United States v. Brown

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 <interlocutory’ within the meaning

of [§] 1292(a)(1).”); Rauscher Pierce Refsnes, Inc. v. Birenbaum,

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

<impartial’ jurors, and an outcome affected by extrajudicial

statements would violate that fundamental right.” Gentile v. State

Bar of Nevada, 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

<surrender their First Amendment rights at the courthouse door,’

those rights may be subordinated to other interests that arise” in

the context of both civil and criminal trials. Seattle Times Co.

v. Rhinehart, 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 <try this case in the press’ and would attempt to use the media

to influence the potential jury pool and create a prejudicial media

atmosphere, if permitted.” The court emphasized that it “cannot

and will not permit this to happen.” Having reviewed the pretrial

record, we conclude that there is a reasonable basis for the

district court’s concern. The enormous local and national

publicity surrounding the cases, the presence of three related

trials, which created a heightened and somewhat unique danger of

tainting any one of the three juries, as well as the parties’ self-

proclaimed willingness to seize any opportunity to use the press to

29

their full advantage, justified the district court’s conclusion

that there was at least a “substantial likelihood” that allowing

further extrajudicial statements by the parties would materially

prejudice the court’s ability to conduct a fair trial.

2. Narrowness of the Order

It is axiomatic that the limitation on First Amendment

freedoms must be “no greater than is essential to the protection of

the particular governmental interest involved.” Procunier v.

Martinez, 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 <evidentiary

finding’ or of specific, articulated findings” and reviewing the

record to find support for the determination that a gag order on

trial participants was necessary). But see Dow 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