Rhinehart v. Seattle Times Co.

Dolliver, J.

(concurring)—Although I agree with the result reached by the majority, I believe the court should state categorically that discovery under the standards of CR 26(c) and the protective orders of the court in this case do not require a First Amendment analysis. The United States Supreme Court has wisely avoided the morass of rather tendentious First Amendment commentary which has afflicted some of the federal courts in recent cases. E.g., In re Halkin, 598 F.2d 176 (D.C. Cir. 1979). We should do the same. I agree with the comment of the majority that "we are not convinced that the Halkin approach properly serves the administration of justice." Majority opinion, at 236. To this I would add it also does little to advance the cause of First Amendment protections. See International Prods. Corp. v. Koons, 325 F.2d 403 (2d Cir. 1963).

In his dissent to In re Halkin, Judge Wilkey states with great clarity why a protective order such as in this case is not an assault on the Bill of Rights:

Within the framework of the discovery laws, then, it is clear that whatever rights a party may have in the materials that it has exacted from another party in discovery *259 are qualified by conditions properly imposed by the court in its discretion under Rule 26(c). There is no "waiver" of First Amendment rights, as the majority tries to term it; it is simply that when a party uses the court's process in a manner which may be unfair to the other party and is unrelated to the litigation purpose of discovery, the court has the power and responsibility to take whatever action is necessary to protect its process from abuse, and a protective order requiring a litigant to use the products of discovery in a manner consistent with the purposes of discovery is a permissible "prior restraint" if it meets the standards set forth in Rule 26(c).

The majority argues that revelation of governmental action which sometimes accompanies civil litigation should not be kept from the public. Of course, this material on which petitioners wish to hold a press conference now will be made public—at the trial. Even matter which has been discovered, but which may not be deemed relevant to issues at trial, can later be fully disclosed and discussed, as I understand the purpose and tenor of the trial court's order. No suppression of free speech is involved in this case; what is at issue is the orderly control of the judicial process by the trial judge.

This is illustrated by the striking anomaly in the majority opinion's logic which the majority does not adequately explain. It is conceded "that plaintiffs do not have a First Amendment right of access to information not generally available to members of the public. Pell v. Procunier, 417 U.S. 817, 834 , 94 S.Ct. 2800 , 41 L.Ed.2d 495 (1974); Zemel v. Rusk, 381 U.S. 1, 16-17 , 85 S.Ct. 1271 , 14 L.Ed.2d 179 (1965); see also Nixon v. Warner Communications, Inc., 435 U.S. 589, 609-10 , 98 S.Ct. 1306 [1318], 55 L.Ed.2d 570 (1978)." Federal Rule of Civil Procedure 26(c)(1) allows the district court to prevent discovery altogether, if good cause is shown ("may . . . order . . . that the discovery not be had”). No one argues that such prohibition raises any First Amendment issues or problems, and apparently it is conceded by all that such an order may be based on mere "good cause," and the district court need not meet any more stringent test such as "reasonable likelihood of harm" or "serious and imminent threat," etc., before it can issue such *260 an order. However, the majority holds that when a less serious intrusion of the district court is made, i. e., it attempts to set limits on the use of the information already received, it must meet more stringent First Amendment standards.

Thus the anomalous situation results, in which the district court is completely unfettered by First Amendment considerations when it is most intrusive, i. e., prohibits discovery altogether, and is more restricted when it is less intrusive, i. e., puts limits on the use of material which it allows to be discovered. This has nothing to do with any "benefits-privileges" analysis, as the majority interprets my position (note 28). It is simply the principle that the greater (the power to prohibit altogether) includes the lesser (the power to grant with conditions), a bit of logic which has been recognized as valid at least since the ancient Greeks.

It seems to me, then, that the majority's elaborate First Amendment analysis is gratuitous. Since an order properly issued under Rule 26(c) is constitutional, the focus of inquiry should be whether or not "good cause" has been shown for the order under review within the meaning of Rule 26(c). If the district court properly issued the order under Rule 26(c), then the order is consistent with First Amendment safeguards, and there is no reason to embark on an independent First Amendment analysis. If the district court did not properly issue the order under Rule 26(c), then it is violative of statutory standards, and there is again no reason to embark on a First Amendment analysis.

(Footnotes omitted.) In re Halkin, 598 F.2d at 208-09 .

I concur with the view of Judge Wilkey. Subjecting the discovery process to the strictures of the First Amendment may increase trial courts' reluctance to allow discovery in the first place. Trial judges who fear the impairment of their ability to regulate abuses once the discovery process has started may resort to the more easily justified but more drastic alternative of denying discovery altogether. The analysis represented by the In re Halkin majority and by the dissent here neither advances the administration of *261 justice nor guarantees any rights contained in the First Amendment.

Brachtenbach, C.J., and Dimmick, J., concur with Dolliver, J.