A trial court's gag order on participants in a criminal case does not serve as a prior restraint on the press in Indiana, but is proper only where the fair trial rights of the defendant are likely to be unfairly prejudiced by pretrial publicity and cannot be adequately protected by less restrictive alternatives. The question was answered in South Bend Tribune, et al. v. Elkhart Circuit Court, 691 N.E. 2d 200 (Ind. Ct. App. 1998), transfer denied, 698 NE2d 1190.
In South Bend Tribune, the trial court prohibited trial participants in a retrial of a murder case from speaking with any members of the media. The trial court's denial of a media motion to quash the gag order was affirmed by the appellate court.
The Court of Appeals relied on In re: Application of Dow Jones & Co., 842 F.2d 603, (2d.Cir., 1988) and found that gag order placed solely upon trial participants does not constitute a prior restraint upon the press. It then applied the test in Dow Jones to determine whether the trial court was justified in issuing the gag order.
In South Bend Tribune, court said "To decide whether pretrial publicity justifies the order, the standard by which to measure justification is whether there is a reasonable likelihood that pretrial publicity will prejudice a fair trial. The trial court must examine the nature and extent of the pretrial publicity to determine whether this reasonable likelihood standard has been met. Before a trial court may enter an injunction against speech, the trial court must decide whether alternative means would effectively mitigate the prejudicial effect of pretrial publicity. These alternatives means must be examined individually and collectively.
Alternatives listed in the Dow Jones case included: change of venue, trial postponement, a searching voir dire, emphatic jury instructions, and sequestration of jurors. 842 F.2d at 611.
Indiana 's Court of Appeals held that the trial court's determinations are reviewed on an abuse of discretion standard.
The media had argued that the court should use Nebraska Press to find that the gag order was a prior restraint upon its First Amendment rights. Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). In that case, a court order prohibiting publication of a criminal defendant's confession was found to be an unconstitutional prior restraint. Cases stemming from Nebraska Press that found gag orders against trial participants to be a prior restraint include CBS v. Young , 522 F.2d 234 (6 th Cir. 1975) and Journal Publishing Co. v. Mechem, 801 F.2d 1233 (10 th Cir. 1986), Dissent in State ex. rel. the Missoulian v. Montana Twenty-First Judicial Division, 933 P.2d 829, 844 (Mont. 1997). Also mentioned in two law review articles: 88 Mich. L. Review 471 (1990), 6 S. Cal. Interdis. L.J. 129 (1997). As the South Bend Tribune court pointed out, the distinction is between a gag order on the press, which would typically be seen as a prior restraint in violation of the First Amendment, and a gag order on trial participants, which is not a prior restraint, but requires a balancing between the competing constitutional interests. South Bend Tribune, 691 N.E. 2d at 202.