504 F.

2d 1

UNITED STATES of America

v.
Frederick SCHIAVO. Appeal of PHILADELPHIA
NEWSPAPERS, INC.,
and Susan Q.Stranahan.
PHILADELPHIA NEWSPAPERS, INC., and Susan Q.
Stranahan, Petitioners,
v.
UNITED STATES of America and Frederick Schiavo,
Respondents,
and The HonorableJ. William Ditter, Jr., Nominal
Respondents.
Nos. 73-1855, 73-1856.

United States Court of Appeals, Third Circuit.

Argued Dec. 19, 1973, Reargued En Banc May 15, 1974.
Decided Aug. 8, 1974, As Amended Aug. 22, 23, and Oct. 23,
1974, CertiorariDenied Dec. 23, 1974, See 95 S.Ct.690

Harold E. Kohn, David H. Marion, and Samuel E. Klein, of Harold E.

Kohn, P.A., Philadelphia, Pa., for appellants in No. 73-1855 and for
petitioners in No. 73-1856.
Robert E. J. Curran, U.S. Atty., J. Clayton Undercofler, III, First Asst.
U.S. Atty. and Walter S. Batty, Jr., Chief, Appellate Section, Philadelphia,
Pa., for respondent United States and for the nominal respondent.
Arthur B. Hanson, and Ralph N. Albright, Jr., Washington, D.C., for
American Newspaper Publishers Ass'n, amicus curiae.
James C. Goodale, and Alexander Greenfeld, New York City, for New
York Times Co., amicus curiae.
Argued Dec. 19, 1973.
Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.

Reargued May 15, 1974.

Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS,
GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.

Philadelphia Newspapers, Inc. (hereinafter the 'Philadelphia Inquirer') and

Susan Q. Stranahan, appellants in No. 73-1855 and petitioners in No. 73-1856,
seek reversal of a written and docketed district court order refusing to vacate an
oral order, announced from the bench, enjoining them and other news media
representatives from publishing, during the perjury trial of Frederick Schiavo,
information concerning murder and conspiracy indictments pending against
Schiavo in a related matter.1

Schiavo's perjury trial arose out of the death of Martin Alan Hess, a
Government informer scheduled to testify in narcotics and counterfeit cases,
who was killed in August 1972 when a bomb which had been placed in his car
exploded. Schiavo's perjury indictment charged that he had lied to a federal
grand jury which was investigating Hess' death. In addition to being indicted
for perjury, Schiavo was indicted by a federal grand jury in the Eastern District
of Pennsylvania on charges of conspiracy in connection with the alleged murder
of the informer and by the State of New Jersey on charges of first degree
murder.

Schiavo's perjury trial commenced on Wednesday, October 3, 1973. In an

article appearing on Thursday, October 4, under the by-line of appellant
Stranahan, the Philadelphia Inquirer reported the events of the first day of trial.
The article also indicated that the defendant was 'one of five men charged with
conspiring to kill a government informer last August.' On Thursday afternoon,
fearing that the jury in Schiavo's trial might read the article and learn of the
other indictments, the district judge summoned members of the press, including
appellant Stranahan, to sidebar and stated that, while he could not tell the press
what to publish, he hoped that they would appreciate the problems involved in
mentioning the other two indictments.2 On Friday, October 5, again under the
by-line of appellant Stranahan, the Philadelphia Inquirer published an account
of Thursday's proceedings and, in apparent disregard of the district court's
request, referred to the existence of the two other indictments. The article stated
that 'Schiavo also is charged by the Federal government with conspiring to kill

Hess and with first-degree murder in New Jersey.' On Friday afternoon, at

approximately 2:00 P.M., the district judge called the news media
representatives covering the trial before him, stated that 'they could print that
which went on in the court room,' but orally ordered them not to mention the
above-mentioned two other indictments for different offenses in any further
stories, and specifically stated that appellant Stranahan and the editors of the
Philadelphia Inquirer would face contempt charges if they violated this order.3
This order was not transcribed that week; also, it was neither set forth in writing
by the district court nor entered on the district court docket until after the
appeal was docketed in this court. The first evidence on the district court
docket of the reduction of the district court order to writing is a docket entry on
October 10, 1973. 4
4

At approximately 4:00 P.M. the same afternoon (October 5), counsel for
appellants appeared before the district court and presented argument in support
of a written motion that the above oral order be vacated. After hearing
argument,5 the district court denied the motion to vacate and subsequently
denied a motion for a stay of the order pending appeal. This order refusing to
vacate the prior oral order was set forth in writing and entered on the district
court docket. The appellants immediately filed a notice of appeal late Friday
afternoon, October 5, from the 4 P.M. order refusing to vacate the oral order
announced about 2 P.M.

In their appeal, the appellants challenge the order of the district court on both
constitutional and procedural grounds. For reasons which appear below, we
reverse the district court order on procedural grounds.
I.

This appeal confronts this court with two preliminary issues.

First, appellee6 contends that there is no appealable order in the instant case.
Specifically, the appellee contends that the district court's oral silence order is
not an injunction within the meaning of 28 U.S.C. 1292(a)(1) but merely an
incidental court order which is non-appealable, notwithstanding the fact that it
purports to enjoin publication by the newspapers of certain information. We
find it unnecessary to resolve this issue as we have concluded that the written
order of October 5, 1973, is an appealable final order under 28 U.S.C. 1291,
since it falls within the 'collateral order' doctrine established by the Supreme
Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct.
1221, 93 L.Ed. 1528 (1949). In Cohen, the Supreme Court defined collateral

orders as
8

'that small class which finally determine claims of right separable from, and
collateral to, rights asserted in the action, too important to be denied review and
too independent of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated . . .. We hold this order appealable
because it is a final disposition of a claimed right which is not an ingredient of
the cause of action and does not require consideration with it.' 337 U.S. at 546547, 69 S.Ct. at 1226.

The order in the instant case constituted a final decision since it determined a
matter independent of the issues to be resolved in the criminal proceeding itself,
bound persons who were non-parties in the underlying criminal proceeding and
had a substantial, continuing effect on important rights.7

10

Secondly, the appellee contends that the instant appeal should be dismissed as
moot since Schiavo's criminal trial has been completed and there no longer
exists any restraint upon the appellants. We reject this contention and hold that
this case is reviewable as a dispute 'capable of repetition, yet evading review.'
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55
L.Ed. 310 (1911); see also DeFunis v. Odegaard, 416 U.S. 312, 318, 94 S.Ct.
1704, 1707, 40 L.Ed.2d 164 (1974); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct.
705, 35 L.Ed.2d 147 (1973). This conclusion is not affected by the possibility
that appellants may be cited for contempt of the silence order. The publication
of proscribed matters in violation of the order would constitute a criminal
contempt, and the merits of such an order could not ordinarily be challenged on
appeal from a citation for criminal contempt. See United States v. United Mine
Workers, 330 U.S. 258, 289-295, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Walker v.
Birmingham, 388 U.S. 307, 314-320, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967).8
If this case were deemed moot, it is unlikely that members of the press who are
subject to a silence order would ever be able to obtain appellate review, since
the underlying criminal proceeding would almost always terminate before the
appellate court hears the case.
II.

11

Appellants advance numerous arguments in support of their contention that the

district court erred in refusing to vacate the silence order. Before reaching those
arguments, however, we must address one problem not noted by appellants.

12

We assume for purposes of this appeal that the district court had power to enter

the silence order, even though that order directly bound non-parties and
governed their actions outside the presence of the court. The Sixth Amendment
imposes a duty on the district courts no less than on prosecutors to take
reasonable measures to ensure defendants fair trials, free of prejudice and
disruption. See Sheppard v. Maxwell, 384 U.S. 333, 361-363, 86 S.Ct. 1507, 16
L.Ed.2d 600 (1966). Certainly, a federal trial judge may, to that end, restrict the
actions of non-parties in his presence. See United States ex rel. Robson v.
Malone, 412 F.2d 848 (7th Cir. 1969); United States v. Venuto, 182 F.2d 519
(3d Cir. 1950). In fulfilling their charge, the district courts also are authorized to
restrict conduct outside the courtroom of parties, lawyers, jurors, witnesses,
court officials and others connected with the trial process. Sheppard v.
Maxwell, supra at 361-362, 86 S.Ct. 1507. This nucleus of clear judicial power
to assure defendants fair trials underlies our assumption that the court below
possessed the power to prohibit non-parties from taking actions, out of court,
that would imperil efforts to provide Schiavo a fair trial.9 This assumption does
not pre-judge the possible constitutional limits on the exercise of such a
power.10
13

Appellants' most vigorously pressed contention is that the district court's refusal
to vacate the silence order was error because entry of the silence order against
newspapers and reporters contravened the First Amendment guarantee of
freedom of the press from governmental restraint. Appellants also argue that
the district court's initial order should have been vacated because it was entered
without according them appropriate procedural safeguards.

14

We have concluded that the district court's written order of October 5, refusing
to vacate the previous oral order, should be reversed since the previous oral
order was procedurally deficient in various important respects. Our conclusion
that this case should be reversed on procedural grounds makes resolution of the
constitutional issue unnecessary. See Alma Motor Co. v. Timken-Detroit Axle
Co., 329 U.S. 129, 136-137, 67 S.Ct. 231, 234, 91 L.Ed. 128 (1947). In Alma
Motor Co., supra, the Supreme Court stated:

15

'If two questions are raised, one of non-constitutional and the other of
constitutional nature, and a decision of the non-constitutional question would
make unnecessary a decision of the constitutional question, the former will be
decided. This same rule should guide the lower courts as well as this one. We
believe that the structure of the problems before the Circuit Court of Appeals
required the application of the rule to this case.'11

16

This case came before us in an unusual procedural posture. The oral silence
order which was entered at 2 P.M. on October 5, 1973, and which is being

challenged on this appeal was never reduced by the district judge to written
form, stating in specific terms exactly what conduct on the part of the press was
being restrained and for what reasons such conduct was being restrained, nor
was it entered on the district court docket in the criminal proceeding against
Schiavo. In addition, no part of the official transcript relating to the oral order
was filed until October 10, 1973,12 and the transcript of the actual silence order
itself was not completed and filed until November 6. Therefore, as of the time
that the notice of appeal was filed in this court on Friday, October 5, there was
no written version of the silence order, either in the form of a written order on a
separate document or in the form of a transcript of the proceedings, which this
court could consider in resolving the appeal. The sole written record which was
either presented to or available for this court's consideration was the written
order refusing to vacate the prior oral order. This written order, consisting of
one sentence, gave no indication of the substance of the previous oral order or
of the reasons for its issuance.
17

In addition to the above, the silence order was not simply an interlocutory order
binding persons already parties to the criminal proceeding and already properly
before the court. Rather, the silence order was directed at non-parties, who
were brought before the court solely because of the court's desire to prevent
outside interference with the trial. As such, the silence order was a final
decision in a collateral matter against non-parties, with a continuing binding
effect against such persons which would last indefinitely. Because of the
application to revoke the oral order, it could be expected that the persons bound
by that order would seek immediate appellate review since they faced the threat
of criminal contempt charges if they disobeyed such order.

18

In light of the above factors, we have concluded, pursuant to our supervisory

powers,13 that the oral silence order was procedurally deficient. Where a district
court enters such an order which is immediately appealable as a final decision
in a collateral matter, and where such order binds non-parties for a continuing
period of time, the order should be reduced to written form, stating specifically
the terms of the order and the reasons therefor, and entered on the district court
docket.14 Accordingly, we hold that the written order of October 5, 1973, must
be reversed. The district court should have vacated the oral order, held a
prompt hearing after notice to the involved members of the press and parties,
and, if a silence order was deemed to be justified, reduced such order to writing
with specific terms and reasons and had it entered on the district court docket.15

19

The above procedural requirements, which we impose under our supervisory

power, are particularly necessary in a case such as the instant case, where the
district court order affects the First Amendment rights of the press. First, the

district court's failure to reduce the order to writing subjected the First
Amendment rights of the press to an impermissible 'chilling effect.' The
appellants could act only at their own risk since they were subject to the threat
of criminal contempt for failure to comply with the order, and such risk was
necessarily increased by the fact that the appellants had no written version of
the order detailing precisely what conduct was prohibited. Second, the fact that
the order involved the balancing of fundamental constitutional rights made it
even more imperative that this court, in reviewing the merits of the order, have
before it a written order providing specifically what conduct was restrained and
for what reasons.
20

Finally, we note that the procedural requirements which we impose under our
supervisory powers for this type of proceeding16 are similar to those imposed
by the Federal Rules of Civil Procedure. Cf. F.R.Civ.P. 54, 58, 65(d), and
79(a).17

21

For the foregoing reasons, the district court written order of October 5, 1973,
will be reversed and the case remanded for such action as may be necessary,
consistent with this opinion.
ADAMS, Circuit Judge (concurring):

22

The procedural and constitutional issues raised by the district court's refusal to
vacate its oral order restraining the publication in newspapers of certain
background material concerning Schiavo do not readily lend themselves to
precise formulation. Moreover, even though a satisfactory formulation may
appear to be achieved, reasoned explanations for alternative definitions of a
number of the issues exist. It is not surprising, therefore, that while I concur
with the plurality's conclusions on several points-- for example, those
concerning appealability1 -- its opinion does not reflect my own perceptions of
the problems presented by this appeal in several major respects.1A

23

Thus, although agreeing that the appeal in this case is not moot, I attach
somewhat greater significance than does the plurality to the representation
made to this Court by the United States Attorney that the district court intends
to conduct proceedings with the view to holding any person, subject to the
order, who violated it, in contempt.2 This representation renders the mootness
question substantially more analytically difficult than the brevity of the
plurality's discussion might suggest. Specifically, it would appear necessary to
consider the effect of a determination that this appeal is not moot on an attempt
by an alleged contemnor to attack the merits of the district court's order should

a contempt proceeding take place.

24

Also, the plurality's characterization of the grounds for the reversal of the
district court's order as 'procedural' seems too facile. If the order is to fall
because of the absence of procedural safeguards prior to its issuance, such
safeguards are dictated in this case by the First Amendment values implicated. I
would not invoke our supervisory powers, assuming such powers may be
invoked in the context of the dispute presented here, to require the district
courts to follow certain procedures when case law so clearly compels such a
result in any event.

25

Further, the order in this case, in my judgment, may be questioned on the

settled constitutional ground that it fails to achieve the precision that any
restriction on speech or press must possess in order to comport with the First
Amendment.
I.

26

The district court's oral order sought to limit publication of potentially

prejudicial material during the pendency of Schiavo's trial. By the time this
Court was prepared to deal with the appeal from the order, the trial had
concluded. Thus, since there no longer existed any reason to limit the
publication of the matters arguably covered by the oral order, the Government
asserts that the appeal is now moot.

27

The plurality 'reject(s) this contention and hold(s) that this case is reviewable as
a dispute 'capable of repetition, yet evading review."3 With this decision, I
agree. However, although the plurality suggests that an alleged contemnor may
be able to secure review of the merits of a silence order at a contempt
proceeding, the question is far from settled and in rejecting the appellee's
mootness contention, it may be suggested that we implicity disparage the
possibility of any review of the merits of silence orders at the contempt stage.4

28

To discount the possibility of challenging an order in a contempt proceeding

appears to be consistent with the Supreme Court's decisions in United States v.
United Mine Workers5 and Walker v. Birmingham.6 'Violations of an order are
punishable as criminal contempt even though the order is set aside on appeal.'7
Nonetheless, I, apparently like the plurality, am not confident that a silence
order like the one here is completely immune from collateral attack in a
contempt proceeding. Clearly, the question whether collateral attack on the
merits of a silence order is available cannot be definitively resolved in this case,

for we are not reviewing an attempt to attack an order collaterally in a contempt

proceeding. But it appears appropriate to adumbrate considerations that may
remove silence orders, at least in some instances, from what may seem to some
to be the precedential ambit of United Mine Workers, and Walker.
29

In Walker, the Supreme Court stated that '(the) case would arise in quite a
different constitutional posture if the petitioners, before disobeying the
injunction, had challenged it in the Alabama courts, and had been met with
delay or frustration of their constitutional claims.'8 It has been suggested, not
unreasonably, that the Supreme Court thus 'qualified the application of the
collateral bar rule by requiring that adequate and effective remedies for review
be present before the rule can be properly invoked.'9 Adopting such a precept, it
can be argued that 'adequate and effective' appellate remedies are frequently
lacking when silence orders are issued during the course of a criminal case.10

30

The facts of this case offer an illustrative situation. The district court issued its
oral order at 2:00 P.M. on Friday afternoon and denied the motion to vacate
about two hours later. Representatives of the media immediately filed notice of
appeal. Both in the district court and here they moved for a stay. The district
court denied the request and this Court did not grant a stay until the following
Wednesday, five days later. On that same day, the jury returned its verdict.
Hence, by the time the strictures of the district court's order were lifted the
information covered by the order had, for all practical purposes, lost its
timeliness. This, of course, is particularly unfortunate in light of the subsequent
determination, on this appeal, that the order was, in fact, invalid.

31

In a sense, therefore, the representatives of the media were deprived of

'adequate and effective' review. Despite vigorous pursuit of their appeal and
prompt action by this Court, they were unable to press their objections to the
order until the practical effect of success on appeal, at least in this case, had
become insubstantial. To put litigants in appellants' position to the choice of
obeying an order and awaiting appellate action while their alleged civil rights
continue to be infringed, or of disobeying the order and then facing certain
contempt convictions, makes any subsequent victory on appeal Pyrrhic indeed.
Assuming proper and good faith pursuit of appellate remedies, the Walker dicta
may well provide an avenue of escape from this dilemma by permitting
collateral attack of the order in a contempt proceeding. The accused contemnor,
of course, would continue to assume the risk that the order is valid and, hence,
his disobedience inexcusable.

32

However, in United States v. Dickinson, 11 an appeal from a judgment of

contempt in circumstances similar to those here, the Fifth Circuit considered

this rationale for justifying a reversal of a contempt conviction and concluded it

was outweighed by competing considerations. Those considerations were 'the
need to follow an orderly institutional process to resolve disputes, and . . . the
need to preserve respect for courts and judicial orders.'12 Although the Fifth
Circuit's opinion is comprehensive, it is certainly possible for another court to
reach an opposing, yet an equally wellreasoned conclusion. Indeed, some state
courts have permitted collateral attacks on silence orders in subsequent
contempt proceedings and reversed convictions because of the invalidity of the
orders.13
33

On the other hand, if the present appeal should be held to be moot, the district
court would be hard pressed to deny any litigant accused of contempt for
violating the order the opportunity to challenge it collaterally. To prohibit such
an attack on the merits would mean that the district court's order would
completely elude such challange. This situation, in and of itself, could well
raise due process objections.

34

We need not, however, permit this appeal only by intimating that no challenge
may be mounted to the underlying order in a contempt proceeding. Instead, it
would seem appropriate to acknowledge that though, in functional terms, there
are compelling reasons supporting the apparently conflicting positions taken in
Dickinson and by some state courts, this Circuit has not yet been presented with
a collateral attack on a silence order in a contempt proceeding. To establish the
rule in this Circuit, we must await such event. Until then, appeals like the
present one should not be regarded as moot on the ground that the litigant may
not attack the merits of the order in a contempt proceeding because such is not,
at this time, the law of this Circuit. Instead, the possibility that this Circuit may
follow the Dickinson precedent should suffice to prevent viewing this appeal as
moot. Should this court ultimately hold collateral attack to be available, appeals
similar to this one, from the date of such decision, may well be regarded as
moot.14
II.

35

Upon the basis of the Court's purported supervisory power, the plurality
proceeds to erect some procedural requirements that should be met before such
an order is issued. This approach is somewhat disquieting. Appellate courts, it
appears, exercise their supervisory power over lower courts to impose
procedural requirements that seem wise, but that are not compelled by the
Constitution or statute.15 However, a fair reading of the pertinent case law
suggests that First Amendment considerations do, in fact, dictate procedural
requirements like those set forth by the majority. Thus, I would not rely in this

case on the rubric of 'supervising powers.'

36

Rather, I would note that, assuming arguendo there may be a prior restraint, 16
no order should issue unless, at the every least, certain procedures, dures,
designed to assure that the imposition sition on freedom of speech or press is
not excessive, are dutifully followed. In this case such procedures were not
followed and, thus, the district court's order may not stand. I recognize that my
approach may appear to differ merely in form from that of the plurality, but,
when constitutional issues are implicated, apparent differences of form in one
case can, in a later cause, have profound substantive implications.17

37

In this case, the district court sought to restrict a form of expression that is
among those accorded the greatest protection by the First Amendment against
all types of restraint. To secure a free and agressive press may well be regarded
as the primary objection of the Amendment. Individuals and institutions, in
their private capacities, not government officials, should determine what is to be
published. Otherwise, the free flow of information and ideas from non-official
sources that helps to assure the proper functioning of a democratic republic will
be lost.18 Attempts to suppress material before newspaper publication are rare
in our history. Justice Brennan has commented that 'so far as I can determine,
never before (New York Times Co. v. United States)19 has the United States
sought to enjoin a newspaper from publishing information in its possession.'20

38

It is not surprising, therefore, that it is in the obscenity area-- an area explicitly

exempted from First Amendment protection21 -- that the Supreme Court has had
the opportunity to formulate procedures to be followed before material
potentially protected by the First Amendment may be suppressed. The material
here, unlike arguably obscene matter, is unquestionably within the
Amendment's protection. 'If the Constitution requires elaborate procedural
safeguards in the obscenity area, a fortiori it should require equivalent
procedural protection when the speech involved (like that here) . . . implicates
more central First Amendment concerns.'22

39

In Freedman v. Maryland,23 the Supreme Court emphasized 'the burden of

proving that the (motion picture) is unprotected expression must rest on the
censor,' and that 'a judicial determination in an adversary proceeding' is
necessary.24 In Kingsley Books, Inc. v. Brown,25 the Supreme Court approved a
New York statutory procedure that permitted the permanent prohibition of the
distribution of books only after notice and an adversary hearing resulted in a
determination that the particular book is obscene.

40

In a case not involving obscene material, the Supreme Court, in Carroll v.

40

In a case not involving obscene material, the Supreme Court, in Carroll v.

President and Commissioners of Princess Anne,26 struck down an injunction
against the staging of a political rally because-- somewhat similar to the
circumstances here-- it was issued ex parte,27 and without notice or any effort to
secure the participation of those subject to the interdiction. The Court expressed
the substantial concerns that support the imposition of procedural protection
when a judicial decision touches upon First Amendment values:

41

Judgment as to whether the facts justify the use of the drastic power of
injunction necessarily turns on subtle and controversial considerations and upon
a delicate assessment of the particular situation in light of legal standards which
are inescapably imprecise . . .. The same is true of the fashioning of the order.
An order issued in the area of First Amendment rights must be couched in the
narrowest terms that will accomplish the pin-pointed objective permitted by
constitutional mandate and the essential needs of the public order . . .. In other
words, the order must be tailored as precisely as possible to the exact needs of
the case. The participation of both sides is necessary for this purpose.28

42

The attention thus given to the process antecedent to the promulgation of

restraints on speech or publication reflects a deep-rooted conviction that such
steps, correctly conceived and carefully followed, will increase the likelihood
that decisions affecting First Amendment rights will not unconstitutionally
impair the exercise of those rights. Different circumstances may well call for
different procedures, but any procedure must be directed to the end of achieving
a thorough and well-reasoned decision properly deferential to First Amendment
interests.

43

The core of any such process is adequate notice to the parties affected and an
adversary hearing. Further, it would seem that any decision to restrain must be
consonant with the record as developed at the hearing, and must be based on
particularized findings.29 Whether or not testimony need be taken depends, of
course, on the existence and nature of any factual disputes affecting First
Amendment values. The trial court should state carefully the reasons for its
order and why it deems less drastic alternatives inappropriate. Finally, an order
inhibiting the exercise of the First Amendment should be drawn in explicit
terms so as to indicate clearly the bounds of its restrictions.30

44

In the context of a silence order sought to be imposed against the press, it

would seem that a judge should notify the affected parties of any request for a
silence order, extend to them adequate time to prepare for a hearing, and
conduct a hearing if the request for a silence order is not frivolous on its face.
Any such hearing must explore the possibility of attaining, in the particular

case, an acceptable accommodation of First and Sixth Amendment values along

the lines suggested by the Supreme Court in decisions such as Sheppard v.
Maxwell,31 and by the several studies made of the problem.32
45

The party seeking to restrict First Amendment rights should bear the heavy
burden of establishing the necessity for the requested silence order.33 Although
a judge must exhibit utmost caution to assure that a criminal trial is free of
potentially prejudicial influences, he is required, at the same time, to bear in
mind the exalted niche occupied by the freedom of the press in our system of
constitutional values. He must, therefore, be acutely aware of the burden that
need be met-- if it can be met at all-- before a prior restraint may
constitutionally be imposed. Finally, the decision should reveal the facts and
reasons supporting it, and the ultimate order should be in written form so as to
obviate any ambiguity created by less formal, oral orders.

46

This case forcefully illustrates that failure to adhere to such procedures may
well lead to impermissible infringements upon First Amendment rights. The
record reveals that the oral order here was preceded by no hearing
whatsoever.34 Counsel for representatives of the media did not have an
opportunity to present argument or call witnesses before the oral order was
issued. The hearing on the motion to vacate the oral order occurred within two
hours of its issuance. Hence, it would appear that notice to appellants was
inadequate and, indeed, the brevity of the hearing on the motion to vacate the
oral order suggests its perfunctory character in view of the important questions
at stake.

47

The dissent would place upon the media the burden of assuring that a silence
order be issued only after careful adherence to procedures designed to secure
full exposition of all relevant considerations. Because First Amendment rights
of the press are at stake, the district court and the party seeking to restrict the
press should, in my view, be assigned the primary responsibility of assuring
that procedural prerequisites sensitive to First Amendment values be followed.
This is particularly so where the press is at the outset merely an observer of the
judicial proceedings and does not become a litigant represented by counsel
until, as here, an order affecting its interests has already issued.

48

Moreover, this case provides an example of the ambiguity likely to be created

by the hasty issuance of an oral order in circumstances such as these. 'Precision
of regulation must be the touchstone in an area so closely touching our most
precious freedoms.'35 The extent of the restraints imposed, as the plurality's
recitation of the various discussions between the court and the parties and their
counsel demonstrates, is by no means clear. This ambiguity, in and of itself,

raises serious vagueness problems.36

49

The oral order was not transcribed until October 10, 1973. It would appear that
the press, at the time the district court orally issued the order, could have
reasonably understood that they were forbidden from publishing any material
relating to Schiavo's case that had not already been presented in the courtroom.
In fact, the court stated at 4:00 P.M. on October 5th that it had told appellants
that if what they published 'had not come out here in the courtroom (it) would
consider that contempt.' Although the dissent is correct in pointing out that the
court seemed to be essentially concerned with the publication of references to
Schiavo's pending indictments, the order itself was not so circumscribed. A
restraint encompassing a prohibition against the publication of nonprejudicial
material as well as potentially prejudicial material, seems unconstitutionally
overbroad37 since it does not conform with the proffered justification of the
order-- protection of Sixth Amendment rights.

50

Indeed, the district court's opinion, itself, denying Schiavo's motion for a new
trial or judgment of acquittal, strongly suggests that had the trial court set in
motion procedures designed to secure a full exposition of all relevant
considerations, it may well have decided that some of the less drastic
prophylactic devices enumerated in sheppard would have satisfactorily
removed any danger of prejudice from the publication of the restrained
material. In denying Schiavo's motions, the district court made the following
observations:

51

In further support of his motion for a new trial, Schiavo contends I committed
error in refusing to grant a continuance or, in the alternative, a mistrial because
of the prejudicial publicity that occurred before and during the trial. Being
aware of the publicity that appeared in connection with the Martin Hess
murder, I conducted an extensive voir dire of the entire panel to find if any
venire man recalled the event. In addition, I instructed the jury at the close of
each day's session not to listen to, read about, or participate in any discussion
concerning this case. Each morning I questioned each juror individually as to
whether my instructions had been obeyed. In every instance the response
showed my admonitions had been followed. Although better cooperation by
members of the press during trial would have been desirable, there is absolutely
no indication that any member of the jury was aware of news stories concerning
either the trial or related matters.

52

Even if a careful voir dire were not considered adequate, there were other
alternatives available. For example, since it appeared at the time of the oral
order that Schiavo's trial might have been concluded with one more day of

evidence, the district court may well have determined that the inconvenience to
jurors would have been minimal had it chosen to continue proceedings into
Friday evening and, if necessary, to conduct the final day of trial on Saturday.38
53

In sum, although concurring I do not join the plurality's opinion for the
following reasons. While the court declines to hold this appeal moot, it should
make clear that the opportunity for collateral attack in a contempt proceeding
predicated on a silence order is not necessarily foreclosed. Also, we should
hold, in my judgment, without intimating any view as to the constitutionality of
a limited silence order issued after a hearing embodying the procedural
safeguards indicated, that the order here must fall in any event because its
issuance was not preceded by the type of hearing compelled by the First
Amendment values at stake. In doing so, I would not rely, as the plurality does,
on the Court's supervisory power to impose procedural guidelines. Rather, the
case law establishes quite clearly that such procedural safeguards are required
by First Amendment considerations. Further, the plurality does not suggest, as I
do, that the order itself in this case appears to exhibit some of the very vices-vagueness and overbreadth-- that the proposed procedural safeguards are
intended to eliminate. Finally, there is no showing that any less drastic steps
would not have been effective in eliminating the danger of prejudice.

54

Judges GIBBONS and GARTH join in this concurring opinion.

55

ALDISERT, circuit judge (dissenting, with whom WEIS, Circuit Judge, joins).

56

That solutions to this vexatious appeal are fragmented and do not command a
majority should come as no surprise. Each solution is unerringly foreordained
by the starting point of the several opinions.

57

I choose to begin at the beginning, to view the action of the district judge as an
affirmative effort to vindicate the Sixth Amendment right of a defendant being
tried in a criminal case before him. I see the First Amendment issue surfacing
only as a defense lodged by appellants to the imposition of the silence order.
I.

58

Under the aegis of the exercise of the court's supervisory power the plurality
retroactively enunciates a new rule of procedure requiring that a silence order
vindicating a criminal defendant's Sixth Amendment rights, if it refers to
nonparties, must (a) be reduced to writing, (b) state specifically the terms of the
order and the reasons therefor, and (c) be entered on the district court docket.

59

But this court has no power to prescribe procedural rules for the governance of
the district courts. That power is vested, by statute, in the Supreme Court. 18
U.S.C. 3771, 3772; 28 U.S.C. 2072, 2075. At the very most, the suggestions of
the plurality should have been directed to the Committee on Rules of Practice
and Procedure of the Judicial Conference of the United States, 28 U.S.C. 331,
instead of incorporating them by judicial fiat in an in banc opinion.1
II.

60

Assuming the advisability of the suggested procedures, and assuming the

supervisory power to prescribe these procedures, no trial court should be
reversed for failing to follow in October, 1973, rules which were not conceived
until August, 1974. See Fisher v. Volz, 496 F.2d 333, 350-351 (3d Cir. 1974)
(Aldisert, J., concurring and dissenting opinion). At the very most, the rules
should have been applied prospectiverly; a practice observed by us in
promulgating new jury instructions in United States v. Barber, 442 F.2d 517
(3d Cir. 1971), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971),
and United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969), cert. denied, 396
U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969).
A.

61

It is suggested by both the plurality2 and by Judge Adams3 that the appellants
did not know the precise contours of the silence order or the reasons for its
imposition by the trial court. However, I find explicit specificity as to the
appellants in these proceedings, Miss Stranahan and the Philadelphia Inquirer.
Judge Ditter ordered them not to republish the information that the defendant
Schiavo, then on trial for perjury, had been previously charged with other
crimes.4 I find this to be a fair reading of the court's oral order as to the only
appellants in these proceedings. We are not permitted, in the context of this
case and controversy, to evaluate Judge Ditter's language in the abstract as to its
possible effect on others. 'One to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might also
be taken as applying to other persons or other situations in which its application
might be unconstitutional.' United States v. Raines, 362 U.S. 17, 21, 80 S.Ct.
519, 522, 4 L.Ed.2d 524 (1960). There is no reason why this doctrine should
not apply in this case.
B.

62

Similarly, the reason for the imposition of the silence order fairly appears in the

record. Judge Ditter was attempting to vindicate Schiavo's Sixth Amendment

right to a fair trial before an impartial jury. It came to his attention that a
newspaper article had appeared in the Philadelphia Inquirer conveying the
information that Schiavo was also charged with conspiracy to kill a government
informer. The trial court then meticulously conducted a voir dire examination
of each of the jurors wherein it asked, inter alia, 'It has come to my attention
that there was an article in one of the Philadelphia papers which did refer to this
case . . .. Did you see the article in the paper?' Following the examination the
court was satisfied that the trial could continue.
Defense counsel then requested:
63

Your Honor, perhaps if the newspaper could be told not to make reference to
the fact, if they are reporting it in the press, that Mr. Schiavo has also been
indicted in another matter. Perhaps that would take at least some of the sting
away from any of that publicity that might get into the hands of the jurors.

64

THE COURT: Well, I will be glad to make that request to the members of the
press.

65

The members of the press were brought into the courtroom and addressed by
the court.5 On the next day a second article appeared in the Philadelphia
Inquirer stating that 'Schiavo also is charged by the Federal government with
conspiracy to kill Hess and with first-degree murder in New Jersey.' It will be
noted that the second article, published after the district court's request,
contained a more graphic description of the other charges against Schiavo than
the earlier publication. Judge Ditter then called the press representatives to his
chambers, had a colloquy with them which is not on the record and then,
proceeding into open court, expressed the verbal silence order. To raise an issue
about lack of reasons for the imposition of the silence order in this case is to
raise an issue that is both unwarranted and undeserving of serious
consideration.

66

Thus, it cannot seriously be contended that the court's order lacked specificity
or that these appellants were unaware of the reasons therefor.
C.

67

Both the plurality opinion and Judge Adams' concurrence state that a necessary
prerequisite to a silence order is adequate notice and a hearing. I agree. I also
agree with Judge Adams' assertion that appellants 'did not have an opportunity

to present argument or call witnesses' prior to the issuance of the 2 p.m. oral
order. But the 2 p.m. oral order was not appealed. Rather, it is the written and
docketed order resulting from the 4 p.m. hearing which is properly before this
court.
68

I cannot summon a modicum of agreement with Judge Adams' conclusions:

'Hence, it would appear that notice to appellants was inadequate and, indeed,
the brevity of the hearing . . . suggests its perfunctory character in view of the
important questions at stake.'

69

Appellants were given precise and particular notice of the desire of the court on
October 4, twenty-four hours before the October 5 oral silence order. Although
Judge Adams would depict the proceedings as fraught with 'inadequate notice'
and a 'hasty issuance of an oral order,' his observations overlook the
fundamental role particular circumstances play in assessing the adequacy of
notice and hearing. If there was brevity it must be attributed to appellants. They
chose not to present witnesses; the court did not exclude them. If there was
haste in the scheduling of the hearing, it must be attributed to appellants; the
court did not delay; the court heard them immediately upon presentation of
their motion. Appellants had an edition to put out and a story to run. They
sought to have the ban lifted. They were unsuccessful. They then ran the story
in defiance of the ban they unsuccessfully sought to lift. Appellants controlled
both the time of the hearing and its length. They and they alone fashioned the
'brevity' and 'perfunctory character' of the hearing. For this the trial court should
not be faulted; a fortioni, for this it should not be reversed.

70

In sum, this court is presented with a factual complex where the oral silence
order was specific as to these appellants. The reasons for its imposition were
known to them. The trial court afforded them adequate notice and hearing.
Accordingly, I find no prejudicial error in the procedures followed by Judge
Ditter.
III.

71

Having found no prejudicial error in the procedure utilized by the district court,
I must, and do, reach the merits of the 'Free Press-- Fair Trial' issue. For my
part, I would take as a starting point the recognition that the First Amendment
is one of several rights protected in the Bill of Rights. It is said that freedom of
speech is given a preferred position. Thomas v. Collins, 323 U.S. 516, 527
n.12, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945); Murdock v. Pennsylvania, 319
U.S. 105, 115, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). But this is not to say that

the First Amendment may preempt every other provision of the Bill of Rights
when the interests to be protected by the First Amendment come into conflict
with interests protected by other constitutional guarantees. 'The preferred
position of freedom of speech in a society that cherishes liberty for all does not
require legislators to be insensible to claims by citizens to comfort and
convenience. To enforce freedom of speech in disregard of the rights of others
would be harsh and arbitrary in itself.' Kovacs v. Cooper, 336 U.S. 77, 88, 69
S.Ct. 448, 454, 93 L.Ed. 513 (1949). When the several multiple protections of
basic constitutional principles conflict, a choice of values is necessitated.
Professor Wechsler admonishes us that the choice must be made 'on an
adequate and principled analysis . . .. Surely a stronger analysis may be
advanced against a particular uncompensated taking as a violation of the fifth
amendment than against a particular limitation of freedom of speech or press as
a violation of the first. In this view, the 'preferred position' controversy hardly
has a point-- indeed, it never has been really clear what is asserted or denied to
have a preference and over what. Certainly the concept is pernicious if it
implies that there is any simple, almost mechanistic basis for determining
priorities of values having constitutional dimension, as when there is an
inescapable conflict between claims to free press and a fair trial. It has a virtue,
on the other hand, insofar as it recognizes that some ordering of social values is
essential; that all cannot be given equal weight, if the Bill of Rights is to be
maintained.'6
72

In the context of free press-fair trial, it has been held that the 'preferred position'
of the First Amendment must give way to 'fair trial-- the most fundamental of
all freedoms.'7
IV.
A.

73

Appellants' basic argument in this appeal is clear and clean cut. They contend
that no court may prevent the publication of court news under any
circumstances because such news is a matter of public record.8 This approach,
of course, is simplistic. The Supreme Court has never taken the absolutist view
of the First Amendment as urged by the appellants9 and the authorities cited by
them do not support this view. Learned Hand taught us that 'the privilege of
'free speech,' like other privileges, is not absolute; it has its seasons; a
democratic society has an acute interest in its protection and cannot live without
it; but it is an interest measured by its purpose.'10

74

In Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 919-920, 70 S.Ct.

74

In Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 919-920, 70 S.Ct.
252, 255, 94 L.Ed. 562 (1950), Justice Frankfurter, in a separate opinion
respecting the denial of a petition for certiorari, posed the countervailing
considerations:

75

Freedom of the press, properly conceived, is basic to our constitutional system.

Safeguards for the fair administration of criminal justice are enshrined in our
Bill of Rights. Respect for both of these indispensable elements of our
constitutional system presents some of the most difficult and delicate problems
for adjudication when they are before the Court for adjudication. It has taken
centuries of struggle to evolve our system for bringing the guilty to book,
protecting the innocent, and maintaining the interests of society consonant with
our democratic professions. One of the demands of a democratic society is that
the public should know what goes on in courts by being told by the press what
happens there, to the end that the public may judge whether our system of
criminal justice is fair and right. On the other hand our society has set apart
court and jury as the tribunal for determining guilt or innocence on the basis of
evidence adduced in court, so far as it is humanly possible. It would be the
grossest perversion of all that Mr. Justice Holmes represents to suggest that it is
also true of the thought behind a criminal charge '. . . that the best test of truth
is the power of the thought to get itself accepted in the competition of the
market.' Abrams v. United States, 250 U.S. 616, 630 (40 S.Ct. 17, 22, 63 L.Ed.
1173). Proceedings for the determination of guilt or innocence in open court
before a jury are not in competition with any other means for establishing the
charge.

76

New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141,
29 L.Ed.2d 822 (1971), was decided on a narrow issue, the Court merely
holding that the government did not meet its "heavy burden of showing
justification for the imposition of such a (prior) restraint.' Organization for a
Better Austin v. Keefe, 402 U.S. 415, 419 (91 S.Ct. 1575, 1578, 29 L.Ed.2d 1)
(1971).'11 Near v. Minnesota, 283 U.S. 697, 708, 51 S.Ct. 625, 628, 75 L.Ed.
1357 (1931), stated flatly: 'Liberty of speech, and of the press, is also not an
absolute right, and the State may punish its abuse.'

77

Coming to grips with the free press-fair trial issue, Sheppard v. Maxwell, supra,
384 U.S. 333, 349-350, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), announced
the doctrine which I embrace today-- the press has virtually unlimited freedom
to publish so long as there is 'no threat or menace to the integrity of the trial':

78

This Court has . . . been unwilling to place any direct limitations on the freedom
traditionally exercised by the news media for 'what transpires in the court room

is public property.' Craig v. Harney, 331 U.S. 367, 374 (67 S.Ct. 1249, 1254, 91
L.Ed. 1546) (1947). The 'unqualified prohibitions laid down by the framers
were intended to give to liberty of the press . . . the broadest scope that could be
countenanced in an orderly society.' Bridges v. California, 314 U.S. 252, 265
(62 S.Ct. 190, 195, 86 L.Ed. 192) (1941). And where there was 'no threat or
menance to the integrity of the trial,' Craig v. Harney, supra, (331 U.S.) at 377,
(,67 S.Ct. at 1255), we have consistently required that the press have a free
hand, even though we sometimes deplored its sensationalism.
79

. . ..plo

80

Due process requires that the accused receive a trial by an impartial jury free
from outside influences. Given the pervasiveness of modern communications
and the difficulty of effacing prejudicial publicity from the minds of the jurors,
the trial courts must take strong measures to ensure that the balance is never
weighed against the accused. And appellate tribunals have the duty to make an
independent evaluation of the circumstances.

81

In Branzburg v. Hayes, 408 U.S. 665, 684-685, 92 S.Ct. 2646, 2658, 33

L.Ed.2d 626 (1972), the majority opinion12 flatly states: 'Newsmen . . . may be
prohibited from attending or publishing information about trials if such
restrictions are necessary to assure a defendant a fair trial before an impartial
tribunal.' Sheppard also recognized: 'From the cases coming (to the Supreme
Court) . . . we note that unfair and prejudicial news comment on pending trials
has been increasingly prevalent . . .. If publicity during the proceedings
threatens the fairness of the trial, a new trial should be ordered. But we must
remember that reversals are but palliatives; the cure lies in those remedial
measures that will prevent the prejudice at its inception.' 384 U.S. at 362, 363,
86 S.Ct. at 1522. 13
B.

82

It is therefore necessary to determine how to accommodate the interest in full,

robust and unrestricted dissemination of information as protected by the First
Amendment with the fundamental requirement that a jury's verdict must be
based upon the evidence adduced at trial as protected by the Sixth
Amendment.14 Only the most cynical would suggest that a jury would be
insensitive to the receipt of information that a defendant on trial for perjury was
also 'charged with conspiring to kill a government informer,' as published by
the Inquirer on October 4, 1973, and 'charged by the Federal government with
conspiring to kill Hess and with first-degree murder in New Jersey' as published

the next day. Appellants do not seem to challenge the presence of this present
threat to the integrity of a fair trial. Instead their counsel suggested to the trial
court: 'Either you keep the jury sequestered until the trial is completed, if you
think that is necessary, or I think it is sufficient here to instruct the jurors not to
read anything in the paper about this case.'
83

This then brings me to the responsibility of deciding whether the district court
abused its discretion in issuing a silence order instead of employing alternate
remedies of sequestration, additional voir dire, additional instructions, and the
declaration of a mistrial.

84

Sequestering a jury is the most efficient method of isolating a jury from

influences beyond the courtroom. To recognize the effectiveness of this device,
however, is not to ignore its attendant harmful effects. Under certain
circumstances, the harm to a defendant may be minimized. When prospective
jurors know at the time of empanelling that they are to be sequestered, they
may advise court and counsel at voir dire of any health or family problems
which would militate against service on a sequestered jury. But, when this
device is foisted upon jurors in mid-trial, I am not at all certain that the act of
sequestration does not have the capacity to generate possible animosity against
the defendant.15 Should sequestration be ordered mid-trial as contended here,
with an accompanying inquiry as to what was read or heard in the newspaper or
broadcast media, the potential for prejudice is heightened, it being reasonable
for jurors to conclude that comments being circulated were so serious and so
adverse to the defendant that sequestration was mandated.

85

Appellants' suggestion that the problem may be cured by a simple instruction to

the 'jurors not to read anything in the papers about this case' is simplistic. To
not read a certain article one must first scan the news stories or at least the
headlines to determine what not to read; thus, to not read anything about a case
one must first read.

86

A voir dire examination as to whether jurors have read about the case has but
limited effect. Judge Ditter utilized this device on October 4, 1973. But to use
voir dire daily, or repeatedly, might be a questionable practice because of its
potential for generating self-induced infirmities by the very act of repetition. As
a prophylactic measure, voir dire inquiry is to be encouraged; as a guaranteed
method of insuring the trial's integrity, it leaves much to be desired. Complete
success of this method requires total candor in the jurors' responses to special
interrogatories, responses which are totally voluntary and completely free of
having been influenced by a fear of sanctions by the court if a juror freely
admits reading that which he had been forbidden to read.16

87

A fourth alternative is the declaration of a mistrial. In the Persico case, supra,

note 13, the defendant agreed to waive trial by jury after the mistrial. But such
a waiver resulted in the defendant abandoning a constitutional right.
Alternatively, the court might postpone retrial to allow the passage of time to
dilute the deleterious effect of the publication, or it might order a change of
venue. Although this may be the only available alternative in certain cases, we
have recently recounted the prejudice, financial and otherwise, inuring to a
litigant put to the inconvenience of second trials.17 Ferguson v. Eakle, 492 F.2d
26 (3d Cir. 1974). These publications did not relate to 'hot news.' They did not
describe contemporary happenings. They described narrative or historical facts
of past indictments. There was not the slightest indication that The Philadelphia
Inquirer would not repeat the publications at a second trial. Appellants'
persistence in continuing to publish an account that the defendant on trial in the
Philadelphia federal court for perjury, was also under another federal
indictment of conspiracy to commit murder as well as a state indictment for
murder, gave no assurance that declaring a mistrial and rescheduling the case
would have eliminated the problem.

88

Having discussed what I consider to be the deficiencies in sequestration,

additional voir dire, additional instructions, and mistrial in this case, I am
persuaded that there was no abuse of discretion in the district court's issuance of
a silence order. Clearly, the district court had an option to exercise its discretion
in an effort to vindicate the Sixth Amendment rights of the defendant. Professor
Maurice Rosenberg reminds us:

89

If the word discretion conveys to legal minds any solid core of meaning, one
central idea above all others, it is the idea of choice. To say that a court has
discretion in a given area of law is to say that it is not bound to decide the
question one way rather than another.18

90

He distinguishes between primary discretion, 'a wide range of choice to do

what (an adjudicator) pleases', a type of unreviewable discretion,19 which is not
before us here, and a type of reviewable discretion in a secondary form, which
is before us:

91

The other type of discretion, the secondary form, has to do with hierarchical
relations among judges. It enters the picture when the system tries to prescribe
the degree of finality and authority a lower court's decision enjoys in the higher
courts. Specifically, it comes into full play when the rules of review accord the
lower court's decision an unusual amount of insulation from appellate revision.
In this sense, discretion is a review-restraining concept. It gives the trial judge a
right to be wrong without incurring reversal.20

92

I am attracted to the expression of scope of appellate review-- a rudimentary

approach to a definition of 'abuse of discretion'-- enunciated by the Second
Circuit:

93

Had any one of us been in a position to exercise the discretion committed to a

trial judge when such a request is made, we have no hesitancy in stating that
the decision would have been otherwise; but as appellate judges we cannot find
that the action of the district judge was so unreasonable or so arbitrary as to
amount to a prejudicial abuse of the discretion necessary to repose in trial
judges during the conduct of a trial.21

94

The keynote of this approach was earlier described by Judge Henry J. Friendly
as an attitude of 'appellate deference to a determination of the district judge' in
an area committed to his discretion.22 So tested, I do not find the district courtS
rejection of the alternate trialcontrolling or trial-postponing remedies as an
exercise of discretion 'so unreasonable or so arbitrary as to amount to a
prejudicial abuse.'
C.

95

Counterposed against the incursions into the integrity of a defendant's right to a

fair trial is the public interest in court proceedings, in Justice Frankfurter's
felicitous expression, 'one of the demands of a democratic society is that the
public should know what goes on in courts by being told by the press what
happens there . . ..' Maryland v. Baltimore Radio Show, Inc., supra, 338 U.S. at
920, 70 S.Ct. at 255. I am persuaded that the public interest here was already
satisfied. First, the subject matter of the restraint did not relate to the district
court trial in Philadelphia, but to an historical narrative of past separate federal
and state indictments in New Jersey. It was not critical to a complete reporting
of immediate courtroom events. Second, the subject matter related to
indictments, which are merely accusations, not to judicial determinations of
guilt. Third, the information had already been disseminated on October 4 and
repeated and expanded on October 5. Fourth, because it had already been
published twice and related to past events of grand jury actions, the subject
matter did not constitute 'hot news.' Any residual newsworthiness which
inhered in these utterances could have been preserved for the short time, the
'one more day,' requested by Judge Ditter.

96

What is here is not prior restraint, New Jersey State Lottery Commission v.
United States, 491 F.2d 219 (3d Cir. 1974) (in banc), but a ban on the repetition
of previously published information for 'one more day,' until the trial

concluded. We are reminded in Kingsley Books, Inc. v. Brown, 354 U.S. 436,
441, 77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469 (1957): 'Just as Near v. Minnesota, . .
. (283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) one of the landmark
opinions in shaping the constitutional protection of freedom of speech and of
the press, left no doubts that 'Liberty of speech, and of the press, is also not an
absolute right,' 283 U.S. at 708, 51 S.Ct. at 628, it likewise made clear that 'the
protection even as to previous restraint is not absolutely unlimited.' Id. (283
U.S.) at 716, 51 S.Ct. at 631. To be sure, the limitation is the exception; it is to
be closely confined so as to preclude what may fairly be deemed licensing or
censorship.' Kingsley permitted an injunction pendente lite because the New
York statutory scheme permitted a final decision on the merits two days after
trial which in turn had to be set one day after joinder of issue. This is a time
period far in excess of the one day requested by Judge Ditter. Thus we are not
presented with the problem met in Grove Press Inc. v. City of Philadelphia, 418
F.2d 82 (3d Cir. 1969), where we found that the Pennsylvania procedural rules
governing equity actions did not satisfy the requirement of Freedman v.
Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), because the
state's procedural rules did not contain time limits guaranteeing a prompt final
decision on the merits after the issuance of a preliminary injunction.
V.
97

I would affirm the district court, under the procedural posture of this case,
because neither at the hearing nor on appeal have appellants urged what I
believe to be a critical issue when the countervailing precepts of the Sixth and
First Amendments collide-- that the draconian act of injunction may issue only
if no adequate remedy at law is available.

98

I am not at all certain that any remedy at law exists to vindicate the Sixth
Amendment rights of a defendant which are impinged by unfettered
expressions of the press. As the moving party in the motion to vacate the
silence order, appellants ahd the burden of demonstrating the existence of an
adequate remedy at law. As a corollary it would seem that the movant for a
silence order has the burden of establishing the absence of an adequate legal
remedy as a prerequisite to obtaining the order.

99

It has become the recent fashion to resort to money damages for, in Roscoe
Pound's phrase, 'substituted redress' of, invaded rights. Thus a boundless galaxy
of 1983 cases23 has appeared in our judicial skies where the infringer has
operated under color of state law; and if the infringer is a federal officer, the
claimant may enter federal court with credentials furnished by Bivens v. Six
Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)

and Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
Where, as here, the putative infringer is a private person, the availability of a
100 remedy at law is not free from considerable doubt. To be sure, because it was
not raised below, we must await the proper case or controversy to furnish some
guidance, but at least it is arguable that a remedy may exist in the federal courts
under one of the less familiar Civil Rights Acts, 42 U.S.C. 1985 (3): 'If two or
more persons . . . conspire . . . for the purpose of depriving, either directly or
indirectly, any person or class of persons . . . of equal privileges and immunities
under the laws . . . the party so injured or deprived may have an action for the
recovery of damages, occasioned by such injury or deprivation, against any one
or more of the conspirators.' A leading commentator argues that due process
rights are protected by this section although he admits the existence of authority
to the contrary.24
101 Then, too, there is the possibility, also admittedly untested, that an action at law
may lie in Pennsylvania courts for an action in damages based on a violation of
Art. 1, 9 of the Constitution of Pennsylvania: 'In all criminal prosecutions, the
accused (cannot) . . . be deprived of his life, liberty or property, unless by the
judgment of his peers or the law of the land.' Commonwealth v. Petrillo, 338
Pa. 65 12 A.2d 317, 333 (1940), holds that this Pennsylvania constitutional
provision guarantees an accused the due process right to a fair trial. I would be
more confident of the availability of this remedy if my research indicated that
the provisions of the state constitution were self-executing, unlike the federal
constitution which requires congressional action to best remedial district court
jurisdiction. Cary v. Curtis, 3 How. 236, 11 L.Ed. 576 (1845); Sheldon v. Sill, 8
How. 441, 12 L.Ed. 1147 (1850). Cf., Martin v. Hunter's Lessee, 1 Wheat, 304,
4 L.Ed. 97 (1816). A cursory research discloses no cases affirming or negating
a self-executionary status of the Pennsylvania Constitution.
102 Without the benefit of initial consideration by the trial court, or brief or
argument here, I cannot, without more, conclude that an adequate remedy at
law exists to have denied Schiavo the benefit of a silence order, injunctive in
nature. In any event, I find that appellants had the burden of persuasion on this
issue in their motion to vacate the oral silence order. They did not meet their
burden.
VI.
103 The judicial angle of vision in testing any restraint of speech must encompass
the various interests to be protected by the separate components of the Bill of

Rights. Justice Frankfurter has reminded us: 'The phrase 'prior restraint' is not a
self-wielding sword. Nor can it serve as a talismanic test. The duty of closer
analysis and critical judgment in applying the thought behind the phrase has
thus been authoritatively put by one who brings weighty learning to his support
of constitutionally protected liberties: 'What is needed,' writes Professor Paul A.
Freund, 'is a pragmatic assessment of its operation in the particular
circumstances. The generalization that prior restraint is particularly obnoxious
in civil liberties cases must yield to more particularistic analysis.' The Supreme
Court and Civil Liberties, 4 Vand.L.Rev. 533, 539.' Kingsley Books, Inc. v.
Brown, supra, 354 U.S. at 441-442, 77 S.Ct. at 1328.
104 The particularistic analysis ultimately requires a choice between conflicting
interests to determine whether a limitation in expression is mandated on the
basis of a threat to the defendant's Sixth Amendment right to receive a trial by
an impartial jury. We must not be insensitive to the dangers that lurk in any
choice, but the high responsibilities of this judicial office require that a choice
be made. It does not augur well to postpone this choice, or to pass this burden to
another time.
105 I am persuaded that in this case the scales must be tipped to vindicate the
defendant's fundamental right to receive a fair trial at the expense of some
limited impairment of First Amendment rights. The procedure followed by the
district court here, in the exercise of its inherent powers to 'take strong measures
to insure that the balance is never weighed against the accused' and to invoke
the power enunciated in Branzburg v. Hayes, supra, was proper.
106 I am aware that a certain institutional value is affixed to any decision of this
court, but the genius of our jurisprudential tradition is that the parameters of a
holding are limited to the factual complex that creates it. Here the facts do not
fit the mold of classic prior restraint; it was a restraint upon a repetition of
previously disseminated public utterances. The publication was not 'hot news.'
The restraint was upon repetitive, not original, publication. Moreover, the
judicial ban was not open-ended; it was restricted to an extremely limited
period of time, in the words of the court, 'for one more day.' I would conclude
that any interest here protected by the First Amendment must be subordinated,
under the circumstances of this case, to countervailing interests protected by the
Sixth Amendment.
107 I would affirm the judgment of the district court.

In their petition for a writ of mandamus and/or prohibition in No. 73-1856,

In their petition for a writ of mandamus and/or prohibition in No. 73-1856,

petitioners advance the same arguments and grounds for relief as in their appeal
in No. 73-1855. Because our disposition of the appeal in No. 73-1855 renders
the petition for a writ of mandamus and/or prohibition moot, such petition will
be denied at No. 73-1856. Cf. State ex rel. Miami Herald v. Rose, 271 So.2d
483 (Fla.Ct.App.1972)

See N.T. 2-17 to 2-18. The record indicates that the district judge stated the
following to the press reporters:
'Lady and gentlemen, the defendant in this case is charged with perjury. There
is an article in this morning's Inquirer which points out that he was also charged
with another crime.
'I would ask you, please, that if you feel that you must write about this case,
write about this case and not about other cases. It makes it most difficult to
carry on a criminal trial if this sort of thing happens, and I would ask each of
you, please, to try to be aware of the problem with the Court and criminal
defendants.
'I know I can't tell you what to write, but I would hope that you would be aware
of the problems that you create, at least.
'All right, thank you very much.'
Defense counsel (Mr. Madnick) had requested the court Thursday morning to
tell the press 'not to make reference to the fact . . . that Mr. Schiavo has also
been indicted in another matter' (N.T. 2-17). A similar request was made on
Friday morning (N.T. 3-17ff.).

See N.T. 3-61 to 3-62. The record indicates that the district judge stated the
following (Doc. 20 in E.D.Pa.Crim. #73-302):
'(At side bar the following ensued with the following parties present:
'Richard Meltzer, Esquire; Irving Madnick, Esquire; Edward Polinski, Deputy
Clerk; Mr. Rosenthal, U.P.I.; Mr. Enoch, Daily News; Miss Stranahan,
Inquirer; Mr. Messaros, Bulletin and Mr. Guadiosi, U.P.I.)
'(Discussion was had off the record.)
'THE COURT: While we were off the record I had the members of the press to
come into the courtroom and they have all come in, at least so far as I know,
and that would be Miss Stranahan, and I don't know your name.

'MR. ROSENTHAL: Mr. Rosenthal.

'THE COURT: Which paper?
'MR. ROSENTHAL: The Associated Press.
'MR. ENOCH: Danny Enoch, Associated Press, Judge.
'MR. GUADIOSI: John Guadiosi, United Press International.
'THE COURT: Miss Stranahan, of the Inquirer and Mr. Henry Messaros from
the Bulletin. I told them all that while they could print that which went on in
the courtroom so far as this trial is concerned they were not to write nor were
their papers to print matters that were not said here in the courtroom.
'MR. MADNICK: Specifically, I think Your Honor should-'THE COURT: And specifically I told Miss Stranahan that she had in a story
byline that had been pointed out that this defendant had been indicted in New
Jersey and had been indicted for other offenses in this jurisdiction. I said that
there was to be no repetition of that story or those facts and that if it was
repeated I would consider it a matter of contempt of court and I would consider
holding her liable for contempt and holding her editors liable for contempt.
'MR. ENOCH: Would you agree that without the known connection between
Mr. Schiavo and the Hess murder this trial seems to be very little without the-'THE COURT: I didn't say anything about your not printing that which is said
here in the courtroom. I'm talking about information that has not come out in
the course of the trial and there have been many references to Martin Alan Hess
in the course of this trial.
'MR. ENOCH: How about information we can find in our libraries at the
different papers?
'THE COURT: If it hasn't come out here in this courtroom I would consider
that contempt.
'Anything you want me to add, Mr. Madnick?
'MR. MADNICK: No, sir.
'(Side bar concluded.)'
4

It is noted that this transcript (Document 12, filed October 10) contains the oral

statement in open court of the district judge at 2 P.M., setting forth his oral
order, which was also transcribed again in the transcript filed November 6. See
note 3. (Document 20, filed 11/6/73 in E.D.Pa., Crim. No. 73-302)
5
6

See N.T. 3-13 of Document 12 in E.D.Pa. Criminal No. 73-302

Appellee herein designates the United States. Schiavo filed no brief and took
no part in this appeal

See Rendleman, Free Press-- Fair Trial; Review of Silence Orders, 52 N.C.Law
Rev. 127, 128-30 (1973)

We note that while the merits of the allegedly violated order would ordinarily
not be reviewable on appeal of a criminal contempt, the breadth and vagueness
of the order would be open to question. See Walker v. Birmingham, 388 U.S.
307, 317, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). Appellants' challenge to the
order here, however, is not limited to its asserted ambiguity. Also, on this
record, which does not contain any evidence of the alleged contempt occurring
after October 5, it is not appropriate to consider whether the rule of these cases
should be applied in this situation, where the representatives of the press have
filed a motion to vacate the oral silence order and an immediate appeal from the
denial of such motion. By contrast, the Supreme Court pointed out in Walker
that no effort was made to modify or dissolve the enjoining order. Id. at 318, 87
S.Ct. 1824

The plurality opinion in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33
L.Ed.2d 626 (1972), also assumes that courts possess this power and, further,
intimates a resolution of the constitutional question we avoid here: what action
may the district court take to carry out its duty under the Sixth Amendment
without violating First Amendment limitations on its actions? The plurality in
Branzburg declared:
'Newsmen . . . may be prohibited from attending or publishing information
about trials if such restrictions are necessary to assure a defendant a fair trial
before an impartial tribunal.'
Id. at 684-685, 92 S.Ct. at 2658. We do not attempt to foresee whether the
Court will adhere to this dictum in the future.

10

In view of the jurisdiction granted to the district courts over 'all offenses against
the laws of the United States' in 18 U.S.C. 3231 and the requirements of the
Sixth Amendment, it is unnecessary to consider whether the terms of 28 U.S.C.
1651(a) authorize the district court in a criminal case to issue such an
essentially injunctive order affecting persons who are not parties in aid of its

criminal jurisdiction. Cf. United States v. Morgan, 346 U.S. 502, 506-513, 74
S.Ct. 247, 98 L.Ed. 248 (1954); 9 Moore's Federal Practice (2d ed.) 110.29;
United States v. Steese, 144 F.2d 439, 442, 445-447 (3d Cir. 1944); United
States v. Lynch, 132 F.2d 111, 113 (3d Cir. 1943)
11

See also Ashwander v. Valley Authority, 297 U.S. 288, 345-348, 56 S.Ct. 466,
80 L.Ed. 688 (1936) (concurring opinion of Brandeis, J.); United States v.
United States District Court, 407 U.S. 297, 340, 92 S.Ct. 2125, 32 L.Ed.2d 752
(1972) (concurring opinion of White, J.); Zschernig v. Miller, 389 U.S. 429,
444-445, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968) (concurring opinion of Harlan,
J.). In his concurring opinion in Ashwander, Justice Brandeis stated that 'the
Court will not pass upon a constitutional question although properly presented
by the record, if there is also present some other ground upon which the case
may be disposed of.' 297 U.S. at 347, 56 S.Ct. at 483. See also Rescue Army v.
Municipal Court, 331 U.S. 549, 568-569, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947)

12

See note 4, supra

13

McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 87 L.Ed. 819
(1942); Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 11 S.Ed.2d 11
(1963); Government of the Virgin Islands v. Bodle, 427 F.2d 532, 534 (3d Cir.
1970); cf. LaBuy v. Howes Leather Co., 352 U.S. 249, 259-260, 77 S.Ct. 309, 1
L.Ed.2d 290 (1957); United States v. Barber, 442 F.2d 517, 528 (3d Cir. 1971);
United States v. Fioravanti, 412 F.2d 407, 420 (3d Cir. 1967)

14

Cf. Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847, 848-849 (3d Cir. 1970).
Although the Federal Rules of Civil Procedure (see note 16 below) are
inapplicable to the criminal proceeding being tried on October 5, 1973, we note
that Rule 55 of the Federal Rules of Criminal Procedure provides that 'each
order or judgment of the court' shall be entered in the criminal docket. As stated
in note 4 above, the transcript of the oral order was not filed until November 6,
1973, and there was no notation on the docket of the entry of an order even on
that date

15

Notice of such a hearing, with a warning to the press representatives to secure

counsel, to be held at the termination of the jury trial on the afternoon of
October 5 could have been given at or prior to 2 P.M., when the silence order
was orally stated, or at least when the motion to vacate such oral order was
presented at 4 P.M. on that day. In view of the conflicting policies of the First
and Sixth Amendments (see pages 5-7 above) and repeated holdings that
restraints of the press may only be granted in unusual circumstances, such
hearings are most important so that the district court can weigh all the
circumstances of the particular case in light of the applicable constitutional

policies. The district court should solicit the comments of all counsel on the
proposed wording of any proposed silence order
16

A silence order of this type has been described as '. . . a civil order in a criminal
case . . ..' Rendleman, supra at 131

17

F.R.Civ.P. 54 provides that a "judgment' as used in these rules includes a decree

and any order from which an appeal lies.' F.R.Civ.P. 58 provides that 'every
judgment shall be set forth on a separate document' and that 'a judgment is
effective only when so set forth and when entered as provided in Rule 79(a).'
F.R.Civ.P. 79(a) prescribes the procedure for entry of judgment on the district
court docket. That these procedural requirements must be strictly complied with
was recently reaffirmed by the Supreme Court in United States v. Indrelunas,
411 U.S. 216, 220-221, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973). It has also been
the consistent policy of this court that a judgment, to be effective, must both be
on a separate document as required by F.R.Civ.P. 58 and be docketed as
provided in F.R.Civ.P. 79(a). See Levin v. Wear-Ever Aluminum, Inc., 427
F.2d 847, 848-849 (3d Cir. 1970); Jenkins v. United States, 325 F.2d 942, 944
n.6 (3d Cir. 1963). Even prior to the 1963 amendment of Rule 58, requiring
judgments 'on a separate document,' failure to have a written indication in the
record on the docket of a civil judgment made it ineffective. See Jenkins, supra
at 944-945
In addition to the above requirements, F.R.Civ.P. 65(d) states that 'every order
granting an injunction and every restraining order shall set forth the reasons for
its issuance; shall be specific in its terms; (and) shall describe in reasonable
detail the act or acts sought to be restrained.' Although we do not hold in this
case that a silence order is an injunction within the meaning of F.R.Civ.P.
65(d), nevertheless Rule 65(d) reflects the clear policy that parties bound by
restraining orders should be informed exactly what conduct is sought to be
restrained.

Cf. United States v. Nixon, 418 U.S. 683, 690-692, 94 S.Ct. 3090, 41 L.Ed.2d
1039 (U.S. July 24, 1974)
1A Possible sources of district court power to issue orders affecting the conduct
of nonparties, such as news reporters or their publishers, so as to assure fair and
orderly progress of criminal trials received only brief attention at oral argument
and in the Government's briefs. Further, my own research does not conclusively
establish that the All-Writs statute, 28 U.S.C. 1651, bestows such authority on
the district courts. Because this issue has been but slightly exposed on this
appeal, I am not prepared to address it even though, in my view, the case then
must be decided on grounds that might be regarded, at least, as quasi-

constitutional.
2

Although it is generally preferable to confine appellate adjudication to the

record, here the Court has been advised, without contradiction, that the district
court has already issued a notice summoning the parties to a hearing to
determine whether there has been a contempt

Majority Opinion at 5

The plurality does state that 'if this case were deemed moot, it is unlikely that
members of the press who are subject to a silence order would ever be able to
obtain appellate review, since the underlying criminal proceeding would almost
always terminate before the appellate court hears the case.' Plurality Opinion at
5

330 U.S. 238, 67 S.Ct. 677, 91 L.Ed. 884 (1947)

388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967)

330 U.S. at 294, 67 S.Ct. at 696

388 U.S. at 318, 87 S.Ct. at 1831

Rendleman, Free Press-- Fair Trial: Review of Silence Orders, 52 N.C.L.Rev.

127, 149

10

For example, counsel for two Louisiana papers were forced to fly hurriedly to
Washington to request the Supreme Court to grant a temporary restraining order
enjoining a state judge's wide-ranging 'gag order' pending the disposition of the
newspapers' appeal. N.Y. Times, July 15, 1974 at 9. Absent the Supreme
Court's grant of the newspapers' extraordinary request, the gag order will
probably remain in effect until the trial ends because, in all likelihood, appellate
review will not be available until after the trial's completion

11

465 F.2d 496 (5th Cir. 1972)

12

Rendleman, Free Press-- Fair Trial: Review of Silence Orders, 52 N.C.L.Rev.

127, 158 (1973)

13

See Younger v. Smith, 30 Cal.App.3d 138, 106 Cal.Rptr. 225 (1973); Wood v.
Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972); State v. Sperry, 79 Wash.2d
69, 483 P.2d 608, cert. denied sub nom. McCrea v. Sperry, 404 U.S. 939, 92
S.Ct. 272, 30 L.Ed.2d 252 (1971). The state courts suggested in these cases that
each of the orders was subject to collateral attack, for example, because it was

'void . . . as distinguished from one that is merely erroneous,' 483 P.2d at 611,
or because the defect was 'jurisdictional.' Yet it is difficult to distinguish the
orders at issue in those cases from that involved in Dickinson on the basis of
their relative patent invalidity, the standard apparently used by the state courts
to determine whether the order was void or that its issuance amounted to a
jurisdictional defect
14

If collateral attack of silence orders in some situations is eventually permitted, a

litigant who disobeys an order may be required to await a contempt proceeding
rather than appealing prior to the institution of such proceeding. Any attempt to
challenge a silence order in a context like that presented by this case would then
likely be regarded as not ripe until a contempt proceeding takes place

15

See, e.g., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819
(1942). Since, in my view, certain procedural requirements are compelled by
First Amendment considerations, I need not, as the dissent does, reach the issue
whether this Court has the power to impose similar procedural requirements
pursuant to its supervisory powers

16

See Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
'Speaking very generally, the doctrine (of prior restraint) holds that
governmental restrictions cannot be imposed upon speech or other kind of
expression in advance of publication.' Emerson, The System of Freedom of
Expression, 503-04 (1970)
In Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), the
Supreme Court, in sustaining a state prison regulation that limited a newsman's
ability to secure personal interviews with prisoners of his choice, suggested that
the availability of alternative avenues of access meant that the state did not have
to meet the heavy burden required to justify prior restraints. In the case at hand,
the publication of certain material has been completely foreclosed for a period
of time. Thus, even if the order of the district court had issued after the
observance of the appropriate procedural safeguards, the Government would
have to meet this heavy burden in order to secure affirmance of the order.
The dissent takes the position that once material is published any prohibition on
future publication no longer constitutes a prior restraint. Dissenting Opinion at
17 n. 1. Apart from noting that republication constitutes a repetition, the dissent
offers no reasons supporting such a distinction between previously published
and unpublished materials for the purposes of prior restraint analysis. Nor does
it refer to any case law suggesting such a distinction. The dissent later in its
opinion, lists several factors that, in its judgment, buttress the district court's
order in this case. First, the material related to historical as opposed to current

facts. Second, the material concerned past indictments which are not
determinations of guilt. Third, 'the information had already been disseminated .
. ..' Fourth, it was no longer 'hot news.' Lastly, the trial was to last only one day.
Dissenting Opinion at 26.
The dissent would appear inaccurate in suggesting that the ban on publication
would last only one more day. The order was issued on Friday and the trial was
to resume after a three-day holiday weekend. Hence, the ban was to remain in
effect 4 or 5 days longer. More importantly, however, it is difficult to see how
the factors listed by the dissent affect a determination whether a prior restraint
exists or whether the order should be sustained. Decisions that particular
material is newsworthy, important, or 'hot news' seem precisely those that,
under our constitutional scheme, are to be left to the press and are not to be
made by public officials, judicial or otherwise. The Supreme Court recently
reaffirmed this principle in The Miami Herald Publishing Co. v. Tornillo, 418
U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) in unequivocal terms:
A newspaper is more than a passive receptacle or conduit for news, comment,
and advertising. The choice of material to go into a newspaper, and the
decisions made as to limitations on the size of the paper, and content and
treatment of public issues and public officials-- whether fair or unfair-constitutes the exercise of editorial control and judgment. It has yet to be
demonstrated how governmental regulation of this crucial process can be
exercised consistent with First Amendment guarantees of a free press as they
have evolved to this time. 94 S.Ct. at 2840.
17

According to the dissent, discussion of the issues in this case must begin with
the Sixth Amendment because it is the 'beginning.' Apparently it is the dissent's
view that the extensive scholarly discussion of the ostensible conflict between
First and Sixth Amendment values results from a misapprehension of the
'beginning.' Since the district court was prompted by Sixth Amendment
considerations in issuing the oral order, the contention is that we must 'begin'
with the Sixth Amendment too. Presumably if the district court, prompted by
First Amendment considerations, had refused to issue a silence order, the First
Amendment, rather than the Sixth Amendment, would have been the
'beginning' and, for that reason, such refusal would be properly affirmed. To
allow conflicts between constitutional provisions to be resolved in such a
fortuitous manner would appear inconsistent with principled constitutional
analysis

18

See The Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831,
41 L.Ed.2d 730 (1974)

19

403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)

20

Id. at 725, 91 S.Ct. at 2147 (Brennan, J., concurring)

21

Obscene material is not protected speech under the First Amendment. See, e.g.,
Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)

22

Monaghan, First Amendment 'Due Process.' 83 Harv.L.Rev. 518, 519 (1970)

23
24

380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)

Id. at 58, 85 S.Ct. at 739

25

254 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). In Kingsley Books, the
Court, by a 5-4 majority, approved a statutory scheme that permitted
suppression of allegedly obscene matter for two days pending a judicial
determination whether or not the matter is, in fact, obscene. The area of
obscenity is one of the very few where a prior restraint of limited duration has
been permitted

26

393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). See Procunier v. Martinez,
416 U.S. 396, 416, 94 S.Ct. 1800, 1813, 40 L.Ed.2d 224 (1974)

27

At the time the oral order was issued in this case apparently the only
representative of The Philadelphia Inquirer present was Ms. Stranahan, a
reporter

28

393 U.S. at 183-184, 89 S.Ct. at 353

29

Tinker v. Des Moines School Dist., 393 U.S. 503, 509, 89 S.Ct. 733, 21
L.Ed.2d 731 (1969)

30

See, e.g., Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605
(1974)

31

384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)

32

See, e.g. Report of the Committee on the Operation of the Jury System on the
'Free Press-- Fair Trial' Issue, 45 F.R.D. 391 (1968) (known as the 'Kaufman
Committee Report'); Reardon, The Fair Trial-Free Press Standards, 54 A.B.B.J.
343 (1968); Freedom of the Press and Fair Trial: Final Report with
Recommendations by the Special Committee on Radio, Television and the
Administration of Justice of the Association of the Bar of the City of New York
(Columbia University Press, 1967) (known as the 'Medina Report')

33

See New York Times Co. v. United States, 403 U.S. 713, 715, 91 S.Ct. 2140,
29 L.Ed.2d 822 (1971) (per curiam); Organization for a Better Austin v. Keefe,
402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971)

34

The dissent correctly notes that it is the motion to vacate the oral order, not the
oral order per se, that is the subject of this appeal. (Dissenting Opinion at 1920.) Nevertheless, the precise issue raised by the motion to vacate was the
propriety of the oral order. Thus, the adequacy of the procedural incidents
surrounding the oral order may be addressed on this appeal

35

NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963)

36

See e.g., Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974)

37

See, e.g., Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093
(1940)

38

Assuming that a late Friday session and a Saturday session would have
completed the proceedings, the district court would have been in a position to
determine whether or not the jurors should have been sequestered on Friday
night

Judge Adams would also require certain procedures to be followed before

issuance of a silence order to non-parties. His approach is premised not on our
supervisory power but on the dictates of the First Amendment in a case of prior
restraint. But we are not presented with a prior restraint case; the material had
already been published. The silence order was directed to a prohibition of a
repetition of limited material for an extremely limited period-- one more day of
trial:
THE COURT: All I am asking is that for one more day until this case is over
you do not publish that the man is indicted somewhere else and I really do not
think that is a bit unfair.
N.T. at 5 (October 5, 1973). See, infra, p. 26.

'The appellants could act only at their own risk since they were subject to the
threat of criminal contempt for failure to comply with the order, and such risk
was necessarily increased by the fact that the appellants had no written version
of the order detailing precisely what conduct was prohibited.' (Plurality
Opinion at 8.) But see plurality's orientation paragraph of their opinion:
'Philadelphia Newspapers, Inc. (hereinafter the 'Philadelphia Inquirer') and
Susan Q. Stranahan, appellants in No. 73-1855 and petitioners in No. 73-1856,
seek reversal of a written and docketed district court order refusing to vacate an

oral order, announced from the bench, enjoining them and other news media
representatives from publishing, during the perjury trial of Frederick Schiavo,
information concerning murder and conspiracy indictments pending against
Schiavo in a related matter.' Pages 2, 3 supra
3

'It would appear that the press, at the time the district court orally issued the
order, could have reasonably understood that they were forbidden from
publishing any material relating to Schiavo's case that had not already been
presented in the courtroom.' (Pages 15, 16.)

See Plurality opinion, n.3:

'THE COURT: And specifically I told Miss Stranahan that she had in a story
byline that had been pointed out that this defendant had been indicted in New
Jersey and had been indicted for other offenses in this jurisdiction. I said that
there was to be no repetition of that story or those facts and that if it was
repeated I would consider it a matter of contempt of court and I would consider
holding her liable for contempt and holding her editors liable for contempt.'
Judge Adams seeks to characterize the court's oral order as being issued ex
parte because 'the only representative of the Philadelphia Inquirer present was
Ms. Stranahan, a reporter.' (Page 14 n.27.) Yet this facially innocent footnote
can unwittingly mislead one into believing that Miss Stranahan, unfamiliar with
the facts leading to the oral order, was a victim of her 2 p.m. fortuitous presence
in Judge Ditter's courtroom. This inference is totally inaccurate. The oral order
was not issued ex parte. Miss Stranahan, 'a reporter,' was the very person who
wrote the offensive story bearing her byline.

THE COURT: Lady and gentlemen, the defendant in this case is charged with
perjury. There is an article in this morning's Inquirer which points out that he
was also charged with another crime
I would ask you, please, that if you feel that you must write about this case,
write about this case and not about other cases. It makes it most difficult to
carry on a criminal trial if this sort of thing happens, and I would ask each of
you, please, to try to be aware of the problem with the Court and criminal
defendants.
I know I can't tell you what to write, but I would hope that you would be aware
of the problems that you create, at least.
All right, thank you very much.

Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv.L.Rev. 1,

25-26 (1959)
7

This preferred position has never been approved in a case where a balance must
be had between free speech and fair trial. Indeed, the Court has awarded the
preference to fair trial. In Estes v. Texas, 381 U.S. 532, 540-541, 85 S.Ct. 1628,
1632, 14 L.Ed.2d 543 (1965), the Court said:
'We have always held that the atmosphere essential to the preservation of a fair
trial-- the most fundamental of all freedoms-- must be maintained at all costs.
Our approach has been through rules, contempt proceedings and reversal of
convictions obtained under unfair conditions. Here the remedy is clear and
certain of application and it is our duty to continue to enforce the principles that
from time immemorial have proven efficacious and necessary to a fair trial.'
United States v. Tijerina, 412 F.2d 661, 667 (10th Cir.), cert. denied, 396 U.S.
990, 90 S.Ct. 478, 24 L.Ed.2d 452 (1969).
Even prior to the Supreme Court's enunciation in Estes, the Court did not
indicate that the First Amendment was to be preferred over other provisions of
the Bill of Rights. Discussing the Fifth Amendment application in Powell v.
Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Court noted in
Grosjean v. American Press Co., Inc., 297 U.S. 233, 243, 56 S.Ct. 444, 80
L.Ed. 660 (1936):
We concluded that certain fundamental rights, safeguarded by the first eight
amendments against federal action, . . . (also included) the fundamental right of
the accused to the aid of counsel in a criminal prosecution . . .. Freedom of
speech and of the press are rights of the same fundamental character.
. . .pre
297 U.S. at 243-244, 56 S.Ct. at 446.

They also argue that the oral order lacked specificity. (See, supra, pp. 17-18.)

Justices Black and Douglas, long c' ampions of the broad sweep of the First
Amendment, concede 'Freedom of expression can be suppressed if, and to the
extent that, it is so brigaded with illegal action as to be an inseparable part of it.
Giboney v. Empire Storage Co., 336 U.S. 490, 498 (69 S.Ct. 684, 688, 93 L.Ed.
834); Labor Board v. Virginia Power Co., 314 U.S. 469, 477-478 (62 S.Ct. 344,
348, 86 L.Ed. 348).' Roth v. United States, 354 U.S. 476, 514, 77 S.Ct. 1304,
1324, 1 L.Ed.2d 1498 (1957) (dissenting opinion)

10

NLRB v. Federbush Co., Inc., 121 F.2d 954, 957 (2d Cir. 1941)

11

The opinions of the several justices concurring in the majority opinion in New
York Times v. United States, supra, are instructive. Unlike the clear Sixth
Amendment principle which collides with the First Amendment in this case, in
the Pentagon papers case there was no explicit constitutional protection inuring
to the President. Justice Black observed that the government relied only on 'the
constitutional power of the President over the conduct of foreign affairs and his
authority as Commander-in-Chief.' 403 U.S. at 718, 91 S.Ct. at 2143. Justice
Douglas, concurring with Justice Black, also observed: 'There is, moreover, no
statute barring the publication by the press of the material which the Times and
the Post seek to use.' 403 U.S. at 720, 91 S.Ct. at 2145. Justice Brennan
emphasized the burden associated with prior restraint and emphasized that 'if
the Executive Branch seeks judicial aid in preventing publication, it must
inevitably submit the basis upon which that aid is sought to scrutiny by the
judiciary.' 403 U.S. at 727, 91 S.Ct. at 2148. Justice Stewart could not say that
disclosure of any of the Pentagon papers will surely result in 'direct, immediate,
and irreparable damage to our Nation or its people. That being so, there can . . .
be but one judicial resolution of the issues before us.' 403 U.S. at 730, 91 S.Ct.
at 2149. Justice White said: 'I do not say that in no circumstances would the
First Amendment permit an injunction against publishing information about
government plans or operations, . . .' but found that the government 'has not
satisfied the very heavy burden that it must meet to warrant an injunction . . ..'
403 U.S. at 731, 91 S.Ct. at 2150, and suggested that Congress had provided
criminal sanctions, 403 U.S. at 737-738, 91 S.Ct. 2140 for use by the
government. Justice Marshall said: 'The issue is whether this Court or the
Congress has the power to make law . . .. The problem here is whether in these
particular cases the Executive Branch has authority to invoke the equity
jurisdiction of the courts to protect what it believes to be the national interest.'
403 U.S. at 741, 91 S.Ct. at 2155. Relying on the congressional history of 18
U.S.C. 793(e), Justice Marshall found that 'Congress has specifically rejected
passing legislation that would have clearly given the President the power he
seeks here and made the current activity of the newspapers unlawful.' 403 U.S.
at 745, 91 S.Ct. at 2157. In sum, the New York Times case does not support
appellants' constitutional contention of the absolute supremacy of the First
Amendment

12

By Justice White for himself, the Chief Justice, Justice Blackmun, Justice
Powell and Justice Rehnquist

13

More recently we have noted United States v. Carmine Persico, No. 72-Cr1221 (E.D.N.Y.1972), in which the press was requested to refrain from
emphasizing the past criminal record of the defendant on trial and where, as
here, the press refused to cooperate. The publications precipitated a mistrial on
September 25, 1973. For a penetrating analysis of the root issue before us, see

The Issue of Fair Trial v. Free Press, New York L.J., June 20-21, 1974, by John
R. Bartels, United States District Judge, who presided in the Persico case
14

15

The fundamental nature of one's Sixth Amendment right to be tried by an

impartial tribunal found vivid expression in Turner v. Louisiana, 379 U.S. 466,
472, 85 S.Ct. 546, 549, 13 L.Ed.2d 424 (1965): 'The requirement that a jury's
verdict 'must be based upon the evidence developed at the trial' goes to the
fundamental integrity of all that is embraced in the constitutional concept of
trial by jury.'
The jurors are denied the comforts of home and family. Their contacts and
communications with the outside world are limited. In a case where the
defendant is on bailduring during a trial, it is not beyond the probabilities of
human experience to suggest a possible generating of animosity toward the
defendant who is free while they are confined

16

'One aspect of a recently completed study of the workings of the jury system
was an examination of the nature and effectiveness of voir dire examinations of
jurors in civil and criminal cases. On the basis of personal interviews of 225
jurors serving on a variety of cases over a one and one-half year period in a
Federal District Court in the Midwest, it was concluded that 'voir dire is grossly
ineffective as a screening mechanism' and that 'jurors often, either consciously
or unconsciously, lie on voir dire.' Broeder, Voir Dire Examinations: An
Empirical Study, 38 So.Cal.L.Rev. 503, 528 (1965).' ABA Standards, Fair Trial
and Free Press, 56

17

These remedies and devices, then, are in need of greater refinement, and in
many cases minimum constitutional standards appear to compel such a course.
But in the Committee's view this course, while necessary, is not sufficient in
itself. None of these techniques can at the same time (1) assure a fair trial in the
face of prejudicial disclosures that saturate the jurisdiction and (2) preserve
other rights of the defendant and the right of the people to see that the guilty are
properly punished. For example, closing of certain judicial hearings requires
waiver of the accused's right to a public trial and cannot prevent disclosures
from other sources. A continuance, if it is to be long enough to dissipate the
effects of the potentially prejudicial publicity, may require the defendant to
sacrifice his right to a speedy trial. And its purpose will be defeated if the
publicity is renewed when the case finally comes up. A change of venue may
also require the sacrifice of state or federal constitutional rights (as will waiver
of jury trial) and will undoubtedly be ineffective if the case is one of wide
notoriety. Voir dire, as already noted, cannot fully cope with a juror's failure to
be candid or with influences that occur below the level of consciousness.
Sequestration of the jury does not remedy the effects of pretrial publicity and

may itself prejudice the defendant because of the inconvenience and annoyance
to the jurors. Admonitions to the jury have often proved ineffective. And
finally, declaration of a mistrial or reversal of a conviction may involve the
expense and inconvenience of a second trial, and if a second trial cannot be had,
may result in the freeing of a guilty man, who but for the unfairness of his
initial trial, would have been punished for his crime
ABA Standards, Fair Trial and Free Press, 75.
18

M. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22

Syracuse L.Rev. 635, 636-637 (1971)

19

When an adjudicator has the primary type, he has decision-making discretion, a

wide range of choice as to what he decides, free from the constraints which
characteristically attach whenever legal rules enter the decision process. When
the law accords primary discretion in the highest degree in a particular area, it
says in effect that the court is free to render the decision it chooses; that
decision-constraining rules do not exist here; and that even looser principles or
guidelines have not been formulated. In such an area, the court can do no
wrong, legally speaking, for there is no officially right or wrong answer
Ibid., at 637.

20

Ibid

21

Napolitano v. Compania Sud Americana de Vapores, 421 F.2d 382, 384 (2d
Cir. 1970)

22

Noonan v. Cunard Steamship Co., 375 F.2d 69, 71 (2d Cir. 1967)

23

42 U.S.C. 1983, one of the Civil Rights Acts

24

C. Antieau, Federal Civil Rights Act, 99, p. 129 (1971)