California court strikes down order prohibiting press contact with jurors

Friday, February 27, 1998

A California appeals court ruled recently in Contra Costa Newspapers, Inc. v. The Superior Court of Contra Costa County that a trial court order limiting media contact with jurors after their service in a criminal case violated First Amendment press freedoms.

According to the California appeals court, the order “was not carefully crafted” to preserve “the constitutional rights of those interested in the trial.”

The dispute began after the conclusion of former Contra Costa County Supervisor Gayle Bishop's criminal trial last June. Before dismissing the jurors, the trial court judge issued the following order:

“Before I send the jury out, I'd like to make it clear to anyone from the press, the jurors have told me that they do not choose to discuss their deliberations or how they reached a verdict. … That means they are not to be contacted by the press, because they have already stated their preference not to be contacted.”

In July, Contra Costa Newspapers, the publisher of six area newspapers, filed a motion asking the trial court to withdraw its order restricting media contact, but the trial court never ruled on the motion.

Then, in December 1997, criminal defendant Bishop filed a motion for a new trial based in part on juror misconduct allegations.

Following this motion, Contra Costa Newspapers again requested the judge to reconsider the prior order denying media contact. After the judge refused, Contra Costa appealed.

The appeals court began its analysis by recognizing two principles: 1) “news gathering is an activity protected by the First Amendment” and 2) “any inhibitions against news coverage of a trial carry a heavy presumption of an unconstitutional prior restraint.”

The attorney general argued the order was necessary to protect jurors' privacy rights, relying on several cases discussing contact with jurors by attorneys and their clients.

However, the California Court of Appeals distinguished those cases from cases involving press contact with jurors, emphasizing that a court has much greater authority in regulating attorney and party contact with jurors than in limiting media contact.

The trial judge apparently believed his order was furthering the purposes of a California law which allows judges to seal records of juror identification if the government establishes a “compelling interest.”

The appeals court recognized this California law “does not purport to allow the court to prohibit discharged jurors from discussing the case if they choose to do so.”

Furthermore, there were no particularized findings showing that a restriction on the press would further a “compelling interest.”

The appeals court concluded that “the trial court's order restricting press contact with former jurors was without jurisdiction and was impermissibly overbroad. It contained no time or scope limitations and encompassed every possible juror interview situation.”

The court did emphasize that its ruling should not be construed “as requiring jurors to speak to the media or anyone else.”

John Armstrong, editor and vice president of Contra Costa Newspapers, said: “The trial judge's order was the natural outgrowth of a disturbing judicial trend of decreasing public access since the O.J. case. The order was totally unacceptable and an unconstitutional of First Amendment freedoms.”

Armstrong said “this case represents a small but significant step toward curbing this negative trend.”