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2.6: Right to Publish

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    Seattle Times v. Rhinehart (1984)

    476 U.S. 20 (1984)

    Vote: 9-0
    Decision: Affirmed
    Majority: Burger, Brennan, White, Marshall, Blackmun, Powell, Rehnquist, Stevens, O’ Connor

    JUSTICE POWELL DELIVERED THE OPINION OF THE COURT.

    This case presents the issue whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial discovery process.

    Respondent Rhinehart is the spiritual leader of a religious group, the Aquarian Foundation. The Foundation has fewer than 1,000 members, most of whom live in the State of Washington. Aquarian beliefs include life after death and the ability to communicate with the dead through a medium. Rhinehart is the primary Aquarian medium.

    In recent years, the Seattle Times and the Walla Walla Union-Bulletin have published stories about Rhinehart and the Foundation. Altogether 11 articles appeared in the newspapers during the years 1973, 1978, and 1979. The five articles that appeared in 1973 focused on Rhinehart and the manner in which he operated the Foundation. They described seances conducted by Rhinehart in which people paid him to put them in touch with deceased relatives and friends. The articles also stated that Rhinehart had sold magical “stones” that had been “expelled” from his body. One article referred to Rhinehart’s conviction, later vacated, for sodomy. The four articles that appeared in 1978 concentrated on an “extravaganza” sponsored by Rhinehart at the Walla Walla State Penitentiary. The articles stated that he had treated 1,100 inmates to a 6-hour-long show, during which he gave away between $35,000 and $50,000 in cash and prizes. One article described a “chorus line of girls [who] shed their gowns and bikinis and sang. …” The two articles that appeared in 1979 referred to a purported connection between Rhinehart and Lou Ferrigno, star of the popular television program, “The Incredible Hulk.”

    Rhinehart brought this action in the Washington Superior Court on behalf of himself and the Foundation against the Seattle Times, the Walla Walla Union-Bulletin, the authors of the articles, and the spouses of the authors. Five female members of the Foundation who had participated in the presentation at the penitentiary joined the suit as plaintiffs. The complaint alleges that the articles contained statements that were “fictional and untrue,” and that the defendants – petitioners here – knew, or should have known, they were false. According to the complaint, the articles “did and were calculated to hold [Rhinehart] up to public scorn, hatred and ridicule, and to impeach his honesty, integrity, virtue, religious philosophy, reputation as a person and in his profession as a spiritual leader.” With respect to the Foundation, the complaint also states: “[T]he articles have, or may have had, the effect of discouraging contributions by the membership and public and thereby diminished the financial ability of the Foundation to pursue its corporate purposes.” The complaint alleges that the articles misrepresented the role of the Foundation’s “choir” and falsely implied that female members of the Foundation had “stripped off all their clothes and wantonly danced naked. …” The complaint requests $14,100,000 in damages for the alleged defamation and invasions of privacy.

    Petitioners filed an answer, denying many of the allegations of the complaint and asserting affirmative defenses. Petitioners promptly initiated extensive discovery. They deposed Rhinehart, requested production of documents pertaining to the financial affairs of Rhinehart and the Foundation, and served extensive interrogatories on Rhinehart and the other respondents. Respondents turned over a number of financial documents, including several of Rhinehart’s income tax returns. Respondents refused, however, to disclose certain financial information, the identity of the Foundation’s donors during the preceding 10 years, and a list of its members during that period.

    Petitioners filed a motion [under state law] requesting an order compelling discovery. In their supporting memorandum, petitioners recognized that the principal issue as to discovery was respondents'”refusa[l] to permit any effective inquiry into their financial affairs, such as the source of their donations, their financial transactions, uses of their wealth and assets, and their financial condition in general.” Record 350. Respondents opposed the motion, arguing in particular that compelled production of the identities of the Foundation’s donors and members would violate the First Amendment rights of members and donors to privacy, freedom of religion, and freedom of association. Respondents also moved for a protective order preventing petitioners from disseminating any information gained through discovery. Respondents noted that petitioners had stated their intention to continue publishing articles about respondents and this litigation, and their intent to use information gained through discovery in future articles.

    In a lengthy ruling, the trial court initially granted the motion to compel and ordered respondents to identify all donors who made contributions during the five years preceding the date of the complaint, along with the amounts donated … Respondents filed a motion for reconsideration in which they renewed their motion for a protective order. They submitted affidavits of several Foundation members to support their request … In general, the affidavits averred that public release of the donor lists would adversely affect Foundation membership and income and would subject its members to additional harassment and reprisals.

    Persuaded by these affidavits, the trial court issued a protective order covering all information obtained through the discovery process that pertained to “the financial affairs of the various plaintiffs, the names and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, clients, or donors to any of the various plaintiffs.” App. 65a. The order prohibited petitioners from publishing, disseminating, or using the information in any way except where necessary to prepare for and try the case. By its terms, the order did not apply to information gained by means other than the discovery process. In an accompanying opinion, the trial court recognized that the protective order would restrict petitioners’ right to publish information obtained by discovery, but the court reasoned that the restriction was necessary to avoid the “chilling effect” that dissemination would have on “a party’s willingness to bring his case to court.” Record 63.

    Respondents appealed from the trial court’s production order, and petitioners appealed from the protective order. The Supreme Court of Washington affirmed both. * * * The Supreme Court of Washington recognized that its holding conflicts with the holdings of the United States Court of Appeals for the District of Columbia Circuit * * * and applies a different standard from that of the Court of Appeals for the First Circuit * * * . We granted certiorari to resolve the conflict. We affirm.

    Most States, including Washington, have adopted discovery provisions modeled on Rules 26 through 37 of the Federal Rules of Civil Procedure. Rule 26(b)(1) provides that a party “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” It further provides that discovery is not limited to matters that will be admissible at trial so long as the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.” Wash.Super.Ct.Civ.Rule 26(b)(1); Trust Fund Services v. Aro Glass Co. (1978); cf. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2008 (1970).

    The Rules do not differentiate between information that is private or intimate and that to which no privacy interests attach. Under the Rules, the only express limitations are that the information sought is not privileged, and is relevant to the subject matter of the pending action. Thus, the Rules often allow extensive intrusion into the affairs of both litigants and third parties. If a litigant fails to comply with a request for discovery, the court may issue an order directing compliance that is enforceable by the court’s contempt powers. Wash.Super.Ct.Civ.Rule 37(b).

    Petitioners argue that the First Amendment imposes strict limits on the availability of any judicial order that has the effect of restricting expression. They contend that civil discovery is not different from other sources of information, and that therefore the information is “protected speech” for First Amendment purposes. Petitioners assert the right in this case to disseminate any information gained through discovery. They do recognize that in limited circumstances, not thought to be present here, some information may be restrained. They submit, however: “When a protective order seeks to limit expression, it may do so only if the proponent shows a compelling governmental interest. Mere speculation and conjecture are insufficient. Any restraining order, moreover, must be narrowly drawn and precise. Finally, before issuing such an order a court must determine that there are no alternatives which intrude less directly on expression.” Brief for Petitioners 10.

    We think the rule urged by petitioners would impose an unwarranted restriction on the duty and discretion of a trial court to oversee the discovery process.

    It is, of course, clear that information obtained through civil discovery authorized by modern rules of civil procedure would rarely, if ever, fall within the classes of unprotected speech identified by decisions of this Court. In this case, as petitioners argue, there certainly is a public interest in knowing more about respondents. This interest may well include most – and possibly all – of what has been discovered as a result of the court’s order under Rule 26(b)(1). It does not necessarily follow, however, that a litigant has an unrestrained right to disseminate information that has been obtained through pretrial discovery. For even though the broad sweep of the First Amendment seems to prohibit all restraints on free expression, this Court has observed that “[f]reedom of speech … does not comprehend the right to speak on any subject at any time.” American Communications Assn. v. Dods (1950).

    The critical question that this case presents is whether a litigant’s freedom comprehends the right to disseminate information that he has obtained pursuant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used. In addressing that question it is necessary to consider whether the “practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression” and whether “the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.” Procunier v. Martinez (1974) …

    At the outset, it is important to recognize the extent of the impairment of First Amendment rights that a protective order, such as the one at issue here, may cause. As in all civil litigation, petitioners gained the information they wish to disseminate only by virtue of the trial court’s discovery processes. As the Rules authorizing discovery were adopted by the state legislature, the processes thereunder are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit. Zemel v. Rusk (1965). Thus, continued court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations.

    Moreover, pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, Gannett Co. v. DePasquale (1979), and, in general, they are conducted in private as a matter of modern practice. Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.

    Finally, it is significant to note that an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny. As in this case, such a protective order prevents a party from disseminating only that information obtained through use of the discovery process. Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes. In sum, judicial limitations on a party’s ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context. Therefore, our consideration of the provision for protective orders contained in the Washington Civil Rules takes into account the unique position that such orders occupy in relation to the First Amendment.

    Rule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression. Procunier, supra. The Washington Civil Rules enable parties to litigation to obtain information “relevant to the subject matter involved” that they believe will be helpful in the preparation and trial of the case. Rule 26, however, must be viewed in its entirety. Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority to issue protective orders conferred by Rule 26(c). It is clear from experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse. This abuse is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties. The Rules do not distinguish between public and private information. Nor do they apply only to parties to the litigation, as relevant information in the hands of third parties may be subject to discovery.

    There is an opportunity, therefore, for litigants to obtain – incidentally or purposefully – information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The government clearly has a substantial interest in preventing this sort of abuse of its processes. * * * The prevention of the abuse that can attend the coerced production of information under a State’s discovery rule is sufficient justification for the authorization of protective orders.

    The facts in this case illustrate the concerns that justifiably may prompt a court to issue a protective order. As we have noted, the trial court’s order allowing discovery was extremely broad. It compelled respondents – among other things – to identify all persons who had made donations over a 5-year period to Rhinehart and the Aquarian Foundation, together with the amounts donated. In effect the order would compel disclosure of membership as well as sources of financial support. The Supreme Court of Washington found that dissemination of this information would “result in annoyance, embarrassment and even oppression.” 98 Wash. 2d at 257, 654 P.2d at 690. It is sufficient for purposes of our decision that the highest court in the State found no abuse of discretion in the trial court’s decision to issue a protective order pursuant to a constitutional state law. We therefore hold that where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.

    The judgment accordingly is

    Affirmed.


    Smith v. Daily Mail Publishing Co (1979)

    443 U.S. 97 (1979)

    Vote: 8-0
    Decision: Affirmed
    Majority: Burger, joined by Blackmun, Rehnquist, White, Stewart, Marshall, Stevens, Brennan
    Not participating: Powell

    MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT.

    On February 9, 1978, a 15-year-old student was shot and killed at Hayes Junior High School in St. Albans, W. Va., a small community located about 13 miles outside of Charleston, W. Va. The alleged assailant, a 14-year-old classmate, was identified by seven different eyewitnesses and was arrested by police soon after the incident.

    The Charleston Daily Mail and the Charleston Gazette, respondents here, learned of the shooting by monitoring routinely the police band radio frequency; they immediately dispatched reporters and photographers to the junior high school. The reporters for both papers obtained the name of the alleged assailant simply by asking various witnesses, the police, and an assistant prosecuting attorney who were at the school.

    The staffs of both newspapers prepared articles for publication about the incident. The Daily Mail’s first article appeared in its February 9 afternoon edition. The article did not mention the alleged attacker’s name. The editorial decision to omit the name was made because of the statutory prohibition against publication without prior court approval.

    The Gazette made a contrary editorial decision and published the juvenile’s name and picture in an article about the shooting that appeared in the February 10 morning edition of the paper. In addition, the name of the alleged juvenile attacker was broadcast over at least three different radio stations on February 9 and 10. Since the information had become public knowledge, the Daily Mail decided to include the juvenile’s name in an article in its afternoon paper on February 10.

    On March 1, an indictment against the respondents was returned by a grand jury. The indictment alleged that each knowingly published the name of a youth involved in a juvenile proceeding in violation of W. Va. Code § 49-7-3 (1976). Respondents then filed an original-jurisdiction petition with the West Virginia Supreme Court of Appeals, seeking a writ of prohibition … alleg[ing] that the indictment was based on a statute that violated the First and Fourteenth Amendments of the United States Constitution … The West Virginia Supreme Court of Appeals … held that the statute abridged the freedom of the press …

    We granted certiorari.

    Respondents urge this Court to hold that because [the statute] requires court approval prior to publication of the juvenile’s name it operates as a “prior restraint” on speech … Petitioners do not dispute that the statute amounts to a prior restraint on speech. Rather, they take the view that, even if it is a prior restraint, the statute is constitutional because of the significance of the State’s interest in protecting the identity of juveniles …

    Whether we view the statute as a prior restraint or as a penal sanction for publishing lawfully obtained, truthful information is not dispositive because even the latter action requires the highest form of state interest to sustain its validity. Prior restraints have been accorded the most exacting scrutiny in previous cases …

    Our recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards …

    None of [our previous and related] opinions directly controls this case; however, all suggest strongly that if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order. These cases involved situations where the government itself provided or made possible press access to the information. That factor is not controlling. Here respondents relied upon routine newspaper reporting techniques to ascertain the identity of the alleged assailant.

    A free press cannot be made to rely solely upon the sufferance of government to supply it with information … If the information is lawfully obtained, as it was here, the state may not punish its publication except when necessary to further an interest more substantial than is present here …

    The sole interest advanced by the State to justify its criminal statute is to protect the anonymity of the juvenile offender. It is asserted that confidentiality will further his rehabilitation because publication of the name may encourage further antisocial conduct and also may cause the juvenile to lose future employment or suffer other consequences for this single offense …

    However, we concluded [in a previous case] that the State’s policy must be subordinated to the defendant’s Sixth Amendment right of confrontation. The important rights created by the First Amendment must be considered along with the rights of defendants guaranteed by the Sixth Amendment. Therefore, the reasoning … that the constitutional right must prevail over the state’s interest in protecting juveniles applies with equal force here.

    The magnitude of the State’s interest in this statute is not sufficient to justify application of a criminal penalty to respondents. Moreover, the statute’s approach does not satisfy constitutional requirements. The statute does not restrict the electronic media or any form of publication, except “newspapers,” from printing the names of youths charged in a juvenile proceeding. In this very case, three radio stations announced the alleged assailant’s name before the Daily Mail decided to publish it. Thus, even assuming the statute served a state interest of the highest order, it does not accomplish its stated purpose. In addition, there is no evidence to demonstrate that the imposition of criminal penalties is necessary to protect the confidentiality of juvenile proceedings …

    Our holding in this case is narrow. There is no issue before us of unlawful press access to confidential judicial proceedings … there is no issue here of privacy or prejudicial pretrial publicity. At issue is simply the power of a state to punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper. The asserted state interest cannot justify the statute’s imposition of criminal sanctions on this type of publication.

    Accordingly, the judgment of the West Virginia Supreme Court of Appeals is

    Affirmed.



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