Challenges to gag orders end in mixed results

From the Spring 2000 issue of The News Media & The Law, page 3.

Litigants have had mixed results in fighting recent gag orders against trial participants, winning an important decision in a Florida federal district court while having less success in federal panels in the Fifth Circuit and a state court in Florida.

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Federal judge overrules state court gag order in tobacco case

Saying that a broad gag order against trial participants and their attorneys violated the media’s First Amendment newsgathering rights, a Miami federal judge enjoined enforcement of a state court judge’s order that had prevented participants in a class action lawsuit against tobacco companies from speaking to the public about the case.

Federal District Judge Adalberto Jordan issued a 20-page opinion on April 5 that immediately enjoined continued enforcement of the gag order instituted by Miami state trial Judge Robert Kaye in October 1998. Jordan found that the gag order violated the U.S. Constitution because the record did not show that the gag order was “necessary for a fair trial” and because Kaye’s order “is overbroad in scope and of infinite duration.”

“It is for Judge Kaye to determine whether a more narrowly drawn gag order is necessary under the circumstances . . . to ensure that the trial is concluded fairly,” Jordan wrote at the conclusion of his opinion.

The case was brought in federal court by a coalition of media entities that included Dow Jones & Co., The New York Times, Media General Operations, The Miami Herald, Gannett Satellite Information Network and the Sun-Sentinel.

Previously, the tobacco companies had unsuccessfully appealed Kaye’s gag order to the Florida state appellate courts. A Florida court of appeals panel in Miami on Feb. 24 refused to lift a gag order that has prevented cigarette manufacturers from discussing a pending class action lawsuit.

Members of the tobacco industry, including R.J. Reynolds, Lorillard Tobacco, British American, Brown & Williamson and industry trade groups, had argued that the gag order infringed upon the tobacco industry’s First Amendment rights because members of the industry must be able to pass along information about the litigation to current or potential investors who may otherwise receive only inaccurate or misleading information. (Dow Jones v. Kaye)

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Gag orders in former Governor’s trials survive appeals

The criminal trials involving former Louisiana Gov. Edwin Edwards have generated litigation concerning the gag order imposed by the federal trial court judge.

In the criminal insurance fraud trial involving Edwards, the U.S. Court of Appeals in New Orleans (5th Cir.) has refused a request to compel Baton Rouge federal District Judge Frank Polozola to immediately lift a broad gag order entered against all trial participants.

In a 2-1 decision released Feb. 21, 2000, a three-judge panel denied the request that had been filed by Louisiana Insurance Commissioner Jim Brown, Edwards’ co-defendant. The panel stated that “the requisite clear and indisputable abuse of discretion is not present” and that it therefore could not currently suspend the gag order entered by Polozola.

The federal appellate court, however, heard oral argument on Brown’s appeal on an expedited basis in early April 2000. The court also granted the request of several media entities to file a friend-of-the-court brief challenging the gag order. The media groups include the Times Picayune Publishing Corp., the Associated Press, Capital City Press Inc., Gannett River States Publishing Corp., WDSU-TV, WGNO-TV, WWL-TV, WVUE-TV and the Louisiana Press Association.

Judges Jerry Smith and Rhesa Barksdale constituted the majority of the appellate panel issuing the February decision. Judge Robert Parker dissented, noting that he would have granted the relief requested by Brown because “the district court’s ‘gag order’ is essentially a ‘no discussion’ order” that harms Brown, an elected official. “The prosecution has the luxury of well-publicized allegations against Brown, aided in large part by the government’s release of sensitive wiretap material to the press and various public announcements regarding the ‘factual basis’ for the indictment,” Parker wrote. “By forbidding Brown to respond to these public statements, the order violates the Constitution’s prohibitions on prior restraints of speech.”

In the second case involving Edwards, a Nov. 9, 1998 gag order in the criminal trial of Edwards and six other defendants for allegedly rigging the licensing process for gambling on riverboats restricts the parties, attorneys and witnesses from making certain out-of-court statements. The defendants first filed their motion complaining about the gag order on Sept. 16, 1999. After Polozola denied the motion, the defendants appealed, arguing that the gag order imposes “a continuous prior restraint on speech which is damaging the defendants’ ability to obtain a fair trial.”

A different Fifth Circuit panel in New Orleans refused on March 8, 2000 to review Polozola’s decision. The unsigned opinion was joined by Judges John Duhe Jr., Edith Jones and Jacques Wiener Jr.

The court held that it could review only “final orders” — orders that end the litigation — and orders that fall under the “collateral order doctrine,” which are orders that “are conclusive, resolve important questions separate from the merits, and are effectively unreviewable on appeal from the final judgment in the underlying action.” (In re James Harvey Brown; United States v. Edwards)

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Gag order expanded in SLA bombing trial

The Los Angeles judge presiding over the trial of former Symbionese Liberation Army fugitive Sara Jane Olson in early April enlarged the scope of an existing gag order on trial participants after earlier refusing to allow a camera in the courtroom.

Judge James Ideman announced that his modified order “is not limited to any geographical boundaries given the reach of modern communications.” The order forbids parties, lawyers and witnesses from communicating to anyone about “the character, credibility, criminal record or reputation of any party, attorney or witness.” The order also does not allow any statements concerning physical evidence, the relative strength of the prosecution and defense arguments, opinions about Olson’s guilt, the plea that Olson will enter, opinions about inadmissible evidence and opinions about any order of the court, including the gag order itself.

Ideman banned television cameras from inside the courtroom because of concerns about the effect that televising the trial would have on Patricia Hearst Shaw, who is expected to testify on behalf of the prosecution. In blocking cameras, Ideman rejected a motion filed by Court TV and the Cable News Network.

Olson stands accused of putting bombs underneath two police cars in 1975 as part of an unsuccessful SLA plot to avenge the deaths of six SLA members who were killed in a shootout with Los Angeles police officers. Although she was indicted in 1976, she remained at large until her 1999 capture in Minnesota. Shaw was kidnaped in 1974 by the SLA and later participated in an armed bank robbery. She contended at the trial that the SLA had raped and brainwashed her and that she should not be held responsible for the crime. Following her conviction, she served less than two years of a seven year sentence before being pardoned by President Jimmy Carter in 1979. (California v. Olson)

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Gag order against judge stricken in disciplinary matter

Stating that First Amendment rights trumped a statutory confidentiality provision, a federal District Court judge in Washington, D.C., struck the implementation of a statutory provision that had barred one of her colleagues from speaking publicly about a disciplinary action.

Federal judge Colleen Kollar-Kotelly ruled in January that the imposition of a confidentiality clause against federal District Court Judge John McBryde in Dallas under the Judicial Conduct and Disability Act of 1980 operated as an impermissible prior restraint on his speech.

“This Court cannot disregard or diminish a judge’s interest in vindicating his reputation, and in announcing his perspective on the [disciplinary] proceedings to all who will listen,” Kollar-Kotelly wrote. “Indeed, this interest surely deserves the most heightened First Amendment protection. . . . The interest in shielding witnesses from publicity and encouraging complainants to come forward in the future, while legitimate, is insufficient to justify the restriction on Judge McBryde’s open and frank discussion of the proceedings once they have concluded and sanctions have been imposed.”

McBryde had complained about the confidentiality provision as part of a lawsuit he filed against the U.S. Court of Appeals (5th Cir.). In his suit, he complained about the penalties imposed against him by the circuit court, but Kollar-Kotelly upheld all of the punishments imposed against McBryde.

The disciplinary proceedings arose out of an investigation by a committee of the Fifth Circuit’s Judicial Council into McBryde’s conduct toward numerous members of the bar who practiced before him. The investigation spanned two years and culminated in an 159-page report. In December1997, the Judicial Council publicly reprimanded McBryde for “conduct prejudicial to the effective administration of the business of the courts.” It ordered that no new cases be assigned to McBryde for one year and disqualified him from participating in any cases involving certain attorneys for three years.

Since the issuance of the 1997 order, McBryde sought to make public the entire record of these proceedings, arguing in a court filing that the gag order “precluded him from defending himself in public against the accusations made by the Council and the Review Committee.” McBryde had requested that two Fifth Circuit judges allow him to release the records, and when they denied his request, he petitioned U.S. Supreme Court Chief Justice William Rehnquist. Rehnquist had responded with an authorization for disclosure of all portions of the record except “the identity of the witnesses in the proceedings.” (McBryde v. Committee to Review Circuit Council Conduct and Disability Orders)