United States v. Brown ( 2000 )


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  •                       REVISED, JULY 13, 2000
    
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT
    
    
    
                               No. 00-30134
    
    
    
         UNITED STATES OF AMERICA,
    
                                                Plaintiff-Appellee,
    
              versus
    
    
         JAMES HARVEY BROWN, also known as Jim Brown,
    
                                                Defendant-Appellant.
    
    
    
    
          Appeal from the United States District Court for the
                Middle District of Louisiana, Baton Rouge
    
                               July 6, 2000
    
    Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.
    
    GARWOOD, Circuit Judge:
    
         Defendant-appellant   James   Harvey   “Jim”   Brown   (Brown),   a
    
    prominent Louisiana political figure, is currently under indictment
    
    in the Middle District of Louisiana on various charges relating to
    
    the brokering of an alleged “sham” settlement of a threatened
    
    lawsuit by the State of Louisiana against the president of a failed
    
    automobile insurance company.      The district court sua sponte
    
    entered a gag order that prohibits attorneys, parties, or witnesses
    
    from discussing with “any public communications media” anything
    about the case “which could interfere with a fair trial,” including
    
    statements “intended to influence public opinion regarding the
    
    merits of this case,” with exceptions for matters of public record
    
    and matters such as assertions of innocence.       The district court
    
    denied Brown’s motion to vacate or modify the gag order, and Brown
    
    now appeals that denial.    We affirm.
    
                         Facts and Proceedings Below
    
         Brown is the elected Insurance Commissioner for the State of
    
    Louisiana.    On September 24, 1999, Brown, along with five others,
    
    including former Louisiana Governor Edwin W. Edwards (Edwards), was
    
    indicted in United States District Court for the Middle District of
    
    Louisiana on numerous counts of conspiracy, mail and wire fraud,
    
    insurance fraud, making false statements, and witness tampering.
    
    The charges all relate to Brown’s alleged use of his influence as
    
    Insurance Commissioner to help construct, along with Edwards and
    
    the other defendants, a “sham settlement” that derailed a $27
    
    million lawsuit threatened by the state against David Disiere,
    
    president of Cascade Insurance Co., a failed automobile insurance
    
    carrier.     In a news conference shortly after the indictment was
    
    issued, Brown declared his innocence as well as his belief that he
    
    was the victim of a “political drive-by shooting” at the hands of
    
    “an out-of-control prosecutor.”       After some delays, the trial is
    
    currently scheduled to commence on August 21, 2000.
    
         On the day the indictment was issued against Brown and his co-
    
    
    
                                      2
    defendants, the district court entered on its own motion a gag
    
    order prohibiting parties, lawyers, and potential witnesses from
    
    giving to “any public communications media” “any extrajudicial
    
    statement or interview” about the trial (other than matters of
    
    public record) that “could interfere with a fair trial or prejudice
    
    any defendant, the government, or the administration of justice.”
    
    The order provides that “[s]tatements or information intended to
    
    influence public opinion regarding the merits of this case are
    
    specifically designated as information which could prejudice a
    
    party.”      The order expressly does not prevent the parties from
    
    discussing, “without elaboration or any kind of characterization,”
    
    (1)   the   general   nature    of   any    allegations   or    defenses;   (2)
    
    information    contained   in    the       public   record;    (3)   scheduling
    
    information; (4) any decision or order by the court that is a
    
    matter of public record; and (5) “the contents or substance” of any
    
    motion filed in the case, to the extent the motion is a matter of
    
    public record.
    
          The district court had previously entered a similar gag order
    
    for a related case pending in the same court in which Edwards was
    
    also a defendant.       In that case, Edwards and six others were
    
    charged with multiple counts of racketeering, extortion, money
    
    laundering, and wire and mail fraud for allegedly extorting money
    
    from parties who sought licenses to operate riverboat casinos in
    
    Louisiana.    On May 9, 2000, the jury convicted Edwards and four
    
    
    
                                           3
    other defendants; the district court has subsequently lifted the
    
    gag order in that case.           A third case is also pending before the
    
    same district court, this one concerning allegations that three
    
    individuals (not parties to the present appeal) improperly used
    
    their     political     influence    to   steer       the    awarding       of   certain
    
    lucrative contracts.          As the district court noted, these three
    
    cases concern different alleged acts of wrongdoing but involve many
    
    of    the   same      defendants    and       arose   from     the     same      federal
    
    investigation. Given the allegations of corruption against several
    
    prominent political and business figures, all three cases have
    
    generated extensive and intense local and national media attention.
    
          On September 28, 1999, the district court temporarily lifted
    
    the gag order in this case to avoid interfering with Brown’s re-
    
    election campaign for Insurance Commissioner.                  Shortly thereafter,
    
    various defendants1 released to the media recordings (as well as
    
    transcripts of recordings) of telephone conversations relevant to
    
    the   case,     and    also   conducted        interviews      while    playing      the
    
    recordings.        The release of these recordings attracted further
    
    interest from the press.           On October 7, 1999, the district court
    
    entered a limited order prohibiting the parties from releasing
    
    recordings (or transcripts of recordings) made prior to the trial.
    
    The   limited      order   also    prohibited     the       release    of    any   other
    
    
          1
          In its denial of Brown’s motion to vacate or modify the order, the
    district court noted that this had happened but did not specify which
    defendants engaged in these acts.
    
                                              4
    discoverable material. At a status conference on October 14, 1999,
    
    the district court explained that it had entered the limited order
    
    “to stop an avalanche of both government and defendants picking out
    
    tapes and start playing all these tapes on radio and television.”
    
    The court also invited the parties to suggest modifications to the
    
    order if they believed any modifications were necessary.           None did
    
    so.
    
          On    November   18,   1999,   the   district   court   reimposed   the
    
    original gag order, to be effective in its entirety when the polls
    
    closed on November 20, voting day for the Insurance Commissioner
    
    run-off election.2      At a status conference conducted on November
    
    18, Brown objected to the gag order.         The district court responded
    
    that it believed the order to be necessary in light of the
    
    considerable publicity surrounding the trial,3 but emphasized his
    
    willingness to consider any modification that the parties might
    
    suggest.4     On November 30, 1999, Brown moved to vacate or modify
    
    the order.     After conducting a hearing on the motion on January 4,
    
    2000, the district court requested that the parties submit proposed
    
    modifications to the gag order.        Brown proposed that the substance
    
    of the order remain intact, but that it should only apply to
    
          2
           Brown was ultimately re-elected Insurance Commissioner.
          3
          Regarding the intense media interest in the case, including
    legions of reporters waiting outside the courtroom while the November
    18 hearing took place, the district court emphasized that “I am not
    going to let this get out of hand.”
          4
           “I modified it once; I can modify it again.”
    
                                           5
    counsel, not to defendants or witnesses.       On February 4, 2000, the
    
    district court denied Brown’s motion to vacate or modify the gag
    
    order.   Brown then petitioned this Court for a writ of mandamus to
    
    vacate the gag order; his petition was denied.         See In re Brown,
    
    No. 00-30144 (5th Cir. Feb. 21, 2000) (unpublished).          On February
    
    7, 2000, Brown filed a notice of appeal from the district court’s
    
    denial of his motion to vacate or modify the gag order.           It is that
    
    appeal which we address here.
    
                                  Discussion
    
    I.   Jurisdiction
    
         As a threshold matter, we must determine whether we have
    
    jurisdiction to hear Brown’s appeal at all.          Both Brown and the
    
    only other party to this appeal, appellee the United States, which
    
    defends the    district   court’s   order,   agree   that   the    order   is
    
    appealable.    However, “appellate jurisdiction is not a matter of
    
    consent.”     Trient Partners I Ltd. v. Blockbuster Entertainment
    
    Corp., 
    83 F.3d 704
    , 708 (5th Cir. 1996).              This question is
    
    particularly important in light of a recent decision by another
    
    panel of this Court, which casts some doubt on our ability to hear
    
    the appeal.    In the riverboat casino license case, which had been
    
    pending before the same district court, Edwards and the other
    
    defendants appealed the district court’s denial of their motion to
    
    lift an identical gag order. This Court dismissed their appeal for
    
    lack of jurisdiction.     See United States v. Edwards, 
    206 F.3d 461
    
    
                                        6
    (5th Cir.     2000)    (per   curiam).          The    special      circumstances      in
    
    Edwards, however, distinguish it, and we conclude that we have
    
    jurisdiction to consider the merits of Brown’s appeal.
    
           In what is commonly referred to as the final judgment rule,
    
    Congress has limited the jurisdiction of this Court to “final
    
    decisions of the district courts.”               28 U.S.C. § 1291.        One of the
    
    exceptions to the final judgment rule is known as the collateral
    
    order doctrine, which the Supreme Court announced in Cohen v.
    
    Beneficial Industrial Loan Corp., 
    69 S. Ct. 1221
     (1949).                              “The
    
    collateral order doctrine establishes that certain decisions of the
    
    district court are final in effect although they do not dispose of
    
    the litigation.”       Davis v. East Baton Rouge Parish Sch. Bd., 
    78 F.3d 920
    , 925 (5th Cir. 1996).             Under this doctrine, some orders
    
    may be appealed despite the absence of final judgment if they (1)
    
    are conclusive, (2) resolve important questions that are separate
    
    from the merits, and (3) are effectively unreviewable on appeal
    
    from the final judgment in the underlying action.                    See In re Grand
    
    Jury   Subpoena,      
    190 F.3d 375
    ,       381    (5th   Cir.    1999)    (quoting
    
    Cunningham v. Hamilton County, 
    119 S. Ct. 1915
    , 1919 (1999)).
    
           We conclude that the district court’s denial of Brown’s motion
    
    to   vacate   or   modify     the    gag   order       is    appealable      under    the
    
    collateral order doctrine. First, in terms of Brown’s request that
    
    the gag order be vacated entirely or at least not applied to him,
    
    the order is conclusive.            Second, the question at issue–weighing
    
    
                                               7
    the competing interests of a trial participant’s First Amendment
    
    right to discuss his criminal trial freely against the district
    
    court’s obligation to ensure a fair trial and dispense justice in
    
    an orderly manner–is unquestionably important.       Moreover, it is
    
    entirely divorced from the merits of Brown’s criminal trial.
    
    Third, the district court’s refusal to vacate or modify the gag
    
    order as Brown requested would be completely unreviewable not only
    
    in the event of Brown’s acquittal, but also doubtless in the event
    
    of conviction because Brown would almost certainly be unable to
    
    demonstrate that his conviction had somehow been tainted by his
    
    inability to make “extrajudicial comments,” to the public media,
    
    which, by definition, have no bearing on the trial itself.     Brown
    
    asserts First Amendment, not fair trial, rights.
    
         We do not believe that the holding of the Edwards panel
    
    requires us to reach a different conclusion.     The Edwards panel
    
    omitted any explanation why the gag order in that case was not
    
    appealable under the collateral order doctrine, i.e., it did not
    
    state which, if any, of the doctrine’s three factors the order
    
    failed to satisfy.   The Edwards panel did, however, specifically
    
    mention a feature of the Edwards appeal distinguishing it from
    
    Brown’s, namely that the Edwards defendants waited ten months
    
    before either objecting to the gag order or attempting to have it
    
    modified.   The district court dismissed their motion to vacate or
    
    modify as “frivolous.”   Edwards, 206 F.3d at 462.   In this case, by
    
    
                                     8
    contrast, Brown objected immediately to the gag order and has
    
    pursued his objection vigorously.            Unlike the Edwards defendants,
    
    he has not been dilatory.         Nor do we discern anything frivolous
    
    about    Brown’s   appeal.        Another         aspect   of   Brown’s    appeal
    
    distinguishes it from Edwards.              Brown’s argument on appeal, as
    
    below, is that the order violates his First Amendment rights; he
    
    does not argue that it damages his right to a fair trial.                 However,
    
    the Edwards opinion reflects that the argument of the putative
    
    appellants   there   was   that   the       gag   order    “[wa]s   damaging   the
    
    [D]efendants ability to obtain a fair trial.”               Id. at 462.    Whether
    
    the gag order did materially damage the Edwards defendants’ fair
    
    trial rights would have to be determined on appeal from any
    
    conviction and if such contention were sustained,5 would be wholly
    
    vindicated by ordering a new trial, while an acquittal would
    
    necessarily negate any injury to the fair trial interest.                 As above
    
    noted, however, that is simply not the case with respect to Brown’s
    
    First Amendment claim. We conclude that Edwards is not controlling
    
    in the present setting.
    
         The Edwards panel’s wariness of applying the collateral order
    
    doctrine was also apparently influenced by the Supreme Court’s
    
    command that federal courts apply the collateral doctrine “with the
    
    
    
         5
          And basing the motion to vacate the gag order on such an argument
    may have been, in addition to motion’s belatedness, what prompted the
    Edwards trial court to characterize the motion to vacate as “frivolous.”
    
                                            9
    utmost strictness” in criminal cases.                   See Flanagan v. United
    
    States, 
    104 S. Ct. 1051
    , 1054 (1984).               Animating this reticence to
    
    apply the collateral order exception in criminal cases is section
    
    1291's policy of finality, which is most compelling in the criminal
    
    context.      See id.;    see also United States v. Hollywood Motor Car
    
    Co., 
    102 S. Ct. 3081
     (1982) (per curiam) (“This Court has long held
    
    that [the doctrine of finality] is inimical to piecemeal appellate
    
    review   of    trial     court   decisions      which   do   not   terminate    the
    
    litigation, and that this policy is at its strongest in the field
    
    of criminal law . . . .”); DiBella v. United States, 
    82 S. Ct. 654
    ,
    
    656-57 (1962) (“Th[e] insistence on finality and prohibition of
    
    piecemeal review discourage undue litigiousness and leaden-footed
    
    administration of justice, particularly damaging to the conduct of
    
    criminal cases.”).        Each type of pretrial order that the Supreme
    
    Court has recognized as appropriate for interlocutory appeal via
    
    the collateral order doctrine–orders denying a motion to reduce
    
    bail, or denying a motion to dismiss an indictment on Double
    
    Jeopardy, Speech, or Debate Clause grounds– not only satisfied the
    
    requirements of Cohen, but also involved “an asserted right the
    
    legal and practical value of which would be destroyed if it were
    
    not   vindicated    before       trial.”        Flanagan,    104   S.Ct.   at   1055
    
    (citation omitted).         Brown’s asserted right to contemporaneously
    
    comment on his case in public and defend his reputation would, like
    
    the other rights recognized by the Supreme Court, “be irretrievably
    
    
                                               10
    lost if review were postponed until trial is completed.”       Id.
    
    Moreover, Brown’s interest in contemporaneously making his case
    
    before the public would arguably not be “largely satisfied by an
    
    acquittal resulting from the prosecution’s failure to carry its
    
    burden of proof,” id. at 1056, and the damage to his personal and
    
    professional reputations may already be done by the conclusion of
    
    trial.
    
             Importantly, hearing Brown’s appeal under the collateral
    
    order doctrine does nothing to threaten or undermine the finality
    
    of, or the conduct of proceedings in, his criminal case because the
    
    trial will proceed regardless of this Court’s consideration of his
    
    present appeal and the result of this appeal, favorable to Brown or
    
    not, will not be dispositive of the merits of or procedures
    
    followed in his criminal case. Because such finality concerns were
    
    the Supreme Court’s principal reason for eschewing the collateral
    
    order doctrine in all but a few types of orders in criminal cases,
    
    we see no reason not to entertain this appeal pursuant to the
    
    doctrine.
    
         Our conclusion finds support in the fact that this Court and
    
    other Courts of Appeals have repeatedly held, in both civil and
    
    criminal trials, that gag orders imposed on members of the press
    
    are appealable under the collateral order doctrine.   See Davis, 78
    
    F.3d at 925-26 (holding that district court’s denial of news
    
    agencies’ motion to vacate confidentiality order in desegregation
    
    
                                     11
    litigation appealable under collateral order doctrine); United
    
    States v. Chagra, 
    701 F.2d 354
    , 358 (5th Cir. 1983) (finding that
    
    district court’s closure of pretrial bail reduction hearing was
    
    appealable under the doctrine); United States v. Gurney, 
    558 F.2d 1202
    , 1207 (5th Cir. 1977) (concluding that denial of press access
    
    to certain court documents in high-profile criminal suit was an
    
    appealable collateral order); see also In re Reporters Comm. for
    
    Freedom of the Press, 
    773 F.2d 1325
    , 1330 (D.C. Cir. 1985); United
    
    States v. Schiavo, 
    504 F.2d 1
    , 4 (3d Cir. 1974).                 This Court’s
    
    decisions allowing appeals by the press of gag orders did not
    
    depend on any special status of the press as third-parties to the
    
    criminal trial.      See Davis, 78 F.3d at 925-26; Chagra, 701 F.2d at
    
    358; Gurney, 558 F.2d at 1202.          Accordingly, we perceive no reason
    
    to limit the appealability of this type of order to members of the
    
    media alone.
    
           In that same vein, we note that other Courts of Appeals have
    
    also   found   gag    orders   appealable    under     the   collateral   order
    
    doctrine by trial participants, including the litigants themselves.
    
    See, e.g., In re Rafferty, 
    864 F.2d 151
    , 155 (D.C. Cir. 1988)
    
    (finding in a civil case that “[i]t would certainly be anomalous if
    
    a   litigant   in    Mr.   Rafferty’s    shoes   who   wished   to   distribute
    
    information to the government or to the media could not appeal an
    
    order forbidding him from doing so, while the newspaper to whom he
    
    wished to give his story were able to appeal”); United States v.
    
    
                                            12
    Ford, 
    830 F.2d 596
    , 598 (6th Cir. 1987) (finding jurisdiction under
    
    collateral order doctrine to consider appeal by criminal defendant
    
    politician contesting validity of gag order).          Regarding this
    
    jurisdictional question, Ford is on point with both Edwards and the
    
    present appeal.   While the Edwards panel chose not to follow Ford
    
    “in the circumstances of this case,” see Edwards, 206 F.3d at 462
    
    n.1, we see no reason not to do so in the present somewhat
    
    difference circumstances.6     We hold, therefore, that pursuant to
    
    the collateral order doctrine, we have jurisdiction over Brown’s
    
    appeal from the district court’s order.7
    
    
         6
          As discussed in Part II, infra, we do not find Ford controlling
    in our disposition of Brown’s constitutional claim under the facts here.
         7
          We reject Brown’s alternative argument that this Court has
    jurisdiction under 28 U.S.C. § 1292(a)(1).      Section 1292(a)(1)
    authorizes appeals from interlocutory orders that grant or deny an
    injunction, or have “the practical effect of doing so.” United
    States v. Garner, 
    749 F.2d 281
    , 286 (5th Cir. 1985) (quoting Carson
    v. American Brands, Inc., 
    101 S. Ct. 993
    , 996-97 (1981)). Whether
    or not the gag order has the practical effect of granting an
    injunction against making extrajudicial comments, “[a]n order by a
    federal court that relates only to the conduct or progress of
    litigation before that court ordinarily is not considered an
    injunction and therefore is not appealable under § 1292(a)(1).”
    Gulfstream Aerospace Corp. v. Mayacamas Corp., 
    108 S. Ct. 1133
    , 1138
    (1988); see also Switzerland Cheese Ass’n, Inc. v. E. Horne’s
    Market, Inc., 
    87 S. Ct. 193
    , 195 (1966) (“Orders that in no way
    touch on the merits of the claim but only relate to pretrial
    procedures are not in our view 860 F.2d 169
    , 172 (5th Cir. 1988); Shanks v. City of Dallas, 
    752 F.2d 1092
    , 1095 (5th Cir. 1985). Accordingly, section 1292(a)(1)
    “does not authorize appeals from orders that compel or restrain
    conduct pursuant to the court’s authority to control proceedings
    before it, even if the order is cast in injunctive terms.”
    Hamilton v. Robertson, 
    854 F.2d 740
    , 741 (5th Cir. 1988) (per
    
                                       13
    II.    Brown’s Constitutional Claim
    
           Brown contends that the district court’s gag order violates
    
    his rights under the First Amendment.             We do not agree.         While this
    
    case presents a somewhat close call, we conclude that the gag order
    
    is constitutionally permissible because it is based on a reasonably
    
    found substantial likelihood that comments from the lawyers and
    
    parties might well taint the jury pool, either in the present case
    
    or    one   of   the   two    related    cases,       is   the   least    restrictive
    
    corrective       measure     available   to   ensure       a   fair   trial,   and   is
    
    sufficiently narrowly drawn.              The district court applied the
    
    correct legal principles in entering such an order and its factual
    
    conclusions are adequately supported by the record.
    
           Intense     publicity     surrounding      a    criminal       proceeding–what
    
    Justice Frankfurter referred to as “trial by newspaper”–poses
    
    significant and well-known dangers to a fair trial. See Pennekamp
    
    v. Florida, 
    66 S. Ct. 1029
    , 1043, 1047 (1946) (Frankfurter, J.,
    
    concurring) (“[I]t is indispensable . . . that in a particular
    
    controversy pending before a court and awaiting judgment, human
    
    beings, however strong, should not be torn from their moorings of
    
    impartiality by the undertow of extraneous influence.”); see also
    
    Bridges v. California, 
    62 S. Ct. 190
    , 197 (1941) (“Legal trials are
    
    
    curiam) (quoting Hunt v. Bankers Trust Co., 
    799 F.2d 1060
    , 1066
    (5th Cir. 1986)). As a case management order, the gag order at
    issue here was indisputably crafted to control the proceedings, in
    no way impacts the merits of the case against Brown, and therefore
    is not appealable under section 1292(a)(1).
    
                                             14
    not like elections, to be won through the use of the meeting-hall,
    
    the radio, and the newspaper.”); Patterson v. Colorado, 
    27 S. Ct. 556
    , 558 (1907) (Holmes, J.) (“The theory of our system is that the
    
    conclusions to be reached in a case will be induced only by
    
    evidence and argument in open court, and not by any outside
    
    influence, whether of private talk or public print.”).               Paramount
    
    among these dangers is the potential that pretrial publicity may
    
    taint the jury venire, resulting in a jury that is biased toward
    
    one   party   or   another.8        “Few,   if   any,   interests   under   the
    
    Constitution are more fundamental than the right to a fair trial by
    
    111 S. Ct. 2720
    , 2745 (1991).
    
          Accordingly, trial courts have “an affirmative constitutional
    
    duty to minimize the effects of prejudicial pretrial publicity.”
    
    Gannett Co. v. DePasquale, 
    99 S. Ct. 2898
    , 2904 (1979); see also
    
    Chandler v. Florida, 
    101 S. Ct. 802
    , 809 (1981) (“Trial courts must
    
    be especially vigilant to guard against any impairment of the
    
    defendant’s right to a verdict based solely upon the evidence and
    
    the relevant law.”); United States v. Noriega, 
    917 F.2d 1543
    , 1549
    
    (11th Cir.) (per curiam), cert. denied sub nom. Cable News Network
    
          8
          Other principal dangers include disseminating to the press
    inadmissible evidence, the exclusion of which at trial “is rendered
    meaningless when news media make it available to the public,” as well
    as creating a “carnival atmosphere,” which threatens the integrity of
    the proceeding. See Sheppard v. Maxwell, 
    86 S. Ct. 1507
    , 1520-21 (1966).
    
                                           15
    v. Noriega, 
    111 S. Ct. 451
     (1990).          The beneficiaries of this duty
    
    include   not   only   the     defendant   in   a   given    trial,   but   other
    
    defendants as well, such as co-defendants in the same case or
    
    defendants in related cases (as there are here), whose fair trial
    
    rights might be prejudiced by the extrajudicial statements of other
    
    trial participants.       The vigilance of trial courts against the
    
    prejudicial     effects   of    pretrial   publicity        also   protects   the
    
    interest of the public and the state in the fair administration of
    
    criminal justice.9
    
         9
          It makes no difference that Brown is contesting the gag order
    as violative of his First Amendment rights instead of embracing it
    as protective of his Sixth Amendment right to a fair trial. As one
    commentator has aptly noted, “under the Sixth Amendment, a criminal
    defendant is entitled to a fair and impartial jury, not a jury
    whose views have been deliberately manipulated by outside
    influences to be biased in his or her favor.” Eileen A. Minnefor,
    Looking for Fair Trials in the Information Age: The Need for More
    Stringent Gag Orders Against Trial Participants, 20 U.S.F. L. REV.
    95, 115-16 (1995) (citing Pennekamp, 66 S.Ct. at 1044 (Frankfurter,
    J., concurring)); see also In re Morrissey, 
    168 F.3d 134
    , 138 (4th
    Cir. 1999) (noting that local rules of professional conduct
    limiting lawyers’ extrajudicial comments further “the important
    governmental interest of protecting both the accused’s and the
    public’s right to a fair trial”); Levine v. United States Dist.
    Court, 
    764 F.2d 590
    , 596-97 (9th Cir. 1985) (“It does not follow .
    . . that the need to restrict publicity is lessened when the
    publicity is caused by the actions of the defense, rather than the
    prosecution.”); United States v. Tijerina, 
    412 F.2d 661
    , 666 (10th
    Cir. 1969); cf. Estes v. Texas, 
    85 S. Ct. 1628
    , 1636 (1965) (“A
    defendant on trial for a specific crime is entitled to his day in
    court, not in a stadium, or a city or nationwide arena.”); Singer
    v. United States, 
    85 S. Ct. 783
    , 790 (1965) (“The Government, as a
    litigant, has a legitimate interest in seeing that cases in which it
    believes a conviction is warranted are tried before a tribunal which the
    Constitution regards as most likely to produce a fair result.”).
    Accordingly, it seems to us that the Ford Court was incorrect when it
    stated, “[t]o the extent that publicity is a disadvantage for the
    government, the government must tolerate it.“ Ford, 830 F.2d at 600.
    
                                          16
         This duty comports with the constitutional status of all First
    
    Amendment freedoms, which are not absolute but must instead be
    
    “applied in light of the special characteristics of the [relevant]
    
    environment.” Tinker v. Des Moines Indep. Community Sch. Dist., 
    89 S. Ct. 733
    , 736 (1969).          Indeed, “[a]lthough litigants do not
    
    104 S. Ct. 2199
    , 2207-08 n.18 (1984).             “[O]n several
    
    occasions this Court has approved restriction on the communications
    
    of trial participants where necessary to ensure a fair trial for a
    
    criminal defendant.”     Id.   There can be no question that a criminal
    
    defendant’s right to a fair trial may not be compromised by
    
    commentary,   from     any   lawyer   or   party,   offered    up   for   media
    
    consumption on the courthouse steps.           See Estes v. Texas, 
    85 S. Ct. 1628
    , 1632    (1965)    (“We   have   always    held   that   the   atmosphere
    
    essential to the preservation of a fair trial–the most fundamental
    
    of all freedoms–must be maintained at all costs.”); Pennekamp, 66
    
    S.Ct. at 1047 (Frankfurter, J., concurring) (“In securing freedom
    
    of speech, the Constitution hardly meant to create the right to
    
    influence judges or juries.”).
    
         Despite the fact that litigants’ First Amendment freedoms may
    
    by limited in order to ensure a fair trial, gag orders such as this
    
    one still exhibit the characteristics of prior restraints.                See In
    
    
                                          17
    re Dow Jones, 
    842 F.2d 603
    , 609 (2d Cir. 1988); Levine v. United
    
    States District Court, 
    764 F.2d 590
    , 595 (9th Cir. 1985).      Prior
    
    restraints–“predetermined      judicial   prohibition   restraining
    
    specified expression”–face a well-established presumption against
    
    their constitutionality.    See Bernard v. Gulf Oil Co., 
    619 F.2d 459
    , 467 (5th Cir. 1980) (en banc) (citations omitted).           In
    
    general, a prior restraint (usually directed at the press) will be
    
    upheld only if the government can establish that “the activity
    
    restrained poses either a clear and present danger or a serious and
    
    imminent threat to a protected competing interest.”     See Levine,
    
    764 F.2d at 595 (citations omitted).      The government must also
    
    establish that the order has been narrowly drawn and is the least
    
    restrictive means available.    See id. (citations omitted).
    
         A.   Appropriate Legal Standard
    
         The first element of the prior restraint analysis–the showing
    
    of harm necessary to justify the need for the restraint–requires
    
    some discussion in the present context because the gag order at
    
    issue here is directed at trial participants and not the press.
    
    The Supreme Court and other Courts of Appeals have recognized a
    
    “distinction between participants in the litigation and strangers
    
    to it,” pursuant to which gag orders on trial participants are
    
    evaluated under a less stringent standard than gag orders on the
    
    press.    See Gentile, 111 S.Ct. at 2743-44; News-Journal Corp. v.
    
    Foxman, 
    939 F.2d 1499
    , 1512-13 & n.16 (11th Cir. 1991); Dow Jones,
    
    
                                      18
    842 F.2d at 608-09; Levine, 764 F.2d at 595.        The genesis of this
    
    distinction lies in part in Sheppard v. Maxwell, 
    86 S. Ct. 1507
    
    (1966), which concerned the massive publicity surrounding the trial
    
    of Dr. Sam Sheppard.       The Supreme Court observed that during
    
    Sheppard’s trial, “bedlam,” in the form of reporters virtually
    
    taking over the courtroom and accosting witnesses as they left the
    
    building, “reigned at the courthouse.”       See id. at 1518.    The Court
    
    also noted that inadmissible (and often inaccurate) information had
    
    been leaked to the public, fueling the firestorm of publicity
    
    already raging around the case.         See id. at 1521.   Acknowledging
    
    the importance of a free and responsible press as “the handmaiden
    
    of effective judicial administration, especially in the criminal
    
    field,” id. at 1515, the Court considered various, less restrictive
    
    alternatives to gagging the press itself; among them, the Court
    
    stated    that   “the   trial   court    might   well   have    proscribed
    
    extrajudicial statements by any lawyer, party, witness, or court
    
    official which divulged prejudicial matters,” id. at 1521.10            In
    
    that case, a gag order imposed on the trial participants “might
    
    well have prevented the divulgence of inaccurate information,
    
    rumors, and accusations that made up much of the inflammatory
    
    publicity, at least after Sheppard’s indictment,” id. at 1521,
    
    
         10
          The other corrective measures discussed in Sheppard included
    change of venue, trial postponement, a “searching” voir dire, jury
    instructions, and juror sequestration. See Nebraska Press Ass’n v.
    Stuart, 
    96 S. Ct. 2791
    , 2804-05 (1976); Sheppard, 86 S.Ct. at 1519-22.
    
                                       19
    “without [a] corresponding curtailment of the news media,” id. at
    
    1522.11 The Court noted that due process “requires that the accused
    
    receive a trial by an impartial jury free from outside influences”
    
    and that “[n]either prosecutors, counsel for defense, the accused,
    
    witnesses, court staff nor enforcement officers . . . should be
    
    permitted to frustrate its function.”      Id.
    
         Ten years later, in Nebraska Press Association v. Stuart, 
    96 S. Ct. 2791
     (1976), the Supreme Court vacated on prior restraint
    
    grounds an order prohibiting the press from publishing accounts
    
    about certain evidence that would be used in a widely reported
    
    murder trial taking place in a small, rural community.          See 96
    
    S.Ct. at 2807. In doing so, the Court endorsed Sheppard’s proposal
    
    that trial courts employ methods short of prior restraints on the
    
    press, including the prohibition of extrajudicial comments by trial
    
    participants, in order to mitigate the potentially prejudicial
    
    effects of pretrial publicity.         See id. at 2800-01; see also
    
    Foxman, 939 F.2d at 1514 (11th Cir. 1991).12
    
         11
          The Sheppard Court further noted that “[h]ad the judge, the other
    officers of the court, and the police placed the interest of justice
    first, the news media would have soon learned to be content with the
    task of reporting the case as it unfolded in the courtroom–not pieced
    together from extrajudicial statements.” Id. at 1522.
         12
          In a situation more analogous to the present case, then-
    Associate Justice Rehnquist, writing as Circuit Justice, denied the
    request by a media organization and group of reporters to stay a
    judicially imposed gag order restraining trial participants from
    speaking directly with the press about a high-profile murder trial.
    See KPNX Broad.Co. v. Arizona Superior Court, 
    103 S. Ct. 584
    (Rehnquist, Circuit Justice 1982). Citing Sheppard’s admonition
    
                                      20
         Gentile     v.    State   Bar   of   Nevada,     
    111 S. Ct. 2720
       (1991),
    
    represents      the    Supreme    Court’s      most    recent       discussion   of
    
    limitations imposed on the speech of trial participants.                         In
    
    Gentile, the Court considered an attack on a Nevada Supreme Court
    
    rule prohibiting any attorney from making extrajudicial comments to
    
    the media that the attorney knew or should have known would “have
    
    a substantial likelihood of materially prejudicing an adjudicative
    
    proceeding.”         Gentile, 111 S.Ct. at 2723.13             Observing that in
    
    earlier opinions the Court had “expressly contemplated that the
    
    speech of those participating before the courts could be limited,”
    
    a majority of the Gentile Court stated that prior precedent,
    
    including Sheppard, “rather plainly indicate[d] that the speech of
    
    lawyers representing clients in pending cases may be regulated
    
    under     a   less    demanding   standard     than     that    established      for
    
    
    
    that trial courts take measures to avoid the prejudicial effects of
    publicity in sensational cases, Justice Rehnquist concluded that “I
    do not have the slightest doubt that a trial judge may insist that
    the only performance which goes on in the courtroom is the trial of
    the case at hand.” Id. at 586. He further observed that “[t]he
    mere potential for confusion if unregulated communication between
    trial participants and the press at a heavily covered trial were
    permitted is enough to warrant a measure such as the trial judge
    took in this case.” Id. at 586-87.
         13
           In Gentile, an attorney representing a criminal defendant called
    a press conference and, in violation of the Nevada rule, lambasted the
    investigating officers and other victims as corrupt. 111 S.Ct. at 2739.
    Much like Brown, the attorney admitted that his motivation for doing so
    was “to counter public opinion which he perceived as adverse to his
    client, to fight back against the perceived efforts of the prosecution
    to poison the prospective juror pool, and to publicly present his
    client’s side of the case.” Id.
    
                                              21
    regulation of the press in Nebraska Press.” Id. at 2744 (opinion of
    
    Rehnquist,     C.J.)     (citations         omitted)     (emphasis       added).
    
    Accordingly, the Court found that demonstrating a “substantial
    
    likelihood of material prejudice” from an attorney’s extrajudicial
    
    comments, which the Nevada rule required, as opposed to a “clear
    
    and present danger,” was constitutionally sufficient to justify
    
    prescribing attorney comments of that type.            See id. at 2745; cf.
    
    In re Express-News Corp., 
    695 F.2d 807
    , 810 (5th Cir. 1982)
    
    (applying strict scrutiny to court order denying press right to
    
    interview jurors).
    
         In   Gentile,     the   Supreme   Court    merely    approved   Nevada’s
    
    “substantial   likelihood”     standard      when   applied   to   gag   orders
    
    imposed on attorneys, but did not mandate it as a constitutional
    
    minimum necessary to justify a judicially-imposed restriction on
    
    attorney speech.       Moreover, neither the Supreme Court nor this
    
    Court has articulated a standard to apply when evaluating gag
    
    orders directed at attorney or non-attorney trial participants.14
    
    
         14
           Davis v. East Baton Rouge Parish School Board, 
    78 F.3d 920
     (5th
    Cir. 1996), which concerned an appeal by the press of a court-imposed
    confidentiality order on parties and attorneys in a school
    desegregation case, is of limited relevance to this appeal. As the
    district court noted, Davis was a non-jury civil case in which the Court
    found “no possibility that publicity will prejudice potential jurors.”
    Id. at 929. Moreover, Davis did not announce any standard by which to
    judge this order; the Court declined to decide whether to apply strict
    scrutiny “or some variant of the reasonable likelihood standard” because
    the order could not survive under either. See id. This case, by
    contrast, is a criminal matter in which the primary concern of the
    district court was the possibility that pretrial publicity would taint
    the jury pools for Brown’s trial and the two related trials.
    
                                           22
    Our sister circuits have not reached a consensus on this question.
    
    The Fourth and Tenth Circuits have held that a trial court may
    
    restrict extrajudicial comments by trial participants, including
    
    lawyers, parties, and witnesses, based on a determination that
    
    those comments present a “reasonable likelihood” of prejudicing a
    
    fair trial.      See In re Russell, 
    726 F.2d 1007
    , 1010 (4th Cir.
    
    1984); United States v. Tijerina, 
    412 F.2d 661
    , 666-67 (10th Cir.
    
    1969).15    The Sixth, Seventh, and Ninth Circuits have applied more
    
    stringent tests, requiring either a showing of “clear and present
    
    danger” or “serious and imminent threat” of prejudicing a fair
    
    trial.     See Ford, 830 F.2d at 600-02 (“clear and present danger”);
    
    Chicago Council of Lawyers v. Bauer, 
    522 F.2d 242
    , 249 (7th Cir.
    
    1975), cert. denied sub nom. Cunningham v. Chicago Council of
    
    Lawyers, 
    96 S. Ct. 3201
     (1976) (“serious and imminent threat”);
    
    Levine, 764 F.2d at 596 (“clear and present danger”).
    
    
         15
          In an appeal by members of the media challenging a gag order that
    restrained participants in a criminal trial from speaking with the
    press, the Second Circuit has also held that a “reasonable likelihood”
    that pretrial publicity will prejudice a fair trial is sufficient to
    justify an order of that type. See Dow Jones, 842 F.2d at 609. Here,
    Brown is the sole challenger of the gag order.
    
         Two recent opinions have addressed fact patterns similar to Gentile
    and, in light of that case, have followed local rules of professional
    conduct that prohibit attorneys from making extrajudicial comments that
    are “reasonably likely” to prejudice the proceedings. See Morrissey,
    168 F.3d at 140 (concluding that the “reasonable likelihood” standard
    was constitutionally permissible under Gentile); United States v.
    Cutler, 
    58 F.3d 825
    , (2d Cir. 1995) (affirming contempt conviction for
    criminal defense attorney who violated court order demanding compliance
    with local rule that used “reasonable likelihood” standard).
    
                                       23
          We decline to adopt the more stringent tests advocated by the
    
    Sixth, Seventh, and Ninth Circuits because Gentile appears to have
    
    foreclosed the applicability of those tests to the regulation of
    
    speech by trial participants.     The cases endorsing some version of
    
    the “clear and present danger” test all predated Gentile and did
    
    not   consider    the   distinction–explicitly   recognized   in   that
    
    case–between trial participants and the press for purposes of a
    
    trial court’s ability to restrict the speech of those two groups.
    
    See, e.g., Ford, 830 F.2d at 598.       Under Gentile, Sheppard, and
    
    Nebraska Press, it seems plain that the “clear and present danger”
    
    test, and the variants thereof, are appropriate for protecting the
    
    unique role of the press as the public’s “eyes and ears” into the
    
    criminal justice system.      Cf. Houchins v. KQED, Inc., 
    98 S. Ct. 2588
    , 2593 (1978) (characterizing the press as the “eyes and ears”
    
    of the public).
    
          Having rejected the “clear and present danger” test, we must
    
    next identify an appropriate, less stringent standard.        As noted
    
    above, the Fourth and Tenth Circuits have concluded that gag orders
    
    imposed on any trial participant may be justified by a “reasonable
    
    likelihood” that extrajudicial commentary will prejudice a fair
    
    trial.    See Russell, 726 F.2d at 1010; Tijerina, 412 F.2d at 666-
    
    67.      The Supreme Court in Gentile found that a “substantial
    
    likelihood” of prejudice was sufficient to justify a restriction on
    
    extrajudicial comments by attorneys.     The difference between these
    
    
                                       24
    two standards is not clear–we would assume that “substantial
    
    likelihood”     connotes       a      stronger        showing     than     “reasonable
    
    likelihood”–but we do not decide between them here.                        Instead, we
    
    conclude   that    a    district      court     may    in   any    event    impose    an
    
    appropriate     gag    order   on     parties    and/or       their   lawyers   if    it
    
    determines that extrajudicial commentary by those individuals would
    
    present a “substantial likelihood” of prejudicing the court’s
    
    ability to conduct a fair trial.           We do not address whether a trial
    
    court may also impose a similar gag order based on a “reasonable
    
    likelihood” of prejudice.
    
         The fact that the gag order in this case concerns the speech
    
    of parties as well as attorneys requires some consideration.                         The
    
    Gentile    Court      premised      its   approval       of     the   Nevada    rule’s
    
    “substantial likelihood” standard in part on the unique role of
    
    attorneys as “officers of the court” who “in pending cases [are]
    
    subject to ethical restrictions on speech to which an ordinary
    
    citizen would not be.”              See Gentile, 111 S.Ct. at 2743.                  The
    
    context    of   this    case     is   different,        however:      it   concerns   a
    
    judicially crafted restriction on the extrajudicial speech of all
    
    trial participants, not a general rule of professional conduct. An
    
    attorney’s ethical obligations to refrain from making prejudicial
    
    comments about a pending trial will exist whether a gag order is in
    
    place or not.      In this case, the driving interest of the district
    
    court was to preserve the fair trial interests of the parties in
    
    
                                              25
    all three related cases.       As the district court pointed out, trial
    
    participants, like attorneys, “are privy to a wealth of information
    
    that, if disclosed to the public, could readily jeopardize the fair
    
    trial rights of all parties.”         The mischief that might have been
    
    visited    upon     the      three    related         trials–primarily,       jury
    
    tainting–would have been the same whether prejudicial comments had
    
    been uttered by the parties or their lawyers.                In other words, the
    
    problem the district court sought to avoid depended in no way on
    
    the identity of the speaker as either a lawyer or a party: the
    
    interests of the lawyers and the parties in “trying the case in the
    
    media” were (and continue to be) the same.                   In light of these
    
    considerations, there appears to be no reason, at least where
    
    lawyers    and    parties    have    each       demonstrated      a   “substantial
    
    likelihood” of making prejudicial comments outside the courtroom,
    
    to distinguish between the two groups for the purpose of evaluating
    
    a gag order directed at them both.16
    
          In sum, we conclude that in light of Gentile, “clear and
    
    present danger” cannot be the appropriate standard by which we
    
    evaluate gag orders imposed on trial participants.                    Instead, the
    
    standard must require a lesser showing of potential prejudice.                  If
    
    the   district    court     determines        that   there   is   a   “substantial
    
    likelihood” (or perhaps even merely a “reasonable likelihood,” a
    
    
          16
          There may conceivably be occasions in which we evaluate
    restrictions placed on speech by attorneys under a different standard
    than speech by parties, but we do not address that question here.
    
                                             26
    matter we do not reach) that extrajudicial commentary by trial
    
    participants will undermine a fair trial, then it may impose a gag
    
    order on the participants, as long as the order is also narrowly
    
    tailored and the least restrictive means available.                 This standard
    
    applies to both lawyers and parties, at least where the court’s
    
    overriding interest is in preserving a fair trial and the potential
    
    prejudice caused by extrajudicial commentary does not significantly
    
    depend on the status of the speaker as a lawyer or party.
    
    Accordingly, we now address the propriety of the gag order imposed
    
    in this case.
    
         B.   Merits of the Gag Order
    
               1.   Substantial Likelihood of Prejudice
    
         We   conclude     that    the   district      court      did    identify    a
    
    “substantial likelihood” that the extrajudicial comments of the
    
    trial participants would prejudice its ability to conduct fair
    
    trials in all three related cases.             While the district court did
    
    not decide whether it must demonstrate a “clear and present danger”
    
    or “reasonable likelihood” of prejudice, and instead determined
    
    that it could meet either standard, we find that it met its burden
    
    in this case.
    
         In   denying    Brown’s   motion     to   modify   the    gag    order,    the
    
    district court articulated two major concerns about the possible
    
    impact of extrajudicial statements on the three trials, and made
    
    specific findings about the conduct of the parties persuading it
    
    
    
                                         27
    that these fears might well be realized.                 As indicated above, by
    
    the time the district court entered the order, the trio of related
    
    cases had attracted intense and extensive media attention.                          The
    
    district court’s first concern was that “[u]nrestricted statements
    
    by the participants in this trial would only serve to increase the
    
    volume   of    pre-trial    publicity.”           This    was    of   course      quite
    
    legitimate:     Sheppard      made   clear    that       trial     judges    have     a
    
    responsibility to avoid the creation of a “carnival atmosphere” in
    
    high-profile cases.         See Sheppard, 86 S.Ct. at 1520-21.                      The
    
    district court’s next, and “primary,” concern was that the pretrial
    
    publicity, especially in the form of extrajudicial comments by the
    
    parties, would taint the unsequestered jury already impaneled in
    
    Edwards, as well as the pool from which the juries in the other two
    
    cases would be drawn.           This, too, was an entirely appropriate
    
    concern.      “Extrajudicial comments on, or discussion of, evidence
    
    which might never be admitted at trial and ex parte statements by
    
    counsel [or parties] giving their version of the facts obviously
    
    threaten to undermine [the] basic tenet” that the outcome of a
    
    trial must be decided by impartial jurors.                Gentile, 111 S.Ct. at
    
    2743.
    
         Driving     these   concerns     was    the    district      court’s    general
    
    observation     that     “the    parties     in    this     case      have   already
    
    demonstrated     a   desire     to   manipulate     media       coverage     to    gain
    
    favorable attention.”         As noted above, during the period in which
    
    
                                            28
    the district court vacated the gag order so that Brown could pursue
    
    his re-election campaign, some of the defendants released to the
    
    press   recordings   and   transcripts   of   recordings    of   wiretapped
    
    conversations, which had previously been subject to the order, and
    
    participated   in    “extensive    interviews”      while    playing    the
    
    recordings.    During a discussion of the tape episode at the
    
    November 18, 1999 status conference, one of the defendants (not
    
    Brown) who had released a tape explained his actions by stating
    
    that he had merely seized “a window of opportunity.”         A lawyer for
    
    the government then suggested that he would match any attempts by
    
    the defendants to gain an upper hand in the media coverage of the
    
    case.
    
         Based on all of these developments, the district court found
    
    it clear “that both the government and the defendants are prepared
    
    to 94 S. Ct. 1800
    , 1811 (1974).            We find that the gag order
    
    in   the   present     case    is    sufficiently    narrow     to    eliminate
    
    substantially only that speech having a meaningful likelihood of
    
    materially impairing the court’s ability to conduct a fair trial.17
    
    First, we observe that the district court did not impose a “no
    
    comment” rule, but instead left available to the parties various
    
    avenues of expression, including assertions of innocence, general
    
    statements about the nature of an allegation or defense, and
    
    statements of matters of public record.             The district court also
    
    made special allowances for Brown’s re-election campaign by lifting
    
    most of the order (with the exception of the wire tap recordings)
    
    for the duration of the campaign.            Unlike the defendant in Ford,
    
    
         17
           Under the circumstances here Brown’s attack on the order in this
    respect is essentially facial and in such a context complained of
    “‘overbreadth . . . must not only be real, but substantial as well,
    judged in relation to the . . . [order’s] plainly legitimate sweep.’”
    J&B Entertainment Inc. v. City of Jackson, 
    152 F.3d 362
    , 366 (5th Cir.
    1998) (quoting Broadrick v. Oklahoma, 
    93 S. Ct. 2908
    , 2917-18 (1973)).
    
    
                                           30
    who could not comment on his indictment during his re-election
    
    campaign because of a court-imposed gag order, see Ford, 830 F.2d
    
    at 600, Brown was able to answer, without hindrance, the charges of
    
    his opponents regarding his indictment throughout the race.                 We do
    
    not find compelling Brown’s argument that his newly re-elected
    
    position as Insurance Commissioner requires him, for the good of
    
    the state insurance industry and the people of Louisiana, to engage
    
    in the same unfettered dialogue about the charges pending against
    
    him.    The urgency of a campaign, which may well require that a
    
    candidate, for the benefit of the electorate as well as himself,
    
    have absolute freedom to discuss his qualifications, has passed.
    
    Accepting Brown’s argument would essentially create an exception to
    
    gag orders for any trial participant holding elected office or any
    
    position of public importance.         We see no reason why Brown cannot
    
    continue    to    perform   his   duties     as    Insurance   Commissioner      by
    
    assuring the public and various insurance companies that he will
    
    prevail    at    trial.     “Bearing   the    discomfiture     and   cost   of    a
    
    prosecution for crime even by an innocent person is one of the
    
    painful obligations of citizenship.”              Cobbledick v. United States,
    
    
    60 S. Ct. 540
    , 541 (1940).
    
           Second, despite Brown’s arguments to the contrary, the order
    
    provides sufficient guidance regarding the nature of the prohibited
    
    comments.       A restraining order of any type is unconstitutionally
    
    vague if it fails to give clear guidance regarding the type of
    
    
                                           31
    speech that an individual may not utter.               See Smith v. Goguen, 
    94 S. Ct. 1242
    , 1246-47 (1974) (cited in Levine, 764 F.2d at 599).                  The
    
    order in the present case does not suffer from such a shortcoming.
    
    It specifically designates “[s]tatements or information intended to
    
    influence public opinion regarding the merits of this case” as
    
    matters the parties may not share with the public media.                 We see no
    
    reason   to    believe     that   the   parties   in    this    case    would   not
    
    understand the meaning of these words.                See Levine, 764 F.2d at
    
    598-99 (finding that an order barring trial participants from
    
    making any statements to members of the news media concerning any
    
    aspect of this case that bears “upon the merits to be resolved by
    
    the jury” not vague).
    
         Moreover, Brown’s complaints that the order is overbroad or
    
    too vague are weakened by the fact that he did not take the
    
    district      court   up    on    its    invitation     to     submit   suggested
    
    modifications of the order.             Instead, Brown insisted that he be
    
    completely exempt from any restrictions on extrajudicial comments.
    
    He never sought clarification.           If he had been so concerned about
    
    the scope of the order, he should have communicated those concerns
    
    to the district court as he was given ample opportunity, and indeed
    
    invited, to do.
    
         In short, while the language of the order is arguably somewhat
    
    broad, under the circumstances we do not find it to be so vague or
    
    overinclusive as to unjustifiably trammel on Brown’s free speech
    
    
                                             32
    rights.
    
                C.    Least Restrictive Means
    
          In Nebraska Press, the Supreme Court indicated that “[t]he
    
    more difficult prospective or predictive assessment that a trial
    
    judge must make” when considering whether to impose a gag order as
    
    a remedy for potentially prejudicial pretrial publicity “calls for
    
    a judgment as to whether other precautionary steps will suffice.”
    
    96 S.Ct. at 2805.            This requirement appears to comport with the
    
    more general First Amendment principle that restrictions on speech
    
    should employ the least restrictive means possible.                         See, e.g.,
    
    Procunier, 94 S.Ct. at 1811.           As noted above, Sheppard suggested
    
    several alternatives to imposing prior restraints on the press,
    
    such as change of venue, jury sequestration, “searching” voir dire,
    
    and   “emphatic”     jury      instructions,         as   tools    for   dealing   with
    
    extensive pretrial publicity; Nebraska Press held that trial courts
    
    should    use    these   alternatives,          whenever     possible,      instead   of
    
    gagging the press.           See Nebraska Press, 96 S.Ct. at 2805.
    
          The district court did not on the record explicitly discuss
    
    and reject each of the Sheppard options before imposing the gag
    
    order on Brown and the other trial participants; this order was, of
    
    course, another of the less restrictive alternatives proposed in
    
    Sheppard.       While it is undoubtedly good judicial practice for
    
    district courts         to    explicitly    set      forth   on    the   record    their
    
    consideration      of    such    matters,       we   do   not     believe   that   this
    
    
                                               33
    shortcoming requires us to vacate the present order.     See Nebraska
    
    Press, 96 S.Ct. at 2806 (in the absence of such a discussion by the
    
    trial court, examining the record to determine the efficacy of
    
    measures short of a gag order on the press); Russell, 726 F.2d at
    
    1010 (concluding that the district court’s order was not “rendered
    
    unconstitutional because of the alleged lack of an