[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




       {¶ 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.




                                          2
                                January Term, 2010




       {¶ 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



                                          3
                              SUPREME COURT OF OHIO




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




                                           4
                                  January Term, 2010




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.




                                            5
                             SUPREME COURT OF OHIO




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.




                                          6
                               January Term, 2010




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.



                                        7
                             SUPREME COURT OF OHIO




       {¶ 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 __.




                                          8
                                 January Term, 2010




         {¶ 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



                                            9
                                 SUPREME COURT OF OHIO




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.




                                               10
                                January Term, 2010




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




                                          11
                             SUPREME COURT OF OHIO




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




                                         12
                                  January Term, 2010




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 Press-
Enterprise 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.



                                            13
                             SUPREME COURT OF OHIO




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




                                         14
                                 January Term, 2010




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.




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                            SUPREME COURT OF OHIO




       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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