United States v. Brown ( 2000 )

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 Jones, 842 F.2d at
611 (requiring that “each [alternative measure] must be explored
and ultimately rejected as inadequate–individually and in
combination–as a remedy for prejudicial pretrial publicity before
a restraining order [on the press] is entered”).
The record sufficiently supports the district court’s clearly
implied conclusion that the other measures suggested by Sheppard
and Nebraska Press would be inappropriate or insufficient to
adequately address the possible deleterious effects of enormous
pretrial publicity on this case and the two related cases. As the
Supreme Court noted in Gentile, even “[e]xtensive voir dire may not
be able to filter out all of the effects of pretrial publicity, and
with increasingly widespread media coverage of criminal trials, a
change of venue may not suffice to undo the effects of statements”
by trial participants. Gentile, 111 S. Ct. at 1075. Like voir
dire, “emphatic” jury instructions may be at best an imperfect
34
filter, and would also fail to address the threat of a “carnival
atmosphere” around the trial. See Levine, 764 F.2d at 600.
Delaying the commencement of the trial and sequestering the jury
both impose well-known and serious burdens in their own right and
would not have prevented, in any meaningful way, the infection of
jurors in the two related trials. For example, even if the
district court had sequestered the jury in this case, the comments
by the parties would still threaten to prejudice the jurors in the
other trials. In short, all of these options carry with them
significant costs without addressing the root cause of the district
court’s concern. See Gentile, 111 S. Ct. at 1075 (noting that “voir
dire, change of venue, or some other device . . . entail serious
costs to the system [which] [t]he State has a substantial interest”
in avoiding). The Sheppard Court observed that when considering
how to “cure” the effects of pretrial publicity, a trial court’s
overriding object must be to institute “those remedial measures
that will prevent the prejudice at its inception.” Sheppard, 86
S. Ct. at 1522. In light of the parties’ and attorneys’
demonstrated enthusiasm for using the press to their utmost
advantage, the district court made a reasoned and reasonable
decision to focus its prophylactic attempt to avoid prejudicing the
three related trials on the trial participants. Given the
difficult and “necessarily speculative” task of trying to prevent
prejudice that has not yet occurred–a task that involves the
35
weighing of “factors unknown and unknowable”–we do not believe that
the district court erred in imposing the gag order on Brown and the
other trial participants in this case. Nebraska Press, 96 S. Ct. at
2804.
Conclusion
The district court’s denial of Brown’s motion to modify or vacate
the order is AFFIRMED.
36