

more people, from private citizens to public officials, were gagged

in the instant case. Witnesses and defendants hailed into court

against their wills do not voluntarily waive their First Amendment

rights; most never even have an opportunity to protest before the

gag order is issued; many--as here--likely do not even know that

they are gagged. And, certainly, who among these will invest the

time, trouble and expense of going to court to challenge the gag

order.

 Moreover, simply because one becomes an attorney, he or she

does not forfeit First Amendment rights. An attorney may wish to

speak out on a case in order to demonstrate the need for legal

reform illustrated by his clientþs circumstances or to address

perceived injustices in the case. Prosecutors and law enforcement

may wish to address the public so witnesses and others with

knowledge of the crime or the defendant may come forward or to

quell public concern. In civil litigation, attorneys may wish to

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inform the public, for example, of dangerous or defective products

or some particular abusive or wrongful practice by an industry or

governmental agency. 

 There exist adequate and effective ways of disciplining

attorneys who actually violate the cannons of ethics or rules of

professional conduct, short of prior restraint. If violations are

subsequently punished, then the harm caused, if any, is actually

known and the court does not have to rely on speculation as to what

"might occur if . . .." 

 Furthermore, judges should not be allowed to easily issue

indirect gag orders. Issuing such a gag order is easy to do and

difficult to undo, as those gagged must appear before the same

judge that issued the order to contest it. Attorneys and parties

may be reluctant to do that and thus potentially incur the wrath of

the issuing judge. Simply ignoring the order will likely bring a

contempt citation--again, as in this case--and contesting such a

citation is not effective because of the collateral bar rule. All

of this has the effect of chilling speech. 

 Indirect gag orders, because they can be so easily issued, are

particularly subject to overuse and over inclusiveness--again,

witness the present orders. When judges become censors, there are

few, if any, checks and balances (absent, possibly appellate

review); the potential for arbitrariness is great; and there is

little timely or effective way of combating such abuse. Worse, as

mentioned above, indirect gag orders are typically issued early in

the case when there is insufficient information on which to

actually gauge the impact of publicity or even the need for some

sort of protective order. Thus, to a great extent, the issuing

judge is operating in a vacuum in imposing the order. While

indirect gag orders may be issued out of the legitimate desire to

insure the defendant receives a fair trial, they may also be issued

out of a desire by the judge to avoid criticism of his or her

style, case management or rulings. 

 A trial participant gag order will, in all probability,

effectively delay public speech to a time when the public has lost

interest in the subject. Hence, the effectiveness of public

comment and debate is lost. Absent public dissemination of

information about a case, the public will have little ability to

judge the effectiveness, efficiency and fairness of its various

legal institutions, organizations and public officers--courts,

public offices, law enforcement, even the bar itself--or the

competence of public officials involved. The public loses the very

source of information it needs to observe and to check the

functioning of its government, institutions and public officials.

 Fourth, even without focusing on the mediaþs (or on the gagged

participantsþ) rights and the abridgment of those rights by de

facto prior restraint, the public has a concomitant First Amendment

right (and a similar right under Article II, Sections 7 and 9 in

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Montana) to receive information. It has long been a tenant of

federal constitutional law that the constitution protects the

individualþs right to receive information and ideas. Stanley v.

Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542;

Virginia State Board of Pharmacy v. Virginia Citizens Consumer

Council, Inc. (1976), 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346. 

 Although the majority seems to acknowledge this legal

principle, it begs the question of how the public is to exercise

this constitutional right if the main purveyor of information and

ideas--the media--is effectively prohibited from gathering news in

order to disseminate it.

 Fifth, while the public and press still have access to

pretrial and trial proceedings themselves, few people have the time

or inclination to actually attend such proceedings. Moreover,

those proceedings, even when reported, are highly sanitized via the

formalities of courtroom procedure, the rules of evidence and

courtroom decorum. Indirect gag orders inhibit or prohibit the

press from discovering information that may contradict the

courtroom version or provide an independent view of the proceedings

at issue as well as the persons and the institutions involved.

 In conclusion, it is for all of the above-mentioned reasons

that I would hold that trial participant or indirect gag orders are

de facto prior restraints upon the mediaþs rights of free speech

and press and upon the media's and the publicþs right to receive

information and right to know. As a de facto prior restraint, I

would require that the trial judge subject any request for an

indirect gag order to the "clear and present danger" test--i.e. the

court must be convinced that there is a clear and present danger

that the defendantþs right to a fair trial will be prejudiced. 

And, because, an indirect gag order is a de facto prior restraint,

the presumption should be against issuance. 

 Moreover, before an indirect gag order is issued, the court

should be required to give public notice and to hold a hearing on

an expedited basis which hearing would include, at a minimum, the

defendant, the government and any media organizations that wish to

intervene. The court should be required to consider the nature and

extent of pretrial publicity; whether an indirect gag order would

be effective; and whether other measures would likely mitigate the

effects of trial participants not having unrestrained access to the

media. Finally, if such an order is imposed, then it should be

narrowly drawn as to whom and as to what speech is covered.

 Except to the extent that we have adopted some of these

procedural safeguards, I cannot agree that our new middle-tier

approach and substantial probability standard for the issuance of

trial participant gag orders serves to protect, much less advance,

the important fundamental rights of freedom of the press, freedom

of speech, and the media's and the public's right to know and

receive information which are extensively protected by Montana's

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Constitution and which this Court has, heretofore, jealously

guarded. While it may be necessary in rare circumstances to

balance the defendant's fundamental right to a fair trial against

these other fundamental rights by the issuance of an indirect gag

order, we have in my estimation, improperly adopted a standard

which will tip the scale decidedly in the defendant's favor in

routine cases such as the one at bar. In allowing trial

participants to be gagged in the absence of evidence of a most

clear, present and imminent threat to the defendant's fair trial

rights, we have truly sanctioned "censorship at the source."

 If the "[c]losure of judicial proceedings breeds suspicion and

mistrust in the minds of the public and representatives of the

media," Great Falls Tribune, 608 P.2d at 119, will ordering trial

participants not to talk to the media produce any different result? 

I think not.

 I respectfully dissent from our decision on Issue 2.

 /S/ JAMES C. NELSON

Justice William E. Hunt, Sr., and District Court Judge Thomas

McKittrick, sitting for former Justice Charles E. Erdmann, concur

in the foregoing special concurrence and dissent.

 /S/ WILLIAM E. HUNT, SR.

 /S/ THOMAS M. McKITTRICK

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