           IN THE SUPREME COURT, STATE OF WYOMING

                                         2015 WY 113

                                                                      April Term, A.D. 2015

                                                                          August 18, 2015

CHEYENNE NEWSPAPERS, INC.

Petitioner,

v.
                                                       S-15-0190
FIRST JUDICIAL DISTRICT
COURT, STATE OF WYOMING,
COUNTY OF LARAMIE,

Respondent.


              ORDER REVERSING, IN PART, “ORDER CONCERNING MEDIA
                            ACCESS DURING TRIAL”
[¶1] This matter came before the Court upon a “Petition for Writ of Review of Media Access
Order and Request for Expedited Review,” filed herein August 12, 2015. Petitioner Cheyenne
Newspapers, Inc. challenges a prior restraint on publication imposed by Respondent District
Court. That restraint provides that “No one may . . . release the name of a juvenile witness
during the trial” scheduled to begin Monday, August 17, 2015, in the case of State of Wyoming v.
Phillip Sam, Docket 32-316, First Judicial District Court for the State of Wyoming. Although
the media and the public are permitted to attend the open trial, they are prohibited from revealing
the names of minor witnesses. Those witnesses will be identified by name when they testify.
The question here is whether that prohibition survives constitutional scrutiny.

[¶2] After an initial review of the petition, this Court, on August 13, 2015, entered an “Order
Granting Request for Expedited Review.” We permitted responses to be filed on or before 9
a.m. on Monday, August 17, 2015. This Court further notified the parties that a final decision on
the petition would be made by 5 p.m. on August 17. Now, after further review of the petition,
the materials attached thereto, the “Wyoming Attorney General’s Response to Petition for Writ
of Review of Media Access Order,” the materials attached thereto, and the file, this Court finds it
appropriate to rule on this matter without further briefing. This Court concludes the district
court’s order violates the Free Speech and Free Press Clauses of the First Amendment to the
United States Constitution, because this is not the sort of exceptional case where a prior restraint
on speech survives constitutional scrutiny.
                                                         Facts

[¶3] According to the materials submitted, Mr. Phillip Sam is charged as an adult with one
count of first degree murder and twelve counts of aggravated assault. He was sixteen years old
at the time of the offense, and it appears several of the witnesses set to testify at trial are
juveniles.

[¶4] A hearing was held on August 6, 2015, concerning the question of media access to the
trial, and Petitioner was invited to attend and be heard. That same day, Petitioner filed an
objection to various restrictions of the proposed order. A day later, August 7, 2015, Petitioner
was allowed to intervene for the limited purpose of being heard on its objection to the proposed
order restricting the publication of names and photographs of witnesses who are minors.1 On
August 11, 2015, another hearing was held on Petitioner’s objections.

[¶5] On August 12, 2015, the district court entered an “Order Concerning Media Access
During Trial” that limited, inter alia, the identification of juvenile witnesses who testify during
the trial in open court. It concluded that this measure was necessary because some of the
juvenile witnesses had been the subject of threats. The district court’s order states in pertinent
part: “No one may . . . release the name of a juvenile witness during the trial.” The “Petition for
Writ of Review of Media Access Order and Request for Expedited Review” followed.

                                              Standard of Review

[¶6] Constitutional challenges present issues of law that we review de novo. Operation Save
Am. v. City of Jackson, 2012 WY 51, ¶ 17, 275 P.3d 438, 447 (Wyo. 2012)

                                                     Discussion

[¶7] The First Amendment provides that “Congress shall make no law ... abridging the
freedom of speech, or of the press . . . .” This Amendment applies to judicial orders such as the
order issued by the district court in the instant case. See Alexander v. United States, 509 U.S.
544, 550, 553 n.2, 113 S.Ct. 2766, 2771, 2773 n.2 (1993); see also Oklahoma Pub. Co. v.
District Court of Oklahoma, 430 U.S. 308, 308-09, 97 S.Ct. 1045, 1045-46, 51 L.Ed.2d 355
(1977). Thus, a judicial order prohibiting the publication of information disclosed in a public
judicial proceeding unavoidably clashes with two basic protections that the First Amendment
provides. That is, “the right against prior restraints on speech and the right to report freely on
events that transpire in an open courtroom.” United States v. Quattrone, 402 F.3d 304, 308 (2d
Cir. 2005).

[¶8]    “The term prior restraint is used to describe ‘administrative and judicial orders
forbidding certain communications when issued in advance of the time that such
communications are to occur.’” Operation Save Am., ¶ 60, 275 P.3d at 457 (quoting Alexander,

1
  On Petition to this Court, Petitioner has not contested the district court’s restriction that “[n]o one may broadcast or
publish a picture or video identifying a juvenile witness . . . .” Thus, the narrow issue that is before us concerns the
restriction of releasing the names of juvenile witnesses during trial.
509 U.S. at 550, 113 S.Ct. at 2771) (emphasis omitted); see Quattrone, 402 F.3d at 309 (citing
Alexander, 509 U.S. at 550, 113 S.Ct. at 2771). The United States Supreme Court long ago
made clear that “prior restraints on speech and publication are the most serious and the least
tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S.
539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.3d 683 (1976); see Operation Save Am., ¶ 61, 275 P.3d
at 457. This is because

               [t]he damage can be particularly great when the prior restraint falls upon
       the communication of news and commentary on current events. Truthful reports
       of public judicial proceedings have been afforded special protection against
       subsequent punishment. For the same reasons the protection against prior restraint
       should have particular force as applied to reporting of criminal proceedings,
       whether the crime in question is a single isolated act or a pattern of criminal
       conduct. A responsible press has always been regarded as the handmaiden of
       effective judicial administration, especially in the criminal field. Its function in
       this regard is documented by an impressive record of service over several
       centuries. The press does not simply publish information about trials but guards
       against the miscarriage of justice by subjecting the police, prosecutors, and
       judicial processes to extensive public scrutiny and criticism.

Nebraska Press Ass’n, 427 U.S. at 559-60, 96 S.Ct. at 2803 (internal citations and quotations
omitted).

[¶9] Recently, in Circuit Court of Eighth Judicial Dist. v. Lee Newspapers, 2014 WY 101, ¶
23, 332 P.3d 523, 530-31 (Wyo. 2014), this Court discussed the importance of open criminal
trials and the role the press plays therein:

               In Globe Newspaper Co. v. Superior Court of Norfolk County, the United
       States Supreme Court noted that open criminal trials provide “a check on the
       judicial process--an essential component in our structure of self-government.”
       457 U.S. at 606, 102 S.Ct. at 2620. Specifically, the press plays a vital role in
       disseminating information to the general public concerning the judiciary and what
       occurs in its domain. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92, 95
       S.Ct. 1029, 1044-45, 43 L.Ed.2d 328 (1975). “[T]he press serves to guarantee the
       fairness of trials and to bring to bear the beneficial effects of public scrutiny upon
       the administration of justice.” Id.; see also Richmond Newspapers, 448 U.S. at
       572-73, 100 S.Ct. at 2825, (“Instead of acquiring information about trials by
       firsthand observation or by word of mouth from those who attended, people now
       acquire it chiefly through the print and electronic media. In this sense, this
       validates the media claim of functioning as surrogates for the public.”). Public
       access to judicial documents serves to broaden the dissemination of information
       thereby allowing the general public to guard against malfeasance in our criminal
       justice system. Antar, 38 F.3d at 1359. The public provides a significant and
       positive influence when judicial documents remain open. Press-Enterprise II,
       478 U.S. at 8, 106 S.Ct. at 2740.
[¶10] Another applicable principle is this: “Once true information is disclosed in public court
documents open to public inspection, the press cannot be sanctioned for publishing it. In this
instance as in others reliance must rest upon the judgment of those who decide what to publish or
broadcast.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496, 95 S.Ct. 1029, 1047, 43
L.Ed.2d 328 (1975). In Oklahoma Pub. Co., 430 U.S. at 310-11, 97 S.Ct. at 1046-47, the High
Court wrote:

                This principle was reaffirmed last Term in Nebraska Press Assn. v. Stuart,
       supra, which held unconstitutional an order prohibiting the press from publishing
       certain information tending to show the guilt of a defendant in an impending criminal
       trial. In Part VI-D of its opinion, the Court focused on the information covered by the
       order that had been adduced as evidence in a preliminary hearing open to the public
       and the press; we concluded that, to the extent the order prohibited the publication of
       such evidence, “it plainly violated settled principles,” 427 U.S., at 568, citing Cox
       Broadcasting Corp. v. Cohn, supra; Sheppard v. Maxwell, 384 U.S. 333, 362-363
       (1966) (“[T]here is nothing that proscribes the press from reporting events that
       transpire in the courtroom”); and Craig v. Harney, 331 U.S. 367, 374 (1947) (“Those
       who see and hear what transpired [in the courtroom] can report it with impunity”).
       The Court noted that under state law the trial court was permitted in certain
       circumstances to close pretrial proceedings to the public, but indicated that such an
       option did not allow the trial judge to suppress publication of information from the
       hearing if the public was allowed to attend: “[O]nce a public hearing had been held,
       what transpired there could not be subject to prior restraint.” 427 U.S., at 568.

[¶11] There is a heavy presumption against the constitutional validity of restrictions on the
publication of information obtained lawfully by the media. Nebraska Press, 427 U.S. at 558, 96
S.Ct. at 2802; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584
(1963). There may, however, be certain exceptional cases where such a restraint may pass
constitutional muster. See Nebraska Press, 427 U.S. at 562-63, 96 S.Ct. at 2804; New York v.
Ferber, 458 U.S. 747, 763–64, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982) (child
pornography); Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931)
(contemplating national security issues); Operation Save Am., ¶ 57, 275 P.3d at 456 (“Its general
protections are not, however, absolute.”); Quattrone, 402 F.3d at 310. But, where the class of
speech “otherwise receives First Amendment protection, however, courts subject prior restraints
on speech or publication to exacting review.” Id. In cases like the one presently before us,
where the district court has restricted news coverage in order to protect the identity of juvenile
witnesses, the court must consider: (1) the nature and extent of the news coverage in question;
(2) whether measures other than a prior restraint on publication exist that would likely mitigate
the effects of unrestricted publicity of the juvenile’s names; and (3) the likely effectiveness of a
prior restraint to prevent the threatened danger. Nebraska Press, 427 U.S. at 562, 96 S.Ct. at
2804; see also Quattrone, 402 F.3d at 310-11. Careful examination must be conducted of both
the restrictive order’s precise terms and whether the record supports the prior restraint on
publication. Id.

[¶12] Application of the factors set forth above to the instant case demonstrates that the district
court’s order plainly violates Petitioner’s First Amendment rights. The district court’s order does
not include analysis on the three factors noted. Even if the district court did perform the
analysis, we find the second and third factors weigh against the prior restraint, and the first factor
must take on lesser weight given our analysis of factor three.

[¶13] Starting with the third factor, this Court must assess the “probable efficacy of prior
restraint on publication as a workable method of protecting” the juvenile witnesses. Nebraska
Press, 427 U.S. at 565, 96 S.Ct. at 2806. In its objection to prior restraint on photography,
Petitioner argued:

       . . . the reported threats are insufficient cause for the prohibition on the photography
       of witnesses. First, if a witness has received threats then his identity is already
       known to the perpetrators. Further, once the name is revealed in court, then both
       defendant and the prosecution and a “courtroom of spectators” know his/her identity,
       who may reveal it to others.

While this objection was directed to the prohibition on photography, it is equally applicable here.
The perpetrators of the threats know their subjects, if not by name then at least by sight. Thus,
while at first blush the prior restraint may appear to protect the witnesses, closer scrutiny of the
matter indicates the restraint will likely do little to protect the witnesses from the threatening
individuals, who may be sitting in the open courtroom observing the testimony.

[¶14] Given this Court’s conclusion on factor three, this Court finds that factor one—extent of
publicity—must be afforded less weight. This Court notes this factor seems to take on greater
significance when a prior restraint is imposed to protect the defendant’s right to a fair trial.
Nebraska Press, 427 U.S. at 562-63, 96 S.Ct. at 2804. That is not the issue here. In any case,
given our conclusion the prior restraint is not an efficacious method of protecting the threatened
juveniles, the extent of publicity in this case will likely have little effect on the individuals doing
the threatening.

[¶15] With respect to factor two, there are other protective measures, short of prior restraint,
that may protect the juvenile witnesses. Importantly, it is a crime in this state to attempt to
influence or intimidate a witness. Wyo. Stat. Ann. § 6-5-305 (LexisNexis 2015). While this
Court does not require the district court to impose any sort of protective measure, this Court
notes the district court is free to give emphatic warnings to trial observers that it is illegal to
attempt to influence or intimidate witnesses. Further, the juvenile witnesses are free to resort to
whatever protections law enforcement may be willing and able to provide.

[¶16] In sum, while this Court understands the district court’s concern with protecting the
juvenile witnesses from threats, we conclude the prior restraint imposed here is not an effective
method of protecting the threatened juveniles, when their identities are known to the perpetrators
of the threats. Additionally, confidence and comfort must be taken in the fact that there are other
protections in place to protect the juveniles. Thus, this Court concludes this is not the sort of
exceptional case where the district court’s prior restraint survives First Amendment review. It is,
therefore,
[¶17] ORDERED that the Petition for Writ of Review, filed herein August 12, 2015, be, and
hereby is, granted in full; and it is further

[¶18] ORDERED that the provision contained in the first sentence of paragraph 6 of the
district court’s August 12, 2015, “Order Concerning Media Access During Trial” pertaining to
the release of the names of juvenile witnesses, is hereby reversed and vacated.

[¶19] DATED this 18th day of August, 2015.

                                                   BY THE COURT:*

                                                   /s/

                                                   E. JAMES BURKE
                                                   Chief Justice

*Original order signed on August 17, 2015. This order has been formatted for publication.
