[Cite as State ex rel. Toledo Blade Co. v. Henry Cty. Court of Common Pleas, 125 Ohio St.3d 

149, 2010-Ohio-1533.]

THE STATE EX REL. TOLEDO BLADE COMPANY v. 

HENRY COUNTY COURT OF COMMON PLEAS ET AL. 

[Cite as State ex rel. Toledo Blade Co. v. Henry Cty. Court of Common Pleas, 

125 Ohio St.3d 149, 2010-Ohio-1533.] 

First Amendment — Fair trial — Prohibition — Presumptions against prior 

restraint not overcome — Writ granted.

(No. 2010-0161 — Submitted March 31, 2010 — Decided April 13, 2010.) 

IN PROHIBITION. 

__________________ 

Per Curiam.

{¶ 1} This is an original action for a writ of prohibition to prevent a 

common pleas court and its judge from enforcing a gag order prohibiting the 

media from reporting about the trial proceedings in one criminal case until a jury 

is impaneled in a separate criminal case. Because prohibition is an appropriate 

action to challenge the propriety of the gag order and that order was not supported 

by sufficient evidence to overcome its presumed unconstitutionality, we grant the 

writ. 

Facts 

{¶ 2} In State v. Jayme Schwenkmeyer and David E. Knepley, Henry 

Cty. C.P. case No. 08-CR-0033, the state of Ohio charged the defendants with 

involuntary manslaughter and child endangering after the death of a child. 

Schwenkmeyer was the child’s mother, and Knepley was Schwenkmeyer’s 

boyfriend. The cases arose from a joint indictment, but respondent Judge Keith P. 

Muehlfeld of respondent Henry County Court of Common Pleas granted the 

defendants’ motions and ordered that they be tried separately. 
SUPREME COURT OF OHIO

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{¶ 3} Judge Muehlfeld originally scheduled Knepley’s jury trial to begin 

on July 20, 2009, with Schwenkmeyer’s jury trial to begin on July 27, 2009. On 

July 20, Judge Muehlfeld granted Schwenkmeyer’s motion to prohibit print and 

broadcast media from reporting about the trial proceedings in Knepley’s case until 

the jury is impaneled for Schwenkmeyer’s trial, although he permitted members 

of the media to have access to the Knepley trial. The judge stated in the entry that 

he considered the order necessary to prevent the tainting of the jury pool in the 

second case. 

{¶ 4} Both cases were subsequently rescheduled, and the order of the 

trials was reversed, with Schwenkmeyer’s trial to begin on December 7, 2009, 

and Knepley’s trial to follow a couple months later, on February 8, 2010. On 

December 2, Knepley moved for an order to, inter alia, “prevent the jury pool in 

his case from being tainted by hearing or reading any published or broadcast 

media report of the State v. Schwenkmeyer trial currently scheduled to begin on 

Monday, December 7, 2009.” On December 4, in an order consented to by both 

the state and Schwenkmeyer, Judge Muehlfeld issued the following gag order: 

{¶ 5} “Whereas, this Court considers it necessary to issue such an order 

to prevent the tainting of the jury pool in State v. Knepley; * * * 

{¶ 6} “* * * 

{¶ 7} “IT IS ORDERED, ADJUDGED AND DECREED that members 

of the print and broadcast media shall be permitted access to the trial proceedings 

in Case number 08CR0033, State v. Schwenkmeyer pursuant to Superintendence 

Rule 12, HOWEVER any and all print or broadcast media shall be PROHIBITED 

from the published or broadcast reporting of such trial proceedings until a jury is 

impaneled for the trial in State v. Knepley.” 

{¶ 8} That same day, Judge Muehlfeld telephoned the local newspapers 

and local radio station that had sent representatives to earlier proceedings to 

inform them of the gag order. The judge did not contact the Toledo Blade. 
January Term, 2010 

3

{¶ 9} Schwenkmeyer’s trial began on December 7, but Judge Muehlfeld 

declared a mistrial and rescheduled it for February 1, 2010, with Knepley’s trial 

remaining scheduled for February 8. The mistrial was unrelated to publicity or 

similar concerns. On December 11, the judge amended his December 4 gag order 

to “permit the print or broadcast media to report that a defense motion for mistrial 

was granted by the Court in the State v. Schwenkmeyer trial on December 10, 

2009,” but reiterated that the gag order remained in effect for Schwenkmeyer’s 

rescheduled February 1 trial. 

{¶ 10} In mid-January 2010, relator, the Toledo Blade Co., a newspaper 

publisher, learned of the order, and in a letter e-mailed on January 19, the Blade, 

through counsel, requested that Judge Muehlfeld reconsider his December 4 gag 

order prohibiting the media from reporting on the Schwenkmeyer trial before a 

jury is impaneled in Knepley. 

{¶ 11} On January 26, Judge Muehlfeld held a hearing on the Blade’s 

request for reconsideration at which the Blade and the defendants presented 

argument but no evidence. Knepley’s counsel asserted that the gag order issued 

by the court upon his motion “was absolutely necessary for [his] client to receive 

a fair trial in his case.” He added, “This is a small town with a very interesting 

case,” and if the media were allowed to report on Schwenkmeyer’s trial before a 

jury was impaneled for his trial, “it would taint the jury pool that’s already small.” 

The state and Schwenkmeyer noted that they did not object to the court’s gag 

order, and the state opined that Knepley’s motion was “fairly compelling.” 

{¶ 12} Judge Muehlfeld specified at the hearing that “it is the narrowness 

of that window between these trials, that makes this a truly unique case.” More 

particularly, the judge concluded that the press and public’s First Amendment 

rights are “derivative in nature” and “abstract,” whereas the defendants’ fair-trial 

rights are “very real interests” that “have a direct impact” upon them. The judge 

questioned how important the Blade’s interest was in reporting the first trial’s 
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proceedings when the Blade did not report about the December 7 trial, and his 

order only briefly delayed its ability to report about the trial. 

{¶ 13} In ratifying the December 4 gag order, the judge made the 

following findings: “The Court finds that there is a substantial probability that the 

defendant’s right to a fair trial in this case will be prejudiced by the publicity that 

the Court’s orders in this case [were] designed to prevent. The Court further finds 

that no reasonable alternatives can adequately protect the defendant[’]s right to a 

fair trial under the circumstances unique to this case.” 

{¶ 14} The judge noted that the cases had generated “considerable public 

curiosity * * * and media attention,” that voir dire in the first Schwenkmeyer case 

established that a good portion of the population knew about the circumstances of 

the cases, and that it took the court two days and 40 prospective jurors to impanel 

a jury in the first case. In addition, the judge determined that (1) the option of 

selecting two juries and sending the second jury home until the start of the second 

trial would not adequately protect the second defendant’s right to a fair trial, 

because the court could not adequately instruct and control the second jury, (2) a 

continuance of the second trial was not a reasonable alternative, because 

Knepley’s counsel had moved for the gag order when the trials had previously 

been scheduled two months apart, and (3) a change of venue would be too costly 

and would ignore the defendant’s and the public’s right to have the cases tried in 

the local venue. 

{¶ 15} The next day, on January 27, 2010, the Blade filed this action for a 

writ of prohibition to prevent respondents, the common pleas court and Judge 

Muehlfeld, from restraining it “from speaking or publishing information that [it] 

has lawfully obtained or will lawfully obtain in the course of the criminal 

proceeding.” On January 28, Judge Muehlfeld issued an order denying the 

Blade’s motion for reconsideration and ratifying the December 4 gag order “for 

the reasons fully stated by the Court from the bench at the conclusion of the 
January Term, 2010 

5

January 26, 2010 oral argument.” On that same day, we granted an alternative 

writ on the Blade’s prohibition claim, which stayed the challenged portion of the 

judge’s December 4 and January 28 orders pending our resolution of the case. 

{¶ 16} The parties have submitted evidence and briefs, and this case is 

now before the court for our consideration of the merits. Various amici curiae 

have also submitted briefs.1

Legal Analysis 

Request for Oral Argument 

{¶ 17} We deny respondents’ request for oral argument because they do 

not specify any reasons supporting it, and the parties’ briefs are sufficient to 

resolve this case. See State ex rel. Lorain v. Stewart, 119 Ohio St.3d 222, 2008-

Ohio-4062, 893 N.E.2d 184, ¶ 18; State ex rel. Scioto Downs, Inc. v. Brunner, 123 

Ohio St.3d 24, 2009-Ohio-3761, 913 N.E.2d 967, ¶ 25. 

Prohibition 

{¶ 18} The Blade requests a writ of prohibition to prevent the common 

pleas court and its judge from enforcing their orders preventing the media from 

reporting on one criminal trial until the impaneling of a jury in a related, second 

criminal trial. 

{¶ 19} “Prohibition is the appropriate action to challenge trial court orders 

restricting public access to pending litigation.” State ex rel. Plain Dealer 

Publishing Co. v. Geauga Cty. Court of Common Pleas, Juv. Div. (2000), 90 Ohio 

St.3d 79, 82, 734 N.E.2d 1214. More pertinently, “prohibition is the only remedy 

available to nonparties who wish to challenge an order which restricts the rights 

of free speech and press of such nonparties,” including gag orders that prohibit the 

media “from publishing certain information lawfully gathered by them in 

 

1. The motion for admission pro hac vice of Lucy A. Dalglish, Gregg P. Leslie, and Mara E. 

Zimmerman by Monica L. Dias is granted. 
SUPREME COURT OF OHIO

6 

proceedings which are open to the public.” (Emphasis sic.) State ex rel. News 

Herald v. Ottawa Cty. Court of Common Pleas, Juv. Div. (1996), 77 Ohio St.3d 

40, 43-44, 671 N.E.2d 5. While amicus curiae Ohio Association of Criminal 

Defense Lawyers argues that prohibition is inappropriate because the media have 

an adequate remedy at law by seeking to intervene and appeal the gag order under 

R.C. 2505.02, this procedure is contrary to the foregoing precedent. Furthermore, 

the argument is not raised by the parties and will not be considered. Wellington v. 

Mahoning Cty. Bd. of Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d 

420, ¶ 53. Therefore, the Blade’s prohibition action is the appropriate action to 

challenge Judge Muehlfeld’s order restricting the media from publishing or 

broadcasting reports about the first trial until after the jury in the second trial is 

impaneled. 

Prior Restraints and Criminal Trials 

{¶ 20} “The phrase ‘prior restraint’ * * * is a term of art referring to 

judicial orders or administrative rules that operate to forbid expression before it 

takes place.” 2 Smolla, Smolla and Nimmer on Freedom of Speech (2009) 15-4, 

Section 15:1; Seven Hills v. Aryan Nations (1996), 76 Ohio St.3d 304, 307, 667 

N.E.2d 942; see also Black’s Law Dictionary (9th Ed.2009) 1314, defining “prior 

restraint” as a “governmental restriction on speech or publication before its actual 

expression.” The court’s gag order here is a prior restraint because it attempts to 

forbid the media from reporting about the first trial until the jury is impaneled for 

the second trial, and it was issued before either trial had commenced. 

{¶ 21} Although prior restraints are not unconstitutional per se, there is a 

heavy presumption against their constitutional validity. See FW/PBS, Inc. v. 

Dallas (1990), 493 U.S. 215, 225, 110 S.Ct. 596, 107 L.Ed.2d 603; Seven Hills, 

76 Ohio St.3d at 307, 667 N.E.2d 942. This is because “ ‘prior restraints on 

speech and publication are the most serious and least tolerable infringement on 

First Amendment rights.’ ” Tory v. Cochran (2005), 544 U.S. 734, 738, 125 S.Ct. 
January Term, 2010 

7

2108, 161 L.Ed.2d 1042, quoting Nebraska Press Assn. v. Stuart (1976), 427 U.S. 

539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683. “Prior restraints are simply repugnant 

to the basic values of an open society” in that they “tend to encourage

indiscriminate censorship in a way that subsequent punishments do not.” 

(Emphasis sic.) 2 Smolla, Smolla and Nimmer on Freedom of Speech 15:10, 

Sections 15-14.2-15.14.3. 

{¶ 22} In the context of court proceedings, the “Free Speech and Free 

Press Clauses of the First Amendment to the United States Constitution, the 

analogous provisions of Section 11, Article I of the Ohio Constitution, and the 

‘open courts’ provision of Section 16, Article I of the Ohio Constitution create a 

qualified right of public access to court proceedings that have historically been 

open to the public and in which public access plays a significantly positive role.” 

Plain Dealer, 90 Ohio St.3d at 82, 734 N.E.2d 1214, citing In re T.R. (1990), 52 

Ohio St.3d 6, 556 N.E.2d 439, paragraph two of the syllabus. “Criminal 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.” State ex rel. Natl. Broadcasting Co., Inc. v. Lake Cty. Court of Common 

Pleas (1990), 52 Ohio St.3d 104, 108, 556 N.E.2d 1120, overruled in part on 

other grounds, State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 

431, ¶ 10; Globe Newspaper Co. v. Norfolk Cty. Superior Court (1982), 457 U.S. 

596, 605, 102 S.Ct. 2613, 73 L.Ed.2d 248. 

{¶ 23} In criminal proceedings, however, the Sixth Amendment to the 

United States Constitution and Section 10, Article I of the Ohio Constitution 

secure the criminal defendant’s right to a fair trial. State ex rel. Vindicator 

Printing Co. v. Watkins (1993), 66 Ohio St.3d 129, 138, 609 N.E.2d 551. 

Pervasive, unfair, and prejudicial media coverage of a criminal trial can 

sometimes deprive a criminal defendant of this constitutional right. Sheppard v. 

Maxwell (1966), 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600. 
SUPREME COURT OF OHIO

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{¶ 24} In the seminal case interpreting the interplay between these two 

important constitutional rights, the United States Supreme Court struck down gag 

orders attempting to prevent further publicity about a defendant accused of 

murdering six members of a family in a small Nebraska town. Nebraska Press 

Assn. v. Stuart (1976), 427 U.S. 539, 570, 96 S.Ct. 2791, 49 L.Ed.2d 683. There, 

the Supreme Court held that justification for a prior restraint of the media must be 

evidenced by “(a) the nature and extent of pretrial news coverage; (b) whether 

other measures would be likely to mitigate the effects of unrestrained pretrial 

publicity; and (c) how effectively a restraining order would operate to prevent the 

threatened danger.” Id. at 562. 

{¶ 25} Notwithstanding respondents’ suggestion that Nebraska Press may 

no longer be viable because of revolutionary changes in the delivery of 

information to the public, e.g., the emergence of the Internet, they cite no case 

that has retreated from the test set forth in that case to evaluate gag orders against 

the media. Nor have they submitted any evidentiary support for these claims. 

Although it has been fairly noted that “Nebraska Press was decided in 1965 

without the Internet or other forms of mass communication now readily available 

to the public,” nevertheless, “if courts base their constitutional interpretations on 

the rapidly changing concept of technology, * * * our constitutional rights [would 

be] in the hands of unpredictable technological trends instead of in the hands of 

sound judicial reasoning.” Sidman, Gagging Louisiana’s Politicians: The Fifth 

Circuit Reviews the Constitutionality of Gag Orders Against Trial Participants in 

United States v. Brown (2001), 76 Tul.L.Rev. 233, 244-245. As the Blade 

mentions, the United States Supreme Court recently observed, “Courts, too, are 

bound by the First Amendment. We will decline to draw, and then redraw, 

constitutional lines based on the particular media or technology used * * *.” 

Citizens United v. Fed. Election Comm. (2010), __ U.S. __, 130 S.Ct. 876, 891, 

__ L.Ed.2d __. 
January Term, 2010 

9

{¶ 26} In State ex rel. Beacon Journal Publishing Co. v. Kainrad (1976), 

46 Ohio St.2d 349, 75 O.O.2d 435, 348 N.E.2d 695, a case that preceded 

Nebraska Press by a few weeks, we were faced with a factual situation similar to 

that here. Two defendants had been jointly indicted for aggravated murder, but 

upon request of counsel, separate trials were granted. Id. at 349. The trial of one 

of the defendants was in progress when the judge presiding over the second 

defendant’s trial, which had not yet begun, issued an order prohibiting the media 

from publishing any statements made in the first trial concerning the claimed 

participation of the second defendant in any criminal activity. Id. at 349. The 

judge expressed concern that the publicity may jeopardize the second defendant’s 

right to an impartial jury. Id. at 349-350. 

{¶ 27} We set forth the following test for prior restraints in which the 

defendant’s request for a fair trial is asserted as the basis for the order: 

{¶ 28} “An order not to publish cannot be considered unless the 

circumstances are imperative, and it appears clearly in the record that a 

defendant’s right to a fair trial will be jeopardized and that there is no other 

recourse within the power of the court to protect that right or minimize the danger 

to it. 

{¶ 29} “Before issuing any such order not to publish, it is obligatory upon 

the court to hold a hearing and make a finding that all other measures within the 

power of the court to insure a fair trial have been found unavailing and deficient.” 

Id. at 352. 

{¶ 30} We held, “Where the constitutional right of a criminal defendant to 

a fair trial can be protected by the traditional methods of voir dire, continuances, 

changes of venue, jury instructions or sequestration of the jury, the press and 

public cannot be excluded from a criminal trial or hearing and no order can be 

made which prohibits the publishing of news reports about statements made or 

testimony given during such proceedings until all other measures within the 
SUPREME COURT OF OHIO

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power of the court to insure a fair trial have been found to be unavailing or 

deficient.” Id. at syllabus. 

{¶ 31} Although we decided Kainrad before the United States Supreme 

Court’s decision in Nebraska Press, we have applied it thereafter. See Natl. 

Broadcasting Co., 52 Ohio St.3d at 107, 556 N.E.2d 1120.2

 And the criteria 

announced in these cases for determining the propriety of a prior restraint are 

consistent. 

{¶ 32} The Blade initially asserts that the foregoing evaluation of criteria 

does not apply to Judge Muehlfeld’s gag order, because even though media 

representatives were to be present, the order will prevent the media from 

immediately reporting about the Schwenkmeyer trial and is therefore 

unconstitutional per se. The Blade cites News Herald, 77 Ohio St.3d at 44, 671 

N.E.2d 5; Craig v. Harney (1947), 331 U.S. 367, 374, 67 S.Ct. 1249, 91 L.Ed. 

1546; and Natl. Broadcasting Co., 52 Ohio St.3d at 113, 556 N.E.2d 1120, in 

support of its assertion. 

{¶ 33} Nevertheless, this precedent is inapplicable here because the first 

trial that is the subject of Judge Muehlfeld’s gag order has not yet commenced. 

Cf. Craig, 331 U.S. at 368, 67 S.Ct. 1249, 91 L.Ed. 1546 (a trial court judge held 

a newspaper publisher and reporter in criminal contempt for newspaper articles 

about what had previously transpired in a forcible entry and detainer); Nebraska 

Press, 427 U.S. at 567-568, 96 S.Ct. 2791, 49 L.Ed.2d 683, (a trial court order 

entered after an open preliminary hearing, which order purported to prevent 

reporting of certain statements made at the hearing, was unconstitutional); Natl. 

Broadcasting Co., 52 Ohio St.3d at 113, 556 N.E.2d 1120 (“if the jurors’ names 

are revealed in open court, or if relators get them from publicly available court 

 

2. In Natl. Broadcasting Co., 52 Ohio St.3d at 108, 556 N.E.2d 1120, we applied a similar test to 

evaluate orders preventing court personnel, attorneys, and law enforcement from making 

extrajudicial public communications. See also T.R., 52 Ohio St.3d 6, 556 N.E.2d 439. This type 

of gag order is not at issue here. 
January Term, 2010 

11

records, the judge cannot prevent relators from publishing them by an order 

invoking prior restraint, even if he holds a hearing and makes findings sufficient 

to satisfy Kainrad.” [Emphasis added]). 

{¶ 34} Therefore, in the absence of the first trial having already 

commenced and the press having access to it, the Nebraska Press and Kainrad

criteria apply to evaluate the propriety of the gag order issued here. This 

conclusion comports with the United States Supreme Court’s view that it “has 

frequently denied that First Amendment rights are absolute and has consistently 

rejected the proposition that a prior restraint can never be employed.” Nebraska 

Press, 427 U.S. at 570, 96 S.Ct. 2791, 49 L.Ed.2d 683. 

Application of Criteria to Gag Order 

{¶ 35} After applying the pertinent criteria to the gag order here, we hold 

that the order is unconstitutional for the reasons that follow. 

{¶ 36} First, the order was not supported by evidence introduced on the 

record at a hearing before the judge. In Nebraska Press, 427 U.S. at 562, 96 S.Ct. 

2791, 49 L.Ed.2d 683, the Supreme Court emphasized that the propriety of the 

prior restraint must be examined based on “the evidence before the trial judge 

when the order was entered.” “The Nebraska [Press] test must be supported by 

evidence, not speculation.” State ex rel. Chillicothe Gazette, Inc. v. Ross Cty. 

Court of Common Pleas (1982), 2 Ohio St.3d 24, 25, 2 OBR 570, 442 N.E.2d 

747. There is no evidence of any evidentiary hearing here that preceded the 

court’s issuance of its December 4, 2009 gag order. And when Judge Muehlfeld 

reaffirmed it upon the Blade’s request for reconsideration following a hearing on 

January 26, there was no evidence submitted. In the absence of any properly 

introduced evidence, “ ‘there is no reason for a trial court to * * * [conclude] that 

there will be prejudicial publicity * * * and to presume that such publicity will 

create a * * * threat to the administration of justice * * *.’ ” Id. at 25, quoting 
SUPREME COURT OF OHIO

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State ex rel. Dayton Newspapers, Inc. v. Phillips (1976), 46 Ohio St.2d 457, 468-

469, 75 O.O.2d 511, 351 N.E.2d 127. 

{¶ 37} Second, Judge Muehlfeld’s analysis proceeded from the erroneous 

premise that a criminal defendant’s constitutional right to a fair trial should be 

accorded priority over the media’s constitutional rights of free speech and press. 

As Justice Black cogently observed more than half a century ago in Bridges v. 

California (1941), 314 U.S. 252, 260, 62 S.Ct. 190, 86 L.Ed. 192, “free speech 

and fair trials are two of the most cherished policies of our civilization, and it 

would be a trying task to choose between them.” “The authors of the Bill of 

Rights did not undertake to assign priorities as between First Amendment and 

Sixth Amendment rights, ranking one as superior to the other.” Nebraska Press, 

427 U.S. at 561, 96 S.Ct. 2791, 49 L.Ed.2d 683. “When there is a conflict 

between the First and the Sixth Amendment rights, as in the instant case, the trial 

court is required to act to resolve that conflict by protecting both the First and the 

Sixth Amendment rights when, as here, that can be done in a reasonable and 

lawful way.” Dayton Newspapers, 46 Ohio St.2d at 464, 75 O.O.2d 511, 351 

N.E.2d 127. The judge’s refusal to accord equal importance and priority to the 

media’s First Amendment rights was thus plainly erroneous. 

{¶ 38} Third, Judge Muehlfeld mistakenly ruled that the gag order was 

justified in part because of its limited duration. As Judge Sotomayor of the 

United States Court of Appeals for the Second Circuit observed, a “prior restraint 

is not constitutionally inoffensive merely because it is temporary.” United States 

v. Quattrone (C.A.2, 2005), 402 F.3d 304, 310; Procter & Gamble Co. v. Bankers 

Trust Co. (C.A. 6, 1996), 78 F.3d 219, 221, quoting In re Providence Journal Co. 

(C.A.1, 1986), 820 F.2d 1342, 1351 (“even a temporary restraint on pure speech 

is improper ‘absent the most compelling circumstances’ ”). “[T]he element of 

time is not unimportant if press coverage is to fulfill its traditional function of 
January Term, 2010 

13

bringing news to the public promptly.” Nebraska Press, 427 U.S. at 561, 96 S.Ct. 

2791, 49 L.Ed.2d 683. 

{¶ 39} Fourth, Judge Muehlfeld overstated the prejudicial effect of any 

pretrial publicity. In his on-the-record findings at the January 26 hearing, he 

merely noted that the cases had generated considerable media attention and that 

his voir dire in the first Schwenkmeyer case had taken two days and 40 

prospective jurors before a jury was impaneled. “ ‘[P]retrial publicity — even 

pervasive, adverse publicity — does not inevitably lead to an unfair trial.’ ” State 

v. Coley (2001), 93 Ohio St.3d 253, 258, 754 N.E.2d 1129, quoting Nebraska 

Press, 427 U.S. at 554, 96 S.Ct. 2791, 49 L.Ed.2d 683. In effect, in the absence 

of evidence submitted to the court, the judge relied on conclusory, speculative 

assertions to support his finding that publicity of the Schwenkmeyer trial could 

deprive Knepley of a fair trial. This the judge could not lawfully do. See Presley 

v. Georgia (2010), __ U.S. __, 130 S.Ct. 721, 725, __ L.Ed.2d __, quoting PressEnterprise Co. v. Superior Court of California, Riverside Cty. (1986), 478 U.S. 1, 

15, 106 S.Ct. 2735, 92 L.Ed.2d 1 (“ ‘The First Amendment right of access cannot 

be overcome by the conclusory assertion that publicity might deprive the 

defendant of [the right to a fair trial]’ ”). 

{¶ 40} Fifth, Judge Muehlfeld did not even specify that all other 

alternatives to assure Knepley a fair trial short of the gag order were unavailing. 

In his January 28 entry reaffirming the gag order and his January 26 on-the-record 

statement of reasons for the ratification of that order, the judge did not even 

mention alternatives like voir dire and jury instructions in the Knepley case or 

sequestration of the Knepley jurors while the Schwenkmeyer trial proceeded. 

Although he has now attempted to remedy this defect with after-the-fact evidence 

introduced in this writ action, this evidence was not introduced at the January 26 

hearing and is not properly before us. See In re Guardianship of Hollins, 114 

Ohio St.3d 434, 2007-Ohio-4555, 872 N.E.2d 1214, ¶ 30; cf. State ex rel. Stoll v. 
SUPREME COURT OF OHIO

14 

Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 

1214, ¶ 40. 

{¶ 41} Finally, Judge Muehlfeld dismissed some alternatives for reasons 

that are not supported by evidence or precedent. The judge rejected a change of 

venue because he considered it too costly and because it would infringe upon the 

defendant’s right to be tried in the county in which the offense was committed. 

There was no evidence submitted at the hearing on the cost of changing venue, 

and even if we were to credit the prosecutor’s and judge’s affidavits filed in this 

writ action about the smaller jury pool in Henry County and the costs involved in 

requiring travel to a distant county, the result would not be altered. Henry County 

borders Lucas County, a populous county, which would offer a more expansive 

jury pool that would be less likely to be impacted by the pretrial publicity. We 

have also rejected a similar argument concerning costs of changing venue as a 

reason to justify a prior restraint. Dayton Newspapers, 46 Ohio St.2d at 466, 75 

O.O.2d 511, 351 N.E.2d 127. And the common pleas court is authorized to order 

the appropriation of reasonable and necessary expenses to cover any additional 

costs. See, e.g., State ex rel. Hague v. Ashtabula Cty. Bd. of Commrs., 123 Ohio 

St.3d 489, 2009-Ohio-6140, 918 N.E.2d 151, ¶ 17. Nor does Knepley’s 

constitutional right to be tried by an “impartial jury of the county in which the 

offense is alleged to have been committed” under Section 10, Article I of the Ohio 

Constitution preclude a change of venue. R.C. 2901.12(K) and Crim.R. 18(B) 

authorize the court to sua sponte change venue when it appears that a fair and 

impartial trial cannot be held where the action is pending. 

{¶ 42} The judge also rejected the continuance of the Knepley trial based 

solely on the fact that Knepley’s counsel had previously requested the same gag 

order when the trials had been scheduled two months apart. Again, the judge did 

not rely on any evidence that a continuance might minimize any prejudicial 

pretrial publicity resulting from press reports about the Schwenkmeyer trial. See 
January Term, 2010 

15

State v. Warner (1990), 55 Ohio St.3d 31, 47, 564 N.E.2d 18 (“In order to 

dissipate the effects of adverse pretrial publicity, the judge may continue the case 

until the threat abates”). 

{¶ 43} For all of these reasons, Judge Muehlfeld’s gag order is patently 

unconstitutional. 

Conclusion 

{¶ 44} Therefore, we grant the writ of prohibition to prevent the common 

pleas court and judge from enforcing the gag order restraining the media in 

general and the Blade in particular from reporting on the Schwenkmeyer trial 

before the jury is impaneled in the Knepley trial. 

Writ granted. 

 PFEIFER, ACTING C.J., and LUNDBERG STRATTON, O’CONNOR,

O’DONNELL, LANZINGER, and CUPP, JJ., concur. 

 The late CHIEF JUSTICE THOMAS J. MOYER did not participate in the 

decision in this case. 

__________________ 

 Fritz Byers and Scott Ciolek, for relator. 

 Rayle, Matthews & Coon and Max E. Rayle; and Ronald J. Kozar, for 

respondents. 

 Lucy A. Dalglish, Gregg P. Leslie, and Mara E. Zimmerman, urging 

granting of the writ for amicus curiae Reporters Committee for Freedom of the 

Press. 

 Michael T. Honohan, Carrie L. Davis, and Angela Barstow, urging 

granting of the writ for amicus curiae American Civil Liberties Union of Ohio 

Foundation, Inc. 

 Stephen P. Hardwick, urging denial of the writ for amicus curiae Ohio 

Association of Criminal Defense Lawyers. 
SUPREME COURT OF OHIO

16 

 Arthur, O’Neil, Mertz, Michel & Brown Co., L.P.A., and Clayton J. 

Crates, urging denial of the writ for amicus curiae David E. Knepley. 

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