S. Derek Bauer (John Disney/ALM)

A long-running fight over a media gag order in a small town murder trial will go before the Georgia Supreme Court when it meets in Athens on Oct. 24 at the University of Georgia School of Law on historic North Campus.

The judge, the district attorney and the public defender in the one-stoplight farm town of Ocilla 200 miles south of Atlanta seek to block news coverage of the trial of a man accused of murdering beauty queen and high school history teacher Tara Grinstead 12 years ago.

But first they’ll have to beat a team of experienced Atlanta First Amendment lawyers, led by S. Derek Bauer at Baker & Hostetler representing WXIA-TV. Media attorneys Tom Clyde and Lesli Gaither at Kilpatrick Townsend & Stockton have joined in as another party.

When the case finally goes to trial, police hope to solve the disappearance of a former Miss Tifton, so crowned in a nearby city that’s home to the Georgia Peanut Commission and Abraham Baldwin Agricultural College.

One Saturday in 2005, after helping out at the Miss Georgia Sweet Potato Pageant and attending a cookout at the family home of a former school superintendent, Grinstead went back to her neat, white wood frame house and was never seen again. Police came looking when she didn’t show up at the Irwin County High School the following Monday. They found the clothes she wore to the cookout, but not her—despite searching the woods, draining a pond and calling into question every one of her suitors.

Police even dug up a pecan orchard belonging to the uncle of the man they arrested this year, Ryan Duke, alleging he killed her during a burglary and hid her body.

Reporters, bloggers and cameras descended on the courthouse in what Irwin County Superior Court Judge Melanie Cross called a “feeding frenzy.” She issued an order in February restricting all communication about the case.

Bauer, representing television stations in Atlanta and Macon, along with lawyers for newspapers across the state, appeared before the judge in March to ask her to rescind the gag order. While there, they learned the judge also sealed all the records and ordered the closing of all pretrial hearings.

The judge kept the gag order in place, with modifications that the media lawyers argued still amounted to unconstitutional prior restraint.

“The United States Supreme Court, this court, and all courts in between have made clear that any restriction on First Amendment rights—such as limiting speech or closing a courtroom—is a remedy of last resort that is presumptively invalid and subject to the strictest scrutiny, even when imposed to protect a defendant’s right to a fair trial,” according to a brief filed by the Baker & Hostetler team, which includes Ian Byrnside and Cody Wigington working with Bauer. “Under that standard, a prior restraint on extrajudicial statements cannot be upheld unless: (1) there is clear and convincing evidence that the extrajudicial statements, if not restricted, will impair the defendant’s right to a fair trial; (2) there are no less restrictive alternatives that would mitigate the effects of such extrajudicial statements; and (3) the prior restraint will effectively accomplish its intended purpose.”

The Baker & Hostetler team said the judge “went straight to a measure of last resort—a prior restraint on freedom of speech—without clear and convincing evidence that Mr. Duke’s right to a fair trial will be materially prejudiced by extrajudicial statements, and without explaining why less restrictive alternatives that would not impede … First Amendment rights would be insufficient to ensure a fair trial.”

The public defender disputed the media lawyer’s claims and argued the judge was right to restrict statements about the trial because of the harm already done by extensive pretrial publicity, resulting in threats and broadcast images of his client shackled and wearing a prison jump suit.

“The right of access to criminal proceedings becomes a highly controversial issue when First Amendment questions must be analyzed in conjunction with competing Sixth Amendment considerations,” defense attorney John Mobley II said in his brief to the Supreme Court supporting the judge’s modified gag order. “The Trial Court has broad discretion ensuring the accused receives a fair trial.”

Mobley said First Amendment rights “may be subordinated to other interests that arise.” The case is WXIA-TV v. State of Georgia, No. S17A1804.