United States v. Harold E. Ford

KRUPANSKY, Circuit Judge,

concurring.

I concur in Judge Merritt’s conclusion that the order issued by the trial court in the instant case is overbroad and fails to satisfy the clear and present danger standard that has been enunciated by this circuit in CBS, Inc. v. Young, 522 F.2d 234 (6th Cir.1975), as the predicate for the imposition of judicial First Amendment restraints necessary to ensure “fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834, 837 , 93 L.Ed. 974 (1949).

The keystone of my position is anchored in the Supreme Court’s pronouncement “that the right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government____” Wood v. Georgia, 370 U.S. 375, 383 , 82 S.Ct. 1364, 1369 , 8 L.Ed.2d 569 (1962). Appellant-petitioner, in the instant proceeding, has charged First Amendment free speech infringements, judicially imposed ostensibly pursuant to a court’s inherent authority to ensure fair trials for criminal defendants. He has, however, erroneously argued that the right to a fair trial afforded by the Sixth Amendment inures to the sole benefit of a criminal defendant and may, within the defendant’s sole discretion, under the facts and circumstances of this case involving his First Amendment rights to free speech, be waived. Notwithstanding the position advanced by the appellant-petitioner herein, existing legal precedent defines the Sixth Amendment right to a fair and impartial trial as a right that inures not only to the sole benefit of a defendant, but rather one that inures equally to the state as the representative of the people.

The public has an overriding interest that justice be done in a controversy between the government and individuals and has the right to demand and expect “fair trials designed to end in just judgments.” This objective may be thwarted unless an order against extrajudicial statements applies to all parties to a controversy. The concept of a fair trial applies both the prosecutor and the defense.

United States v. Tijerina, 412 F.2d 661, 667 (10th Cir.), cert. denied, 396 U.S. 990 , 90 S.Ct. 478 , 24 L.Ed.2d 452 (1969) (quoting Wade v. Hunter, 336 U.S. at 689 , 69 S.Ct. at 837 ). To implement its duty to ensure a fair and impartial trial to all parties to a criminal action, a court may impose, within the parameters of existing legal precedent, reasonable First Amendment restraints upon all parties to the litigation. Accordingly, a reading of the order issued by the trial court in the instant case is, as Judge Merritt has stated, overly broad and fails to satisfy the clear and present danger standard that is the law of this circuit. Absent findings of fact to support a “serious and imminent threat” in a narrowly tailored order directed to specific circumstances and without evidence of having explored the less burdensome alternatives of voir dire, jury selection, sequestration, or a change of venue, the order in its present form should be vacated.

Appellant-petitioner, as a member of Congress supported by the Speaker and Leadership Group of the United States House of Representatives, has vigorously urged that the members of Congress enjoy greater First Amendment freedom of speech privileges than ordinary citizens when standing before the bar of justice. Apart from the dialogue between Thomas Jefferson and James Madison in an exchange of correspondence preliminary to drafting a petition to “Protest against in *604 terference of Judiciary between Representative and Constituent,” wherein they suggested that the judiciary had no right to interfere in a Congressman’s exercise of speech, I find no legal support for the petitioner’s position. 1

In a representative form of government such as ours, the members of Congress are selected by the electorate from the ranks of ordinary citizens. Accordingly, they assume unique dual identities of, on the one hand, representatives of their constituencies as members of Congress, while retaining their identities as private citizens in pursuit of private interests. As private citizens promoting their personal and private interests, they enjoy no greater or lesser constitutional privileges than their fellow citizens unless the Constitution explicitly affords them additional rights or privileges in connection with their role as legislators. Contrary to appellant-petitioner’s and amici curiae’s assertions, the Constitution bestows upon the appellant-petitioner and other members of Congress no greater or lesser rights or privileges than an ordinary citizen when he appears before the Courts to promote or defend personal interests as distinguished from purely legislative functions essential to the deliberation of the Congress.

In Hutchison v. Proxmire, 443 U.S. 111 , 99 S.Ct. 2675 , 61 L.Ed.2d 411 (1979), the Supreme Court considered the enhanced protection of a Senator’s speech under the Speech or Debate Clause of the Constitution, Art. I, § 6. 2 In Hutchison , Senator Proxmire “presented” his now famous “Golden Fleece Award” to a government funded research project he deemed to be an abusive waste of the taxpayers’ money. Proxmire publicized the “award” both on the floor of the Senate and in newsletters and other similar communications to his constituents. The Director of the research project, Hutchison, initiated legal action against Proxmire for libel and slander, and Proxmire invoked immunity under the Speech or Debate Clause. The Court extended immunity to Proxmire pursuant to the Speech or Debate Clause to the extent that his remarks were “essential to the deliberations of the Senate” and “part of the deliberative process,” 443 U.S. at 130 , 99 S.Ct. at 2685 , but withheld immunity from his alleged libelous and slanderous remarks which he republished in communications to his constituents:

Valuable and desirable as it may be in broad terms, the transmittal of such information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process. As a result, transmittal of such information by press releases and newsletters is not protected by the Speech or Debate Clause.

443 U.S. at 133 , 99 S.Ct. at 2687 . Significantly, the Court was not concerned that judicial administration of the common law of libel and slander constituted judicial intervention in the affairs of a co-equal branch of government. Indeed, the doctrine of “separation of powers” must give way to the overriding interests of the judicial branch in administering criminal laws. United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974) (need for evidence in a criminal proceeding overrides claim of executive privilege).

Accordingly, members of Congress, when not acting within their legislative capacity or exercising privileges under the Speech or Debate Clause are subject to the same reasonable First Amendment judicial *605 restraints, authorized by law, that may be imposed upon ordinary citizens. A member of Congress is neither performing a legislative function nor exercising his privileges under the Speech or Debate Clause when he seeks to disseminate information to his constituency which is calculated to advance purely private and personal interests or positions addressing an indictment on criminal charges. Consequently, a court could, under appropriate circumstances, intervene and issue a narrowly tailored order restraining a member of Congress from acting beyond his legislative prerogatives and his rights of speech and debate in order to ensure fair and impartial trials. For the foregoing reasons, I respectfully concur in the disposition of this case.

. A review of the Jefferson-Madison correspondence is, at best, inconclusive since the record fails to disclose if the discussed petition was, in fact, filed or presented to any official body, either executive, legislative, or judicial. It appears from the available documentation that Representative Cabell, a member of Congress, was being investigated for criticizing the President’s administration of foreign policy through the dissemination of information in newsletters to his constituents. If, in fact, the circumstances are accurately memorialized, it is apparent that Congressman Cabell was acting well within the pursuit of his legislative prerogatives and was not advancing his personal private interests.

. That clause provides that "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place."