Com. v. Bey, C., Appeal of: PG Publishing

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHRISTIAN BEY :
:
v. :
:
PG PUBLISHING COMPANY D/B/A :
THE PITTSBURGH POST-GAZETTE, :
:
Intervenor :
:
APPEAL OF: PG PUBLISHING :
COMPANY D/B/A THE PITTSBURGH :
POST-GAZETTE : No. 51 WDA 2020
Appeal from the Order Entered December 12, 2019,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0007905-2019.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: March 14, 2022
In this capital-murder case, the Intervenor/Appellant, The PG Publishing
Company (d.b.a. The Pittsburgh Post-Gazette, “the Press”), challenges a gag
order barring witnesses and potential witnesses of either party from speaking
publicly or posting on social media about this case. Because the order does
not curtail any of the Press’s constitutional or common-law rights, we affirm.
On July 14, 2019, Pittsburgh Police Officer Calvin Hill died of gunshot
wounds. The next day, the supervising judge of the Allegheny County grand
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* Retired Senior Judge assigned to the Superior Court.
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jury found probable cause to believe that witness intimidation occurred, was
occurring, or was likely to occur. Therefore, she ordered that this matter be
brought before the grand jury, which indicted Mr. Bey for homicide and firearm
offenses.1
The Commonwealth announced its intent to seek the death penalty, and
the supervising judge sealed the court record. Next, the Press intervened and
moved to unseal the record. The judge initially denied its motion, but, two
weeks later, she vacated the order sealing the record. The case was then
assigned to a different judge for trial.
In September of 2019, the Commonwealth moved to limit extrajudicial
statements by the attorneys, witnesses, potential witnesses, and others until
the conclusion of the jury trial. Mr. Bey consented to the motion.
Thus, the trial court issued an order prohibiting out-of-court statements
that the speaker “knows or reasonably should know will be disseminated by
means of public communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding.” T.C.O., 9/18/19. The
order applied to Mr. Bey, all attorneys, investigators, court personnel, and any
“person who has been called as a witness or has been advised by any party
that he or she is likely to be called as a witness, or reasonably believes that
he or she is likely to be called as a witness, in any proceeding in this matter.”
Id., ¶4. The Press moved to amend the gag order by asking the court to
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1 See 18 Pa.C.S.A. §§ 2501(a), 6105(a)(1), 6106(a).
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vacate the portion gagging witnesses (Paragraph 4). The Commonwealth and
Mr. Bey opposed the Press’s motion. They contended, among other things,
that the request would endanger witnesses, bias potential jurors, and violate
Mr. Bey’s constitutional right to a fair trial in Allegheny County.
Following a hearing on the motion, the trial court declined to vacate
Paragraph 4 of its order. The court ruled that doing so would seriously harm
Mr. Bey’s right to a fair trial before impartial, Allegheny County jurors and
jeopardize the lives of the witnesses. This timely appeal followed.
The Press raises two issues on the merits of the order.2 They are:
1. Does Paragraph 4 of the trial court’s gag order
impermissibly infringe upon First Amendment rights
under the Constitution of the United States, rights
under the Constitution of the Commonwealth of
Pennsylvania, or the common-law right of access?
2. Is Paragraph 4 of the trial court’s gag order incapable
of reasoned application and/or constitutionally vague
or overbroad?
The Press’s Brief at 3.
1. The Press’s Alleged Constitutional and Common-Law Rights
First, the Press raises issues of federal and state constitutional law, as
well as the common-law right of access to the courts. The Press claims the
gag order “impermissibly infringes upon multiple constitutional and common-
law rights of [it] and others.” Id. at 18. However, the Press does not establish
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2The Press raises a third issue regarding potential mootness. We need not
address that issue, because the gag order remains in effect.
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which of its alleged, fundamental rights the gag order supposedly violates.
Indeed, the Press concedes the “the gag order does not limit [its] publication
of information . . . .” Id. n.7. Rather, the Press suggests the order restricts
its “ability to obtain and publish information from witnesses, which represents
a de facto restraint on its ability to publish.” Id. However, the Press does not
cite any appellate authority to support the contention that receiving answers
from interviewees is a fundamental right under the First Amendment to the
Constitution of the United States; Article I, §§ 7 and 11 of the Constitution of
the Commonwealth of Pennsylvania; or at common law.3
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3 The First Amendment dictates, “Congress shall make no law respecting an
establishment of religion; or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.”
U.S. Const. amnd. 1.
The Constitution of the Commonwealth of Pennsylvania provides, in
relevant part:
The printing press shall be free to every person who
may undertake to examine the proceedings of the
Legislature or any branch of government, and no law shall
ever be made to restrain the right thereof. The free
communication of thoughts and opinions is one of the
invaluable rights of man, and every citizen may freely
speak, write and print on any subject, being responsible for
the abuse of that liberty. No conviction shall be had in any
prosecution for the publication of papers relating to the
official conduct of officers or men in public capacity, or to
any other matter proper for public investigation or
information, where the fact that such publication was not
maliciously or negligently made shall be established to the
satisfaction of the jury; and in all indictments for libels the
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Based on the Press’s unsubstantiated premise that the gag order
violates its fundamental rights, the Press asserts the order “is subject to strict
scrutiny, which requires the government to prove that the restrictions are
narrowly tailored to serve a compelling state interest.” Id. at 19. The Press
bases its request that we apply the strict-scrutiny test on its belief that the
order is content-based. It claims the trial court must review the content of
what the witnesses or potential witnesses say outside of the courtroom or post
online to determine whether a violation of the order occurred. On the other
hand, if the order is content-neutral, the Press argues for the intermediate-
scrutiny test, wherein the order “still must be narrowly tailored to serve a
significant governmental interest.” Id. at 21. The Press does not contend
that the order fails the rational-basis test under the Fourteenth Amendment.
Alternatively, the Press asks us to extend the common-law right of
access to court records and to attend court proceedings so that the right will
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jury shall have the right to determine the law and the facts,
under the direction of the court, as in other cases.
Pa. Const. art. I, § 7. Furthermore:
All courts shall be open; and every man for an injury
done him in his lands, goods, person or reputation shall
have remedy by due course of law, and right and justice
administered without sale, denial or delay. Suits may be
brought against the Commonwealth in such manner, in such
courts and in such cases as the Legislature may by law
direct.
Pa. Const. art. I, § 11.
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include a right to speak to witnesses or potential witnesses prior to trial. The
Press cites no authority to support an extension of the common law, but it
claims, “Historically, the Press has never been denied access . . . to potential
witnesses, and logically, [its] right to speak with any individual is enshrined
in the First Amendment.” Id. at 33-34.
We address each theory in turn.
Because the Press “challenge[s] the gag order on the ground that it
violates [its fundamental rights] as guaranteed by the state and federal
constitutions, [it] presents questions of law for which our standard of review
is de novo, and our scope of review is plenary.” S.B. v. S.S., 243 A.3d 90,
104 (Pa. 2020), cert. denied, ___ U.S. ___, 142 S. Ct. 313, (2021) (citing
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1038, (1991) (“an appellate
court has an obligation to make an independent examination of the whole
record in order to make sure that the judgment does not constitute a forbidden
intrusion on the field of free expression”)).
Also, when a party challenges the constitutionality of a gag order under
both constitutions, “the protections afforded by the First Amendment and
Article I, § 7 are coextensive . . . .” Id. at 113. Thus, our analysis of the
Press’s rights under the First and Fourteenth Amendments simultaneously
disposes of its theory under the state charter.
Pursuant to the Due Process Clause of the Fourteenth Amendment, “No
state shall . . . deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amnd. XIV, § 1.
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Interpreting the Due Process Clause, the Supreme Court of the United
States has said, “some of the personal rights safeguarded by the [Bill of
Rights] against national action may also be safeguarded against state action,
because a denial of them would be a denial of due process of law.” Twining
v. New Jersey, 211 U.S. 78, 99, (1908), overruled on other grounds, Malloy
v. Hogan, 378 U.S. 1 (1964). This is known as incorporation of the Bill of
Rights against the States. Incorporation occurs “not because those rights are
enumerated in the [Bill of Rights], but because they are of such a nature that
they are included in the conception of due process of law.” Id. at 99–100. It
is settled law that the “Due Process Clause . . . now protects . . . the rights of
speech, press, and religion covered by the First Amendment . . . .” Duncan
v. Louisiana, 391 U.S. 145, 148, (1968).
Hence, by opposing the sovereign power of Pennsylvania’s judiciary to
enter a gag order based on the First Amendment, the Press actually asserts a
violation of the Fourteenth Amendment. We therefore review the Press’s
constitutional challenge to the order through the prism of a substantive-due-
process claim under the Fourteenth Amendment. Seen in this light, the instant
appeal is procedurally distinct from the cases that the Press cites in its brief.4
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4 See, e.g., Philadelphia Press v. Jerome, 387 A.2d 425 (Pa. 1978) (press
asserted its First Amendment right to attend pretrial hearings to suppress
evidence in criminal matters); Commonwealth v. Genovese, 487 A.2d 364(Pa. Super. 1985) (press asserted its Frist Amendment right to publish
information in its possession); Gentile, supra (attorney asserted his First
Amendment right to hold a press conference about an upcoming case, despite
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Unlike the litigants in those cases, the Press does not establish that the order
violates a fundamental right belonging to the Press, itself.
The cases in the Press’s brief reviewed state actions using the strict-
scrutiny or intermediate-scrutiny test, because those state actions directly
infringed upon the appellants’ rights, rather than the rights of third parties.
Because the appellants asserted their own First Amendment freedoms, they
were challenging state action based upon their own rights, as incorporated in
Gitlow v. New York, 268 U.S. 258 (1925). Therefore, strict or intermediate
scrutiny of the state action was necessary to ensure that the challenged state
action did not unconstitutionally curb those appellants’ fundamental rights in
contravention of the Due Process Clause of the Fourteenth Amendment.
Unlike the cases upon which the Press relies, here, the Press has not
clearly established which of its fundamental rights the gag order allegedly
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disciplinary sanctions under Rules of Professional Conduct); Commonwealth
v. Lambert, 723 A.2d 684 (Pa. Super. 1998) (same); McCullen v. Coakley,
573 U.S. 464 (2014) (anti-abortion “sidewalk counselors” asserted their First
Amendment right to speak with women near the entrances of abortion clinics);
Minnesota Voters Alliance v. Mansky, ___ U.S. ___, 138 S.Ct. 1876(2018) (voters asserted their First Amendment right to wear political shirts
and buttons inside polling places); In Re: Murphy-Brown, LLC, 907 F.3d
788 (4th Cir. 2018) (civil defedants asserted their First Amendment right to
speak publicly about class-action suits); In Re: 2014 Allegheny County
Investigative Grand Jury, 223 A.3d 214 (Pa. 2019) (press asserted its First
Amendment right to access judicial records); Center for Investigative
Reporting v. Southeastern Pennsylvania Transportation Authority, 975
F.3d 300 (3rd Cir. 2020) (plaintiff asserted its First Amendment right to publish
advertisements of political content on the SEPTA buses and trains); and S.B.,
supra (litigant and attorney asserted their First Amendment right to publish
information regarding custody cases online and to speak publicly about it).
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infringes. In fact, on its face, Paragraph 4 of the gag order does not even
apply to the Press, because the Press is not a witness or potential witness in
Mr. Bey’s upcoming court proceedings.
Paragraph 4 prevents only the witnesses and potential witnesses in this
case from speaking publicly about the case prior to the jury trial. This order
may have the collateral consequence of preventing the Press from getting
information from those witness or potential witnesses. On the other hand, it
may not. The Press did not call anyone to testify at the trial court’s hearing
to prove that any witness or potential witness wants to speak with the Press
or wishes to be exposed to publicity due to the individual’s role as a witness.
Thus, any impact this gag order has upon the Press’s ability to write or publish
stories on this case, prior to the jury trial, is mere conjecture.5
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5 In fact, the appealed-from order does not aggrieve the Press. As a result, it
lacks standing to appeal. See Pa.R.A.P. 501 (granting appellate rights to “any
party who is aggrieved by an appealable order” and stating that “Whether or
not a party is aggrieved by the action below is a substantive question
determined by the effect of the action on the party”) (emphasis added).
In Commonwealth v. Crawford, 789 A.2d 266 (Pa. Super. 2001),
which involved a similar order, we concluded a newspaper lacked standing,
because it had not been allowed to intervene, the newspaper was not
specifically named in the gag order, and there was no alternate source of
standing under the traditional standing test. We rooted our holding in the fact
that the newspaper did not have a substantial and direct interest in the gag
order beyond that of the general public. See id. at 269.
The instant appeal is virtually identical to Crawford, except that, here,
the Press was granted status as intervenor. Cf. id. at 269 n.3 (stating that
this Court “need not determine whether intervenor status automatically
bestows standing upon the intervenor to appeal a disputed lower court
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It is telling that no witnesses or potential witnesses challenged the gag
order as violating their rights under the First Amendment or Article I, § 7.
Thus, whether the gag order violated a witness’s or a potential witness’s
freedom of speech under the two constitutions is not before this Court. And
the Press does not contend that the gag order restricts its freedom of speech,
nor could it successfully advance such a contention. The Press remains free
to say whatever it wishes about this case.
Furthermore, the gag order does not implicate the freedom of the Press.
The order does not prevent the Press from reviewing the court records of this
matter or publishing any information, documents, or quotes that the Press
possesses. Also, the order does not stop the Press from speaking with or
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order”). Nevertheless, the trial court’s grant of intervenor status does not
confer standing on the Press to assert the First Amendment rights of the third-
party witnesses, particularly in light of the fact that it asserts its own common-
law, news-gathering right in parallel with the First Amendment claim.
That said, when this panel questioned the Press’s standing during oral
argument, all parties agreed that neither the Commonwealth nor Mr. Bey
objected to the Press’s motion on the basis of standing. The Supreme Court
of Pennsylvania has held that trial courts may not raise the issue of standing
sua sponte. See, e.g., Commonwealth v. Koehler, 229 A.3d 915, 940 (Pa.
2020). Be that as it may, the rule prohibiting trial courts from raising standing
sua sponte does not apply in this appeal, because we may affirm an order on
any grounds appearing of record, and the rule that failure to raise an issue
below waives it on appeal only applies to appellants, not to appellees. See
Discovery Charter School v. School District of Philadelphia, 166 A.3d
304, 314 n.10 (Pa. 2017).
Under Crawford, supra, the Press lacks standing to bring this appeal,
because the appealed-from order does not aggrieve the Press any more than
it aggrieves the public-at-large. Hence, we also affirm the trial court’s order
on the alternative grounds that the Press lacks standing to appeal.
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interviewing anyone involved in the case or printing anything the Press might
learn from those discussions (or from any source, including anonymous ones).
Finally, the order does not prevent the Press from attending the proceedings
in this case, reporting on those proceedings, or editorializing on them. Indeed,
the order does not direct the Press to do or to refrain from doing anything.
Construing a similar gag order that prohibited a mother and her attorney
from naming her child publicly and from publishing about a custody case on
the Internet, the Supreme Court of Pennsylvania said, “The trial court did not
seal the record of the [case] nor impose any prior restraints upon the press
that precluded the dissemination of information relating to the custody
trial.” S.B., 243 A.3d at 111 (emphasis added). “[L]limiting the speech of
trial participants is a less restrictive alternative than imposing a prior restraint
on the press itself.” Id. (citing Sheppard v. Maxwell, 384 U.S. 333, 361
(1966)). Like the gag order in S.B., the gag order at bar has not precluded
the Press from disseminating any information about Mr. Bey’s impending trial.
Under Pennsylvania case law, a gag order against participants in an
ongoing court proceeding is not viewed as a restraint upon the freedom of the
Press for either federal or state constitutional purposes. Thus, we conclude
that the gag order did not infringe upon any fundamental right of the Press.
Accordingly, neither the strict-scrutiny nor the intermediate-scrutiny
tests of constitutional review apply to the Press’s due-process claim. Instead,
where, as here, the state action “neither proceeds along suspect lines nor
infringes fundamental constitutional rights” of the challenging party, the state
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action is constitutional “if there is any reasonably conceivable state of facts
that could provide a rational basis for” the state actor’s decision. F.C.C. v.
Beach Commc'ns, Inc., 508 U.S. 307, 313, (1993). This is the rational-
basis standard of constitutional review. To survive under that standard, the
gag order need only be “rationally related to legitimate government interests.”
Box v. Planned Parenthood of Indiana & Kentucky, Inc., ___ U.S. ___,
___, 139 S. Ct. 1780, 1782, (2019).
As mentioned, the Press argues that the gag order fails to satisfy the
strict-scrutiny and intermediate-scrutiny tests. It never argues that the order
is not “rationally related to legitimate government interests.” Id. As such,
we need not review this issue further, because the Press had not developed a
constitutional argument in that vein.
Turning to the Press’s claim under the common-law right of access, the
Press did not cite any authority to support expansion of the common-law right
to prohibit pretrial, gag orders of witnesses and potential witnesses. The Press
fails to convince this Court to revamp the common law. Moreover, such a
request is best directed to the Supreme Court of Pennsylvania.
In short, because the Press has not established that the gag order
abridges its rights, its first claim of error is meritless.
2. Claims of Vagueness and Overbreadth
In its second issue, the Press claims Paragraph 4 of the gag order is
vague and overly broad in violation of the Due Process Clause. The Press
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asserts that readers of the gag order cannot reasonably know if they are or
will be potential witness who must follow its terms.
If government regulations (including gag orders) fail to give a person of
ordinary intelligence fair notice that her contemplated conduct is forbidden,
the regulation is unconstitutionally vague under the Due Process Clause. See
Papachristou v. City of Jacksonville, 405 U.S. 156, 162, (1972). When a
regulation “gives adequate warning of what activities it proscribes” and sets
forth “explicit standards” for the persons subject to it, the law is constitutional.
Broadrick v. Oklahoma, 413 U.S. 601 (1973). A regulation is overly broad
when it “prohibits constitutionally protected conduct . . . overbreadth must be
substantial.” Gentile, 501 U.S. at 1077 (citations omitted).
Here, the Press is not subject to the gag order, because it is neither a
witness nor potential witness in this case. If the gag order is unconstitutionally
vague or overly broad under the Due Process Clause, that vagueness or
overbreadth impacts only witnesses and potential witnesses. None of those
individuals has challenged the gag order for unconstitutional vagueness or
overbreadth. As such, any possible violation of the Fourteenth Amendment
based on vagueness or overbreadth, as applied to those individuals, is not
before us in this appeal.
Regarding regulation of the Press, the gag order’s scope and restrictions
are abundantly clear: the order does not apply to the Press. Thus, the Press
has no concern of being held in contempt of this gag order, regardless of how
broadly the trial court may interpret it. The order will never harm the Press’s
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finances or infringe upon its rights. As such, the Press need not guess as to
the extent of its liability under the order, because the Press will never be held
in contempt of it.
As the gag order does not implicate any actions by the Press, the order
provides adequate warning as to how much of the Press’s conduct it curtails
– i.e., none. The Press’s second issue warrants no appellate relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2022
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