Rhinehart v. Seattle Times Co.

Utter, J.

(dissenting)—I must dissent because I cannot agree with the majority's analysis. While purporting to apply the doctrine of prior restraint to this case, the majority's ruling for all practical purposes makes discovery a category exempt from First Amendment scrutiny. I would vacate the existing protective order and remand for reconsideration in light of the guidelines set forth in this opinion. First Amendment interests must be balanced against legitimate concerns for the administration of the discovery process, with the ultimate burden of justification resting with the party seeking the restraint.

The majority opinion expresses doubt as to the applicability of the prior restraint doctrine with respect to discovery protective orders, majority at 231, but nevertheless finds CR 26(c) justified even under the "heavy burden", majority at 239, imposed under the prior restraint doctrine. While voicing adherence to the prior restraint doctrine, the majority's analysis reflects more its initial skepticism as to the doctrine's application. That skepticism is warranted but that does not mean First Amendment interests need not be carefully balanced in issuing protective orders. By failing to apply in earnest the traditionally stringent standards of prior restraint, the majority both dilutes the future value of the doctrine in a proper context and neglects the primary duty of the court in this case: establishing the appropriate standard by which trial courts may issue protective orders without violating the requirements of the constitution.

I

The thrust of the majority's analysis is that the court need not reach the question of whether the prior restraint *262 doctrine applies to protective orders because even under the heavy burden of that doctrine, "the interest of the judiciary in the integrity of its discovery processes is sufficient to meet the 'heavy burden' of justification." Majority at 256. Since, under the majority's analysis, CR 26(c) is justified even under the stringent prior restraint test, protective orders may be justified on a showing of good cause which the majority defines as a showing of any enumerated harm threatened that "can be avoided without impeding the discovery process." Majority at 256. While I agree with the majority that the interests it identifies are important factors to weigh in determining whether a protective order should issue, such interests do not exempt from First Amendment analysis the many situations that arise under the rule. While purporting to hold CR 26(c) is a justified prior restraint, the majority's position is actually tantamount to holding discovery is an excepted category from First Amendment scrutiny—a position unsupported in the law. Rodgers v. United States Steel Corp., 508 F.2d 152 , 163 (3d Cir.), cert. denied, 420 U.S. 969 (1975); In re Halkin, 598 F.2d 176, 186-87 (D.C. Cir. 1979).

Prior restraints are permitted only in the most exceptional cases. United States v. Progressive, Inc., 467 F. Supp. 990 , reconsideration denied, 486 F. Supp. 5 (W.D. Wis.), appeal dismissed, 610 F.2d 819 (7th Cir. 1979). " [Pjrior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 , 49 L. Ed. 2d 683 , 96 S. Ct. 2791 (1976). The Supreme Court has described the doctrine as "one of the most extraordinary remedies known to our jurisprudence." Nebraska Press Ass'n v. Stuart, supra at 562. There is a heavy presumption against the constitutionality of prior restraints. To be lawful, the restraint "must fit within one of the narrowly defined exceptions to the prohibition against prior restraints ..." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 , 43 L. Ed. 2d 448 , 95 S. Ct. 1239 (1975).

*263 [The] publication [sought to be restrained] must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea ...

New York Times Co. v. United States, 403 U.S. 713, 726-27 , 29 L. Ed. 2d 822 , 91 S. Ct. 2140 (1971) (Brennan, J., concurring). Even when the prior restraint is imposed to protect a "vital constitutional guarantee . . . the barriers to prior restraint remain high and the presumption against its use continues intact." Nebraska Press Ass'n v. Stuart, supra at 570. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 418-20 , 29 L. Ed. 2d 1 , 91 S. Ct. 1575 (1971); Carroll v. President & Comm'rs, 393 U.S. 175 , 21 L. Ed. 2d 325 , 89 S. Ct. 347 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 , 9 L. Ed. 2d 584 , 83 S. Ct. 631 (1963); Near v. Minnesota ex rel. Olson, 283 U.S. 697 , 75 L. Ed. 1357 , 51 S. Ct. 625 (1931); Seattle v. Bittner, 81 Wn.2d 747 , 505 P.2d 126 (1973); Adams v. Hinkle, 51 Wn.2d 763 , 322 P.2d 844 (1958).

Yet faced with this almost insurmountable hurdle, the majority holds protective orders and the multitude of situations under which they might arise are justified as long as a threatened harm can be shown and the protective order will not impede discovery. Had the majority actually applied the traditional doctrine of prior restraint, neither CR 26(c) nor the protective order in this case would have withstood the constitutional test. Even constitutional concerns for privacy do not rise to the level of overcoming the presumption of unconstitutionality attached to prior restraints. Organization for a Better Austin v. Keefe, supra at 418-20.

II

The protective order's invalidity under the traditional prior restraint test should not resolve this case. While some First Amendment interest does attach to the dissemination of discovery materials, I feel in this context the heavy burden of the prior restraint doctrine is inappropriate. But see *264 Reliance Ins. Co. v. Barron's, 428 F. Supp. 200 (S.D.N.Y. 1977); Davis v. Romney, 55 F.R.D. 337 (E.D. Pa. 1972).

As a general proposition, pretrial discovery is public unless compelling reasons exist for denying the public access to the proceedings. American Tel. & Tel. Co. v. Grady, 594 F.2d 594 (7th Cir. 1979); United States v. IBM Corp., 66 F.R.D. 219 (S.D.N.Y. 1974); Johnson Foils, Inc. v. Huyck Corp., 61 F.R.D. 405 (N.D.N.Y. 1973). An individual is entitled to use the fruits of discovery for lawful purposes unless a protective order issues. Leonia Amusement Corp. v. Loew's, Inc., 18 F.R.D. 503, 508 (S.D.N.Y. 1955). While, courts have diverged as to the appropriate constitutional standard, there has been little dispute as to the existence of a First Amendment interest in discovery materials. In re San Juan Star Co., 662 F.2d 108 (1st Cir. 1981); National Polymer Prods., Inc. v. Borg-Warner Corp., 641 F.2d 418 (6th Cir. 1981); In re Halkin, supra (majority and dissent concurring on this point); Koster v. Chase Manhattan Bank, 8 Media L. Rep. 1155 (S.D.N.Y. 1982); Note, Protective Orders Prohibiting Dissemination of Discovery Information: The First Amendment and Good Cause, 1980 Duke L.J. 766 (hereinafter Duke Note); Note, Rule 26(c) Protective Orders and the First Amendment, 80 Colum. L. Rev. 1645 (1980) (hereinafter Columbia Note). But cf. Rodgers v. United States Steel Corp., 536 F.2d 1001, 1006 (3d Cir. 1976) (considering such First Amendment interest waived); International Prods. Corp. v. Koons, 325 F.2d 403 , 407 (2d Cir. 1963) (court entertained no doubt of constitutionality of protective orders, though it did not deny the existence of First Amendment interests).

Nonetheless, I feel there are factors that distinguish the restraint of a protective order from the prior restraints that have traditionally been accorded such a heavy presumption of invalidity. A protective order is a restraint on expression but "[t]he phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test." Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441 , 1 L. Ed. 2d 1469 , 77 S. Ct. 1325 (1957) (Frankfurter, J.). See generally Bar *265 nett, The Puzzle of Prior Restraint, 29 Stan. L. Rev. 539 (1977). Protective orders are unlike classic prior restraints (e.g., administrative licensing schemes) in that they result from an adversary process and can be limited to specific expression. In re Halkin, 598 F.2d at 185 nn. 16-17. More importantly, protective orders relate only to material gathered by virtue of the court's processes. As the court in Koster v. Chase Manhattan Bank, 8 Media L. Rep. 1155, 1159 (S.D.N.Y. 1982) stated: "[T]he special nature of discovery as a source of information justifies a reduced level of scrutiny." As Judge Wilkey in his dissent to Halkin stated, one's interest in disseminating discovery materials is restricted because it is obtained solely by virtue of the court's processes. 598 F.2d at 206 . Judge Wilkey concluded that since a court can deny access to discovery altogether without being subject to First Amendment analysis, it is anomalous to make protective orders subject to such First Amendment strictures. Applying the logical construct that the greater includes the lesser, Judge Wilkey concluded the greater power of denying access includes the lesser power of placing restrictions on access, and that both should be subject to the same standard. 10 The notion is plausible, but unfortunately deductive logic is a helpful but not necessarily dispositive aspect of legal analysis. See R. Wasserstrom, The Judicial Decision, ch. 2 (1961). The greater does not always include the lesser when it is a constitution and not a syllogism we are expounding. While an individual does not have a right to public employment, the government may not place unconstitutional conditions on such employment:

[the government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, *266 his exercise of those freedoms would in effect be penalized and inhibited.

Perry v. Sindermann, 408 U.S. 593, 597 , 33 L. Ed. 2d 570 , 92 S. Ct. 2694 (1972). See In re San Juan Star Co., supra at 114; Duke Note at 789-90; Columbia Note at 1647 n.16. Thus, if the court's reason for denying a party access to discovery was to deny the party a First Amendment interest in dissemination of those materials, such denial would be just as invalid as a protective order motivated by similar concerns. Judge Wilkey's affirmation of the highly discretionary good cause standard as a basis for denial of both access and protective orders, while logically plausible, does not follow inevitably from a constitutional analysis. 11

First Amendment concerns persist even though protective orders should not be subject to a heavy presumption of unconstitutionality. In so concluding, I fall in line with the majority of courts that have considered the question. See Koster, at 1158-59 (and cases cited therein). 12 Unfortunately, the majority's characterization of the good cause standard for such orders does not reflect a concern for the First Amendment interests that must be weighed. By requiring only a showing of one of CR 26(c)'s enumerated *267 harms and that the discovery process not be impeded, the majority does not even require a trial court to look to the countervailing interests of the party against whom the protective order is sought.

Ill

Recently, courts have struggled with devising standards by which trial courts should render protective orders when First Amendment interests are at issue. The cases of Halkin and San Juan Star are notable. While these courts have not evaluated protective orders "by the stringent standards governing classic prior restraints", Koster, 8 Media L. Rep. at 1159 , they have required more rigorous standards for reviewing "good cause" determinations them "abuse of discretion". 13

A

In Halkin , the court required "close scrutiny of [the impact of protective orders] on protected First Amendment expression", 598 F.2d at 186 , viewing a protective order as a "direct governmental action limiting speech". Halkin , at 183. The court set forth a 2-part test of first determining the significance of the First Amendment interests restrained, and second, evaluating the restraint according to three criteria:

the harm posed by dissemination must be substantial and serious; the restraining order must be narrowly drawn and precise; and there must be no alternative means of protecting the public interest which intrudes less directly on expression.

(Footnotes omitted.) Halkin , at 191. This approach requires the balancing of First Amendment interests against the harm avoided by the protective order, and imposes requirements of specificity, narrowness and an *268 exhaustion of less intrusive alternatives.

I agree with the Halkin court that a trial court's ability to deny access does not dispose of the First Amendment concerns as to protective orders, but I do not feel the First Amendment analysis is the same regardless of the mode by which information is acquired. See Halkin, at 187-88, citing First Nat'l Bank v. Bellotti, 435 U.S. 765, 778, 783 , 55 L. Ed. 2d 707 , 98 S. Ct. 1407 (1978). The court has legitimate concerns in administering the discovery process, which may affect the extent to which First Amendment expression remains unimpaired. The same evil does not result "from attaching certain conditions to government-connected activity as from imposing such conditions on persons not connected with government." Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 , 1448 (1968).

While the Halkin court does not focus on these legitimate concerns, the standards it articulates provide trial courts with the flexibility needed to address such concerns. See Brink v. DaLesio, 82 F.R.D. 664, 678 (D. Md. 1979) ("At most, the [Halkin] opinion will perhaps prompt a more reasoned and precise statement by judges in issuing Rule 26(c) orders.'').

B

The court in San Juan Star established a standard somewhat less restrictive than the Halkin majority; a standard of good cause that "incorporates a 'heightened sensitivity' to the First Amendment concerns at stake", 662 F.2d at 116 . Judge Coffin articulated this heightened sensitivity thus: "We look to the magnitude and imminence of the threatened harm, the effectiveness of the protective order in preventing the harm, the availability of less restrictive means of doing so, and the narrowness of the order if it is deemed necessary." San Juan Star, at 116. With respect to the "threatened harm", Judge Coffin felt it should be evaluated on a "sliding scale ... as the potential harm grows more grave, the imminence necessary is *269 reduced." San Juan Star, at 116. More explicitly than did the court in Halkin , the court in San Juan Star recognized the legitimate concerns a court has in administering the discovery process which might justify subordination of First Amendment interests that could not otherwise be limited. Concerns for the administration of the discovery process and for minimizing injury to parties are legitimate bases for restricting First Amendment interests in the discovery context.

C

While the United States Supreme Court has not addressed First Amendment concerns in discovery, I believe First Amendment interests must be weighed much as the Court required in Pickering v. Board of Educ., 391 U.S. 563 , 20 L. Ed. 2d 811 , 88 S. Ct. 1731 (1968). In Pickering , the Court dealt with the question of a teacher's First Amendment rights within the context of his employment. While the Court rejected unequivocally the Illinois Supreme Court's assertion that an individual may be forced to give up constitutional rights as a condition of public employment, the Court conceded:

At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

391 U.S. at 568 . Because of the multitude of situations that might arise, the Pickering Court did not presume to set forth any general standard for balancing the respective interests. Nor would I presume to do so in this case. Nonetheless, the Pickering Court did require that the school's legitimate interests actually be served by a limitation on speech, and in a subsequent case dealing with the same *270 concerns, the Court required a material and substantial interference with a school's interests in order and discipline to justify curtailment of First Amendment liberties. Tinker v. Des Moines Indep. Comm'ty Sch. Dist., 393 U.S. 503, 508-09 , 21 L. Ed. 2d 731 , 89 S. Ct. 733 (1969). I believe both Halkin and San Juan Star provide helpful guidelines to a trial court in striking the right balance. See Duke Note, supra at 793-99. Below, I outline some of the questions a trial court should ask in determining if a protective order should issue:

1. What is the extent of the First Amendment interest enjoined by the protective order?

As the Halkin court indicated, "First Amendment interests will vary according to the type of expression subject to the order." 598 F.2d at 191 . The majority distinguishes Halkin and San Juan Star as cases involving intense public concern while the matters before us are of less public consequence. Even assuming the validity of the majority's assertion, it has not provided an analytical framework by which we as a reviewing court will be able to differentiate this case from one in which the First Amendment interest is more substantial.

2. What is the harm threatened by failure to issue a protective order?

As the Halkin court indicated, "widely varying interests" may be advanced in support of a protective order. The rule itself allows for such breadth of interest: "the court . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ..." CR 26(c). As Judge Coffin indicated, the degree of imminence of any harm will vary in inverse proportion to the magnitude of the harm. An additional concern here is the question of how central the information is to the case. If the information is of central relevance, a party's interest and expectation in privacy might be diminished. At the same time, the centrality of the information may affect a party's right to a fair trial.

3. What is the status of the parties seeking a protective *271 order and against whom the protective order is sought?

The expectation in privacy will vary if the party seeking the order is a public body or a private person, or if the individual is a nonparty or central litigant. If a protective order is sought against a suing party, it might impede the party's First Amendment right to freely litigate, especially if such action is brought for a public purpose (e.g., civil rights, antitrust actions). See Halkin, 598 F.2d at 187 ; In re Primus, 436 U.S. 412 , 56 L. Ed. 2d 417 , 98 S. Ct. 1893 (1978). If, on the other hand, the defendant is the party against whom the protective order is sought, the First Amendment right to litigate seems less in jeopardy. In addition, the court must be sensitive to concerns militating in favor of a protective order, namely a party's First Amendment interest "to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 , 51 L. Ed. 2d 752 , 97 S. Ct. 1428 (1977). As one commentator has indicated, "In the absence of sufficient justification, a court's denial of a motion for a protective order may itself be an unconstitutional infringement of the producing party's first amendment rights." (Italics mine.) Duke Note, 1980 Duke L.J. at 793.

4. What specific concerns does the court have in issuing protective orders?

The court must determine whether the protective order will facilitate the administration of justice or undermine one of the purposes of the litigation, i.e., whether it prevents an abuse of process by a party or restrains a significant First Amendment interest. Besides the court's concern for minimizing injury to parties, the court has separate concerns for ensuring discovery is expeditious. If the absence of a protective order might mean a party's evasion of its duty to disclose and an end to voluntary compliance with discovery processes, a protective order may be the best means of insuring the orderly administration of discovery.

Once the interests for and against a protective order have been identified, the court must balance them, with the burden of justification resting on the party seeking the protec *272 tive order. No simple rule will apply in all cases. If the government seeks to protect from dissemination highly relevant information regarding graft among public officials because of the annoyance and embarrassment of public disclosure, the balance will be struck differently than when a private party seeks to protect from public scrutiny personal details which are of questionable materiality to the case. Needless to say, courts should attempt to find the least restrictive accommodation of all interests, those of the parties and the court. See In re Halkin, 598 F.2d 176, 191 (D.C. Cir. 1979); In re San Juan Star Co., 662 F.2d 108, 116 (1st Cir. 1981). Often the only alternative to a protective order will be denial of access—a result which the Halkin court indicated benefits no one. 14 A natural concomitant of finding the best accommodation of all interests is that the protective order be narrow and precise to protect against the specific harm threatened. Halkin , at 191; San Juan Star, at 116. This does not mean that a court must supervise the discovery of every document. San Juan Star; Tavoulareas v. Piro, 93 F.R.D. 11, 24 (D.D.C. 1981). To require as much would substantially undermine the purposes of discovery. Nevertheless, the court should restrain from publication only that which need be to prevent the harm that has been identified. Nor should the court restrain information for a period of time longer than is necessary. See Halkin. Implicitly, this would mean the termination of the protective order once information protected is a matter of public record.

The above discussion is meant as a guide to trial courts, not as a fixed rule. The major premise of the discussion is that where First Amendment interests can be identified, the harm against which a protective order guards must be balanced against those First Amendment interests, with the burden of justification lying with the party seeking the *273 restraint.

IV

Turning to this case, the trial judge issued both a protective order and a memorandum opinion regarding the protective order. The primary problem with the protective order is that it does not attempt to weigh petitioner's First Amendment interests in determining whether a protective order should issue. As the trial judge states at page 2 of his memorandum opinion:

Protective Orders are entered .routinely in cases where the party seeking the Protective Order has a reasonable basis for its request that the information gained through discovery be used by the discovering party for no purpose other than the legitimate purposes of the case in which discovery was granted.

Such a test, which is identical to the majority's standard, does not require any "heightened sensitivity" to First Amendment concerns.

In addition, the court's "reasonable basis" in this case is simply too speculative and general to justify the restraint of First Amendment freedoms. The trial judge states on page 4 of his memorandum opinion:

If Protective Orders are not available, it could have a chilling effect on a party's willingness to bring his case to court. If the absence of a Protective Order has the effect of denying a party access to the courts, this would be a result just as damaging to justice and to individual rights as can result from an impingement upon First Amendment rights. I would put access to the courts on an equal plane of importance with freedom of the press because it is through the courts that our fundamental freedoms are protected and enforced.

And the protective order states:

the absence of protective orders would have a chilling effect on a person's willingness to bring a case to court and that this would have the effect of denying persons access to the courts . . .

As a general proposition, the court's statement is certainly true in some cases. But is it true in this case? Would the *274 risk of dissemination cause Rhinehart to drop his libel action? Or are there other specific concerns for minimizing injury and embarrassment to respondents that outweigh the petitioner's First Amendment interest in dissemination? Such concerns might well exist in this case, but they are not identified by the court. As a threshold consideration, the trial court must identify the specific harm in this case that warrants a protective order. Courts have generally required a "particular and specific demonstration of fact” to justify protective orders. General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204 , 1212 (8th Cir. 1973), cert. denied, 414 U.S. 1162 (1974). See United States v. IBM Corp., 67 F.R.D. 40, 46 (S.D.N.Y. 1975) (clearly defined and very serious injury); Neonex Int'l Ltd. v. Norris Grain Co., 338 F. Supp. 845 (S.D.N.Y. 1972); Glick v. McKesson & Robbins, Inc., 10 F.R.D. 477 (W.D. Mo. 1950); United States ex rel. Edelstein v. Brussell Sewing Mach. Co., 3 F.R.D. 87 (S.D.N.Y. 1943). Cf. Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 , 68 L. Ed. 2d 693 , 101 S. Ct. 2193, 2200 (1981) (Court struck down restraining order under Fed. R. Civ. P. 23 which affected First Amendment interests as an abuse of discretion because it was not based on a '' clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties."). Here a specific finding by the court is required to insure that the restraint is justified.

On remand, I would call attention to two other concerns I have with the protective order. The order is narrow in that it restricts only the use of information gained through the discovery processes. Trial court memorandum opinion, at 3. The protective order is not narrow in two important respects, however. While paragraph 2 of the order seems to limit restrictions on dissemination to financial data and certain names and addresses, paragraph 3 states broadly (and somewhat inconsistently) "information gained by a defendant through the discovery process may not be published by any of the defendants or made available to any news media for publication or dissemination." While para *275 graph 3 is apparently limited by the specific information discussed in paragraph 2, the court's opinion perpetuates the notion that all discovery information is restrained by the protective order:

The intent and purpose of the protective order will be that the discovering party make no use or dissemination of the information gained through discovery other than such use as is necessary in order for the discovering party to prepare and try the case. It follows that information gained through the discovery process will not be published by the Seattle Times or made available to any news media for publication or dissemination.

Trial court memorandum opinion, at 3. Similarly, the restraint is not limited in time. Literally, the order restrains from publication information that is introduced as evidence at trial. On remand, I would require the court, if it should issue an order, to specify the conditions of the restraining order more carefully.

Through this opinion, I do not mean to imply that a protective order may not issue in this case. I would simply require the trial court to undertake the ad hoc balancing test outlined above. This the trial court has not done. A specific harm has not been identified by the trial court, First Amendment interests are given no recognition, and the order does not reflect the narrowness which derives from a concern for such interests. I would vacate the protective order and remand to the trial court to reconsider the request for a protective order in light of the concerns identified in this opinion.

Pearson, J., concurs with Utter, J.

Reconsideration denied January 27, 1983.

The majority, too, seems persuaded by the same argument. See its discussion of Gannett Co. v. DePasquale, 443 U.S. 368 , 61 L. Ed. 2d 608 , 99 S. Ct. 2898 (1979) at page 253. For the same reasons discussed in text, I find its analysis unpersuasive.

The majority also seems enamored of the idea of waiver in this context, though it is chary of adopting such an approach. See footnote 4. Access to discovery cannot be conditioned on a waiver of constitutional rights, In re Halkin, 598 F.2d 176, 190 (D.C. Cir. 1978), nor generally is waiver of constitutional rights implied. In re Halkin, supra; Brady v. United States, 397 U.S. 742 , 25 L. Ed. 2d 747 , 90 S. Ct. 1463 (1970); Curtis Pub'g Co. v. Butts, 388 U.S. 130, 142-45 , 18 L. Ed. 2d 1094 , 87 S. Ct. 1975 (1967). But see Rodgers v. United States Steel Corp., 536 F.2d 1001 (3d Cir. 1976).

The Supreme Court has not addressed this question directly, but its recent decision in Gulf Oil Co. v. Bernard, 452 U.S. 89 , 68 L. Ed. 2d 693 , 101 S. Ct. 2193 (1981) provides a helpful analogy. There the Court struck down a restraining order under Fed. R. Civ. P. 23 as an abuse of discretion, but commented:

Although we do not decide what standards are mandated by the First Amendment in this kind of case, we do observe that the order involved serious restraints on expression. This fact, at minimum, counsels caution on the part of a district court in drafting such an order, and attention to whether the restraint is justified by a likelihood of serious abuses.

452 U.S. at 103-04 . See Section III(C) in the text of the opinion.

The inconsistency of the majority's approach is made evident by its treatment of Halkin and San Juan Star. The majority states the standards articulated by those courts are not mandated by the constitution. Majority at 248. Yet the standards developed in both cases are less stringent than the heavy presumption against validity, which the majority purports to apply in dispensing with this case.

The Halkin court did identify alternatives to protective orders when the interest protected is an individual's right to a fair trial. See Halkin, 598 F.2d at 195 .