Joel Levine v. United States District Court for the Central District of California, United States of America, Real Party in Interest

NELSON, Circuit Judge,

concurring in part and dissenting in part:

I concur in Parts I, II, III, and IVA of Judge Beezer’s opinion, and agree that the writ of mandamus should be granted. Also, like Judge Sneed, I find much to agree with in the remainder of the opinion. I cannot fully concur, however, because I do not believe that the record reflects an adequate showing of a “clear and present danger or a serious and imminent threat” to the empaneling of an impartial jury in this case. See United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir.1978). Thus, the district court’s order does not meet the first prong of the test articulated in Nebraska Press Ass’n v. Stuart, 427 U.S. 539 , 96 S.Ct. 2791 , 49 L.Ed.2d 683 (1976), which is set forth in Judge Beezer’s opinion. See CBS, Inc. v. United States District Court, 729 F.2d 1174 , 1178-82 (9th Cir.1984). For this reason I cannot on this record subscribe to Judge Beezer’s apparent approval of a revised form of prior restraint order.

As we all recognize, this case involves striking a delicate balance between rights guaranteed by the First and Sixth Amendments. Prior precedents tell us, however, that these rights are not to be weighed equally when a prior restraint is involved. Prior restraints on free speech are subject to strict scrutiny and may be upheld, if at all, only in extraordinary circumstances. See CBS, 729 F.2d at 1183. There is a “heavy presumption against [the] constitutional validity” of a prior restraint. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 , 91 S.Ct. 1575, 1578 , 29 L.Ed.2d 1 (1971). Thus, it is not enough for a court to decide that the fair trial right may be affected by the exercise of free speech. Nor is it enough for us to conclude, as we could here, that the prior restraint has a rational basis.

Instead, we must apply an “enormously exacting” standard. CBS, 729 F.2d at 1178. As we said in CBS,

Only if it is “clear ... that further publicity, unchecked, would so distort the views of potential jurors that 12 c[an] not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court” can an appellate court even consider upholding a prior restraint.

Id. (quoting Nebraska Press, 427 U.S. at 569 , 96 S.Ct. at 2807 ).

The district court’s focus, then, should be on the impact of the pretrial publicity rather than its source. The court should consider the possibility that pretrial publicity may prejudice the “entire community.” CBS, 729 F.2d at 1180. In the context of this case, this possibility will probably be remote. As we noted in CBS, “the courts have long held that in a large metropolitan area, prejudicial publicity is less likely to endanger” the right to a fair trial. Id. at 1181. With a population of about 12 million in the Central District of California, it should be possible to find an adequate number of unbiased jurors even in the face of the most pervasive publicity. See id. at 1181-82. Indeed, in Nebraska Press the Court suggested that a pool of 80,000 prospective jurors might be sufficiently large to protect against prejudicial publicity. Nebraska Press, 427 U.S. 539 , 563 n. 7, 96 S.Ct. 2791 , 2805 n. 7, 49 L.Ed.2d 683 (cited in CBS, 729 F.2d at 1182). In short, the record before us does not, in my opinion, support adequately the issuance of the district court’s order.

I do not mean to suggest that an order restricting attorneys’ statements to the press will never be permissible in this par *604 ticular case. Once the jury is empaneled, the district court will be faced with a different situation. Even then, however, the court must examine closely the alternatives to issuance of an order restricting speech. The viability of jury sequestration, curative jury instructions, and other potential remedies must be re-examined in light of the degree and nature of publicity at that time. The court should also examine whether any proposed order will be effective in curbing prejudicial publicity. Cf. Associated Press v. United States District Court, 705 F.2d 1143 , 1146 (9th Cir.1983) (in striking down court-ordered sealing of documents, appellate court found that there was not “a substantial probability that closure will be effective in protecting against the perceived harm,” citing United States v. Brooklier, 685 F.2d 1162, 1167 (9th Cir.1982)). Publicity in this case is likely to be widespread even if the district court restricts attorneys’ comments to the press. The court should consider seriously whether the benefits to the Sixth Amendment will outweigh the costs to the First before resorting to a prior restraint on speech.

I sympathize with Judge Kenyon’s concerns about the professional duty of lawyers to refrain from engaging in publicity campaigns which may tend to threaten the orderly administration of justice. One would hope that rules governing such conduct would emanate first from the bar, lessening or eliminating the need for courts to consider imposing prior restraints on speech. The enforcement of relevant rules of professional conduct would of course be after-the-fact remedies, admittedly less effective but far safer than prior restraints. Concern over the professional ethics of those who would try their cases in the press, however, should not replace dispassionate analysis when First Amendment freedoms are in the balance.

In summary, I agree with my colleagues that the writ should be granted. On this record I do not believe that a prior restraint can be justified by the requisite “clear and present danger” or “serious and imminent threat” to Sixth Amendment rights.