OPINIONS
 
OF THE
 
TRIAL DIVISION
 
OF THE
 
HIGH COURT OF AMERICAN SAMOA
 
(2005)

AMERICAN SAMOA GOVERNMENT, 
Plaintiff,
 
v.
 
MAELI PITOITUA aka ISUMU, 
Defendant.
 
High Court of American Samoa
Trial Division
 
CR No. 33-04
 
February 4, 2005
 
[1] Restrictive, or gag, orders are prior restraints on speech that come with a heavy presumption against their constitutional validity. An application for one raises the most serious and least tolerable infringement on First Amendment rights. 
 
[2] One who seeks a prior restraint in the courtroom 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. 
 
[3] A defendant's claims that a victim's family, while in attendance at his hearings, made threats to his safety, do not demonstrate that the intimidation directed towards him threatens the fairness of his trial. 
 
[4] Where a defendant seeks a restraining order but has not demonstrated that a threat exists, the publicity he seeks to restrain cannot be the actual cause of a threat. 
 
[5] Where a defendant seeks a restraining order based on concern for his safety in the courtroom, less restrictive alternatives are available than a comprehensive ban on public access to his trial, such as additional precautions within the courtroom, or equitable restraints against those people who are making threats. 
 
Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; and ATIULAGI, Associate Judge. 
 
Counsel: For Plaintiff, Jeremy M, Kirkland, Assistant Attorney General 
 For Defendant, Aviata F. Fa'alevao, Public Defender 
 
ORDER DENYING DEFENDANT'S MOTION FOR A GAG ORDER
 
Defendant Maeli Pitoitua ("Pitoitua") filed a motion asking this court to issue a restrictive order limiting the public's access to his pending criminal prosecution. Pitoitua asserts that because the date and location of his hearings are made public, the victim's family is alerted of his pending appearance, allowing them to attend the hearings and make threats to his safety. Pitoitua contends that the court should, therefore, limit the public's access to his courthouse hearings and forbid the press from reporting the schedule of such hearings. For reasons stated below, we deny Pitoitua's request. 

Discussion
 
[1] A restrictive order—or "gag" order—is considered a prior restraint upon speech. See, e.g., In re application of Dow Jones and Co, Inc., 842 F.2d 403, 609 (2nd Cir. 1988). The United States Supreme Court, when considering an application for such an order, stated that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Nebraska Press Ass'n v. Stuart, 427 U.S, 529, 559 (1976); see also CBS Inc. v. U.S. Dist. Court for the Cent. Dist. of Cal., 729 F.2d 1174, 1177 (9th Cir. 1983) (stating that "the first amendment informs us that the damage resulting from a prior restraint—even a prior restraint of the shortest duration—is extraordinarily grave.") Because of the gravity involved with such an application, the Supreme Court has stated that prior restraints come with a "heavy presumption" against their constitutional validity. Carrol v. Princess Ann, 393 U.S. 175, 181 (1968); Nebraska Press Ass'n, 427 U.S. at 558. 
 
[2] One who undertakes to show the necessity for "prior restraint" in the courtroom, or 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, Nebraska Press Ass'n, 427 U.S. at 571 (Powell, J., concurring); Sherrill v Amerada Hess Corp., 504 S.E2d 802, 807-08 (N.C. Ct. App. 1998). 
 
[3] Pitoitua has failed to establish these three factors. First, he has not demonstrated that the alleged intimidation directed towards him threatens the fairness of his trial. He claims in his affidavit that the victim's family, while in attendance at his hearings, has made threats to his safety. Even if threats were aimed at Pitoitua, this fact would have no bearing upon the evidence presented in the case, the impartiality of the jurors or the defendant's ability to present his defense. It is possible that certain highly disruptive or conspicuous threats could conceivably affect the fairness of a defendant's trial. However, it does not appear that the threats which Pitoitua references in his affidavit rise to that level. 
 
[4] Second, because Pitoitua has not demonstrated that a threat exists, the publicity he seeks to restrain could not be the actual cause of a threat. As demonstrated above, no actual threat to the fairness of his trial exists. Therefore, the publicity he seeks to restrain cannot be the cause of a non-existent threat. 
 
[5] Third, and most importantly and persuasively, Pitoitua has not demonstrated that no less restrictive alternatives are available. We find that, in fact, there are less restrictive options than a comprehensive ban on public access to Pitoitua's trial. If Pitoitua is concerned about his safety in the courtroom, he can urge the court marshal to keep a close eye on inappropriate behavior during his hearings, or he can pursue equitable restraints against those people who are making threats. It is not hard to imagine how Pitoitua can remedy his concerns without having to severely limit the First Amendment rights of the local media and the public in general. 
 
Therefore, in sum, defendant has not adequately demonstrated the necessity of a restrictive order. Such orders are disfavored and the case before us certainly does not present the type of compelling scenario to convince us to limit the public's vital constitutional access to the courtroom. 
 
Defendant's motion for a gag order is denied. It is so ordered. 
 
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