Court of Appeals Reverses Gag Order

The North Carolina Court of Appeals has summarily and emphatically reversed a Mecklenburg County Superior Court judge’s sweeping “gag order” in an environmental pollution case. In a September 15 opinion written by Judge Edward Greene and joined by Judges Donald L. Smith and Patricia Timmons-Goodson, the appellate court characterized Judge Marvin K. Gray’s order muzzling dozens of litigants and their lawyers as a “presumptively unconstitutional” prior restraint on speech. The opinion also chastised Judge Gray, who entered the order on his own initiative, for failing to follow proper procedures.

The case, Sherrill, et al. v. Amerada Hess, et al., arose in 1995 when more than 300 residents of the Paw Creek community outside of Charlotte brought two lawsuits against 20 corporations that operate a bulk petroleum storage facility located in the community. The plaintiffs allege that the companies caused leaks, spills, and emissions of petroleum products that polluted the air, soil and groundwater. The two suits later were consolidated.

In May 1997 Judge Gray, without having been requested to do so by any party, entered an order that included the following language:

No counsel or party in either [a]ction . . . shall communicate in any way with any media representative or other person or entity not a party to either [a]ction concerning either [a]ction until such time as both [a]ctions . . . are finally resolved by a final judgment no longer subject to appeal or by a final and binding settlement.

Although Judge Gray heard no evidence prior to issuing the gag order, he found as a fact “[T]hat communications concerning the [a]ctions with media representatives and with other persons not parties to this action by the parties and their counsel . . . will be detrimental to the fair and impartial administration of justice in such [a]ctions.”

The Court of Appeals, citing a series of cases that should be familiar to anyone who has completed a year of law school, reminded Judge Gray that [o]ne who undertakes to . . . rebut the presumption of unconstitutionality of such an order must show: (1) a clear threat to the fairness of the trial; (2) such threat is posed by the actual publicity to be restrained; and (3) no less restrictive alternatives are available. Furthermore, the record must reflect findings by the trial court that it has considered each of the above factors and contain evidence to support such findings.

Because Judge Gray had wholly failed to comply with either the applicable substantive or procedural standards, the Court of Appeals dissolved his gag order. Nor was this the first occasion for the Court of Appeals to bounce a closure order entered by Judge Gray; he was one of three judges whose orders closing courtrooms and sealing court records were overturned in Virmani v. Presbyterian Hospital, the open courts decision handed down by the Court of Appeals in November 1997.

The prospect that an experienced Superior Court judge would even entertain a motion for such a blatantly inappropriate and unconstitutional gag order is disturbing; the fact that he would actually initiate and issue such an order without taking any evidence or making the most cursory attempt to follow well-established procedures is downright shocking. And although the Court of Appeals ultimately acted correctly and forcefully, the fact remains that an order that should not have been allowed to stand for five minutes was allowed to remain in effect for 16 months. Episodes such as this remind us that in attempting to carry out the NCPA’s mission of educating the public about the First Amendment, there is no more appropriate place to start than with the judges who are supposed to be the keepers of the Constitution.

Meanwhile, the Fourth Circuit has handed down an opinion that strikes down the federal

Drivers Privacy Protection Act, or DPPA. Tenth Amendment law state’s rights may be an obscure area of the law. In fact, a lawyer practicing Tenth Amendment law has only 50 potential clients. But the Fourth Circuit’s ruling on the DPPA affects all drivers within the court’s jurisdiction and affects how reporters can do their jobs.

In Condon v. Reno, the Attorney General of South Carolina, joined by seven press associations including the NCPA, challenged the validity of the Drivers Privacy Protection Act, which shut down access to DMV records across the nation. South Carolina argued that the DPPA oversteps Congress’ boundaries by mandating how states treat DMV records and by imposing fines and criminal penalties on those who do not follow the law.

Without weaving through the legal intricacies of the Fourth Circuit opinion, both its outcome and its judicial observations are noteworthy. First, the Court rejected the U.S.’s assertion of a right of privacy by drivers in their names, addresses and phone numbers. “Neither the Supreme Court nor this Court, however, has ever recognized a constitutional right of privacy with respect to such information.” Quoting Justice Stewart, the court noted, “there is no general constitutional right to privacy.” Rather, the right has only been recognized in the areas of reproduction, contraception, abortion, and marriage. In particular, DMV record-keeping schemes “necessarily lead to reduced expectations of privacy.” Such records often are available from other sources, and the Court found there has been a “long history in the United States of treating motor vehicle records as public records. The Court also found there could be no reasonable expectation of privacy “in information routinely shared with strangers,” such as when cashing a check, boarding a plane or buying alcohol.

Second, on the pure Tenth Amendment claims, the Court found “the DPPA is simply not a valid exercise of Congress’s Commerce Clause power.” Congress can pass laws that apply to all citizens and incidentally apply to state governments, but because individuals do not operate departments of motor vehicles, the DPPA does not apply at all to individuals. Nor can Congress pass laws that issue directives to the States to address particular problems or command states officials to carry out federal regulatory programs. For both of these reasons, the Fourth Circuit found that the DPPA exceeded Congress’ power.

Both the North Carolina courts and the federal courts, in recognizing the public’s rights of access to information, have opened up doors to reporters that have been shut with disturbing frequency of late. As we await decisions from the North Carolina Supreme Court in four important first amendment cases, we can only hope that the Court continues this trend.