Justice Keith Blackwell, Supreme Court of Georgia Justice Keith Blackwell, Supreme Court of Georgia (Photo: John Disney/ALM)

In tossing a gag order on an upcoming murder trial, the Georgia Supreme Court Monday issued cautions against restricting free speech.

Justice Keith Blackwell, writing for a unanimous court, said the gag order was an unconstitutional prior restraint because it did not cover news media, but only lawyers, law enforcement officers and others. Justice Nels Peterson recused.

“The modified gag order is a prior restraint of those to whom it applies,” Blackwell wrote. He was addressing the second and less-restrictive one Irwin County Superior Court Judge Melanie Cross issued for the trial of Ryan Duke. Duke was arrested in 2017 and charged with murdering high school history teacher and former Miss Tifton Tara Grinstead, who disappeared from her Ocilla home in 2005.

The first gag order also forbade potential witnesses, court personnel and family members of both Duke and Grinstead from making public statements “on any matters having to do with the case.”

The high court revoked the second order—and the first one, too. “Although it appears that the superior court intended the modified gag order to supersede the original gag order, the modified gag order does not say so, and we find nothing in the record that vacates or otherwise sets aside the original gag order. To the extent that the original gag order is still in effect, we vacate it as well,” Blackwell said in his final footnote, No. 13, in a 24-page opinion.

“Although prior restraints are not unconstitutional in all circumstances,” Blackwell said, “they are presumptively unconstitutional.”

Blackwell made extensive use of footnotes. “That a gag order challenged by the media is a prior restraint of someone other than the media may affect the degree of scrutiny to be applied,” he said in footnote No. 7, “but those circumstances do not alter the fact that a gag order is, by definition, a prior restraint of those to whom it applies.”

Duke’s attorney, public defender John Mobley II, asked for the gag order. District Attorney Paul Bowden agreed to it. Mobley and Bowden could not be reached for comment Monday.

S. Derek Bauer of Baker & Hostetler led the winning legal team, representing WXIA-TV. Bauer’s team included Ian Byrnside and Cody Wigington.

“We’re a little disappointed that they declined the opportunity to state the legal standard that should apply when evaluating gag orders,” Bauer said. “The best thing is that the Georgia Supreme Court says that all gag orders are prior restraint.”

Bauer said he believes the decision will encourage judges to be cautious in restricting speech.

“It will be difficult for trial courts to apply a lesser standard than the strictest scrutiny,” he said.

Byrnside also took encouragement from Blackwell’s statement that news coverage itself is not enough to determine that the right to a fair trial is in jeopardy.

“A reasonable likelihood of prejudice sufficient to justify a gag order cannot simply be inferred from the mere fact that there has been significant media interest in a case,” Blackwell wrote.

Blackwell said the public defender’s 78 exhibits of statements made about the trial on the internet did not prove the need for a gag order.

“We have reviewed the exhibits offered by Duke at the hearing to illustrate the nature and extent of media coverage, and we find no reports attributing inflammatory statements or prejudicial information to sources covered by the modified gag order.” Blackwell wrote. “Many of the reports purport to have been published after the entry of the original gag order, and they attribute no statements at all to the persons to whom that order applied. Others attribute statements to law enforcement sources that strike us as measured and highly unlikely to produce any prejudice. Most of the reports purport to share information gleaned from arrest warrants and other public and court records. The record certainly does not suggest that any lawyers, court personnel, or law enforcement personnel have disclosed sensitive or confidential information or have attempted to effectively put Duke on trial in a court of public opinion.”

Blackwell suggested that, in addition to being unnecessary, the judge’s decision to issue a gag order may have itself increased the heavy media coverage she sought to limit.

In footnote No. 11, Blackwell said, “ We note as well that many of the reports among these exhibits are substantially or entirely about the gag order itself, and they say virtually nothing about the merits of the case against Duke.”