The opinion
REL: 10/17/2014
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
_________________________
1130537
_________________________
Ex parte Jeffrey Wright
PETITION FOR WRIT OF MANDAMUS
(In re: Jeffrey Wright
v.
A-1 Exterminating Company, Inc., et al.)
(Etowah Circuit Court, CV-12-900782)
_________________________
1130538
_________________________
Ex parte Myron K. Allenstein et al.
PETITION FOR WRIT OF MANDAMUS
(In re: Myron K. Allenstein et al.
v.
A-1 Exterminating Company, Inc., et al.)
(Etowah Circuit Court, CV-12-900784)
WISE, Justice.
The petitioners, the plaintiffs in two separate cases
below, filed petitions for a writ of mandamus requesting that
this Court direct the trial court to rescind its January 7,
2014, protective order and its January 22, 2014, order
compelling immediate compliance with that protective order.
They then filed amended petitions requesting that this Court
direct the trial court to rescind its February 21, 2014, and
February 27, 2014, amended protective orders. We grant the
petitions and issue the writs.
Factual Background and Procedural History
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1130537 and 1130538
On December 14, 2012, Jeffrey Wright and Myron K.
Allenstein filed separate complaints against A-1 Exterminating
Company, Inc. ("A-1 Exterminating"); Terry Buchanan; Edward
Wrenn; and David Wrenn (hereinafter collectively referred to
as "A-1").1 In the complaints, the plaintiffs alleged that,
on the date of the initial termite bonds issued to the
plaintiffs, A-1 Exterminating entered into agreements with the
plaintiffs in which it agreed to identify and recommend the
appropriate services to protect the plaintiffs' houses or
property from termites; that the plaintiffs had paid for the
initial service, the issuance of the termite bond, and annual
renewal premiums; that, during subsequent periodic visits to
the subject properties, A-1 sprayed liquids and either
represented to the plaintiffs or led the plaintiffs to believe
that those applications were treatments for termites; that,
during the last two years, A-1 had admitted that the periodic
sprays were not to prevent or control termites; and that
Buchanan, a State-licensed pest-control operator who worked
for A-1 Exterminating, had admitted that the spray was a
1
A-1 Insulating Company and Wrenn Enterprises, Inc., were
also named as defendants. However, they were not named in the
motions and orders that are relevant to this case.
3
1130537 and 1130538
regular, watered-down pesticide that might only be strong
enough to kill ants and possibly spiders. The plaintiffs also
alleged that A-1 had led them to believe that, after a proper
and adequate periodic inspections, the subject properties were
free and clear of active or previous infestations of wood-
destroying organisms, including termites; that A-1 had led
them to believe that the properties had been treated to
prevent termite infestation and damage; and that no initial
termite treatment had been applied at the subject properties
and that A-1 had never applied a termite treatment at the
properties. The plaintiffs further alleged that, to the
extent any house had actually received a partial "vaccination"
for termites, the chemical had worn off and no effective
barrier had been placed between the house and the soil either
initially or after the partial "vaccination" had occurred and
that that fact was concealed from the plaintiffs. Finally,
the plaintiffs alleged:
"Because Plaintiff's HOME did not receive a
vaccination and due to the prevalence of termites in
central Alabama, hidden infestations are the
presumed consequence and the ongoing and continuous
latent damage that termites will cause as the result
had resulted in an ongoing and continuous injury to
the HOME from the date of the initial service to
present which has been compounded by [A-1] skipping
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thorough, professional, and required annual
inspections to detect and stop infestation and
damage and instead focus on the useless and
deceptive sprays to induce renewal payments."
The two complaints included counts alleging fraud, including
promissory fraud; breach of warranty; negligence, including
negligence per se, and wantonness; breach of contract; and
negligent training, supervision, and retention. It also
included a request for "equitable relief, including unjust
enrichment."
Wright's case, case no. CV-12-900782, and Allenstein's
case, case no. CV-12-900784, were assigned to different
judges. Later in the day on December 14, 2012, the day the
complaints were filed, Wright filed a first amended complaint
in case no. CV-12-900782 that included class-action
allegations. Also, on that same day, Allenstein filed a
"First Amended Mass Action Complaint" in case no. CV-12-
900784, and that amended complaint named as plaintiffs
Allenstein and numerous other persons, including Wright.
Subsequently, the trial court entered an order consolidating
the two cases.
5
1130537 and 1130538
On March 5, 2013, A-1 filed motions for protective orders
in both cases. In those motions, A-1 requested that the trial
court enter
"a protective order or otherwise to bar and enjoin
Plaintiffs and Plaintiffs' counsel from
extrajudicial references to the circumstances of the
above-styled case, to require Plaintiffs' counsel to
remove all mention of the above-styled case and the
surrounding circumstances of the above-styled case
from its website, Facebook page, social media
(including electronic social media), and related web
search engines; and otherwise refrain from
referencing this case and/or its surrounding
circumstances outside of court."
In the motions for a protective order, A-1 asserted:
"1. A-1 has learned that Plaintiff's [sic]
attorneys have prominently featured the subject-
matter of this case (A-1's annual sprays at
customer's houses) on that law firm's web site ...
The Plaintiff's [sic] attorney's version of this
case is defamatory, contains egregious errors of
fact, uses sensationalistic and inflammatory terms,
and is plainly written to influence prospective
jurors in this case and attract clients for the
Plaintiffs' law firm. The extrajudicial references
to the above-styled case on Plaintiff's [sic]
attorney's website violates Alabama Rules of
Professional Conduct 3.6 and 4.1.
"2. The Plaintiffs' attorney's skewed vision of
events in this case claims that A-l's annual sprays
are a 'fraud,' that A-l's customer letters
concerning the annual spays 'is actually another
fraud,' that A-l has never performed a proper
termite prevention treatment at its customers'
houses, and that A-l's customers have the choice of
suing now 'or let A-l Exterminating and its owners
6
1130537 and 1130538
get away with a fraud that has drained East Alabama
of tens of millions of dollars over the years.'
(Exhibit 1, web page from Plaintiffs' law firm's web
site).
"3. Apart from the obvious untruths, the web
site is transparently intended to influence
prospective jurors. The web site is inflammatory
and will taint any prospective venire. The web site
is clearly designed with the dual intent of tainting
prospective jurors and attracting additional clients
for the Plaintiffs' law firm.
"....
"7. In addition, a Google search of 'A-l
Exterminating' shows that the link to file
aforementioned Plaintiffs' attorney's web site is
the fifth entry on Google. (Exhibit 5, Google web
page). A Google search of 'A-l Exterminating
lawsuit' (the search term appears, without
prompting, on a dropdown menu) shows that three of
the first five entries are links to web sites or
Facebook pages operated by the Plaintiffs'
attorney's law firm. Because Google places links
according to paid revenue, it appears that
Plaintiffs' attorneys may have paid consideration to
Google to place this information in a prime place on
Google."
A-1 argued that the Web sites were highly prejudicial to it;
that there was "no justifiable reason for the extrajudicial
references to the above-styled case on the web site reference
above, except to attract clients for the Plaintiffs' law firm
and/or to prejudice potential jurors"; and that "A-1's
7
1130537 and 1130538
business reputation and operations are being damaged by the
Plaintiffs' attorney's pretrial tactics."
The plaintiffs filed oppositions to A-1's motions for a
protective order. In their oppositions, the plaintiffs argued
that the motions for a protective order were an attempt to
restrict the free-speech rights of the plaintiffs and their
attorneys; that the stories included on the law firm's Web
site and in social media "comment upon the evidence concerning
public trials where [plaintiffs' attorney's law firm]
represented the Plaintiff in a case with identical claims";
that the complaints and amended complaints in this case are
public records and include detailed statements of the
allegations; and that "the facts are contained within dozens
of public complaint files concerning A-1 Exterminating, Co.,
Inc. or its owners and licensees that are on file with the
Alabama Department of Agriculture and Industries ('ADAI')
which regulate[s] this business and the individual
defendants." The plaintiffs also disputed A-1's allegations
regarding how the Google search engine worked.
A-1 subsequently filed three supplements to its motions
for a protective order and included additional exhibits and
8
1130537 and 1130538
arguments in support of the motions. In the second
supplemental motion for a protective order, A-1 asserted:
"On November 4, 2013, Birmingham television station
WBRC-TV 6 aired a 'sting operation'1 which purported
to show that A-1 performed deficient termite
inspections at its customers houses. This 'sting
operation' clearly was prepared with Plaintiffs'
counsel's collaboration, if not outright
instigation.
"___________________
"1The term 'sting operation' comes from the
Plaintiffs' attorney."
A-1 went on to assert that the "sting operation" was
objectionable on several grounds; that the "sting operation"
contained "flagrantly erroneous information"; that the "sting
operation" had damaged its business operations and business
reputation; and that the "sting operation" had "poisoned the
jury venire in Etowah County and has prejudiced A-1's right to
a fair trial in this case."
On January 7, 2014, the trial court entered the following
protective order, which carried the styles of both cases:
"This matter came on to be heard on [A-1's]
March 5, 2013 Motion for Protective Order. The
Court has considered that Motion, [A-1's] Supplement
of September 16, 2013, Plaintiffs' September 16,
2013 Reply, [A-1's] Second Supplement filed November
11, 2013, [A-1's] Third Supplement and the arguments
9
1130537 and 1130538
of counsel, the Court finds that the Motion is due
to be GRANTED.
"Accordingly, it is hereby ORDERED, ADJUDGED AND
DECREED that the Motion for Protective Order is
GRANTED. The Plaintiffs and Plaintiffs' counsel are
hereby barred and enjoined from extrajudicial
references to the circumstances of the above styled
cases. Plaintiffs' counsel shall remove all mention
of the above styled cases and the surrounding
circumstances of the above styled case from its
website, Facebook page, social media (including
electronic social media), and related web search
engines. Plaintiffs and Plaintiffs' counsel are
otherwise ordered to refrain from referencing this
case and/or its surrounding circumstances outside of
court."
(Capitalization in original.)
On January 13, 2014, A-1 filed a motion seeking to have
the plaintiffs immediately comply with the trial court's
January 7, 2014, protective order. On January 22, 2014, the
trial court entered an order granting that motion. On January
24, 2014, the plaintiffs filed a "Notice of Compliance with
Gag Order." On January 31, 2014, the plaintiffs filed a
motion to vacate, alter, or amend the trial court's January 7,
2014, protective order. They also filed a motion to stay the
protective order pending a ruling on the motion to vacate,
alter, or amend.
10
1130537 and 1130538
On February 5, 2014, the plaintiffs filed an "Emergency
Motion for Hearing on Motion for Stay, Motion to Vacate, Alter
or Amend, and Motion for Disclosure of Ex parte
Communications." On that same date, A-1 filed a motion to
amend the protective order entered on January 7, 2014.
On February 18, 2014, the plaintiffs filed their
petitions for a writ of mandamus in this Court.
On February 21, 2014, the trial court entered the
following amended protective order in case no. CV-12-900784:
"This matter came on to be heard on Defendants,
A-l Exterminating Company, Inc.'s, Edward Wrenn's,
David Wrenn's, and Terry Buchanan's March 5, 2013
motion for protective order. Having considered that
Motion, Defendants' supplement of September 16,
2013, Plaintiffs' September 16, 2013 reply,
Defendants' second supplement filed November 11,
2013, and Defendants' third supplement. Having
considered the Motion and the arguments of counsel,
the Court finds that the Motion is due to be
GRANTED.
"Accordingly, it is hereby ORDERED, ADJUDGED,
and DECREED that the motion for protective order is
GRANTED. The Plaintiffs and Plaintiffs' counsel are
hereby barred and enjoined from extrajudicial
references to the circumstances of the above-styled
case, Plaintiffs' counsel and his firm shall remove
all mention of the above-styled case and the
surrounding circumstances of the above-styled case
from the firm's website and from the firm's and/or
his individual Facebook page, Linkedin Page, and all
social media (including electronic social media),
and related web search engines. Plaintiffs and
11
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Plaintiffs' counsel are otherwise ordered to refrain
from referencing this case and/or its surrounding
circumstances outside of court.
"Nothing in this order shall prevent any
attorney, law firm, and/or that law firm's staff
from discussing this case with their respective
clients, internally with persons working at any such
law firm, with other attorneys involved in this
case, including those attorneys' staff, and/or with
any expert witnesses."
(Capitalization in original.)
On February 27, 2014, the trial court entered an amended
protective order in case no. CV-12-900782 that was virtually
identical to the amended protective order entered in case no.
CV-12-900784.
On March 3, 2014, the plaintiffs filed amended petitions
for a writ of mandamus in this Court seeking a rescission of
the February 21 and February 27 amended protective orders.
Standard of Review
"This Court stated in Ex parte Pfizer, Inc., 746
So. 2d 960 (Ala. 1999):
"'The writ of mandamus is an
extraordinary remedy, and one petitioning
for that writ must show "(1) a clear legal
right in the petitioner to the order
sought; (2) an imperative duty on the
respondent to perform, accompanied by a
refusal to do so; (3) the lack of another
adequate remedy; and (4) properly invoked
jurisdiction of the court." Ex parte
12
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Alfab, Inc., 586 So. 2d 889, 890 (Ala.
1991); see also, Martin v. Loeb & Co., 349
So. 2d 9 (Ala. 1977); Ex parte Slade, 382
So. 2d 1127 (Ala. 1980) [overruled on other
grounds by Ex parte Creel, 719 So. 2d 783
(Ala. 1998)]; Ex parte Houston County, 435
So. 2d 1268 (Ala. 1983); Ex parte Johnson,
638 So. 2d 772 (Ala. 1994). "Mandamus is
an extraordinary remedy and will lie to
compel the exercise of discretion, but not
to compel its exercise in a particular
manner except where there is an abuse of
discretion." State v. Cannon, 369 So. 2d
32, 33 (Ala. 1979).'
"746 So. 2d at 962."
Ex parte Anderson, 789 So. 2d 190, 193-94 (Ala. 2000).
Discussion
The petitioners argue that the trial court's protective
order and amended protective orders constitute impermissible
prior restraints on speech, in violation of the First
Amendment, and that they are unconstitutionally overbroad.
Specifically, they contend:
"Prior restraints are forbidden by the First
Amendment except in the most extreme circumstances.
Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559
(1976). A prior restraint on pure speech can be
justified only if the speech to be forbidden
threatens a constitutional value even more precious
than the First Amendment. Procter & Gamble Co. v.
Bankers Trust Co., 78 F. 3d 219, 227 (6th Cir.
1996). Such countervailing values as national
security interests, New York Times Co. v. United
States, 403 U.S. 713, 714 (1971), or the protection
13
1130537 and 1130538
of reputation, Organization for a Better Austin v.
Keefe, 402 U.S. 415, 418 (1971), or the protection
of litigation against public pressure, U.S. v.
Columbia Broadcasting System, 497 F.2d 102 (5th Cir.
1974), or the need for orderly processing of class
actions, Bernard v. Gulf Oil Co., 619 F.2d 459 (5th
Cir. 1980) (en banc), have all been held to be
insufficient justification for prior restraints."
Initially, we note that Rule 3.6, Ala. R. Prof. Conduct,
governs extrajudicial statements by attorneys. Rule 3.6
provides, in pertinent part:
"(a) A lawyer shall not make an extrajudicial
statement that a reasonable person would expect to
be disseminated by means of public communication if
the lawyer knows or reasonably should know that it
will have a substantial likelihood of materially
prejudicing an adjudicative proceeding.
"(b) A statement referred to in paragraph (a)
ordinarily is likely to have such an effect when it
refers to a civil matter triable to a jury, a
criminal matter, or any other proceeding that could
result in incarceration, and the statement relates
to:
"(1) the character, credibility, reputation or
criminal record of a party, suspect in a criminal
investigation or witness, or the identity of a
witness, or the expected testimony of a party or
witness;
"....
"(3) the performance or results of any
examination or test or the refusal or failure of a
person to submit to an examination or test, or the
identity or nature of physical evidence expected to
be presented;
14
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"....
"(5) information the lawyer knows or reasonably
should know is likely to be inadmissible as evidence
in a trial and would if disclosed create a
substantial risk of prejudicing an impartial trial;
or
"(6) the fact that a defendant has been charged
with a crime, unless there is included therein a
statement explaining that the charge is merely an
accusation and that the defendant is presumed
innocent until and unless proven guilty.
"(c) Notwithstanding paragraphs (a) and (b)
(1-5), a lawyer involved in the investigation or
litigation of a matter may state without
elaboration:
"(1) the general nature of the claim or defense;
"(2) the information contained in a public
record;
"(3) that an investigation of the matter is in
progress, including the general scope of the
investigation, the offense or claim or defense
involved and, except when prohibited by law, the
identity of the persons involved;
"(4) the scheduling or result of any step in
litigation;
"(5) a request for assistance in obtaining
evidence and information necessary thereto;
"(6) a warning of danger concerning the behavior
of a person involved, when there is reason to
believe that there exists the likelihood of
substantial harm to an individual or to the public
interest; and
15
1130537 and 1130538
"....
"(8) Notwithstanding paragraphs (a) and (b)
above, a lawyer may make a statement that a
reasonable lawyer would believe is required to
protect a client from the substantial undue
prejudicial effect of recent publicity not initiated
by the lawyer or the lawyer's client. A statement
made pursuant to this paragraph shall be limited to
such information as is necessary to mitigate the
recent adverse publicity."
Additionally, the Comment to Rule 3.6 recognizes:
"It is difficult to strike a balance between
protecting the right to a fair trial and
safeguarding the right of free expression.
Preserving the right to a fair trial necessarily
entails some curtailment of the information that may
be disseminated about a party prior to trial,
particularly where trial by jury is involved. If
there were no such limits, the result would be the
practical nullification of the protective effect of
the rules of forensic decorum and the exclusionary
rules of evidence. On the other hand, there are
vital social interests served by the free
dissemination of information about events having
legal consequences and about legal proceedings
themselves. The public has a right to know about
threats to its safety and measures aimed at assuring
its security. It also has a legitimate interest in
the conduct of judicial proceedings, particularly in
matters of general public concern. Furthermore, the
subject matter of legal proceedings is often of
direct significance in debate and deliberation over
questions of public policy.
"No body of rules can simultaneously satisfy all
interests of fair trial and all those of free
expression. The formula in this Rule is based upon
the ABA former Code of Professional Responsibility
and the ABA Standards Relating to Fair Trial and
16
1130537 and 1130538
Free Press, as amended in 1978. The standard to be
applied in Rule 3.6(a) is the 'serious and imminent
threat' test developed in the case of Chicago
Counsel of Lawyers v. Bauer, 522 F.2d 242 (7th Cir.
1975)."
The United States Supreme Court has allowed limitations
placed upon the speech of parties who are before a court in a
pending case. In Seattle Times Co. v. Rhinehart, 467 U.S. 20
(1984), the United States Supreme Court addressed "the issue
whether parties to civil litigation have a First Amendment
right to disseminate, in advance of trial, information gained
through the pretrial discovery process." 467 U.S. at 22. In
that case, Keith Rhinehart, the spiritual leader of the
Aquarian Foundation, a religious group, brought an action on
behalf of himself and the Aquarian Foundation against the
Seattle Times, the Walla Walla Union-Bulletin, the authors of
certain articles that had appeared in those newspapers, and
the spouses of the authors of the articles. Five female
members of the Aquarian Foundation also joined the suit as
plaintiffs. During the litigation, the defendants filed an
order compelling discovery regarding the financial affairs of
the Aquarian Foundation, the source of its donations, and
other information. The plaintiffs argued that compelling
17
1130537 and 1130538
production of the identities of the Aquarian Foundation's
members and donors would violate the First Amendment rights of
the members and donors and would also violate their right to
privacy, freedom of religion, and freedom of association. The
plaintiffs moved for a protective order that would prevent the
defendants from disseminating any information gained through
discovery.
The trial court initially granted the motion to compel
and refused to issue a protective order. However, the trial
court later issued a protective order
"covering all information obtained through the
discovery process that pertained 'to the financial
affairs of the various plaintiffs, the names and
addresses of Aquarian Foundation members,
contributors, or clients, and the names and
addresses of those who have been contributors,
clients, or donors of any of the various
plaintiffs.' ... The order prohibited petitioners
from publishing, disseminating, or using the
information in any way except where necessary to
prepare for and try the case. By its terms, the
order did not apply to information gained by means
other than the discovery process."
467 U.S. at 27. The defendants appealed from the protective
order, and the plaintiffs appealed from the trial court's
order granting the motion to compel production. The
Washington Supreme Court affirmed both orders.
18
1130537 and 1130538
The United States Supreme Court granted certiorari in
that case. In its opinion, the United States Supreme Court
stated:
"It is, of course, clear that information
obtained through civil discovery authorized by
modern rules of civil procedure would rarely, if
ever, fall within the classes of unprotected speech
identified by decisions of this Court. In this
case, as petitioners argue, there certainly is a
public interest in knowing more about respondents.
This interest may well include most -- and possibly
all -- of what has been discovered as a result of
the court's order under [Wash. Sup. Ct. Civil] Rule
26(b)(1). It does not necessarily follow, however,
that a litigant has an unrestrained right to
disseminate information that has been obtained
through pretrial discovery. For even though the
broad sweep of the First Amendment seems to prohibit
all restraints on free expression, this Court has
observed that '[f]reedom of speech ... does not
comprehend the right to speak on any subject at any
time.' American Communications Assn. v. Douds, 339
U.S. 382, 394–395 (1950).
"The critical question that this case presents
is whether a litigant's freedom comprehends the
right to disseminate information that he has
obtained pursuant to a court order that both granted
him access to that information and placed restraints
on the way in which the information might be used.
In addressing that question it is necessary to
consider whether the 'practice in question
[furthers] an important or substantial governmental
interest unrelated to the suppression of expression'
and whether 'the limitation of First Amendment
freedoms [is] no greater than is necessary or
essential to the protection of the particular
governmental interest involved.' Procunier v.
Martinez, 416 U.S. 396, 413 (1974); see Brown v.
19
1130537 and 1130538
Glines, 444 U.S. 348, 354–355 (1980); Buckley v.
Valeo, 424 U.S. 1, 25 (1976).
"A.
"At the outset, it is important to recognize the
extent of the impairment of First Amendment rights
that a protective order, such as the one at issue
here, may cause. As in all civil litigation,
petitioners gained the information they wish to
disseminate only by virtue of the trial court's
discovery processes. As the Rules authorizing
discovery were adopted by the state legislature, the
processes thereunder are a matter of legislative
grace. A litigant has no First Amendment right of
access to information made available only for
purposes of trying his suit. Zemel v. Rusk, 381
U.S. 1, 16–17 (1965) ('The right to speak and
publish does not carry with it the unrestrained
right to gather information'). Thus, continued
court control over the discovered information does
not raise the same specter of government censorship
that such control might suggest in other situations.
See In re Halkin, 194 U.S. App. D.C., at 287, 598
F.2d, at 206–207 (Wilkey, J., dissenting).18
"Moreover, pretrial depositions and
interrogatories are not public components of a civil
trial. Such proceedings were not open to the public
at common law, Gannett Co. v. DePasquale, 443 U.S.
368, 389 (1979), and, in general, they are conducted
in private as a matter of modern practice. See id.,
at 396 (Burger, C.J., concurring); Marcus, Myth and
Reality in Protective Order Litigation, 69 Cornell
L. Rev. 1 (1983). Much of the information that
surfaces during pretrial discovery may be unrelated,
or only tangentially related, to the underlying
cause of action. Therefore, restraints placed on
discovered, but not yet admitted, information are
not a restriction on a traditionally public source
of information.
20
1130537 and 1130538
"Finally, it is significant to note that an
order prohibiting dissemination of discovered
information before trial is not the kind of classic
prior restraint that requires exacting First
Amendment scrutiny. See Gannett Co. v. DePasquale,
supra, at 399 (Powell, J., concurring). As in this
case, such a protective order prevents a party from
disseminating only that information obtained through
use of the discovery process. Thus, the party may
disseminate the identical information covered by the
protective order as long as the information is
gained through means independent of the court's
processes. In sum, judicial limitations on a
party's ability to disseminate information
discovered in advance of trial implicates the First
Amendment rights of the restricted party to a far
lesser extent than would restraints on dissemination
of information in a different context. Therefore,
our consideration of the provision for protective
orders contained in the Washington Civil Rules takes
into account the unique position that such orders
occupy in relation to the First Amendment.
"___________________________________
"18Although litigants do not 'surrender their
First Amendment rights at the courthouse door,' In
re Halkin, 194 U.S. App. D.C., at 268, 598 F.2d, at
186, those rights may be subordinated to other
interests that arise in this setting. For instance,
on several occasions this Court has approved
restriction on the communications of trial
participants where necessary to ensure a fair trial
for a criminal defendant. See Nebraska Press Assn.
v. Stuart, 427 U.S. 539, 563 (1976); id., at 601,
and n. 27 (Brennan, J., concurring in judgment);
Oklahoma Publishing Co. v. District Court, 430 U.S.
308, 310–311 (1977); Sheppard v. Maxwell, 384 U.S.
333, 361 (1966). 'In the conduct of a case, a court
often finds it necessary to restrict the free
expression of participants, including counsel,
21
1130537 and 1130538
witnesses, and jurors.' Gulf Oil Co. v. Bernard,
452 U.S. 89, 104, n. 21 (1981)."
467 U.S. at 31-34 (footnote omitted).
Ultimately, the Supreme Court held:
"[W]here, as in this case, a protective order is
entered on a showing of good cause as required by
[Wash. Sup. Ct. Civil] Rule 26(c), is limited to the
context of pretrial civil discovery, and does not
restrict the dissemination of the information if
gained form other sources, it does not offend the
First Amendment."
467 U.S. at 37.
Subsequently, in Gentile v. State Bar of Nevada, 501 U.S.
1030 (1991), Dominic Gentile, an attorney, was reprimanded
after a finding by the Disciplinary Board of the Nevada State
Bar that he had violated an attorney disciplinary rule by
making a statement to the press shortly after his client was
indicted on criminal charges. The Nevada Supreme Court
affirmed the Board's decision, and Gentile appealed to the
United States Supreme Court. The Supreme Court was presented
with the issue whether the application of the disciplinary
rule violated the right to free speech guaranteed by the First
Amendment. In addressing that issue, the Supreme Court
stated:
22
1130537 and 1130538
"It is unquestionable that in the courtroom
itself, during a judicial proceeding, whatever right
to 'free speech' an attorney has is extremely
circumscribed. An attorney may not, by speech or
other conduct, resist a ruling of the trial court
beyond the point necessary to preserve a claim for
appeal. Sacher v. United States, 343 U.S. 1, 8
(1952) (criminal trial); Fisher v. Pace, 336 U.S.
155 (1949) (civil trial). Even outside the
courtroom, a majority of the Court in two separate
opinions in the case of In re Sawyer, 360 U.S. 622
(1959), observed that lawyers in pending cases were
subject to ethical restrictions on speech to which
an ordinary citizen would not be. There, the Court
had before it an order affirming the suspension of
an attorney from practice because of her attack on
the fairness and impartiality of a judge. The
plurality opinion, which found the discipline
improper, concluded that the comments had not in
fact impugned the judge's integrity. Justice
Stewart, who provided the fifth vote for reversal of
the sanction, said in his separate opinion that he
could not join any possible 'intimation that a
lawyer can invoke the constitutional right of free
speech to immunize himself from even-handed
discipline for proven unethical conduct.' Id., at
646. He said that '[o]bedience to ethical precepts
may require abstention from what in other
circumstances might be constitutionally protected
speech.' Id., at 646-647. The four dissenting
Justices who would have sustained the discipline
said:
"'Of course, a lawyer is a person and
he too has a constitutional freedom of
utterance and may exercise it to castigate
courts and their administration of justice.
But a lawyer actively participating in a
trial, particularly an emotionally charged
criminal prosecution, is not merely a
person and not even merely a lawyer.
"'....
23
1130537 and 1130538
"'He is an intimate and trusted and
essential part of the machinery of justice,
an "officer of the court" in the most
compelling sense.' Id., at 666, 668
(Frankfurter, J., dissenting, joined by
Clark, Harlan, and Whittaker, JJ.).
"Likewise, in Sheppard v. Maxwell, [384 U.S. 333
(1966),] where the defendant's conviction was
overturned because extensive prejudicial pretrial
publicity had denied the defendant a fair trial, we
held that a new trial was a remedy for such
publicity, but
"'we must remember that reversals are but
palliatives; the cure lies in those
remedial measures that will prevent the
prejudice at its inception. The courts
must take such steps by rule and regulation
that will protect their processes from
prejudicial outside interferences. Neither
prosecutors, counsel for defense, the
accused, witnesses, court staff nor
enforcement officers coming under the
jurisdiction of the court should be
permitted to frustrate its function.
Collaboration between counsel and the press
as to information affecting the fairness of
a criminal trial is not only subject to
regulation, but is highly censurable and
worthy of disciplinary measures.' 384
U.S., at 363 (emphasis added).
"We expressly contemplated that the speech of those
participating before the courts could be limited.
This distinction between participants in the
litigation and strangers to it is brought into sharp
relief by our holding in Seattle Times Co. v.
Rhinehart, 467 U.S. 20 (1984). There, we
unanimously held that a newspaper, which was itself
a defendant in a libel action, could be restrained
from publishing material about the plaintiffs and
their supporters to which it had gained access
24
1130537 and 1130538
through court-ordered discovery. In that case we
said that '[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 this setting,' id., at
32-33, n. 18 (citation omitted), and noted that 'on
several occasions [we have] approved restriction on
the communications of trial participants where
necessary to ensure a fair trial for a criminal
defendant.' Ibid.
"Even in an area far from the courtroom and the
pendency of a case, our decisions dealing with a
lawyer's right under the First Amendment to solicit
business and advertise, contrary to promulgated
rules of ethics, have not suggested that lawyers are
protected by the First Amendment to the same extent
as those engaged in other businesses. See, e.g.,
Bates v. State Bar of Arizona, 433 U.S. 350 (1977);
Peel v. Attorney Registration and Disciplinary
Comm'n of Ill., 496 U.S. 91 (1990); Ohralik v. Ohio
State Bar Assn., 436 U.S. 447 (1978). In each of
these cases, we engaged in a balancing process,
weighing the State's interest in the regulation of
a specialized profession against a lawyer's First
Amendment interest in the kind of speech that was at
issue. These cases recognize the long-established
principle stated in In re Cohen, 7 N.Y.2d 488, 495,
199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 675 (1960):
"'Appellant as a citizen could not be
denied any of the common rights of
citizens. But he stood before the inquiry
and before the Appellate Division in
another quite different capacity, also. As
a lawyer he was "an officer of the court,
and, like the court itself, an instrument
... of justice...."' (quoted in Cohen v.
Hurley, 366 U.S. 117, 126 (1961)).
"We think that the quoted statements from our
opinions in In re Sawyer, 360 U.S. 622 (1959), and
Sheppard v. Maxwell, supra, rather plainly indicate
25
1130537 and 1130538
that the speech of lawyers representing clients in
pending cases may be regulated under a less
demanding standard than that established for
regulation of the press in Nebraska Press Assn. v.
Stuart, 427 U.S. 539 (1976), and the cases which
preceded it. Lawyers representing clients in
pending cases are key participants in the criminal
justice system, and the State may demand some
adherence to the precepts of that system in
regulating their speech as well as their conduct.
As noted by Justice Brennan in his concurring
opinion in Nebraska Press, which was joined by
Justices Stewart and Marshall, '[a]s officers of the
court, court personnel and attorneys have a
fiduciary responsibility not to engage in public
debate that will redound to the detriment of the
accused or that will obstruct the fair
administration of justice.' Id., at 601, n. 27.
Because lawyers have special access to information
through discovery and client communications, their
extrajudicial statements pose a threat to the
fairness of a pending proceeding since lawyers'
statements are likely to be received as especially
authoritative. See, e.g., In re Hinds, 90 N.J. 604,
627, 449 A.2d 483, 496 (1982) (statements by
attorneys of record relating to the case 'are likely
to be considered knowledgeable, reliable and true'
because of attorneys' unique access to information);
In re Rachmiel, 90 N.J. 646, 656, 449 A.2d 505, 511
(N.J. 1982) (attorneys' role as advocates gives them
'extraordinary power to undermine or destroy the
efficacy of the criminal justice system'). We agree
with the majority of the States that the
'substantial likelihood of material prejudice'
standard constitutes a constitutionally permissible
balance between the First Amendment rights of
attorneys in pending cases and the State's interest
in fair trials.
"When a state regulation implicates First
Amendment rights, the Court must balance those
interests against the State's legitimate interest in
26
1130537 and 1130538
regulating the activity in question. See, e.g.,
Seattle Times, supra, 467 U.S. at 32."
501 U.S. at 1071-76 (footnote omitted).
In Marceaux v. Lafayette City-Parish Consolidated
Government, 731 F.3d 488 (5th Cir. 2013), current and former
officers ("the officers") of the Lafayette Police Department
("LPD") sued the LPD and other defendants under 42 U.S.C. §
1983. The officers communicated with the media about the
case. They also maintained a Web site that contained an image
of LPD's police chief, who was a party to the suit; "excerpts
of critical statements made in the media" concerning the LPD
and other defendants; and "certain voice recordings of
conversations between the Officers and members of the
Lafayette Police Department" and "other accounts of the
Lafayette PD Defendants' alleged failings." 731 F.3d at 490-
91. The LPD and other defendants requested a protective order
in which they sought to limit the plaintiffs' communications
with the media and to have the Web site taken down.
Subsequently, the magistrate judge
"'ordered that the parties' and their
attorneys' contact and communication with
and through the media shall be limited to
(a) information contained in the public
record; (b) identification of parties and
claims/defenses asserted in this matter;
27
1130537 and 1130538
(c) the scheduling or result of any step in
this litigation; (d) references that
investigation(s) is in progress, without
disclosure of investigation details; (e)
requests for assistance in obtaining
evidence or information; (f) warnings of
danger concerning the behavior of persons
who are parties in this case when there is
reason to believe, based on a reasonable
factual inquiry, that there exists a
likelihood of substantial harm to an
individual or the public interest.'
"The magistrate judge 'further ordered that the
website ... shall be closed and removed immediately,
ceasing all operations and publication, and that the
recordings shall not be publicly disclosed outside
the confines of this case and any other pending
legal proceeding, absent leave of court.' The
restrictions on communications with the media were
expressly modeled on Louisiana Rule of Professional
Conduct 3.6 and the language approved in [United
States v.] Brown, 218 F.3d [415,] 429–31 [(5th Cir.
2000)], and Levine v. U.S. District Court, 764 F.2d
590, 598–99 (9th Cir. 1985). The magistrate judge
also 'order[ed] the [W]ebsite be taken down' because
it 'not only contain[ed] comments and information
that would violate [Louisiana Rule of Professional
Conduct] 4.4, it is and has been used as a vehicle
by which to disseminate inappropriate information to
the media and the public.' The primary rationale
for the order was to allow for a fair trial by
avoiding a taint on the prospective jury pool. Over
objection, the district court adopted the magistrate
judge's order, and this appeal followed."
731 F.3d at 491.
In addressing the order, the United States Court of
Appeals for the Fifth Circuit stated:
28
1130537 and 1130538
"When restrictions are sought to be imposed on
litigants after litigation is filed, a district
court must balance a litigant's First Amendment
rights against other important, competing
considerations. See [United States v.] Brown, 218
F.3d [415,] 424 [(5th Cir. 2000)] ('"[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.' (quoting
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 n.
18 (1984))). Court orders restricting trial
participants' speech are evaluated under the prior
restraint doctrine, which requires that the record
establish that the speech creates a potential for
prejudice sufficient to justify the restriction.
See Brown, 218 F.3d at 424–25. In addition, the
restriction must be narrowly tailored and employ the
least restrictive means of preventing the prejudice.
Id. at 425. We note that the Officers represent
that they are willing to accept the application to
them of Louisiana Rules of Professional
Responsibility 3.6 and 4.4 in this context, although
those rules ordinarily would not apply to clients
who are not lawyers. They object to the terms of
the court's order only as they support or apply to
the portion of the order mandating that the Website
be removed in its entirety. Thus, we focus our
analysis only on the portion of the order addressing
removal of the entire Website."
731 F.3d at 492. The Fifth Circuit Court of Appeals noted
that this area of law "demands a nuanced approach to the
delicate balance between the necessity of avoiding a tainted
jury pool and the rights of parties to freely air their views
and opinions in the 'market square' now taking the form of the
electronic square known as the Internet." 731 F.3d at 492.
29
1130537 and 1130538
It noted that, although the district court had applied a
careful and nuanced approach in much of the protective order,
with regard to the Web site, "the nuanced approach gave way
to a more wholesale striking of its entire content -- indeed,
the very website itself." Id.
In addressing the district court's wholesale striking of
the Web site in Marceaux, the Fifth Circuit Court of Appeals
stated:
"We analyze this issue under the prior restraint
doctrine. Court orders aimed at preventing or
forbidding speech 'are classic examples of prior
restraints.' Alexander v. United States, 509 U.S.
544, 550 (1993). Indeed, this court has recognized
that '[d]espite the fact that litigants' First
Amendment freedoms may be limited in order to ensure
a fair trial, gag orders ... still exhibit the
characteristics of prior restraints.' [United
States v.] Brown, 218 F.3d [415,] 424 [(5th Cir.
2000)]; see also Levine[ v. United States Dist.
Court for the Central Dist. of California], 764 F.2d
[590,] 595 [(9th Cir. 1985)](holding that a court's
order prohibiting trial participants from speaking
to the media constituted a prior restraint). The
order here explicitly restricts the expression of
attorneys and parties in this litigation as it
relates to the media and prevents the Officers from
expression in the Website. As a result, the
protective order qualifies as a prior restraint.
"Prior restraints 'face a well-established
presumption against their constitutionality.'
Brown, 218 F.3d at 424–25 (citing Bernard v. Gulf
Oil Co., 619 F.2d 459, 467 (5th Cir. 1980) (en banc)
(citations omitted)); see also Org. for a Better
Austin v. Keefe, 402 U.S. 415, 419 (1971) ('Any
30
1130537 and 1130538
prior restraint on expression comes ... with a
"heavy presumption" against its constitutional
validity.'). We must therefore balance the First
Amendment rights of trial participants with our
'"affirmative constitutional duty to minimize the
effects of prejudicial pretrial publicity."' Brown,
218 F.3d at 423 (quoting Gannett Co. v. DePasquale,
443 U.S. 368, 378 (1979)); see also Sheppard v.
Maxwell, 384 U.S. 333, 363 (1966) ('The courts must
take such steps by rule and regulation that will
protect their processes from prejudicial outside
interferences.')."
731 F.3d at 493 (footnote omitted). Ultimately, the Fifth
Circuit Court of Appeals held that "the district court erred
in concluding that the entirety of the Website was
substantially likely to cause prejudice." Thus, it held that
the district court's finding "'that the entire Website
demonstrat[ed] a substantial likelihood of impacting the jury
venire' is overbroad and clearly erroneous." 731 F.3d at 488.
Although the Fifth Circuit vacated the district court's
wholesale ban on the Web site, it noted:
"[W]e do not intend to tie the hands of the district
court in addressing some of its content, and we
recognize that there may be bases upon which to
order removal of some of the content of the Website.
Recognizing the fact-bound nature of the inquiry and
the limited nature of the record presented here, we
express no opinion on that issue but note only that
any such consideration of the Website's content must
be narrowly tailored and represent the least
restrictive means. [United States v.] Brown, 218
F.3d [415,] 425 [(5th Cir. 2000)] . In other words,
31
1130537 and 1130538
the court must engage in a specific review of any
claimed improper material."
731 F.3d at 495-96.
In this case, A-1 argues that the protective order and
amended protective orders issued by the trial court were
necessary to protect its right to a fair trial. However,
those orders prohibit the plaintiffs and their attorneys from
making any "extrajudicial references to the circumstances of
[these] case[s]." Additionally, the trial court also ordered
plaintiffs' counsel and his firm to "remove all mention of the
above-styled case[s] and the surrounding circumstances of the
above-styled case[s] from the firm's website and from the
firm's and/or his individual Facebook page, Linkedin Page, and
all social media (including electronic social media), and
related web search engines." Finally, the trial court ordered
the plaintiffs and their attorneys to refrain from even
"referencing this case and/or its surrounding circumstances
outside of court." Neither the protective order nor the
amended protective orders in this case are narrowly tailored
to protect A-1's right to a fair trial. Further, the orders
do not provide any exceptions for making statements that are
expressly allowed by Rule 3.6(c)(7), Ala. R. Prof. Conduct.
32
1130537 and 1130538
The amended protective orders do specify that they would
not "prevent any attorney, law firm, and/or that law firm's
staff from discussing this case with their respective clients,
internally with persons working at any such law firm, with
other attorneys involved in this case, including those
attorney's staff, and/or with any expert witness." However,
the amended protective orders would still prevent the
plaintiffs from discussing this case with potential clients;
discussing this case with putative class members; discussing
this case with state regulators; discussing the case with
anyone in an attempt to discover evidence; and discussing the
case with any potential non-expert witnesses.
For these reasons, the trial court's protective order and
the amended protective orders are overbroad. See Johanson v.
Eighth Judicial Dist. Court of State of Nev. ex. rel. County
of Clark, 124 Nev. 245, 252, 182 P.3d 94, 99 (2008) (holding
that a gag order that "prevented 'the parties, their attorneys
and any employees or persons associated with the parties or
their counsel ... from disclosing any documents in this case
or discussing the case with any ... other party or disclosing
any information about this case to any other party or
individual'" was unconstitutionally overbroad); Kemner v.
33
1130537 and 1130538
Monsanto Co., 112 Ill.2d 223, 246, 492 N.E.2d 1327, 1338
(1986) (holding that a gag order that provided that Monsanto
"'shall not,' in any press release, etc., 'mention this case
or intimate its existence or its trial or any particular facts
or circumstances or positions concerning it until judgment is
entered by this court'" was unconstitutionally overbroad).
In holding that the trial court's protective order and
amended protective orders are overbroad, we do not intend to
tie the trial court's hands in its attempt to prevent the jury
venire from being tainted by the use of Web sites, social
media, and pretrial publicity. As the Fifth Circuit Court of
Appeals noted in Marceaux:
"As in criminal matters, civil cases also require
avoiding 'the potential that pretrial publicity may
taint the jury venire, resulting in a jury that is
biased toward one party or another,' [United States
v.] Brown, 218 F.3d [415,] 423 [(5th Cir. 2000)],
and preventing the 'creat[ion] [of] "a 'carnival
atmosphere,' which threatens the integrity of the
proceeding."' Id. at 423 n.8."
731 F.3d at 494. However, the trial court should balance its
interest in protecting A-1's right to a fair trial against the
First Amendment rights of the plaintiffs and their attorneys.
Further, any protective order in this regard must be narrowly
34
1130537 and 1130538
tailored so that it uses the least restrictive means necessary
to protect A-1's right to a fair trial. See Gentile, supra.
Finally, A-1 contends that plaintiffs' counsel included
statements on its Web site and in social media that were false
or misleading. If the trial court finds that the plaintiffs
or their attorneys have made false or deceptive statements, it
has the authority to proscribe such statements.
"While the First Amendment guarantees the right
to free speech, government is not prevented from
proscribing certain speech. To be precise,
demonstrable falsehoods are not protected by the
First Amendment in the same manner as truthful
statements. Brown v. Hartlage, 456 U.S. 45, 60, 102
S. Ct. 1523, 1532, 71 L. Ed. 2d 732 (1982); Gertz v.
Robert Welch, Inc., 418 U.S. 323, 340, 94 S. Ct.
2997, 3007, 41 L. Ed. 2d 789 (1974)."
Dowling v. Alabama State Bar, 539 So. 2d 149, 151-52 (Ala.
1988).
Conclusion
For the above-stated reasons, we conclude that the trial
court's protective order and amended protective orders are
overbroad. Accordingly, we grant the plaintiffs' petitions
and direct the Etowah Circuit Court to rescind its January 7,
2014, protective order; its January 22, 2014, order compelling
immediate compliance with the protective order; and its
35
1130537 and 1130538
February 21, 2014, and February 27, 2014, amended protective
orders.2
1130537 -- PETITION GRANTED; WRIT ISSUED.
1130538 -- PETITION GRANTED; WRIT ISSUED.
Stuart, Parker, and Shaw, JJ., concur.
Murdock, J., concurs in the result.
Moore, C.J., recuses himself.
2
Based on our holding that the amended protective orders
are overbroad, we pretermit any remaining arguments raised by
the parties.
36