Petition — Seattle Times Co. v. Rhinehart

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82 - ] 7 21 ottice- Supreme Court, us. |

No. 82- FILED

APR 22 1993

IN THE

Supreme Court of the Wnited Seeitiatoss sree

OcTOBER TERM, 1982

THE SEATTLE TIMES COMPANY, a&

Delaware corporation, d/b/a

THE SEATTLE TIMES; WALLA WALLA

UNION-BULLETIN, INC.; ERIK

LaciTis and JANE DoE LACITIS;

JOHN WILSON and REBECCA WILSON;

JOHN McCoy and Karen McCoy,

Petitioners,

Vv.

KEITH MILTON RHINEHART, a single

person; the AQUARIAN FOUNDATION,

a Washington not-for-profit

corporation; KATHI BAILEY, a

married person, LILLIAN YOUNG,

a married person, TONI STRAUCH,

a married person, SYLVIA CORWIN,

and ILSE TAYLOR, representing

women who were members of the

Aquarian Foundation on or after

March 17, 1978,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF WASHINGTON

PETITION FOR A WRIT OF CERTIORARI

P. CAMERON DEVORE Evan L. SCHWAB

MARSHALL J. NELSON 4200 Seattle-First National

Bruce E. H. JOHNSON Bank Building

DANIEL M. WAGGONER Seattle, Washington 98154

Davis, WRIGHT, Topp, RigesE (206) 622-3150

& Jones Counsel of Record for

Of Counsel Petitioners

April 22, 1983

QUESTIONS PRESENTED FOR REVIEW

1. Whether it is constitutional under the First and

Fourteenth Amendments for a court to prohibit publication of

information learned in the course of civil discovery in the

absence of either a showing of specific harm caused by

publication or a particularized examination of the need for a

restriction upon publication.

2. Whether it is constitutional under the First and

Fourteenth Amendments for a court to enter an order prohibit-

ing publication of information learned in the course of civil

discovery upon a mere showing of “good cause.”

TABLE OF CONTENTS

Re re I rvs oceetecntences

Te ines

ppt as ae igh. 8 fay. erie onneenn ono

I a eceecennnesecwensnonen

arr ecnicensnkirerstcmeesstesalane

CONSTITUTIONAL AND OTHER PROVISIONS

ce A RES CESS ERED SERS CaSO SRO

SrA leer) Ge ree CASE...

REASONS FOR GRANTING THE WRIT....................

I. The Decision Below Departs From this Court’s

Holdings in Sanctioning a Ban on Publication

Without any Showing of Harm Caused by Such

A. The Decision Offers Conjectural Justifica-

tions for the Protective Order.......................

B. In Nebraska Press and Gulf Oil, this Court

Mandated Specific Findings Before Entry

of any Restraint on Expression....................

C. The Decision Also Conflicts with Rulings

of the United States Courts of Appeals .......

D. Speculation Cannot Justify a Curb on Ex-

po RG WEST RSD CUO IPULIE ESS aRieneone me

II. The Decision Below Rejects the First Amend-

ment Tests Applied By the United States Courts

of Appeals and a State Court of Last Resort........

A. The Court Concludes that the First

Amendment Does Not Protect the Publica-

tion of Information Learned in Litigation...

B. The Court pH am the First Amend-

ment Tests Adopted in Halkin and San

Jo a.

C. The Court’s Reasoning Conflicts with

other Federal Appellate Decisions ..............

D. The Presumption of Openness Reflects

Important First Amendment Policies ..........

E. The Decision Also Conflicts with the First

Amendment Test of Another State Court

OF Lt re

Il.

F. The Court’s Analysis Rejects the Over-

whelming Weight of Authority....................

The Decision Below Ignores this Court’s Deci-

sions When It Concludes That a Prior Restraint

a Issue Upon a Mere Showing of “Good

A. The Court Holds that a Prior Restraint

May Issue to Prevent Possible “Annoy-

ance” or “Embarrassment”..........................

B. The Court Misapplies the Prior Restraint

Standards Repeatedly Articulated by this

bi RR CE ERS tn

C. The Court Fails to Formulate a Proper

eee eee Fee

wie eta ig a A SE ES ER pandas

APPENDIX

Opinion Granting Plaintiffs’ Motion for Protec-

tive a King County Superior Court, June

OR coh cca rch secsssceeesduslcnnscelinepsiecics

Protective Order, King County Superior Court,

Opinion of the Washington Supreme Court of

December 2, 1982, as changed on December 13,

I i cs esdecnse cass cecies is couesisbeioatissaiasneeeianss

Order of the Washington Supreme Court of

January 27, 1983, Denying Motion for

TABLE OF AUTHORITIES

CASES

American Telephone & Telegraph Co. v. Grady, 594

F.2d 594 (7th Cir. 1978) (per curiam), cert.

Pg NES CIE Lo | RRR RHR A

Bernard v. Gulf Oil Co., 619 F.2d 459 (Sth Cir. 1980)

(ea Gene) af = Gz US 89 (1961) .....................

Bridges v. California, 314 U.S. 252 (1941)...............0.

Brink v. DaLesio, 82 F.R.D. 664 (D. Md. 1979) ........

Carroll v. President & Commissioners of Princess

FF Oi 0 © ONY icc iscenccnctesinaececeene

CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975)

ieee

Central Hudson Gas & Electric Corp. v. Public Service

Cs rr ee Tr Crete

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ...

Chase v. Hobson, 435 F.2d 1059 (7th Cir. 1970).........

Chicago Council of Lawyers v. Bauer, 522 F.2d 242

(7th Cir. 1975), cert. denied sub nom. Cunningham

v. ag Council of Lawyers, 427 U.S. 912

Ry USE ORCS DIE SS a te eae

Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert.

MI Fr FU CD icc seccecntcseseteeense

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

fg CRESTED AGE GE RNR lin Moan oe

Davis v. Romney, 55 F.R.D. 337 (E.D. Pa. 1972) .......

Doe v. District of Columbia, 697 F.2d 1115 (D.C.

a cieseccsonntaes

Gannett Co. v. DePasquale, 443 U.S. 368 ( 1979)........

General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d

(197 (8th Cir. 1973), cert. denied, 414 U.S. 1162

is ac ice os sceees anaeenig Sacumimaonsenoecia

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .......

Globe Newspaper Co. v. Superior Court, ___US.

—_—, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) ......

Goldblum v. National Broadcasting Corp., 584 F.2d

SE | 1 ENE E ree ieee

Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) ........0.......

16,24,25

14,15

16,19,24

11,19

11,14,19

In re Halkin, 598 F.2d 176 (D.C. Cir stg Me RES

Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979)

[COMO

International Products Corp. v. Koons, 325 F.2d 403

Oe i

Koster v. Chase Manhattan Bank, 93 F.R.D. 471

Cee ee

Krause v. Rhodes, 671 F.2d 212 (6th Cir. 1982), cert

denied sub nom. Attorney General of Ohio y.

Krause, Mitte vnncng SOS OE SE, 78 1. Ed 20

* fo iccoicg ge EE Ue ele

Kuiper v. District Court, 632 P.2d 694 (Mont. 1981 }-

Landmark Communications, Inc. y. Virginia, 435

oe ee

Miami Herald Publishing Co. v. Tornillo, 418 US.

MP i.

Miller v. California, 413 U.S. 15 (1973) cecccccccccccoco--...

Montana Human Rights Div’n v. City of Billings, 649

rae ee cee oe

National Polymer Products, Inc. v. Borg-Warner

Corp., 641 F.2d 418 (6th Cir. 1981)...

Near v. Minnesota, 283 U.S. 697 (1931 | SE es

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976)..

Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983).

New York Times Co. v. United States, 403 US. 713

ogee gS ees

Oklahoma Publishing Co. v. District Court, 430 US.

So yay ee Rs ES Rear el ae

Olympic Refining Co. v. Carter, 332 F.2d 260 (9th

Cir. ), cert. denied, 379 U.S. 900 (1964) ...................

Organization for a Better Austin vy. Keefe, 402 U:S.

MF OE Rete ei

Page

9,11,13,

14,15,18,

19,24

8,17

11,19

8,9,21,

22,24

vii

Parsons v. General Motors Corp., 85 F.R.D. 724

Cee Oe OO

Pittsburgh Press Co. v. Pittsburgh Comm’n on Human

pO os CN | mR edeclana een

FO Fe, Ge Ur G0 0 0G) vinicestseecesicinccnccesccence

Reliance Insurance Co. v. Barron’s, 428 F. Supp. 200

eS eg ) NL Ea iene seals emaeoneb

Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 654

Be OI his ceccatnticrceapucauaccioon

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

fo) SSeS Ie Rae ae eae ne SO SEE a

Rodgers v. United States Steel Corp., 508 F.2d 152

(3d Cir. ), cert. denied, 420 U.S. 969 (1975)............

In re San Juan Star Co., 662 F.2d 108 (Ist Cir.

Smith vy. Daily Mail Publishing Co., 433 U.S. 97

Cree

Southeastern Promotions, Ltd. v. Conrad, 420 US.

3) Be EE EE ITC OS nc Oe Can

Tavoulareas v. Piro, 93 F.R.D. 24 (D.D.C. 1981) ......

United States v. Exxon Corp., 94 F.R.D. 250 (D.D.C.

Se EEE SSCS STEN TOS HOR id ROS ON

United States v. Hooker Chemicals & Plastics Corp.,

ge RO a hak De ge. |) GRE eee

WXYZ, Inc. v. Hand, 658 F. 2d 420 ( 6th Cir. 1981)..

Zenith Radio Corp. v. Matsushita Electric Industrial

Co., Ltd., 529 F. Supp. 866 (E.D. Pa. 1981)............

OTHER AUTHORITIES

Note, The First Amendment Right to Disseminate

Discovery Materials, 92 Harv. L. Rev. 1550 (1979)

Note, Nonparty Access to Discovery Materials in the

Federal Courts, 94 Harv. L. Rev. 1085 (1981)........

Note, Protective Orders Prohibiting Dissemination of

Discovery Information: The First Amendment and

Co Corea, TID EI ED. FOG ai esieess ness

Note, Rule 26(c) Protective Orders and the First

Amendment, 80 Colum. L. Rev. 1645 ( 1980)..........

Comment, Jn re San Juan Star: Discovery and the

First Amendment, 34 Baylor L. Rev. 229 ( 1982).....

17,25

passim

15,16,24

17,19

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1982 %

No. 82-

THE SEATTLE TIMES COMPANY, a

Delaware corporation, d/b/a

THE SEATTLE TIMES; WALLA WALLA

UNION-BULLETIN, INC.; ERIK

Lacitis and JANE Doe Lacrtts;

JOHN WILSON and REBECCA WILSON;

JOHN McCoy and Karen McCoy,

Petitioners,

Vv.

KEITH MILTON RHINEHART, a single

person; the AQUARIAN FOUNDATION,

a Washington not-for-profit

corporation; KATHI BAILEY, a

married person, LILLIAN YOUNG,

a married person, TONI STRAUCH,

a married person, SYLvia Corwin,

and ILsE TAYLOR, representing

women who were members of the

Aquarian Foundation on or after

March 17, 1978,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF WASHINGTON

PETITION FOR A WRIT OF CERTIORARI

The petitioners respectfully pray that a writ of certiorari be

issued to review the judgment and opinion of the Supreme

Court of the State of Washington entered in this proceeding on

December 2, 1982.

OPINION BELOW

The opinion of the Washington Supreme Court is reported

at Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 654 P.2d 673

(1982), and is found in the Appendix at pages 7a through 56a.

JURISDICTION

The judgment and opinion of the Washington Supreme

Court was entered on December 2, 1982. A timely motion for

reconsideration was denied by the Washington Supreme Court

on January 27, 1983. The Petition for a Writ of Certiorari has

been filed within 90 days thereafter. The Court’s jurisdiction is

invoked under 28 U'S.C. § 1257(3).

CONSTITUTIONAL AND OTHER

PROVISIONS INVOLVED

This case involves portions of the First and Fourteenth

Amendments to the Constitution of the United States, which

provide as follows:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

Press; or of the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

U.S. Const., amend. I.

... No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or Property, without due

Process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

U.S. Const., amend. XIV, § 1.

The case also involves portions of Civil Rule 26(c) of the

Washington Rules for Superior Court, which provides as fol-

lows:

Upon motion by a party or by the person from

whom discovery is sought, and for good cause shown,

the court in which the action is pending . . . may

make any order which justice requires to protect a

party or person from annoyance, embarassment,

oppression, or undue burden or expense, including

one or more of the following: (1) that the discovery

not be had; (2) that the discovery may be had only

on specified terms and conditions, including a desig-

nation of the time or place; (3) that the discovery

may be had only by a method of discovery other than

that selected by the party seeking discovery; (4) that

certain matters not be inquired into, or that the scope

of the discovery be limited to certain matters; (5)

that discovery be conducted with no one present

except persons designated by the court; (6) that a

deposition after being sealed be opened only by

order of the court; (7) that a trade secret or other

confidential research, development, or commercial

information not be disclosed or be disclosed only in a

designated way; (8) that the parties simultaneously

file specified documents or information enclosed in

sealed envelopes to be opened as directed by the

Gomes, ...

Wash. CR 26(c).

STATEMENT OF THE CASE

On February 15, 1980, Keith Milton Rhinehart, head of

the Aquarian Foundation, the Foundation, and certain mem-

bers of the Foundation commenced an action for defamation

and invasion of privacy against petitioners, who include two

daily newspapers, The Seattle Times, the Walla Walla Union-

Bulletin, and several journalists currently or formerly employed

by those newspapers.’

* Other than wholly-owned subsidiaries, there are no parent companies,

subsidiaries, or affiliates of the Seattle Times Co. and the Walla Walla Union-

Bulletin, Inc. See Rule 28.1, Sup. Ct. R.

The complaint, filed in King County Superior Court in

Seattle, alleged that defendants had falsely and with actual

malice portrayed Rhinehart as a religious and financial charla-

tan. Plaintiffs also contended that the newspapers’ coverage of

their activities had damaged their reputations, created shame,

humiliation and embarrassment among certain individual

members of the Foundation, caused a loss in Foundation

membership, increased the Foundation’s expenses, impaired

Rhinehart’s ability to communicate with Foundation members,

and caused a decline in anticipated contributions and donations

from members and from the general public.

The complaint sought damages as a result of alleged

newspaper statements that Rhinehart was a leader of a “bizarre

Seattle cult” who was “unfit to be a religious leader,” that

Rhinehart’s public exhibitions were “consciously perpetrated

frauds” and his seances a “ripoff,” that the Foundation was, in

fact, Rhinehart’s “alter ego” with “no segregation of money or

contributions” between them, that the Foundation used its

“wealth to buy religious converts,” and that the Foundation

had accumulated its fortune “by selling fraudulently-produced

Stones” to the public for outrageous sums. Rhinehart also

claimed defamation and invasion of privacy arising out of the

newspapers’ mention of his criminal record and their descrip-

tions of a public performance that he staged for inmates at the

State penitentiary in Walla Walla.

The order in question arose as a result of defendants’

efforts to obtain discovery from Rhinehart and the other

plaintiffs about the allegations contained in their complaint,

including their damage claims. Plaintiffs refused to provide

certain requested information, including any material relating

to the damage claim about loss of membership and contribu-

tions to Rhinehart and the Foundation.

Defendants moved for an order compelling discovery.

Rhinehart resisted the motion. He also sought a protective

order which would forbid defendants from publishing any

information about him and his co-plaintiffs acquired during the

course of litigation.

On January 8, 1981, The Seattle Times submitted a brief in

Opposition to Rhinehart’s effort to obtain entry of a protective

order against publication. Defendants argued that entry of the

proposed protective order would be a violation of the First and

Fourteenth Amendments to the Constitution and thus raised the

federal question in a timely fashion. Rhinehart responded with

a legal memorandum claiming that only a bare minimum of

““good cause” need be demonstrated for such an order to issue

under CR 26(c) of the Washington Rules for Superior Court.

On June 12, 1981, the trial court issued an Opinion

Granting Plaintiffs’ Motion for Protective Order. (App. la-4a. )

In that opinion, the court expressly rejected defendants’ First

Amendment arguments and concluded that Rhinehart had

shown “reasonable grounds” for the issuance of an order

prohibiting defendants from publishing any information

learned in discovery about plaintiffs’ “financial affairs,” the

names and addresses of present or former Foundation mem-

bers, clients, donors, or contributors, as well as the names and

addresses of all those who had provided money or other gifts to

Rhinehart. As the basis for its ruling, the trial court noted that

protective orders “are entered routinely . . . where the party

seeking the Protective Order has a reasonable basis for its

request.” The court observed that protective orders were

adopted “‘in the first place” to promote “production of informa-

tion normally kept confidential.” Thus, the court reasoned, if

such orders were “not available, it could have a chilling effect

on a party’s willingness to bring his case to court.” (App. 2a,

4a).

As a result, on June 26, 1981, the trial court entered the

Protective Order. (App. Sa-6a). The order listed certain

categories of information that defendants “shall make no use of

. . . other than such use as is necessary in order to . . . prepare

and try the case.” The order also declared broadly that

“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.”

(App. 6a). The order contained no restriction on its duration

or its application to materials revealed in open court.2

2The Superior Court simultaneously entered an Order Compelling

Discovery, which was the subject of a separate appeal by plaintiffs and was

subsequently upheld by the Washington Supreme Court in its decision on

December 2, 1982.

Defendants immediately filed a Notice for Discretionary

Review, asking for interlocutory review of the Protective Order.

On July 27, 1981, the Washington Court of Appeals concluded

that the issues should be considered in the first instance by the

Washington Supreme Court. The Washington Supreme Court

thereafter granted the motion for discretionary review and

agreed to hear the case on an accelerated basis.

On December 2, 1982, the Washington Supreme Court

issued its opinion upholding the order in question, an opinion

which was thereafter amended by order of the Washington

Supreme Court on December 13, 1982. (App. 7a-56a).

Expressly rejecting defendants’ First Amendment arguments,

the court held that “the interest of the judiciary in the integrity

of its discovery processes is sufficient to meet the ‘heavy burden’

of justification” for the prior restraint in question. Rhinehart y.

Seattle Times Co., 98 Wn.2d 226, 256, 654 P.2d 673, 690

(1982). A timely motion for reconsideration was denied on

January 27, 1983. (App. 57a).

REASONS FOR GRANTING THE WRIT

Review on certiorari is merited under Rule 17.1 of the

Rules of the Supreme Court. The decision of the Washington

Supreme Court departs from the decisions of this Court in

permitting entry of a broad ban on expression in the absence of

the specific factual findings needed to support such a ban.

Moreover, by disregarding the First Amendment interest in

disseminating information learned in civil discovery, the deci-

sion is in direct conflict with the First Amendment tests

established by several federal courts of appeals and by another

State court of last resort. Furthermore, the court below has

decided the First Amendment standards that govern entry of a

protective order prohibiting dissemination of information

learned in civil discovery, an issue of federal law which has not

been, but should be, expressly settled by this Court.

THE DECISION BELOW DEPARTS FROM THIS

COURT’S HOLDINGS IN SANCTIONING A BAN

ON PUBLICATION WITHOUT ANY SHOWING OF

SPECIFIC HARM CAUSED BY SUCH PUBLICATION

A. The Decision Offers Conjectural Justifications for the

Protective Order.

One of the chief vices of the decision below is that it

curtails petitioners’ exercise of First Amendment rights without

any showing of specific harm caused by the publication in

question. Instead of determining whether the ban on publica-

tion was properly justified in this particular instance, the

Washington Supreme Court confines its inquiry to “the interests

which justify a rule which authorizes protective orders in

circumstances such as these.” (App. 12a) (emphasis added).

Having thus formulated the issue as a general proposition, the

court arrives at a general conclusion that creates a blanket

exemption:

We think it safe to say that because of their

encroachment upon First Amendment rights of

speech and press, if provisions such as these cannot

be sustained, the result surely will be a serious

undermining of the morale of the people as well as

the integrity of government. Provisions such as these,

like CR 26(c), express strong governmental policy,

designed to protect valuable rights of private individ-

uals as well as to further legitimate interests of the

state. The court’s endeavor should be to uphold such

measures if possible, if it can be done without unduly

invading some other protected right. ...

(App. 19a-20a).

By thus adding speculation to conjecture, the court’s

analysis dispenses with any requirement that a specific harm be

identified to justify this restraint. Instead, the court concludes

that Wash. CR 26(c) recognizes “that parties generally are not

eager to divulge information about their private affairs,” that

“rather than expose themselves to unwanted publicity” some

unidentified individuals “may well forego” litigation, and,

therefore, that the “judicial system” would then make “utili-

zation of its remedies so onerous that the people will be

reluctant or unwilling to use it....” (App. 35a). As the

dissent below rightfully observes, the decision reveals no

attempt to “identify the specific harm in this case that warrants

a protective order.” (App. 55a) ( Utter, J., dissenting).

Instead of undertaking a proper analysis to determine

whether entry of this particular Protective Order is justified in

this specific case, the Washington Supreme Court simply con-

cludes that, as a general matter, there exists a “strong govern-

mental interest” in the functioning of civil discovery proceed-

ings that “makes it imperative that their integrity be pre-

served.” (App. 34a). Thus, the decision below reveals no

effort to analyze whether any specific and compelling state

interest justifies this particular limitation on petitioners’ First

Amendment nghts. “It is perhaps a matter of speculation,” the

court concedes, “‘as to what the effect will be in any given case.”

(App. 35a). As a result, the court adopts a blanket rule

permitting entry of orders that prohibit expression without

requiring the identification of any specific harm caused by such

speech.?

‘B. In Nebraska Press and Gulf Oil, this Court Mandated

Specific Findings Before Entry of any Restraint on Ex-

pression.

The court’s reasoning conflicts with Nebraska Press Ass’n

v. Stuart, 427 U.S. 539 (1976), in which this Court refused to

permit entry of a restraint upon publication. Although the trial

court was “justified” in finding that a sensational murder trial

“would” generate “intense and pervasive pretrial publicity”

which “might impair the defendant’s right to a fair trial,” the

Court noted, such a conclusion was “of necessity speculative”

because it dealt with “factors unknown and _ un-

knowable.” Jd. at 562-63. Where the evil sought to be

3 Indeed, the decision is hostile to adopting any analytical framework for

balancing the need for a protective order against the First Amendment

interests at stake. For example, the court sharply criticizes the thoughtful

opinion in Koster v. Chase Manhattan Bank, 93 F.R.D. 471 (S.D.N.Y. 1982),

for attempting to “enunciate restrictive criteria for the exercise of [its]

discretion.” (App. 27a).

prevented was purely speculative, this Court held, a state

cannot constitutionally impose a ban upon publication:

Reasonable minds can have few doubts about the

gravity of the evil pretrial publicity can work, but the

probability that it would do so here is not demonstra-

ted with the degree of certainty our cases on prior

restraint require.

Id. at 569. If the specific finding of an adverse impact of

pretrial publicity upon a particular criminal defendant’s Sixth

Amendment rights was insufficient to justify a prior restraint in

Nebraska Press, the Washington Supreme Court’s wholly con-

jectural and generalized justification for such an order in a civil

proceeding is even less supportable.¢

The decision below also conflicts with this Court’s recent

decision in Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). In Gulf

Oil, this Court was faced with a federal court order that

prohibited communications from named plaintiffs and their

counsel to prospective class members during a pendency of a

class action. Because of this Court’s supervisory authority over

the inferior federal courts, the decision did not reach the

constitutional issues. Even so, the Court held that any order

limiting such communications “should be based on a clear

record and specific findings that reflect a weighing of the need

for limitation and the potential interference with the rights of

the parties.” Jd. at 101. Citing Jn re Halkin, 598 F.2d 176, 193

(D.C. Cir. 1979), the Court noted that such orders must be

based upon “a particular and specific demonstration of

fact....” 452 U.S. at 102 n.16. The Court concluded that the

record was devoid of “any indication of a careful weighing of

competing factors” to determine “the need for this sweeping

restraint order.” Jd. at 102.

4 As Justice Utter observes in his dissenting opinion below, the reasons

advanced by the trial court, i.e., that if protective orders were not available,

“it could have a chilling effect on a party’s willingness to bring his case to

court,” likewise failed to identify any specific harm in this case that warranted

this Protective Order. (App. 54a-55a) ( Utter, J., dissenting).

‘a Gulf Oil, this Court stated specifically that “the mere

possibility of abuses [in class action litigation] does not justify

routine adoption of a communications ban.” Gulf Oil Co. v.

Bernard, supra, 452 U.S. at 104. The Court recognized that, in

the conduct of a case, some limitation upon the freedom of

expression of participants, including counsel, witnesses, and

jurors, is often necessary. Jd. at 104 n. 21. Nonetheless, entry

of the order in question without a sufficient factual basis was an

abuse of discretion. According to the Court:

We conclude that the imposition of the order

was an abuse of discretion. The record reveals no

grounds on which the District Court could have

determined that it was necessary or appropriate to

impose this order. 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.

Id. at 104-05 (footnote omitted ).5

C. The Decision Also Conflicts with Rulings of the United

States Courts of Appeals.

The decision below is also in direct conflict with decisions

of the federal appellate courts governing the issuance of judicial

orders restraining expression. For example, the Sixth Circuit, in

WXYZ, Inc. v. Hand, 658 F.2d 420, 426 (6th Cir. 1981),

relying upon Nebraska Press, concluded that mere “surmise or

conjecture that untoward consequences may result” cannot

justify a judicial restraint upon publication. Similarly, when a

former business executive sought to enjoin a television broad-

cast, the Ninth Circuit concluded that such an order would be

5 The trial court below, like the court in Gulf Oil, issued the Protective

Order because such orders “are entered routinely” and because, if they were

“not available, it could have a chilling effect on a party’s willingness to bring

his case to court.” (App. 2a-4a). As in Gulf Oil, therefore, the trial court

made no findings that this particular order was required in this particular

instance.

unconstitutional because of the absence of a specific showing of

harm. Goldblum v. National Broadcasting Corp., 584 F.2d 904,

906-07 (9th Cir. 1978). See also In re Halkin, supra, 598 F.2d

at 193 n. 42 (“mere allegation of conjectural harm is in-

sufficient”). The concept of the “integrity” of the judicial

process, as advanced by the court below, is a mere talisman and

an improper substitute for the specific showing of harm re-

quired by Nebraska Press, Gulf Oil, and other decisions.®

D. Speculation Cannot Justify a Curb on Expression.

The generalized interests advanced by the trial court below

and by the Washington Supreme Court cannot, under the

applicable rulings of this Court, justify the broad restraint upon

expression embodied in the Protective Order. See Rule

17.1(c), Sup. Ct. R. Neither the suggestion of hypothetical

untoward consequences nor the vague vindication of judicial

“integrity” promoted by the decision below constitutes an

adequate basis for restraining the exercise of First Amendment

rights. The Washington Supreme Court improperly ignored the

rulings of this Court that such a restraint may be issued only

upon specific findings that a particular limitation on speech and

publication is required by compelling state interests.

® Broad and generalized interests are always easier to advance and justify

than are specific demonstrations of fact. However, in its decisions, this Court

has steadfastly rejected a state’s presumed “interest in maintaining the

institutional integrity of its courts” as sufficient justification for punishment of

freedom of expression, even where the restrictions did not include restraint

upon publication. Landmark Communications, Inc. v. Virginia, 435 U.S. 829,

841-42 (1978). As this Court recognized in Bridges v. California, 314 U.S.

252, 271 (1941), the general evil of “disorderly and unfair administration of

justice, is more plausibly associated with restricting publications which touch

upon pending litigation.” This Court has acknowledged “the beneficial effects

of public scrutiny upon the administration of justice.” Cox Broadcasting Corp.

v. Cohn, 420 U.S. 469, 492 (1975). As a result of publication, for example,

witnesses might come forward who could contradict or impeach testimony

proferred by Foundation members or provide additional information about

Rhinehart’s financial dealings. See Globe Newspaper Co. v. Superior Court,

USS. , 102 S. Ct. 2613, 2620, 73 L. Ed. 2d 248, 256 ( 1982) ( public

scrutiny “enhances the integrity of the factfinding process”). See also Gannett

Co. v. DePasquale, 443 U.S. 368, 382 (1979) (openness of court proceedings

“may improve quality” of testimony and “induce unknown witnesses to come

forward”).

Il.

THE DECISION BELOW REJECTS

THE FIRST AMENDMENT TESTS APPLIED BY THE

UNITED STATES COURTS OF APPEALS AND A STATE

COURT OF LAST RESORT

A. The Court Concludes that the First Amendment Does Not

Protect the Publication of Information Learned in Litiga-

tion.

The immediate effect of the order sanctioned by the

Washington Supreme Court is the curtailment of petitioners’

First Amendment rights of speech and publication regarding

information obtained through discovery. In so doing, the court

below embarks upon a major departure from the decisions of

this Court, the federal appellate courts, and a state court of last

resort. The court concludes that “the reporting of supposed

facts elicited in discovery” is not protected by the First Amend-

ment where such reportage is not characterized by “advocacy

or abstract discussion” and involves no apparent “significance

with respect to governmental activity.” (App. 29a, 36a). As

Justice Utter’s dissenting opinion notes, such a position is

“tantamount to holding discovery is an excepted category from

First Amendment scrutiny—a position unsupported in the law.”

(App. 43a) (Utter, J., dissenting).

The opinion below asserts that civil discovery, by its very

nature, involves confidential proceedings and court filings that

are closed to outsiders, where secret testimony is elicited about

pending lawsuits. Thus, with the possible exception of antitrust

or similar litigation, the court implies that there is no legitimate

public interest in information learned during the course of such

proceedings. (App. 35a). To reach this broad and arbitrary

conclusion, the court begins with the assumption that any public

dissemination of information uncovered in pretrial proceedings

is presumptively illegitimate. (App. 13a-16a). In assuming the

Propriety of the restraint, the court’s analysis places upon

petitioners the burden of justifying the propriety of exercise of

First Amendment rights.

B. The Court Repudiates the First Amendment Tests Adopted

in Halkin and San Juan Star.

By carving out a special exemption from the First Amend-

ment for factual information acquired in the course of civil

litigation, the decision below is at odds with the positions taken

by various United States courts of appeals. Thus, the Washing-

ton Supreme Court expressly rejects (App. 37a) the holding of

the United States Court of Appeals for the District of Columbia

Circuit in Jn re Halkin, supra, which concluded that significant

First Amendment interests attach to information acquired by a

litigant during the course of civil discovery. The court in Halkin

recognized that, although exacting prior restraint analysis might

not be applicable, a ban on dissemination of discovery mate-

rials poses “many of the dangers of a prior restraint.” 598 F.2d

at 186. Thus, in order to protect the First Amendment interests

in dissemination of such information, the court applied a three-

part test to ensure that any protective order does not unneces-

sarily hamper protected speech:

The court must. . . evaluate such a restriction on

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.

Id. at 191 (footnotes omitted). See also Note, Protective Orders

Prohibiting Dissemination of Discovery Information: The First

Amendment and Good Cause, 1980 Duke L.J. 766; Note, Rule

26(c) Protective Orders and the First Amendment, 80 Colum. L.

Rev. 1645 (1980); Note, The First Amendment Right to

Disseminate Discovery Materials, 92 Harv. L. Rev. 1550

(1979).

The Washington Supreme Court has explicitly adopted an

interpretation of the First Amendment contrary to the careful

approach articulated in Halkin, supra, 598 F.2d at 193, in

which the court held that “naked speculation” was insufficient

to support entry of an order prohibiting publication of dis-

covery materials. Rather, a court must insist on “‘a concrete and

specific showing of the likelihood of harm” before it can

constitutionally issue a protective order which restricts ex-

Pression. Jd. at n.42. The Halkin approach, cited favorably by

this Court in Gulf Oil, supra, 452 US. at 102 n.16, requires

specific findings to justify a serious restraint upon expression.

The blanket rule, adopted by the court below, is an improper

substitute. See also Globe Newspaper Co. y. Superior Court,

supra, 102 S. Ct. at 2621-22, 73 L. Ed. 2d at 258-59 (state’s

justification for closure of criminal trial must be judged on case-

by-case basis).

As part of its balancing test, the Halkin court required “a

specific showing that dissemination of the discovery materials

would pose a concrete threat to an important countervailing

interest.” 598 F.2d at 193. The court added:

The protection afforded expression by the First

Amendment would be illusory if every conceivable

threat to an important public interest, no matter how

remote or speculative, were sufficient to justify a

restriction of speech. . . .

Id. at 193 n.42. Significantly, as Justice Utter remarks in his

dissent, the standards articulated by the decision below fail to

satisfy even the test ordinarily applied to determine the pro-

priety of protective orders that do not implicate First Amend-

ment rights, which requires, at a minimum, “a highly particular

and specific demonstration of fact” in order to justify entry of

such an order. (App. 55a) (quoting General Dynamics Corp. v.

Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973), cert.

denied, 414 U.S. 1162 (1974)).

The holding in Halkin, that information learned during

civil discovery merited First Amendment protection, was based

in part upon a long series of decisions in which this Court

“well-defined and narrowly limited classes of speech,” Chap-

linsky v. New Hampshire, 315 U.S. 568, 571 ( 1942), include so-

called fighting words, id. at 572; obscenity, Miller v. California,

413 U.S. 15, 23 (1973); and, to a limited extent, commercial

speech, Central Hudson Gas & Electric Corp. v. Public Service

Comm'n, 447 U.S. 557, 562-63 (1980); and defamatory false-

hoods, Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974).

Halkin held that information acquired during the course of civil

discovery simply cannot be characterized as “a class of utter-

ances of ‘no essential part of any exposition of ideas,’ or of

‘slight social value as a step to truth.” Halkin, supra, 598 F.2d

at 188 (quoting Chaplinsky v. New Hampshire, supra, 315 U.S.

at 572). In rejecting Halkin, the Washington Supreme Court

has arbitrarily created a new category not recognized by this

Court—i.e., news coverage obtained from discovery of alleged

religious groups that is deemed by a court not to serve the

“interest of the public.” (App. 36a).

The opinion below also explicitly repudiates (App. 37a)

the decision of the First Circuit in Jn re San Juan Star Co., 662

F.2d 108, 116 (Ist Cir. 1981), in which the court held that a

newspaper’s right of access to newsworthy matters learned

during civil discovery embodies 2ufficient free speech interests

to mandate “a ‘heightened sensitivity’ to the First Amendment

concerns at stake.” The court in San Juan Star recognized that

“there is a First Amendment concern that the government not

lightly engage in any restraints on communications,” although,

like Halkin, the court elected to scrutinize the restraints im-

posed by protective orders “under a less severe standard than

that ordinarily applied to prior restraint.” Jd. 115. See also

Comment, Jn re San Juan Star: Discovery and the First

Amendment, 34 Baylor L. Rev. 229 (1982); Note, Nonparty

Access to Discovery Materials in the Federal Courts, 94 Harv. L.

Rev. 1085 (1981).

Because no restraint upon publication was involved, the

court in San Juan Star imposed a slightly less stringent test

from that formulated in Ha/kin but still recognized that signifi-

cant First Amendment interests were implicated by an order

restricting access to information acquired in civil discovery.

San Juan Star adopted a test for “good cause” under Rule

26(c), Fed. R. Civ. P., that “incorporates a ‘heightened sensi-

tivity’ to the First Amendment concerns at stake.” 662 F.2d at

116. According to the First Circuit:

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.

Id. at 116. The court required that any proposed restraint be

the least restrictive means of preventing the threatened harm

and that the proponent of the restraint demonstrate, at least, a

reasonable likelihood of the threatened harm occurring. Jd. at

116-17.

C. The Court’s Reasoning Conflicts with other Federal

Appellate Decisions.

The decision also conflicts with the reasoning of other

federal appellate decisions. For example, in Rodgers v. United

States Steel Corp., 508 F.2d 152, 163 (3d Cir.), cert. denied,

420 U.S. 969 (1975), the court stated that judicial interest “in

the proper administration of justice does not authorize any

blanket exception to the First Amendment.” According to the

Sixth Circuit, the “mere status of involvement in a lawsuit”

cannot undermine a party’s First Amendment rights and First

Amendment interests attach even to factual information

learned during civil discovery. National Polymer Products, Inc.

v. Borg-Warner Corp., 641 F.2d 418, 423 (6th Cir. 1981).

Accord, CBS, Inc. v. Young, 522 F.2d 234, 241 (6th Cir. 1975)

(gag order of litigants is “presumptively void” under First

Amendment).

The fact that Wash. CR 26(c) gives a trial court broad

discretion over the discovery process does not alter these basic

principles. According to the Fifth Circuit, a court rule provid-

ing for “general authority to regulate the conduct of litigation”

cannot “create an exception to the principles governing prior

restraints.” Bernard v. Gulf Oil Co., 619 F.2d 459, 475 (5th Cir.

1980) (en banc), afd, 452 U.S. 89 (1981). As the Seventh

Circuit noted in striking down a similar attempt to limit the

First Amendment rights of litigants, “there are important areas

of public concern connected with current litigation.” Chicago

Council of Lawyers v. Bauer, 522 F.2d 242, 250 (7th Cir. 1975),

cert. denied sub nom., Cunningham v. Chicago Council of

Lawyers, 427 U.S. 912 (1976). Accord, Chase v. Hobson, 435

F.2d 1059, 1062 (7th Cir. 1970).

Other federal courts have adopted First Amendment tests

directly at variance with the decision below. These decisions

have repeatedly recognized the significant First Amendment

interests that must be considered before issuing an order

prohibiting dissemination of information learned in civil dis-

covery. See, e.g., Doe v. District of Columbia, 697 F.2d 1115,

1118-21 (D.C. Cir. 1983) (reaffirming Halkin test); Krause v.

Rhodes, 671 F.2d 212, 219 (6th Cir. 1982), cert. denied sub

nom., Attorney General of Ohio ¥. Krause, ie wuiey BOS

S. Ct. 54, 74 L. Ed. 2d 59 (1982) (applying Halkin test);

Koster v. Chase Manhattan Bank, supra, 93 F.R.D. at 475-82

(recognizing First Amendment interests at stake); Zenith Radio

Corp. v. Matsushita Electric Industrial Co., Ltd., 529 F. Supp.

866, 909 (E.D.Pa. 1981) (adopting San Juan Star formula);

United States v. Exxon Corp., 94 F.R.D. 250, 251 (D.D.C.

1981) (applying Halkin test); Tavoulareas v. Piro, 93 F.R.D.

24, 30 n.4 (D.D.C. 1981) (acknowledging flexibility in Halkin

test); United States v. Hooker Chemicals & Plastics Corp., 90

F.R.D. 421, 425-27 (W.D.N.Y. 1981) (applying Halkin ));

Brink v. DaLesio, 82 F.R.D. 664, 676-78 (D.Md. 1979)

(applying Halkin ); Reliance Insurance Co. v. Barron’s, 428 F.

Supp. 200, 204 (S.D.N.Y. 1977) (applying prior restraint

analysis); Davis v. Romney, 55 F.R.D. 337, 344-46 (E.D.Pa.

1972) (applying prior restraint standards). But see, Inter-

national Products Corp. v. Koons, 325 F.2d 403, 407 (2d Cir.

1963) (expressing “no doubt” about constitutionality of protec-

tive orders ).

D. The Presumption of Openness Reflects Important First

Amendment Policies.

Petitioners’ First Amendment interests are judged illegiti-

mate by the court below primarily because the publication of

information acquired during the course of litigation allegedly

would not promote the state’s generalized interest in the

administration of justice. Thus, the court gives short shrift to

any exercise of First Amendment rights that does not serve,

directly or indirectly, governmental interests:

As the Supreme Court has more than once

remarked, the function of the media in serving not

only the public’s need to know but the integrity of

governmental functions themselves is of great impor-

tance in balancing First Amendment rights against

other interests of the state. Here, there is nothing to

indicate the publicity given to the evidence furnished

by a party in a pretrial proceeding will in any way

tend to promote the proper functioning of such

proceedings. ...

(App. 36a). By contrast, the Seventh Circuit has stated:

That the effective exercise of First Amendment rights

may undercut a given government policy on some

issue is, indeed, one of the purposes of those rights.

Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir.), cert. denied,

439 U.S. 916 (1978).

The presumption of illegitimacy that the Washington

Supreme Court attaches to any publication of information

learned during civil litigation is premised upon an improperly

restrictive view of the purposes and uses of civil litigation. As

noted in Halkin:

Generally speaking, when a party obtains documents

or information through the discovery process, he can

“use that information in any way which the law

permits.” Leonia Amusement Corp. v. Loew’s, Inc., 18

F.R.D. 503, 508 (S.D.N.Y. 1955). Accord Essex

Wire Corp. v. Eastern Electric Sales Co., 48 F.R.D.

308, 312 (E.D. Pa. 1969). The discovery rules

themselves place no limitations on what a party may

do with materials obtained in discovery.

Halkin, supra, 598 F.2d at 188. Historically, courts have

recognized as a basic premise of civil procedure that “discovery

must take place in the public unless compelling reasons exist for

denying the public access to the proceedings.” American Tele-

phone & Telegraph v. Grady, 594 F.2d 594, 596 (7th Cir. 1978)

(per curiam), cert. denied, 440 U.S. 97] (1979). Accord,

Olympic Refining Co. v. Carter, 332 F.2d 260, 264 (9th Cir.),

cert. denied, 379 U.S. 900 (1964); Parsons v. General Motors

Corp., 85 F.R.D. 724, 726 (N.D.Ga. 1980). Civil litigation,

including pretrial proceedings, is presumptively open. See, e.g.,

Newman vy. Graddick, 696 F.2d 796, 801-02 (11th Cir. 1983);

Zenith Radio Corp. v. Matsushita Electric Industrial Co., Ltd.,

supra, 529 F. Supp. at 895.

Such decisions reflect a judicial recognition that civil

litigation is a primary source of newsworthy information. As

the Seventh Circuit has noted, “many important social issues”

arise in the course of such litigation and, in fact, lawsuits

themselves often serve the “purpose of gaining information for

the public.” Chicago Council of Lawyers v. Bauer, supra, 522

F.2d at 258. See also Hirschkop v. Snead, 594 F.2d 356, 373

(4th Cir. 1979) (en banc) (per curiam). This Court has

characterized civil litigation as a “means of communicating

useful information to the public.” Jn re Primus, 436 U.S. 412,

431 (1978). The First Amendment ensures the openness of

judicial proceedings that enables the press “to bring to bear the

beneficial effects of public scrutiny upon the administration of

justice.” Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. at

492. The Court has repeatedly recognized the strong public

interest in the open administration of justice. See Globe

Newspaper Co. v. Superior Court, supra, 102 S.Ct. at 2618-20,

73 L.Ed.2d at 255-57 (1982); Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555, 573 (1980); Landmark Commu-

nications, Inc. v. Virginia, supra, 435 U.S. at 838-39.

E. The Decision Also Conflicts with the First Amendment

Test of Another State Court of Last Resort.

The decision below, moreover, is in direct conflict with

another state court of last resort in its determination of the

appropriate First Amendment standards to be applied to an

order forbidding publication of information learned in civil

discovery. In Kuiper v. District Court, 632 P.2d 694 (Mont.

1981), the Montana Supreme Court adopted the First Amend-

ment test enunciated in Halkin, supra, in reversing a protective

order in a personal injury action. The order had prevented one

of the parties from using documents acquired in discovery for

any extra-judicial purpose. The court held that because it “has

a chilling effect upon First Amendment rights,” such a protec-

tive order “must be subjected to close scrutiny” under the

Halkin test to determine its constitutionality. Jd. at 697-98. See

also Montana Human Rights Div’n v. City of Billings, 649 P.2d

1283, 1290 (Mont. 1982) (reaffirming Halkin test).

F. The Court’s Analysis Rejects the Overwhelming Weight of

Authority.

The First Amendment analysis offered by the Washington

Supreme Court in support of the Protective Order expressly

repudiates the tests adopted by Halkin and San Juan Star to

determine the constitutionality of such orders. The court’s

reasoning also conflicts with decisions of the various federal

courts of appeals and with another state court of last resort,

which have recognized that restraints upon publication should

be permitted only after a careful and deliberate analysis of the

competing interests and strict scrutiny of the justifications

advanced by the proponent of the restraint. See Rule 17.1(b),

Sup.Ct.R. By contrast, the Washington Supreme Court has

arbitrarily determined that the public ought to have no further

interest in newsworthy information about such a “bizarre” and

“unorthodox” group:

We are not told what interest of the public is

served by the newspaper’s further exposure of this

allegedly religious sect, unorthodox though it un-

doubtedly is, but we assume that publishers could

rightly find it newsworthy. It may have some signifi-

cance with respect to governmental activity, but, if so,

that fact has not been brought to light. If the plaintiff

and his associates are engaged in unlawful activities,

it is safe to assume what with the exposure that has

already been made, the appropriate law enforcement

agencies will take action. In view of the fact that the

discovery rules have a long history of functioning

without exposure of litigants to unwanted ‘publicity

and at the same time the news media has flourished,

giving extensive coverage to the bizarre and the

unorthodox, we do not perceive that continued

protection of the discovery proceedings will constitute

a substantial impediment to news gathering in this

area.

(App. 36a) (footnote omitted ).

Ill.

THE DECISION BELOW IGNORES THIS COURT’S

DECISIONS WHEN IT CONCLUDES THAT

A PRIOR RESTRAINT MAY ISSUE

UPON A MERE SHOWING OF “GOOD CAUSE”

A. The Court Holds that a Prior Restraint May Issue to

Prevent Possible “Annoyance” or “Embarrassment”.

The opinion of the Washington Supreme Court assumes

that the order in question is a prior restraint. (App. 37a). The

court holds, however, that such a prior restraint may be entered

merely upon a showing of “good cause,” such as the potential

for “annoyance” or “embarrassment” by other litigants. The

court concludes, in effect, that entry of a judicial order forbid-

ding expression is no different in substance from the issuance of

a protective order merely changing the time or place of a

scheduled deposition. The court’s reasoning on this vital issue

is directly inconsistent with the prior restraint test repeatedly

adopted by this Court. To overcome the “heavy presumption”

that attaches to prior restraints, the governmental justification

must be more weighty than the possibility of Rhinehart ex-

periencing “annoyance, embarrassment and even oppression”

offered by the court below. (App. 38a).

The Washington Supreme Court concludes that the “heavy

presumption” against prior restraints is rebutted and First

Amendment requirements are satisfied simply because of “the

interest of the judiciary in the integrity of its discovery pro-

cesses.”” (App. 37a). By such reasoning, the general justifica-

tions underlying Wash. CR 26(c) are subtly but wrongly

transmuted into a substitute for the specific factual proof

required to justify this particular Protective Order. As this Court

recognized in Nebraska Press, supra, where the proponents of

the prior restraint sought to justify it on Sixth Amendment

grounds, the existence of an important countervailing state

interest does not end the constitutional inquiry into the prop-

riety of a ban upon publication.

B. The Court Misapplies the Prior Restraint Standards

Repeatedly Articulated by this Court.

A prior restraint constitutes “one of the most extraordinary

remedies known to our jurisprudence.” Nebraska Press Ass’n v.

Stuart, supra, 427 U.S. at 562. It is the “most serious and the’

least tolerable infringement on First Amendment rights.” Jd. at

559. Since Near v. Minnesota, 283 U.S. 697 (1931), this Court

has recognized that there is a heavy presumption against the

constitutionality of such a prior restraint. To be lawful, the

prior 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

(1975). Even concerns as weighty as rights of privacy,

Organization for a Better Austin v. Keefe, 402 U.S. 415, 418-20

(1971); Near v. Minnesota, supra, the protections of the Sixth

Amendment, Nebraska Press Ass’n v. Stuart, supra, or national

security, New York Times Co. v. United States, 403 U.S. 713

(1971) (per curiam), cannot satisfy the heavy burden of proof

required to justify a prior restraint.

In sharp contrast, the court below concludes that petition-

ers’ freedom of expression may be abridged simply to avoid

subjecting “a civil litigant to any exposure which he deems

offensive, beyond that which serves the purpose of the rule.”

(App. 17a). This is not a proper application of the prior

restraint test as enunciated by this Court. Nor is the “reason-

able basis” standard, adopted by the trial court below (App.

2a, 3a, 6a), consistent with the “heavy burden of .. . justifica-

tion” mandated by this Court. Nebraska Press Ass’n v. Stuart,

supra, 427 U.S. at 558 (quoting Organization For a Better

Austin v. Keefe, supra, 402 U.S. at 419). As Justice Utter’s

dissenting opinion correctly observes:

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. ...

(App. 44a) ( Utter, J., dissenting).

In misapplying prior restraint standards, the court asserts

that First Amendment interests need not be accorded great

weight, a position that ignores the genesis of this very lawsuit.

According to the complaint, the defendant newspapers had

published unflattering descriptions of Rhinehart and the Foun-

dation, which informed the public that this “bizarre Seattle

cult” was obtaining money from them through “consciously

perpetrated frauds” and “by selling fraudulently-produced

stones.” As a result of the Protective Order, however, news-

paper coverage has been curiailed and the public is denied

pertinent factual data to determine the status of the lawsuit and

whether or not the newspapers’ previous characterization was

accurate.’

That the Protective Order reaches only information

learned in civil discovery, moreover, does not justify the court

below in assuming that petitioners’ First Amendment rights

may be readily ignored or disregarded. ‘Governmental re-

straint on publishing need not fall into familiar or traditional

patterns to be subject to constitutional limitations on govern-

mental powers.”” Miami Herald Publishing Co. v. Tornillo, 418

U.S. 241, 256 (1974). If the proscribed information is news-

worthy and of significant interest to members of the public, the

right to disseminate it cannot be judicially curtailed merely

because it originates from judicial proceedings.

7 In fact, the impact of the Protective Order is even broader, because, as

a practical matter, it halts all such commentary and coverage by The Seattle

Times. By its terms, the order broadly requires that defendants “make no use

of” the information in question, “other than such use as is necessary . . . to

prepare and try the case.” (App. 6a). Thus, even if petitioners manage to

obtain information about Rhinehart from third parties, they are prohibited

from confirming the accuracy of their sources or determining the appropriate

leads to follow because such basic journalistic practices would run afoul of the

Protective Order insofar as they “make . . . use of” the prohibited information.

Cf. Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S.

376 (1973) (dangers of restraint on publication include indirect “suppression

of speech . . . by inducing excessive caution in the speaker”).

8 The court below wrongly concludes that publication of such informa-

tion, because it would involve the reporting of facts unaccompanied by

“advocacy or abstract discussion” ( App. 29a), is outside the protections of the

First Amendment. The record is devoid of any findings that would support its

predetermination that petitioners’ use of information would not include

(footnote continues)

Furthermore, the court below acknowledges that the

Protective Order is vague and overbroad but takes no corrective

action. The decision assumes that the apparently infinite

duration of the Protective Order and its application to informa-

tion revealed in open court might be clarified on remand but

offers no further guidance. (App. 38a-n.9). Through its

opinion, the court also implies that the Protective Order pre-

cludes the newspapers from publishing any information learned

in discovery. (App. 55a-56a) (Utter, J., dissenting). By

contrast, this Court has specified that any restraint upon

expression “must be couched in the narrowest terms that will

accomplish the pin-pointed objective permitted by the con-

stitutional mandate.” Carroll v. President & Commissioners of

Princess Anne, 393 U.S. 175, 183 (1968). Moreover, though it

did not purport to apply prior restraint standards, the court in

Halkin, supra, 598 F.2d at 191 n.35, required that such an order

“be couched in the narrowest terms,” and in San Juan Star,

supra, 662 F.2d at 116-17, the court, in upholding the protective

order, emphasized that it was narrowly drawn and of limited

scope and duration and that it did not in fact restrain publica-

tion.

The duration of the Protective Order is a significant defect.

“A civil case may last for years, just in the discovery stage.”

Chicago Council of Lawyers v. Bauer, supra, 522 F.2d at 258.

“Fragile First Amendment rights are often lost or prejudiced by

delay.” Bernard v. Gulf Oil Co., supra, 619 F.2d at 470.

Because of today’s crowded civil dockets, such orders could

remain effective for several years. Halkin recognized this

problem, noting that “civil litigation frequently lasts much

longer than a criminal trial” and, thus, that any “civil restrain-

ing order will . . . generally restrict expression for a longer

period of time.” Halkin, supra, 598 F.2d at 193 n.40. See also

Hirschkop v. Snead, supra, 594 F.2d at 373. Compare Nebraska

Press Ass'n v. Stuart, supra (two and one-half month injunction

in criminal case is unconstitutional ). Indeed, the circumstances

(footnote continued)

editorial comment. Moreover, even where information is purely factual, this

Court has held that its publication is constitutionally protected. Smith v. Daily

Mail Publishing Co., 443 U.S. 97 (1979); Oklahoma Publishing Co. v. District

Court, 430 U.S. 308 (1977). These decisions reflect an implicit acknowledg-

ment that freedom of expression cannot survive on advocacy alone.

of this very case, in which the Protective Order has remained in

place since June 26, 1981, offer a vivid illustration.9

C. The Court Fails to Formulate a Proper First Amendment

Test.

The prior restraint test announced by the Washington

Supreme Court is, as the dissenting opinion recognized, no test

at all. The court refuses to engage in any serious attempt to

weigh petitioners’ First Amendment interests. Indeed, even as it

characterizes the order in question as a prior restraint, the court

criticizes any judicial attempt to articulate a test for evaluating

the merits of the restraint and balancing it against First

Amendment goals. In so doing, the court has issued a ruling on

a substantial federal question that is directly at variance with

the prior rulings of this Court. See Rule 17.1(c), Sup.Ct.R.

8 The damage to First Amendment values in these circumstances is not

limited to the “direct and immediate” impact, Bernard v. Gulf Oil Co., supra,

619 F.2d at 469, of outlawing constitutionally protected expression. In

Reliance Insurance Co. v. Barron’s, supra, 428 F. Supp. at 205, the court

rejected a similar attempt to obtain a protective order in a defamation action

and described the potential “chilling effect” of enforcing any such order

against editors and reporters in order to determine “whether defendants came

by [published information] in the ordinary fashion, or through violation of

our pre-trial order.” Accord, New York Press Publishing Co., Inc. v. McGraw-

Hill Publications Co., 64 A.D.2d 962, 409 N.Y.S. 2d 39, 4 Med. L. Rptr. 1819

(Ist Dept. 1978). In fact, the damage is aggravated in cases such as these,

where the restraint is obtained by a defamation plaintiff as part of a lawsuit

which seeks to punish the defendant for prior publications and which, itself,

has an inherent (and presumably intended) effect of chilling the future

exercise of First Amendment rights.

CONCLUSION

The speculative analysis put forward by the court below

would justify entry of a ban upon publication in every instance,

because it ignores this Court’s rulings in Nebraska Press and

Gulf Oil and does not require any specific showing of harm.

Moreover, the opinion below disregards the First Amendment

interests affected by the Protective Order, which, in Halkin, San

Juan Star, and other cases, were held to attach even to

information learned in the course of civil litigation. In holding

that a prior restraint may issue upon the slightest showing of

“good cause” where the proponent of the restraint simply offers

“reasonable grounds” for imposing a restraint upon freedoms

of speech and publication, the decision radically departs from

the prior holdings of this Court. In conclusion, the decision

below utterly fails to address the significant First Amendment

problems inherent in any judicial order that forbids publication

or to articulate a proper test for determining the propriety of

such an order.

For these reasons, a writ of certiorari should be issued to

review the judgment and opinion of the Washington Supreme

Court.

DATED April 22, 1983.

Respectfully submitted,

P. CAMERON DEVoRE EVAN L. SCHWAB

MARSHALL J. NELSON 4200 Seattle-First National

Bruce E. H. JOHNSON Bank Building

DANIEL M. WAGGONER Seattle, Washington 98154

Davis, WRIGHT, Topp, Riese (206) 622-3150

& JONES Counsel of Record for

Of Counsel Petitioners

APPENDIX

APPENDIX A

IN THE

SUPERIOR COURT OF THE STATE OF WASHINGTON

For KING COUNTY

No. 80-2-02460-4

KEITH MILTON RHINEHART, ef ai.,

Plaintiffs,

VS.

THE SEATTLE TIMES, ef ai.,

Defendants.

OPINION GRANTING PLAINTIFFS’ MOTION FOR

PROTECTIVE ORDER

The defendants in this case are engaged in extensive

discovery which requires that the plaintiffs disclose a great deal

of information which would normally be kept confidential. The

Court has ordered disclosure of statements of assets and

liabilities, other financial and investment information, names

and addresses of persons involved in the Aquarian Foundation

and other information which the defendants normally would

not receive.

The Court has ordered disclosure of this information

pursuant to the provisions of Civil Rule 26(b)(1) which

provides as follows:

Parties may obtain discovery regarding any matter,

not privileged, which is relevant to the subject matter

involved in the pending action, whether it relates to

the claim or defense of the party seeking discovery or

to the claim or defense of any other party, including

the existence, description, nature, custody, condition

and location of any books, documents, or other

tangible things and the identity and location of

persons having knowledge of any discoverable mat-

ter. It is not ground for objection that the informa-

tion sought will be inadmissible at the trial if the

information sought appears reasonably calculated to

lead to the discovery of admissible evidence.

Those drafting Rule 26 recognized that along with liberal

discovery there was a need for protective orders in order to

Protect a party from abuse or embarrassment and in order to

prevent unbridled dissemination of information which a party

gained only through the discovery process.

One of the defendants in this case is The Seattle Times, a

daily newspaper with a heavy readership in western Washing-

ton and which is distributed throughout the entire State.

The Seattle Times asserts that it has a right under the First

Amendment of the United States Constitution to print in its

newspaper any information it gains through the discovery

process in this case. In effect, The Seattle Times argues that

Rule 26(c) providing for Protective Orders simply does not

apply to a daily newspaper because of its First Amendment

nights.

As counsel for the plaintiffs has very ably pointed out, all

persons and all legal entities are protected in their freedom of

expression by the First Amendment. It applies to everyone, not

just newspapers, magazines, radio stations and television sta-

tions. Thus there would seem to be no basis for treating a

litigant who happens to be a newspaper publisher any different

from any other litigant insofar as a litigant’s rights under the

First Amendment are concerned.

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 legiti-

mate purposes of the case in which discovery was granted. This

means that the information is not disseminated any more than

is absolutely necessary for the discovering party to prepare for

trial and to try his case.

The plaintiffs here have reasonable grounds for the is-

suance of such an order in connection with information devel-

oped regarding the financial affairs of the various plaintiffs,

names and addresses of Aquarian Foundation members and

those contributing funds to the Foundation and names and

addresses of those who have been contributors, clients or made

donations to the Aquarain Foundation or the Plaintiff Rinehart.

Counsel for the defendants has pointed out that a Protec-

tive Order cannot apply to information gained by a litigant

about his opponent which is not gained through the use of one

or more of the discovery vehicles provided by the Civil Rules.

This contention is correct. The Protective Order in this case has

no application except to information gained by the defendants

through the use of the discovery processes.

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 dis-

semination.

Defendants argue that a Protective Order which has the

effect of preventing publication of information gained through

discovery in its daily newspaper violates freedom of the press

rights guaranteed by the First Amendment. Defendants cite

cases in support of their position. The case of Jn Re Halkin,

598 F.2d 176 is a case in point because it involves the use that

can be made of information learned through the discovery

process. Halkin emphasizes the importance of First Amend-

ment rights and holds that if a Protective Order restricting First

Amendment rights is to be entered such an order should be

narrow in scope, necessary because of the threatened harm and

the lack of any reasonable alternative. Jn Re Halkin holds that

the First Amendment applies to discovery materials. In Halkin

the defendants did not request a Protective Order prior to

discovery. The request was made only after the plaintiff had

gained the discovery materials and then announced that it

intended to release the information to the press. The Halkin

opinion does not deal directly with the question of the relation-

ship between a Protective Order and First Amendment nights.

Provision for a Protective Order was adopted in the first

place so that the Court, in the interest of full disclosure and

litigation, could order production of information normally kept

confidential and then protect against abuse by requiring that

the information receive only such dissemination as was neces-

sary in the handling and preparation of the particular case

involved.

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.

Counsel for plaintiffs can present an order consistent with

this opinion.

DATED AT SEATTLE, WASHINGTON this 10th day of

June, 1981.

/s/ Jack P. SCHOLFIELD

Jack P. Scholfield, Judge

APPENDIX B

SUPERIOR COURT OF WASHINGTON

For KING COUNTY

No. 80-2-02460-4

KEITH MILTON RHINEHART, a single person; THE AQUARIAN

FOUNDATION, a Washington not-for-profit corporation; KATHI

BAILEY, a married person, LILLIAN YOUNG, a married person,

TON! STRAUCH, a married person, SyLvia Corwin, and ILSE

TAYLOR, representing women who were members of the Aqua-

rian Foundation on or after March 17, 1978,

Plaintiffs,

THE SEATTLE TIMES, a Delaware Corporation, d/b/a The

Seattle Times; WALLA WALLA UNION-BULLETIN, Inc.: Erik

LACITIS AND JANE Doe Lacitis; JOHN WILSON and REBECCA

KAREN WILSON; JOHN MCCoy AND KarEN McCoy,

Defendants.

PROTECTIVE ORDER

THIS MATTER having come on upon the motion of the

plaintiffs for a protective order, and the court having reviewed

the affidavits of Marilou McIntyre, Linda Dunn, Robert Plante,

Gillene Avalos, and Catherine Harold, and the court having

considered the positions advanced by plaintiffs with-respeet+o

privaey, and the court having considered that 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, and the court

being fully advised, NOW, THEREFORE, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED:

‘.

June

Plaintiffs have reasonable grounds for the issuance of

a protective order.

Plaintiffs’ motion for a protective order is granted with

respect to information gained by the defendants

through the use of all of the discovery processes

regarding 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 to any of the various plaintiffs.

The defendants and each of them shall make no use of

and shall not disseminate the information defined in

paragraph 2 which is gained through discovery, other

than such use as is necessary in order for the dis-

covering party to prepare and try the case. As a result,

information gained by a defendant through the dis-

covery process may not be published by any of the

defendants or made available to any news media for

publication or dissemination. This protective order

has no application except to information gained by the

defendants through the use of the discovery processes.

Defendants’ motion for a stay is denied.

26, 1981.

—/8/ Jack P. SCHOLFIELD

Jack P. Scholfield, Judge

King County Superior Court

Presented by:

EDWAR

DS AND BARBIERI

By /s/ MALCOLM L. EDwarps _

Malcolm

L. Edwards

Attorneys for Plaintiffs

APPENDIX C

THE SUPREME COURT OF WASHINGTON

98 Wn.2d 226, 654 P.2d 673

[ Nos. 47938-1, 48155-5. En Banc. December 2, 1982. ]

KEITH MILTON RHINEHART, ef a/, Respondents, v. THE SEATTLE

TIMES COMPANY, ef al, Petitioners.

{ 1] Discovery—Constitutional Law—Freedom of Press Infor-

mation Obtained Through Discovery—Protective Order Valid-

ity—Factors. CR 26(c), which permits a trial court to forbid

publication of information obtained through discovery upon a

showing of “good cause”, is constitutional. The First Amend-

ment does not give the news media more right to use informa-

tion obtained during discovery than any other litigant. To

determine if “good cause” exists for a protective order, the

court must balance the interests served by protecting the

confidentiality of the information (e.g., ensuring the full and

truthful disclosure of relevant facts and protecting individuals’

legitimate privacy interests in avoiding unwanted publicity)

against the interests served by allowing publication of the

information (e.g., informing the public of matters of legitimate

public concern) under the circumstances. The trial court’s

decision regarding the issuance of a protective order is reviewed

for an abuse of discretion.

[2] Discovery—Scope—Effect on Constitutional Rights—Pro-

tective Order. The scope of discovery is a matter within the trial

court’s discretion. Any adverse impact which disclosure has on

individual privacy and association rights may be minimized by

issuance of a protective order under CR 26(c). DOLLIVER, J.,

BRACHTENBACH, C. J., and DIMMICK, J., concur by

separate opinion; UTTER and PEARSON, J. J., dissent by

separate opinion.

Nature of Action: In an action against two newspapers

seeking damages for defamation and invasion of privacy, the

plaintiffs refused to disclose certain information requested

during discovery.

Superior Court: The Superior Court for King County, No.

80-2-02460-4, Jack P. Scholfield, J., on June 26, 1981, entered

an order compelling discovery and a protective order prohibit-

ing the newspapers from publishing the information acquired

through discovery.

Supreme Court: Holding that under the circumstances the

protective order did not deny the newspapers freedom of the

press or freedom of speech and was adequate to safeguard the

plaintiffs’ privacy and associational interests, the court affirms

the orders.

Davis, Wright, Todd, Riese & Jones, by Evan L. Schwab

and Bruce E. H. Johnson, for petitioners.

Edwards & Barbieri, by Malcolm L. Edwards and Robert G.

Sieh, for respondents.

Gordon G. Conger, Robert B. Mitchell, and Susan D. Jones

on behalf of KIRO, Inc., amici curiae for petitioners.

[As amended by order of the Supreme Court December

13, 1982.]

ROSELLINI, J.—The Seattle Times published stories con-

cerning the Aquarian Foundation and its leader, Rhinehart,

who founded the organization in the 1950’s. Articles about the

foundation, a “spiritualist church”, also appeared in the Walla

Walla Union-Bulletin, describing some bizarre performances

which were presented at a “religious presentation” staged for

inmates at the state penitentiary at Walla Walla.

Rhinehart brought this action on behalf of himself and the

foundation, seeking damages for defamation and invasion of

privacy. He was joined by four members who participated in

the Walla Walla presentation.

The defendants denied many of the allegations and as-

serted affirmative defenses including claims to privilege. They

undertook discovery with respect to the plaintiffs’ financial

affairs, membership and donors. This information was relevant

upon the issues of truth and damages. It appears that the

attorney for the defendants assured counsel for the plaintiffs

that financial materials disclosed to him would be kept con-

fidential. The defendants were provided with income tax

returns of Rhinehart and some financial information relating to

the other plaintiffs. The plaintiffs refused, however, to disclose

other desired information, such as the present address of

Rhinehart, who allegedly had fied the state because of threats

to his life resulting from the publicity given the foundation by

the defendants.

The defendants sought and were granted an order com-

pelling discovery, and the plaintiffs obtained a protective order

limiting the use which could be made of information derived

through the discovery process. The order provided:

3. The defendants and each of them shall make

no use of and shall not disseminate the information . .

. which is gained through discovery, other than such

use as is necessary in order for the discovering party

to prepare and try the case. As a result, 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. This protective order has no appli-

cation except to information gained by the defend-

ants through the use of the discovery processes.

Clerk’s Papers, at 26.

The plaintiffs objected to the order compelling discovery

on the grounds that it invaded their mght to privacy and

freedoms of religion and association. The defendants attacked

the protective order on the ground that it denied them freedom

of the press and of speech, guaranteed by the first amendment

to the United States Constitution and by Const. art. 1, § 5.

The trial court filed a memorandum opinion explaining the

protective order. In that opinion it found that the defendants

were entitled to make discovery under Superior Court Civil

Rule 26(b)(1) and that the plaintiffs had reasonable grounds

for the issuance of a protective order in connection with

information covered by the order. It also observed that if

protective orders were not available, “it could have a chilling

effect on a party’s willingness to bring his case to court.” The

court said:

If the absence of a Protective Order has the effect of

denying a party access to the courts, this would be a

10a

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.

Clerk’s Papers, at 63.

Both of the court’s orders are before us on this dis-

cretionary review.

The gist of the defendants’ theory in attacking the protec-

tive order is that CR 26(c) is unconstitutional insofar as it

permits the court to limit the use which the press or its members

can make of information which they have received through

discovery, upon a mere showing of “good cause”.

[1] Under the federal constitution, persons engaged in the

business or profession of publishing or otherwise commu-

nicating with the public are entitled to no greater protection

than citizens who are not so engaged. Their right of access to

information within the control of the government is the same.

Houchins v. KQED, Inc., 438 U.S. 1, 57 L. Ed. 2d 553, 98 S. Ct.

2588 (1978) (access to jails); Nixon v. Warner Commu-

nications, Inc., 435 U.S. 589, 55 L. Ed. 2d 570, 98 S. Ct. 1306

(1978) (access to tapes not placed in evidence at trial); Pell v.

Procunier, 417 U.S. 817, 41 L. Ed. 2d 495, 94 S. Ct. 2800

(1974) (access to prisons and inmates). See Estes v. Texas,

381 U.S. 532, 589, 14 L. Ed. 2d 543, 85 S. Ct. 1628 (1965)

(Harlan J., concurring).

Nor is there any basis for holding that a publisher, when

he is a party to litigation, enjoys a greater immunity from

protective orders than do other litigants, as the defendants

would have us hold. Neither the first and fourteenth amend-

ments to the United States Constitution nor article 1, section 5

of our state constitution makes any distinction among citizens in

conferring their protections.

Therefore, whatever power the courts have to enter protec-

tive orders to forestall the giving of unwanted publicity to the

fruits of discovery, that power extends to all litigants.

The defendants maintain that a protective order which

forbids publication of matters learned through discovery con-

stitutes a “prior restraint on expression” which, while not

unconstitutional per se, bears a “heavy presumption” against its

validity. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

546, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975). The Supreme

Court in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 49

L. Ed. 2d 683, 96 S. Ct. 2791 (1976) indicated that prior

restraints “are the most serious and the least tolerable in-

fringement on First Amendment rights.” At common law the

term “prior restraint” referred to a system of unreviewable

administrative censorship or licensing. But the meaning has

been extended through a long line of cases beginning with Near

v. Minnesota ex rei. Olson, 283 U.S. 697, 75 L. Ed. 1357, 51 S.

Ct. 625 (1931) to include judicial orders having an impact

similar to administrative censorship.

The order here does restrain the publication of certain

matters, although the restraint as to those items which are later

admitted into evidence will terminate at that time. The

restraint is not inspired by any governmental objection to the

content of the publication, and the subject matter involves no

element of advocacy or dissemination of ideas. We would be

inclined to the view that these facts should lighten the burden of

justifying the restraint. However, the United States Supreme

Court has found prior restraints where the only ma:ter involved

was evidentiary materials derived from judicial proceedings.

See Nebraska Press Ass'n v. Stuart, supra; Smith v. Daily Mail

Pub’g Co., 443 US. 97, 61 L. Ed. 2d 399, 99 S. Ct. 2667

(1979).

We do not believe that the prior restraint doctrine applies

to protective orders. We do not reach this issue, however,

because even under the prior restraint doctrine protective orders

can be justified. Under this doctrine the burden of justifying

the restraint rests primarily upon this court, inasmuch as it

results from the implementation of CR 26(c), which we have

adopted, using the federal rules (Fed. R. Civ. P. 26(c)) as its

basis.

l2a

We must look then to the reasons for the rule and the

nature of the interests involved to see if it is justified.

As the Supreme Court directed in Nebraska Press Ass’n, we

must also examine whether the order here furthers those

Purposes and interests, whether other measures would be likely

to mitigate the effects of the unwanted publicity involved here;

and how effectively the Protective order would operate to

prevent the threatened harm.

With respect to the Possibility of mitigation by other

measures, the defendants suggest nothing other than denial of

discovery altogether, which is admittedly within the power of

the court. Since this would have the effect of closing access to

the material sought to be published and denying the defendants

the benefits of discovery, it is not a satisfactory alternative. As

for the effectiveness of the Protective order, it must be assumed

that the defendants will abide by the court’s order and, as will

appear later, the evil against which the rule is directed is a

litigant’s disclosure of information furnished him in the dis-

covery process. Our main inquiry, therefore, will concern the

interests which justify a rule which authorizes protective orders

in circumstances such as these. Such Orders are meant to

protect the health and integrity of the discovery process, as

much as to protect the parties who Participate in it.

CR 26 pertains to depositions and discovery. At common

law opportunities for discovery were limited, as a result of

which it was often said that trials were conducted “by ambush”.

Propounding interrogatories and obtaining documents were not

authorized. State ex rel. Bronson y. Superior Court, 194 Wash.

339, 77 P.2d 997 (1938); Puget Sound Nav. Co. y. Associated

Oil Co., 56 F.2d 605 (W.D. Wash. 1932 ). Some discovery was

allowed in equity, but it did not come into its full flower until

the promulgation of the federal rules and the adoption of these

rules by the states. It is not disputed that without CR 26 the

petitioners would have no right of access to the information

which they claim a constitutional right to publish.

CR 26(b)(1) allows a broad scope of discovery, the only

restrictions being that the matter must be relevant and not

Privileged. CR 26(c) provides that upon “good cause shown”

13a

the court may make “any order which justice requires to protect

a party or person from annoyance, embarrassment, oppression,

or undue burden or expense”. There is no dispute that this

authorization is broad enough to permit the court to restrain use

of discovery information for unauthorized purposes. The

purpose of the rule is to enable the parties to prepare their cases

for trial.

Chief Justice Warren, in a foreword to W. Glaser, Pretrial

Discovery and the Adversary System (1968) said:

The pretrial discovery rules have attempted to

remove secrecy and surprise from the tnal, thus

presenting the fact-finder with a less dramatic, but

more accurate, presentation of information. Propo-

nents assert that the rules have proved successful in

this regard. Yet there has been widespread debate

and disagreement about whether the discovery rules,

on balance, have improved the adversary system.

Critics have doubted whether the benefits have been

achieved, and have charged that discovery is unduly

expensive and promotes delay and harassment.

It is toward the amelioration of these problems, among

others, that CR 26(c), providing for protective orders, was

directed. Under this rule the trial court exercises a broad

discretion to manage the discovery process in a fashion that will

implement that goal of full disclosure of relevant information

and at the same time afford the participants protection against

harmful side effects. 4 J. Moore, Federal Practice | 26.67, at

26-487 (2d ed. 1982). Unfavorable publicity is one of such

“harmful side effects”. 4 J. Moore, supra, J 26.73; see also J

26.74.

In International Prods. Corp. v. Koons, 325 F.2d 403, 407

(2d Cir. 1963), the Second Circuit Court of Appeals, speaking

through Judge Friendly, said:

[ W Je entertain no doubt as to the constitutionality of

a rule allowing a federal court to forbid the publici-

l4a

zing, in advance of trial, of information obtained by

one party from another by use of the court’s pro-

cesses. '

In National Polymer Prods., Inc. y. Borg-Warner Corp., 641

F.2d 418, 424 (6th Cir. 1981) (a case in which the parties had

consented to a protective order), the Court of Appeals said:

An important purpose of a pre-trial protective order

is to preserve the confidentiality of materials which

are revealed in discovery but not made public by

trial.

As for matters which were admitted in evidence at the trial,

however, the court held that the right to publish these, once

they had become a matter of public record, was protected by

the First Amendment, although the right could be waived. See

also Nichols v. Philadelphia Tribune Co., 22 F.R.D. 89 (E.D.

Pa. 1958).

Martindell v. ITT, 594 F.2d 291 (2d Cir. 1979) was a civil

suit in which the federal government attempted to gain access

to depositions of witnesses for criminal investigative purposes.

Holding that the lower court correctly withheld these depos-

itions in order to protect the witnesses’ Fifth Amendment rights

and to enforce a stipulation that the information should remain

confidential, the Court of Appeals said:

These [the government’s] arguments ignore a

more significant counterbalancing factor—the vital

function of a protective order issued under Rule

26(c), F.R.Civ.P., which is to “secure the just,

speedy, and inexpensive determination” of civil dis-

putes, Rule |, F.R.Civ.P., by encouraging full dis-

closure of all evidence that might conceivably be

relevant. This objective represents the cornerstone of

our administration of civil justice. Unless a valid

lSa

Rule 26(c) protective order is to be fully and fairly

enforceable, witnesses relying upon such orders will

be inhibited from giving essential testimony in civil

litigation, thus undermining a procedural system that

has been successfully developed over the years for

disposition of civil differences. In short, witnesses

might be expected frequently to refuse to testify

pursuant to protective orders if their testimony were

to be made available to the Government for criminal

investigatory purposes in disregard of those orders.

Martindell, at 295-96.

That same court said in Galella v. Onassis, 487 F.2d 986

(2d Cir. 1973) that the grant and nature of protection is

singularly within the discretion of the trial court and may be

reversed only on a clear showing of abuse of discretion.

In order to prevent the revelation of trade secrets, a court

may properly exact from the party seeking this information

assurances under oath that none of the information obtained

will be divulged except in the course of judicial proceedings.

Paul v. Sinnott, 217 F. Supp. 84 (W.D. Pa. 1963).2

2In some areas of litigation, public policy favors public disclosure of

information derived in the discovery process. Congress has expressly

provided that in the taking of depositions for use in “any suit in equity

brought by the United States under sections |-7 of this title, . . . the

proceedings shall be open to the public as freely as are trials in open court;

and no order excluding the public from attendance on any such proceedings

shall be valid or enforceable.” 15 U.S.C. § 30 (1958). The Ninth Circuit has

found this policy applicable to other forms of discovery and in private

antitrust suits as well, because “[p]rivate treble-damage actions are an

important component of the public interest in ‘vigilant enforcement of the

antitrust laws” (citing Lawlor v. National Screen Serv. Corp., 349 U.S. 322,

329, 99 L. Ed. 1122, 75 S. Ct. 865 (1955)). Obmpic Ref. Co. v. Carter, 332

F.2d 260, 264 (9h Cir. 1964).

However, it was held in D'Ippolito v. American Oil Co. 272 F. Supp. 310

(S.D.N.Y. 1967) that this statute does not apply to actions commenced by

private litigants. And in United States v. IBM, 87 F.R.D. 411 (S.D.N.Y.

1980), it was recognized that even where the government brings the action,

the public may be excluded under appropriate circumstances and protective

orders may be entered.

l6a

Thus, the rule has generally been given effect according to

the import of its words. The issuance of protective orders is

within the discretion of the trial court, to be granted where, in

its judgment, good cause exists, having in mind the Purpose of

the discovery rule to encourage full disclosure of all relevant

facts so as to facilitate the administration of justice, acquaint the

examiner with the testimony that will be given at trial, develop

the truth, shorten and simplify the trial, eliminate elements of

Surprise, and permit the Parties to prepare for trial.

Nowhere in the history of the rules or in the commentaries

which we have read upon them can we find any indication that

the purposes included that of disseminating to the general

public the information derived from discovery, or any sugges-

tion that such dissemination would serve the ends sought to be

achieved by the rule. Chief Justice Burger, concurring in

Gannett Co. y. DePasquale, 443 U.S. 368, 61 L. Ed. 2d 608, 99

S. Ct. 2898 (1979), made this significant observation:

[D]uring the last 40 years in which the pretrial

Processes have been enormously expanded, it has

never occurred to anyone, so far as lam aware, that a

pretrial deposition or Pretrial interrogatories were

other than wholly private to the litigants. A pretrial

deposition does not become part of a “trial” until and

unless the contents of the deposition are offered in

evidence. .. . In the entire pretrial period, there is no

certainty that a trial will take place.

(Italics ours.) Gannett, at 396-97.

Nevetheless, within the last few years, there has appeared

a line of cases which hold that a Protective order forbidding

publication of discovery material cannot be entered if the

material is of sufficient newsworthiness, unless the court finds

that (1) the harm posed by dissemination is substantial and

serious, (2) the restraining order is narrowly drawn and

precise, and (3) there is no alternative means of avoiding the

harm which intrudes less directly on expression.

17a

In re Halkin, 598 F.2d 176 (D.C. Cir. 1979) is the leading

case espousing this doctrine. The defendant in Halkin was the

United States government, sued by the plaintiffs for invasion of

their constitutional rights through unlawful surveillance, occa-

sioned by their opposition to the war in Vietnam. There was no

question but that the matters revealed were of public impor-

tance, as well as public interest. Here there is no indication that

the Aquarian Foundation’s activities enjoy a comparable dis-

tinction. Nor is the government a party. These facts are

sufficient to distinguish Halkin. Moreover, we are not con-

vinced that the Halkin approach properly serves the adminis-

tration of justice. As the 2-judge majority did in Halkin, we

look to the United States Supreme Court for guidance. We are

led, however, to a different conclusion.

Why are protective orders needed? There has never been

any question but that the individual’s interest in commercially

valuable information, such as “trade secrets”, deserves protec-

tion. But the language of CR 26(c) makes it clear that interests

other than financial warrant protection under the rule. Protec-

tive orders may be entered to prevent “annoyance, embarrass-

ment, oppression, or undue burden or expense”.

Implicit in this language is a recognition that by requiring a

party to submit to the searching inquiries of discovery, the

courts have required him to give information about himself

which he would otherwise have no obligation to disclose. A

realm of privacy which courts had previously left undisturbed

was now opened. True, as to all information derived through

these proceedings and admitted at trial, a party’s interest in

privacy must be sacrificed to the needs of adjudication. But as

to other information which he is forced to give under the liberal

rules of discovery, the effective administration of justice does

not require dissemination beyond that which is needed for

litigation of the case. It was the needs of litigation and only

those needs for which the courts adopted this rule and de-

manded of the litigant a duty which would not otherwise be his.

For this reason, it is proper that the courts be slow to subject a

civil litigant to any exposure which he deems offensive, beyond

that which serves the purpose of the rule.

18a

Rights of privacy are established in tort law. See Restate-

ment (Second) of Torts §§ 652-652] (1977); Mark v. Seattle

Times, 96 Wn.2d 473, 635 P.2d 1081 (1981 ). A tort action

should not and does not constitute the sole protection which

government affords to the privacy interest of individuals. A

threatened invasion of those interets may not have all of the

characteristics necessary to warrant recovery of damages under

existent tort principles and yet be properly a subject of govern-

mental sanction. Numerous statutes of this state provide

examples of such intervention.

These include RCW 43.07.100 (information regarding

personal affairs furnished to the Bureau of Statistics); RCW

26.26.050 (records of artificial insemination); RCW 71.05.390

(information regarding the mentally ill); RCW 7.68.140 (infor-

mation regarding records of crime victims). Other statutes

Protecting confidentiality include RCW 10.29.030(3), RCW

15.65.510, RCW 18.20.4120, RCW 18.46.090, RCW 18.72.265,

RCW 19.16.245, RCW 24.03.435, RCW 24.06.480, RCW

42.17.310 (the public disclosure initiative lists 1] categories of

exempt records, including those containing personal informa-

tion regarding students, patients, clients, prisoners, probation-

ers, parolees, and information regarding employees, appointees

or elected officials, “to the extent that disclosure would violate

their right to privacy”), RCW 43.21F.060, RCW 43.22.290,

RCW 43.43.856, RCW 43.105.041. RCW 48.13.220, RCW

49.17.200, and RCW 78.52.260.

Federal statutes forbid disclosure except for limited pur-

poses of census information (Census Act, 13 U.S.C. §§ 89,214

(1954)), data concerning personal lives and business affairs

given for purposes of tax collection (Internal Revenue Code, 26

U.S.C. § 6103 (1964) ), and disclosure by a federal officer of a

wide range of confidential information concerning the oper-_

ation of businesses (18 U.S.C. § 1905 (1948)).3

* See Bloustein, Privacy as an Aspect of Human Dignity: An Answer to

Dean Prosser, 39 N.Y.U. L. Rev. 962 (1964). Professor Bloustein, noting the

“increasing accumulation of information about each of us which finds its way

(footnote continues)

19a

The “prior restraint” involved in a protective order issued

in discovery proceedings is no different in substance from that

which is imposed by these statutes. Each protects the con-

fidentiality of information extracted through governmental

processes. It is obviously the legislative purpose in enacting

these protective statutes, as it was of the Congress and the

courts in adopting the discovery rules, to both protect the

individual’s right of privacy and secure his willing and honest

response to the questions asked. In each instance, it is deemed

necessary to give the protection in order to achieve the govern-

ment’s objective, whether that be the facilitation of the truth

seeking objective in litigation, the imposing of an income tax,

care and treatment of the mentally ill, the promulgation of

regulations affecting an industry, or other legitimate govern-

mental goal.

We think it safe to say that because of their encroachment

upon First Amendment rights of speech and press, if provisions

such as these cannot be sustained, the result surely will be a

serious undermining of the morale of the people as well as the

integrity of government. Provisions such as these, like CR

26(c), express strong governmental policy, designed to protect

(footnote continued)

into government records and files”, said:

Most of us have agreed . . . that the social benefits to be

gained in these instances require the information to be given and

that the ends to be achieved are worth the price of diminished

privacy.

But this tacit agreement is founded upon an assumption that

information given for one purpose will not be used for another.

We are prepared to tell the tax collector and the census taker

what they need to know, but we are not prepared to have them

make a public disclosure of what they have learned. The

intrusion is tolerable only if public disclosure of the fruits of the

intrusion is forbidden. This explains why many of the statutes

which require us to tell something about ourselves to a govern-

ment agency contain an express provision against disclosure of

such information. It also explains why there are general provi-

sions prohibiting disclosure of information of a personal nature

gained in an official capacity.

( Footnotes omitted.) Bloustein, supra at 999.

20a

valuable rights of private individuals as well as to further

legitimate interests of the state. The court’s endeavor should be

to uphold such measures if possible, if it can be done without

unduly invading some other Protected right. A persuasive

argument can be made that when persons are required to give

information which they would otherwise be entitled to keep to

themselves, in order to secure a government benefit or perform

an obligation to that government, those receiving that informa-

tion waive the right to use it for any purpose except those which

are authorized by the agency of government which exacted the

information.4 However, because the United States Supreme

Court has been reluctant to find waiver in First Amendment

cases, we do not pursue that theory but confine ourselves to the

question whether the “heavy burden” of justifying the restraint

has been sustained in the circumstances of this case.

It is not alone in the area of tort law or Statutory enactment

that rights of privacy have been acknowledged. The United

States Supreme Court both in majority and minority opinions

has exhibited increasing awareness and appreciation of these

important adjuncts to freedom.

“The Supreme Court has said that waivers of First Amendment rights

are to be inferred only in “clear and compelling” circumstances. Curtis Pub'’g

Co. v. Butts, 388 U.S. 130, 145, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967).

Also in Perry v. Sindermann, 408 US. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694

(1972), the Court found that denial of tenure to a teacher had been caused by

his advocacy of positions contrary to those of his employers and held that a

benefit such as employment could not be conditioned on a waiver of

constitutional rights.

We find it difficult to conceive of circumstances more “clear and

compelling” than those involved here. Parties seeking to utilize the processes

of discovery necessarily acquaint themselves with the rules which attend that

Process. They know the purposes for which discovery is intended, and that

Protective orders can be entered in the discretion of the court. Attorneys are

surely aware that it is improper to exploit the fruits of discovery by using them

for other than authorized Purposes. It is true that no penalty can attach for

such use if a protective order is not obtained; but it is understood in the

majority of cases that confidentiality will be respected, thus removing the

necessity of seeking such an order to Protect against unwanted publicity.

In the case of governmental employees and officials, it is also presumably

made clear to them upon assuming their duties that information obtained in

the course of their duties from Private persons is to be kept confidential.

2la

Justice Brandeis, dissenting in Olmstead v. United States,

277 U.S. 438, 478, 72 L. Ed. 944, 48 S. Ct. 564, 66 A.L.R. 376

(1928), said:

The makers of our Constitution undertook to secure

conditions favorable to the pursuit of happiness.

They recognized the significance of man’s spiritual

nature, of his feelings and of his intellect.... They

sought to protect Americans in their beliefs, their

thoughts, their emotions and their sensations. They

conferred, as against the Government, the right to be

let alone—the most comprehensive of rights and the

right most valued by civilized men.

In Time, Inc. v. Hill, 385 U.S. 374, 17 L. Ed. 2d 456, 87 S.

Ct. 534 (1967), Justice Fortas (joined by the Chief Justice and

Justice Clark), dissenting, said:

There are great and important values in our society,

none of which is greater than those reflected in the

First Amendment, but which are also fundamental

and entitled to this Court’s careful respect and protec-

tion. Among these is the right to privacy, which has

been eloquently extolled by scholars and members of

this Court. . . . It is, simply stated, the mght to be let

alone; to live one’s life as one chooses, free from

assault, intrusion or invasion except as they can be

justified by the clear needs of community living under

a government of law. As Mr. Justice Brandeis said in

his famous dissent in Olmstead v. United States, 277

U.S. 438, 478 (1928), the right of privacy is “the

most comprehensive of rights and the mght most

valued by civilized men.”

_. . As stated in the concurring opinion of Mr. Justice

Goldberg, with whom THE CHIEF JUSTICE and

MR. JUSTICE BRENNAN joined: “the nght of

privacy is a fundamental personal right, emanating

‘from the totality of the constitutional scheme under

which we live.” [Griswold v. Connecticut, 381 U.S.

479, 494 (1965) ]}.

(Footnotes omitted.) Time, Inc., at 412-14.

22a

Time, Inc. was a case in which the plaintiffs sought

damages for invasion of their privacy through publication of a

story falsely declaring that they had been involved in an

encounter with convicts similar to the one then being portrayed

in a stage play in New York. The Court held that Times, Inc.,

could be held liable only if the story was printed recklessly or

with knowledge of its falsity.

Since the decisions in that case and Rosenbloom v. Metro-

media, Inc., 403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811

(1971) (extending the rule of New York Times Co. v. Sullivan,

376 U.S. 254, 11 L. Ed. 2d 686, 84S. Ct. 710, 95 A.L.R.2d 1412

(1964) to matters of general or “public interest” as well as

public officials and public figures), the high Court has begun to

take a more sympathetic view of the rights of persons who are

the victims of publicity. See Zacchini v. Scripps-Howard

Broadcasting Co., 433 U.S. 562, 53 L. Ed. 2d 965, 97 S. Ct.

2849 (1977) (a television station owner may not appropriate

an individual’s entertainment act); and Gertz v. Robert Welch,

Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94S. Ct. 2997 (1974) (an

attorney, even though he has gained a reputation in the

community, is a private individual and does not have to meet

the New York Times standards of proof in pursuing a libel

action). In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 488,

43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975), the Court took note of

the fact that there is, in this century, “a strong tide running in

favor of the so-called right of privacy” and said that powerful

arguments can be made that there is a zone of privacy

surrounding every individual, a zone within which the state

may protect him from intrusion by the press, with all its

attendant publicity. There, a damage action was brought,

relying upon a Georgia statute which made it a misdemeanor to

broadcast a rape victim’s name. The Court upheld the broad-

casting company’s right to announce the name in that case,

because it appeared in the records of the court, which were

open to the public. It said that the state may not impose

sanctions on the publication of truthful information contained

in official court records open to public inspection. However, the

23a

Court did not suggest that all judicial proceedings are neces-

sarily public. On the contrary, it said:

If there are privacy interests to be protected in

judicial proceedings, the States must respond by

means which avoid public documentation or other

exposure of private information. Their political

institutions must weight the interests in privacy with

the interests of the public to Know and of the press to

publish.

( Footnote omitted.) Cox Broadcasting Corp., at 496.

In a footnote, the Court said that it was not implying

anything about constitutional questiens which might arise from

a state policy not allowing access by the public and press to

various kinds of official records, such as records of juvenile

court proceedings.

These two statements taken together strongly suggest that

the Court was aware of the overriding necessity for the

protection of privacy interests in certain governmental con-

texts—such as those involved in discovery proceedings and the

various situations covered by the statutes we have cited earlier.

The Supreme Court has recognized privacy claims in Carey

v. Population Servs. Int'l, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S.

Ct. 2010 (1976); Planned Parenthood v. Danforth, 428 U.S. 52,

49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976); and Roe v. Wade, 410

U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). And in

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 2 L. Ed. 2d

1488, 78 S. Ct. 1163 (1958), the Court gave strength to the

individual’s freedom of association, which is one of the attribut-

es of the interest in privacy. There an attempt on the part of the

State to require the NAACP to disclose its membership lists was

rebuffed. The Court said: “It is hardly a novel perception that

compelled disclosure of affiliation with groups engaged in

advocacy may constitute [an] effective . . . restraint on freedom

of association”. NAACP, at 462.

Thus we have seen that the courts, in promulgating the

rules of discovery, were aware that by allowing liberal dis-

24a

covery, with inquiries into matters which would not necessarily

be introduced or admissible at trial, they were permitting

invasions of a litigant’s private domain and were rightly

concerned that he should be protected against abuse of the

discovery process.

Protection against use of materials for publicity purposes

has most frequently been achieved by limiting the parties in

attendance at a deposition and ordering the deposition sealed

until further order of the court. 4 J. Moore, Federal Practice J

26.74 (2d ed. 1982).

Cases involving a claim of constitutional right to publicize

the results of discovery appear to be recent phenomena.

Among those courts which have been called upon to

consider the proposition, we have been surprised to find some

which have summarily held that the right to publish is para-

mount, without giving any attention to the needs of judicial

administration, or the interests of litigants. These include

Georgia Gazette Pub’g Co. v. Ramsey, 248 Ga. 528, 284 S.E.2d

386 (1981), reversing a thoughtful opinion of the superior court

judge. That judge did not reject Jn re Halkin, 598 F.2d 176

(D.C. Cir. 1979), but found ail of its requirements satisfied,

essentially upon the basic principle that giving publicity to

discovery materials does not serve the fair administration of

justice. The judge pointed out that a protective order would

help ensure a fair trial in the civil case and in any possible

criminal proceedings which might be brought against the

plaintiff.5

The Georgia Superior Court also took notice of the plain-

tff’s privacy interests and the exploitation which was within the

power of the defendant as a publisher of newspapers.

Unfortunately, the Supreme Court of Georgia paid no

heed to these considerations, but held without discussion that

the provision of the state constitution guaranteeing freedom of

the press was decisive of the issue. Inasmuch as the court

5 This was an action for invasion of privacy based on a story about the

plaintiff, a dentist, as a prime suspect in the investigation of a crime.

25a

ignored the objectives and needs of judicial administration, as

served by the discovery rules or the interests of litigants, we do

not find that opinion persuasive.

In contrast is the approach of Mr. Justice Rehnquist,

concurring in Smith v. Daily Mail Pub’g Co., 443 U.S. 97, 61 L.

Ed. 2d 399, 99 S. Ct. 2667 (1979). He cited American

Communications Ass’n v. Douds, 339 U.S. 382, 394, 94 L. Ed.

925, 70 S. Ct. 674 (1950), where the Court had said: “Freedom

of speech . . . does not comprehend the right to speak on any

subject at any time”, and also quoted from Branzburg v. Hayes,

408 U.S. 665, 683, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972),

“the press is not free to publish with impunity everything and

anything it desires to publish.” Rehnquist said that conflicting

interests must be weighed. He would make it clear that the

protection of a juvenile’s reputation is a state interest of the

highest order, but agreed with the result reached in Smith

because the statute did not achieve its objective.

In New York Press v. McGraw-Hill, 4 Media L. Rep. 1819

(N.Y. App. Div. 1978), the appellate division of the New York

Supreme Court, in a business defamation action against a

publisher, held that the absence of a showing that the defend-

ant’s use of material and information obtained during discovery

would seriously harm the plaintiff, or to show that such material

was confidential, justified the New York Supreme Court (trial

court) in refusing to grant a requested protective order. That

court was of the opinion that the news media, even when a

party to the action, had a mght to gather news at a discovery

proceeding and publish it, and that the right should not be

interfered with except under the most extreme circumstances.

We do not share that view.

The Florida Circuit Court for the Seventeenth Judicial

Circuit, Broward County, denied a motion to exclude the press

and public from discovery proceedings in Johnson v. Broward

Cy., 7 Media L. Rep. 2125 ( Fla. Cir. Ct. 1981). It appears from

the opinion that under Florida law depositions are generally

open to the public. That is not the case in this state.

Reliance Ins. Co. v. Barron’s, 428 F. Supp. 200 (S.D.N.Y.

1977) was a damage action brought by an insurance company

against a well known financial magazine and one of its

26a

contributors, a professor of accountancy. Before discovery

began, the plaintiff asked for what the district judge termed

“the customary pre-trial stipulation and order of confidentiality,

limiting pre-trial use of such material to matters pertaining to

this action.” Barron’s, at 202. The plaintiff specifically asked

that no other uses be made of nonpublic information obtained

Pursuant to the discovery proceedings. The defendants de-

clined to so stipulate and the court refused to enter a protective

order, finding first that the plaintiff had failed to show that it

“[ would] indeed be harmed by disclosure.” Barron’s, at 204,

quoting from Johnson Foils, Inc. v. Huyck Corp., 61 F.R.D. 405,

409 (N.D.N.Y. 1973). But the court said that it would be

inclined to issue the order if the defendants were not members

of the press. It held that to restrain them from publishing

information gained through discovery Proceedings would con-

stitute a “prior restraint”, and that to justify such an order the

plaintiff was required to demonstrate that the material to be

restrained was, indeed, confidential and that its publication

would cause plaintiff to suffer serious and irreparable injury.

For this proposition, the court cited only New York Times

Co. v. United States, 403 U.S. 713, 29 L. Ed. 2d 822, 91S. Ct.

2140 (1971), and that not as direct authority but as a com-

parable case. However, New York Times had nothing to do

with the discovery process. It was an injunction suit brought by

the United States against a newspaper to restrain publication of

materials concerning government policy, which were, of course,

of great interest to the public.

The district court in Barron’s assumed that members of the

media, when in court, have rights superior to those of other

Parties. This, as we have observed, is not a valid assumption.

In Koster v. Chase Manhattan Bank, 8 Media L. Rep. 1155

(S.D.N.Y. 1982), the United States District Court for the

Southern District of New York wrote a scholarly opinion

reviewing the history and nature of the discovery process in the

courts, their holdings with respect to the limited First Amend-

ment interest that litigants have in disseminating information

learned through discovery, and the conflicting views which

courts have expressed as to the Standards to be used in

27a

evaluating protective orders restricting dissemination. The

court took cognizance of the fact that the nature of discovery

makes it unfair to allow the recipient of discovery materials an

unlimited right to disseminate those materials. It indicated

approval of the views of Wilkey, J., dissenting in Jn re Halkin,

supra, who said that a litigant accepts the materials produced

through discovery subject to the possibility that the court may

restrict their use.

The court in Koster also noted the developing controversy

regarding the standard which should be used to test the validity

of a protective order. But having made all of these observations

it avoided adoption of any standard by holding that, under the

most lenient, the defendants had not shown good cause to issue

a protective order. This opinion illustrates the difficulties which

the trial courts create for themselves when they attempt to

enunciate restrictive criteria for the exercise of their discretion.

At least two federal courts have made that attempt, the

District of Columbia Court of Appeals in Jn re Halkin, supra,

and the First Circuit Court of Appeals in Jn re San Juan Star

Co., 662 F.2d 108 (Ist Cir. 1981).

The 2-judge majority in Halkin, while not willing to go so

far as to declare a protective order to be a “prior restraint” on

freedom of expression, as that term is generally understood,

found that it did involve “First Amendment interests”. Halkin,

at 191. In that case the subject matter of the discovery process

constituted material of considerable legitimate interest to the

public.

The protective order concerned certain documents relating

to government surveillance of opponents of the war in Vietnam

and other political activities. The documents had been purged

of all sensitive matters before being handed over to the

plaintiffs pursuant to discovery requests. No protective orders

were sought until after the documents were in the hands of the

plaintiffs and they proposed to release some of the documents

to the press. The government claimed that public disclosure of

these documents would be “ ‘prejudicial to the defendants’

right to adjudication of the issues in this civil action in an

28a

uncolored and unbiased climate, including a fair trial.’ ” Hal-

kin, at 181-82. The trial court issued the order, apparently

considering it routine.

The Court of Appeals, noting that the case would be tried

to the court rather than to a jury, found these allegations

inadequate to support the order.

In Halkin there were no rights of privacy to be protected

by the order. The Court of Appeals, not content to merely hold

that the court had abused its discretion under the circumstances

of the case, devised a set of standards which could hardly be

more onerous, had the court found the “prior restraint” doc-

trine applicable.é

The parties objecting to a protective order in San Juan

Star were not litigants but rather were members of the media

who desired to obtain information from attorneys who were

subject to such an order. The First Circuit Court of Appeals

gave much more weight than did the Halkin court to the

litigant’s right to privacy and to the effect of publicity upon the

Proper functioning of the discovery process. Nevertheless, the

court, rather than permit the lower courts to continue to

function under the rule as it is presently worded, conceived a set

of criteria for determining whether a protective order should

issue. These criteria were somewhat less Stringent than those

6 The court said:

“Initially, the trial court must determine whether a Particular protective

order in fact restrains expression and the nature of that restraint. First

Amendment interests will vary according to the type of expression subject to

the order. An order restraining publication of official court records open to

the public, or an order restraining political speech, implicates different

interests than an order restraining commercial information. The interests will

~:$0 vary according to the timeliness of the expression. An order restraining

highly newsworthy information raises a different issue than a temporary

restraint of materials having ‘constant but rarely topical interest.’

“The court must then evaluate such a restriction on 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.) Jn re Halkin, $98 F.2d 176, 191 (D.C. Cir.

1979).

29a

adopted in Halkin, but would nevertheless impose an added

burden upon the trial court in determining whether to issue the

protective order. The court characterized its standards as one

“of ‘good cause’ that incorporates a ‘heightened sensitivity’ to

the First Amendment concerns at stake”. San Juan Star, at

116.

In our view, the procedures adopted by these courts for the

promulgation of protective orders and the criteria for review of

those orders are unduly complex and onerous and tend to

undermine the objectives of pretrial discovery, which is de-

signed to expedite rather than to hinder the progress of

litigation. We do not find them mandated in the decisions of

the United States Supreme Court which bear upon this subject.

We observe that the Supreme Court, in cases where it has

been called upon to examine the reach of First Amendment

protections, has generally taken cognizance of the function

which publicity serves in the particular circumstances. For

example, in Near v. Minnesota ex rel. Olson, 283 U.S. 697, 75 L.

Ed. 1357, 51 S. Ct. 625 (1931), cited in Halkin, a newspaper,

which was found objectionable because of the scandalous

charges which it contained within its covers, had been abated.

The Court, reversing, stressed the fact that the published

charges were made against public officials, that for 150 years

there had been almost an entire absence of attempts to restrain

publications relating to malfeasance of public officers, in-

dicating a deep-seated conviction that such restraints would

violate constitutional rights, and that the growing complexity of

society and the prevalence of organized crime in large cities

made a vigilant press all the more necessary.

In Organization for a Better Austin v. Keefe, 402 US. 415,

29 L. Ed. 2d 1, 91 S. Ct. 1575 (1971), the Court reversed an

injunction directed aginst the distribution of leaflets (evidently

racist in their content).

These cases are concerned with rights of advocacy, and the

dissemination of ideas, which lie at the core of First Amend-

ment protection. Landmark Communications, Inc. v. Virginia,

435 U.S. 829, 56 L. Ed. 2d 1, 98 S. Ct. 1535 (1978). There is

no advocacy or abstract discussion involved here—only the

reporting of supposed facts elicited in discovery.

30a

The rationale of Cox Broadcasting Corp. v. Cohn, 420 US.

469, 491-92, 43 L. Ed. 2d 328 95 Ss. Ct. 1029 (1975) is

Significant here:

[I]n a society in which each individual has but

limited time and resources with which to observe at

first hand the operations of his government, he relies

necessarily upon the press to bring to him in con-

venient form the facts of those operations. Great

responsibility is accordingly placed upon the news

media to report fully and accurately the proceedings

of government, and official records and documents

open to the public are the basic data of governmental

Operations. Without the information provided by the

Press most of us and many of our representatives

would be unable to vote intelligently or to register

opinions on the administration of government gener-

ally. With respect to judicial Proceedings in particu-

lar, the function of the press serves to guarantee the

fairness of trials and to bring to bear the beneficial

effects of public scrutiny upon the administration of

justice. See Sheppard vy. Maxwell, 384 U. S. 333, 350

(1966).7

In answer to the respondent’s contention that the efforts of

the press had infringed his right to privacy by broadcasting to

the world the fact that his daughter was a rape victim, the Court

said that the commission of crime, prosecutions resulting from

” Cf. Gannett Co. v. DePasquale, 443 US. 368, 61 L. Ed. 2d 608, 99 S.

Ct. 2898 (1979) where it was held that the United States Constitution does

not give the public an affirmative right of access to a pretrial hearing, if all the

Participants agree that it should be closed to Protect the fair trial rights of the

defendant. The Court said that publicity concerning pretrial suppression

hearings poses special risks of unfairness because it may influence public

opinion against a defendant and inform potential jurors of inculpatory

information wholly inadmissible at the actual trial.

The Court also said that the adversary system of criminal justice is

Premised upon the proposition that the public interest is fully protected by the

Participants in the litigation. It said that at common law pretrial Proceedings,

because of the concern for a fair trial, were never charactcrized by the same

degree of openness as were actual trials.

3la

it, and judicial proceedings arising from the prosecutions

thereof are without question events of legitimate concern to the

public and consequently fall within the responsibility of the

press to report the operations of government.

In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 65

L. Ed. 2d 973, 100 S. Ct. 2814 (1980), a case in which the Court

upheld the right of the press to attend criminal trials, Justice

Brennan pointed out principles which are relevant in weighing

the interest of the media in access to governmental proceedings.

He said:

An assertion of the prerogative to gather information

must... be assayed by considering the information

sought and the opposing interests invaded.

... [T]he case for a mght of access has special

force when drawn from an enduring and vital tradi-

tion of public entree to particular proceedings or

information. Cf. Jn re Winship, 397 U.S. 358, 361-

362 (1970). Such a tradition commands respect in

part because the Constitution carries the gloss of

history. More importantly, a tradition of accessibility

implies the favorable judgment of experience. Sec-

ond, the value of access must be measured in specif-

ics. Analysis is not advanced by rhetorical statements

that all information bears upon public issues; what is

crucial in individual cases is whether access to a

particular government process is important in terms

of that very process.

(Footnote omitted. Italics ours.) Richmond Newspapers, at

588-89.

Thus, it is evident that the Court’s concern for the protec-

tion of First Amendment rights, at least insofar as access to

governmental processes is concerned, increases in proportion to

the intensity of the legitimate interest which the public has in

learning about those processes. The conduct of public officials

and the proceedings at trial are of vital concern to the people,

the one because of their interest in the public functions which

32a

these officials perform and in their integrity, ability and dili-

gence, and the other additionally, because of their interest in

seeing that constitutional rights are Protected and justice done.

The need for information upon these matters is engendered by

the nights and responsibilities the citizen has in choosing those

who will govern him and administer justice and in pursuing the

changes in law which will correct the inadequacies which he

may find in the functioning of his government.

A case which is of particular significance here is Landmark

Communications, Inc. v. Virginia, supra. There, a statute made

it a crime to divulge information regarding proceedings before

a State judicial review commission. For printing in its news-

Paper an article accurately reporting on a pending inquiry by

the commission and identifying the judge whose conduct was

being investigated, the appellant publisher was convicted of

violating the statute.

The Court held that the First Amendment does not permit

the criminal punishment of third persons who are strangers to

Proceedings before such a commission, for publishing or divulg-

ing truthful information regarding confidential proceedings of

the commission.

No reporter, employee, or representative of Landmark had

ben subpoenaed by or had appeared before the commission in

connection with the proceedings described in the article.

In reaching its conclusion that the conviction violated the

defendant's First Amendment rights, the Court took care to

note that the case did not involve a constitutional challenge to

the State’s power to keep the commission’s Proceedings con-

fidential or to punish Participants.

The Court cited Mills v. Alabama, 384 US. 214, 16 L. Ed.

2d 484, 86 S. Ct. 1434 ( 1966) where it had said that, whatever

differences may exist about interpretations of the First Amend-

ment, there is practically universal agreement that a major

Purpose of that amendment was to protect the free discussion of

governmental affairs. The operations of courts and the judicial

conduct of judges are matters of utmost public concern.

33a

It quoted from Sheppard v. Maxwell, 384 U.S. 333, 350, 16

L. Ed. 2d 600, 86 S. Ct. 1507 ( 1966):

A responsible press has always been regarded as the

handmaiden of effective judicial administration . . .

Its function in this regard is documented by an

impressive record of service over several centuries.

The press does not simply publish information about

trials but guards against the miscarriage of justice by

subjecting the police, prosecutors, and judicial proc-

esses to extensive public scrutiny and criticism.

It found that the operation of the judicial inquiry commission

was a matter of public interest, necessarily engaging the

attention of the news media. The article published provided

accurate factual information about a legislatively authorized

inquiry pending before the commission, and in so doing clearly

served those interests in public scrutiny and discussion of

governmental affairs which the First Amendment was adopted

to protect.

Recognizing that the confidentiality of the proceedings

served legitimate state interests, the Court nevertheless found

those interests insufficient to justify criminal sanctions for

publication, when imposed upon nonparticipants. It noted that a

number of states punished breaches of confidentiality by

participants through contempt proceedings, and that more than

40 states having similar provisions did not find it necessary to

provide criminal sanctions.

It observed that protection of the reputation of judges and

the judicial system was not a sufficient ground for the sanc-

tion—judges and the court system are no more immune from

scrutiny and criticism than other public officials.

Finally, the Court in Landmark Communications, Inc., v.

Virginia, supra at page 845, said that much of the danger to the

administration of justice posed by publicity could be eliminated

through “careful internal procedures to protect the con-

fidentiality of Commission proceedings.”

34a

We find implicit in this opinion a recognition that there are

governmental proceedings which legitimately may be closed to

the public and the press, and the State may punish those

Participating in such proceedings if they disobey an order to

keep them confidential. See also Gulf Oil Co. v. Bernard, 452

U.S. 89, 104 n.21, 68 L. Ed. 2d 693, 101 S. Ct. 2193 (1981),

where the Court said:

In the conduct of a case, a court often finds it

necessary to restrict the free expression of partici-

pants, including counsel, witnesses, and jurors. Our

decision regarding the need for careful analysis of the

Particular circumstances is limited to the situation

before us—involving a broad restraint on commu-

nication with class members [in a Civil Rights Act

class action, 42 U.S.C. 2000 ef seg. ]. We also note

that the rules of ethics properly impose restraints on

some forms of expression. See e.g. ABA Code of

Professional Responsibility, DR 7-104 (1980).

We have seen that in Gannett y. DePasquale, 443 U.S. 368,

61 L. Ed. 2d 608, 99 S. Ct. 2898 (1979), it was held that, in

order to protect the right of a defendant to a fair trial, the court

may close a preliminary hearing to the public and the press.

We find implicit in that holding a recognition that when a

hearing is closed, the court may properly restrict the use which

Participants in the hearing may make of information gained in

that proceeding, forbidding its disclosure to members of the

public, including the media. That being the case, there is no

sound reason why the same restrictions may not be imposed in

discovery proceedings.

To begin with, the public generally does not have the same

interest in the conduct of civil actions that it has in criminal

actions, for the public is a party to a criminal action, the

plaintiff being the state or other governmental body. Also, the

functioning of the adversary system plays an important role in

avoiding abuses in civil proceedings. With respect to discovery

Proceedings, the strong governmental interest in effectuating

the purposes of those proceedings makes it imperative that their

integrity be preserved. Essential to that integrity is the protec-

35a

tion of the party against whom discovery is sought from

unnecessary “annoyance, embarrassment, oppression, or undue

burden or expense”. CR 26(c). Such protection must include

protection of a party’s privacy interest in avoiding unwanted

publicity. This objective serves not only the State’s interest in

protecting its citizens in their legitimate expectations of privacy,

but also, and perhaps more importantly, the State's vital

interest in seeing that justice is administered upon all of the

relevant facts, freely and truthfully disclosed by the parties.

Inherent in CR 26(c), providing for protective orders, is a

recognition that parties generally are not eager to divulge

information about their private affairs and, that when called

upon to do so in a lawsuit, will be even more reluctant if they

are not assured that the information which they give will be

used only for the legitimate purposes of litigation. Many will be

tempted to withhold information and even to shade the truth,

where otherwise they would not do so. And, as the tral court

rightly observed, rather than expose themselves to unwanted

publicity, individuals may well forego the pursuit of theif just

claims. The judicial system will thus have made the utilization

of its remedies so onerous that the people will be reluctant or

unwilling to use it, resulting in frustration of a right as valuable

as that of speech itself.

It is perhaps a matter of speculation as to what the effect

will be in any given case. However, that which concerns us is

the cloud which will be cast upon the integrity of the discovery

process if the courts permit such intrusions.

As compared with the interests served by the rule, the

interest of the public in knowing what information is given in

such proceedings is, in the ordinary case, minimal. Of course,

there are cases which involve matters which do concern the

public generally (antitrust litigation being an example), and

where privacy interests are not involved, there may be good

reason to deny a protective order. In such cases, the tendency

to undermine confidence in the integrity of the process may be

negligible, and the objecting party may have difficulty in

showing good cause, as was the case in Jn re Halkin, 598 F.2d

176 (D.C. Cir. 1979).

36a

It does not seem likely that, where a matter is considered

newsworthy, the media will be without its own means of

investigating the facts. In the present case, it is evident from the

record that the defendants had obtained access to a sufficient

amount of information about the plaintiff and his organization

to produce a vivid series of accounts about their activities.

We are not told what interest of the public is served by the

newspaper’s further exposure of this allegedly religious sect,®

unorthodox though it undoubtedly is, but we assume that

publishers could rightly find it newsworthy. It may have some

significance with respect to governmental activity, but, if so,

that fact has not been brought to light. If the plaintiff and his

associates are engaged in unlawful activities, it is safe to assume

what with the exposure that has already been made, the

appropriate law enforcement agencies will take action. In view

of the fact that the discovery rules have a long history of

functioning without exposure of litigants to unwanted publicity

and at the same time the news media has flourished, giving

extensive coverage to the bizarre and the unorthodox, we do

not perceive that continued protection of the discovery proceed-

ings will constitute a substantial impediment to news gathering

in this area.

As the Supreme Court has more than once remarked, the

function of the media in serving not only the public’s need to

know but the integrity of governmental functions themselves is

of great importance in balancing First Amendment rights

against other interests of the state. Here, there is nothing to

indicate that publicity given to the evidence furnished by a

Party in a pretrial proceeding will in any way tend to promote

the proper functioning of such Proceedings. There is involved

here no evaluation or criticism of judges or other officials

administering the system nor of the system itself, but only a

8“A religious claim, to merit Protection under the free exercise clause of

the First Amendment, must satisfy two basic criteria. First, the claimant’s

proffered belief must be sincerely held; .. . [and] the claim must be rooted in

religious belief, not in ‘purely secular’ philosophical concerns.” ( Footnote

omitted.) See Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981).

37a

proposal to exploit the fruits of that system. Thus, this vital

consideration which has sometimes led the courts to favor the

interests of speech and press over the rights of a defendant in a

criminal trial are entirely absent.

Assuming then that a protective order may fall, ostensibly,

at least, within the definition of a “prior restraint of free

expression”, we are convinced that the interest of the judiciary

in the integrity of its discovery processes is sufficient to meet the

“heavy burden” of justification. The need to preserve that

integrity is adequate to sustain a rule like CR 26(c) which

authorizes a trial court to protect the confidentiality of informa-

tion given for purposes of litigation.

The rule itself imposes no affirmative obligation upon a

participant to refrain from giving publicity to information

derived in a discovery proceeding. However, as Chief Justice

Burger has remarked, it has customarily been taken for granted

that such information is given solely for purposes of litigation.

It is evident that the rule contemplates that participants will not

abuse the process, but if they do attempt or propose to do so,

the party against whom such action is directed may apply for

protection. Our understanding of the rule, contrary to that of

the federal circuit courts in Jn re Halkin, supra, and In re San

Juan Star Co., 662 F.2d 108 (Ist Cir. 1981), is that “good

cause” is established if the moving party shows that any of the

harms spoken of in the rule is threatened and can be avoided

without impeding the discovery process. In determining wheth-

er a protective order is needed and appropriate, the court

properly weighs the respective interests of the parties. The

judge’s major concern should be the facilitation of the discovery

process and the protection of the integrity of that process, which

necessarily involves consideration of the privacy interest of the

parties and, in the ordinary case at least, does not require or

condone publicity.

Here, there is no question but that the defendants were

threatening to publicize the information which they gained

through the discovery process. They insist upon their right to

do so. The information to be discovered concerned the

financial affairs of the plaintiff Rhinehart and his organization,

in which he and his associates had a recognizable privacy

38a

interest; and the giving of publicity to these matters would

allegedly and understandably result in annoyance, embarrass-

ment and even oppression.

Of course, by undertaking the lawsuit the plaintiff neces-

sarily consented to the exposure of all relevant evidence

admissible and admitted at trial, which will then be a matter of

public record and available for publication by the defendants or

any other person. But until and unless the fruits of the

discovery are made public through the judicial process (or by

the plaintiffs or others independently of discovery ),® plaintiffs

are entitled to the protection of the court.

We find no abuse of discretion and affirm the issuance of

the protective order.

[2] Turning to the plaintiffs’ cross appeal, the major

contention is that requiring disclosure of membership lists,

donors and benefactors violates the rights of privacy and the

associational rights of these persons. As should be clear from

Our previous discusson, certain invasions of those rights are

necessary to enable the courts to render a just decision upon the

relevant facts. The protective order shields the plaintiffs from

abuse of the discovery privilege. The more extensive protection

which they desire is within the discretion of the trial court in a

Proper case; but the plaintiffs are not entitled to such an order

as a matter of right. There is no showing that the protective

order is inadequate to prevent any abuse threatened by the

defendants.

The plaintiffs, as the defendants point out, are attempting

to asert a privilege to withhold evidence in a private suit where

they seek damages based upon the allegedly privileged infor-

mation. We have reviewed the cases cited in their brief and

® The defendants express some concern that the protective order is too

broad in that it does not make it clear that the defendants may publish the

information if it is revealed in open court or otherwise made public by the

plaintiffs. This may be an unnecessarily strict construction of the order: but to

remove any doubt, the defendants should apply to the court to clarify the

order, consistent with this opinion.

39a

find none which supports the theory in the circumstances of this

case. All of the evidence covered by the order compelling

disclosure was relevant to the plaintiffs’ claims and the defense

of those claims, and their legitimate interests in privacy and

association were protected by the court’s order insofar as was

possible without denying the defendants the right to develop

their defenses.

With respect to this order, also, we find no abuse of

discretion.

The orders are affirmed.

BRACHTENBACH, C.J., and STAFFORD, WILLIAMS,

and DORE, JJ., concur.

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 Jn 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 are qualified by conditions proper-

ly imposed by the court in its discretion under Rule

26(c). There is no “waiver” of First Amendment

40a

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 what-

ever action is necesary 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 govern-

mental 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 |

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 US. 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 Proce-

dure 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 Amend-

4la

ment issues or problems, and apparently it is con-

ceded 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 an order.

However, the majority holds that when a /ess 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 Amend-

ment 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 re-

stricted 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 as least since the ancient

Greeks.

It seems to me, then, that the majority’s elabo-

rate First Amendment analysis is gratuitous. Since an

order properly issued under Rule 26(c) is con-

stitutional, 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 Amend-

ment safeguards, and there is no reason to embark on

an independent First Amendment analysis. If the

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.

42a

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 justice nor guarantees any rights contain-

ed in the First Amendment.

BRACHTENBACH, C.J., and DIMMICK, J., concur with

DOLLIVER, J.

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 adminis-

tration 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 appli-

cability 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 appli-

cation. 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

43a

The thrust of the majority’s analysis is that the court need

not reach the question of whether the prior restraint 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 tan-

tamount 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. The Progressive, Inc., 467 F. Supp. 990,

reconsideration denied, 486 F. Supp. 5 (W.D. Wis.), appeal

dismissed, 610 F.2d 819 (7th Cir. 1979). “[P]nor 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

44a

prior restraints...” Southeastern Promotions, Ltd. v. Conrad, 420

U.S. 546, 559, 43 L. Ed. 2d 448, 95S. Ct. 1239 (1975).

[The] publication [sought to be restrained] must

inevitably, directly, and immediately cause the occur-

rence of an event kindred to imperiling the safety of a

transport already at sea...

New York Times Co. v. United States, 403 US. 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 US. 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, 89S. Ct. 347 (1968);

Bantam Books, Inc. v. Sullivan, 372 US. 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, 51S. Ct. 625 (1931); Seattle v. Bittner, 81

Wn.2d 747, 505 P.2d 126 (1973); Adams y. Hinkle, §1 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 con-

stitutional test. Even constitutional concerns for privacy do not

rise to the level of overcoming the presumption of uncon-

Stitutionality attached to prior restraints. Organization for a

Better Austin v. Keefe, supra at 418-20.

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 dis-

45a

covery materials, I feel in this context the heavy burden of the

Prior restraint doctrine is inappropriate. But see Reliance

Insurance 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 dis-

pute as to the existence of a First Amendment interest in

discovery materials. Jn re San Juan Star Co., 662 F.2d 108

(Ist Cir. 1981); National Polymer Products, Inc. y. Borg-

Warner Corp., 641 F.2d 418 (6th Cir. 1981); Jn re Halkin,

supra (majority and dissent concurring on this point); Koster y.

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 Products Corp. v. Koons, 325 F.2d 403,

407 (2d Cir. 1963) (court entertained no doubt of con-

stitutionality 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, 77S. Ct. 1325 (1957)

doa

(Frankfurter, J.). See generally Barnett, The Puzzle of Prior

Restraint, 29 Stan. L. Rev. 539 (1977). Protective orders are

unlike classic prior restraints (¢.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 be-

Cause 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

plausible, but unfortunately deductive logic is a helpful but not

necessarily dispositive aspect of legai 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 d

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