Opposition Brief — Levine v. United States District Court

Supreme Court, U.S,

4@ FILED ;

MAY 9 1906

: HF. SPANIOL, JR. |

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No. 85-1291

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Inu the Supreme Court of the United States

OCTOBER TERM, 1985

JOEL LEVINE, ET AL., PETITIONERS

V.

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

GLORIA C. PHARES

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether an order restraining the lawyers in a federal

criminal trial from making public statements regarding the

case violates the First Amendment.

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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Chase v. Robson, 435 F.2d 1059 ...........0%. 12

Chicago Council of Lawyers v. Bauer,

522 F.2d 242, cert. denied, 427

ee 11, 12

Farr v. Pitchess, 522 F.2d 464,

EE) 12

Houchins v. KQED, Inc.,

etapa sees eeecees 10

ee, Bee, SOD U.S. S76 2... csc ccccccves 9

Nebraska Press Ass'n v. Stuart,

RR GESe 5, 6, 7, 9, 10, 11, 12, 14

Patterson v. Colorado, 205 U.S. 454 .......... 13

eS | 0) 10

Radio & Television News Ass'n v.

United States District Court,

DE een eee a eeees 7, 15

Russell, In re, 726 F.2d 1007, cert.

denied, No. 83-6543 (Oct. 1, 1984) ........... 11

San Juan Star Co., In re, 662 F.2d 108 ......... 12

(IIT)

IV

Page

Cases—Continued:

Sheppard v. Maxwell, 384 U.S.

SEE scccnkd sak csdd essed casera 6, 7, 10, 13, 14

United States v. Norris, 780 F.2d

errors ee Pere rrr reer rer eee ree 12

United States v. Schiavo, 504 F.2d 1,

cert. denied, 419 U.S. 1096 .............00.- i2_

United States v. Tijerina, 412 F.2d

661, cert. denied, 396 U.S. 990 .............. 12

Warth v. Seldin, 422 U.S. GO 2... ccscccccccess 14

Weinstein v. Bradford, 423 U.S. 147 ........... 9

Constitution and regulation:

U.S Se FE © nc ks cv cawdos 7, 10, 11, 14, 15

y foe | Prereerer itr eet etre 8

In the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1291

JOEL LEVINE, ET AL., PETITIONERS

Vv.

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A28-A98)

is reported at 764 F.2d 590. The opinion and order of the

district court as amended (Pet. App. Al-A27, A99-A106)

are unreported.

JURISDICTION

The judgment of the court of appeals was entered on June

24, 1985 and amended on August 19, 1985. A petition for

rehearing was deried on November |, 1985 (Pet. App.

A107-A108). The petition for a writ of certiorari was filed

on January 29, 1986. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. On October 2, 1984, petitioner Miller, then a special

agent with the Federal Bureau of Investigation (FBI), was

(1)

2

arrested and charged with espionage. On October 12, 1984,

a grand jury sitting in the Central District of California

returned an indictment charging Miiler and co-defendants

Svetlana Ogorodnikova and Nikolay Ogorodnikov with

conspiring to commit espionage.’ Pet. App. A29-A30. In

particular, the indictment alleged that Miller provided the

Qgorodnikovs with classified FBI information and docu-

ments for transmission to Soviet agents, and that on one

occasion Miller accompanied Ogorodnikova to San Fran-

cisco, California, where she delivered classified documents

to officials at the Soviet consulate.

Both the national and local press covered the criminal

proceedings against Miller extensively. Pet. App. A30.

Early in the proceedings, the district court learned that

government officials and defense attorneys both had :

engaged in interviews “for attribution” with press represen-

tatives.2 On November 6, 1984, the district court admon-

ished the parties to “try the case here [in court] and nowhere

1A superseding indictment was returned in November 1984 (Pet. App.

A30).

?For example, on October 3, 1984, the day after Miller was arrested,

the FBI in Washington issued a press release that included a statement

from FBI Director William Webster describing Miller’s conduct as “an

aberration on the proud record of patriotic and dedicated service of

thousands of [FBI] special agents throughout our ’:istory.” Pet. App.

A101-A102. Separately, during a press conference un another subject,

Attorney General William French Smith commented briefly on Milier’s

arrest, stating that “[w]hen you consider that the FBI has thousands of

employees, every now and then a rotten apple is bound to show up” (id.

at A10Z). At the same time, the United States Attorney for the Central

District of California and the Special Agent in Charge of the Los

Angeles FBI office conducted a press conference at which they made

available the lengthy affidavit of FBI Agent P. Bryce Christensen, which

supported the government’s criminal complaint.

At the time petitioners Levine and Greenberg were retained to repre-

sent Miller, shortly after the return of the initial indictment, Greenberg

told a Los Angeles Times reporter that Miller’s situation was analogous

to “that old comic strip in Mad Magazine called Spy Vs. Spy{]”

ee

3

else” and to refrain from making extrajudicial comments

likely to result in pretrial publicity. Pet. App. A31; Gov't

Motion for Restraining Order (Gov't Motion) 16, 4 5,

United States v. Miller, Cr. 84-972(A)-Kn (C.D. Cal. filed

Nov. 28, 1984).

One week later, following the return of the superseding

indictment, the Los Angeles Times reported another inter-

view with petitioner Greenberg, one of Miller’s defense

attorneys. Greenberg was quoted as stating that the

government’s decision to drop two charges and add others

was evidence of its determination to “ ‘convict this guy of

something[.] * * * It simply proves what we’ve been saying

all along, and that is that the FBI’s charges are a joke.’ ” Pet.

App. A101; Gov’t Motion 18.

Because defense counsel continued te make statements

about the case to reporters, sometimes meeting them on the

courthouse steps, the government sought an order restrain-

ing the parties, counsel and their agents from publicly

commenting on the case during the pendency of the action.

On December 14, 1984, the district court denied the motion.

While the district judge concluded that he had the authority

to enter such an order, he declined to do so because trial

counsel had shown a willingness to cooperate with the

court’s informal request to refrain from making statements

to the press. Pet. App. A31; Gov’t Ex Parte Application to

Renew Motion for Restraining Order (Gov't Renewed

Motion), Exh. 1, at 9-10, United States v. Miller, Cr.

(Pet. App. A100). Greenberg stated that Miller, who had been assigned

to foreign counter-intelligence matters, had been attempting to snare the

Ogorodnikovs when he himself was arrested. Greenberg also disputed

other matters alleged in Agent Christensen’s affidavit and the indict-

ment. See Govy’t Motion for Restraining Order 19, United States v.

Miller, Cr. 84-972(A)-Kn (C.D. Cal. filed Nov. 28, 1984); Pet. 7. Accord-

ing to the newspaper account, FBI officials declined to comment on

Greenberg’s statements.

a

4

84-972(A)-Kn (C.D. Cal. filed Mar. 4, 1985). In response to

the statement of one of Ogorodnikova’s lawyers that the

defense attorneys might “at some future time deem it neces-

sary in the interest of our client to make a statement outside

the courtroom,” the district judge observed that “(t]he role

of the lawyer * * * isto promote aside in the courtroom and

not to be a publicity person for someone.” In the trial judge’s

view, talking to the press about the case could only amount

to an attempt “to persuade the potential trier of fact” outside |

the courtroom; the judge expressed the view that any

attempt by counsel “to try and create an atmosphere in

which a fair trial cannot be had, for either side,” was profes-

sionally unethical. Pet. App. A31-A32; Gov’t Renewed

Motion, Exh. 1, at 9, 12-14.

On January 22, 1985, the district court severed the trials

of Miller and the Ogorodnikovs and, at the defendants’

request, ordered the Ogorodnikovs’ trial to precede Miller’s.

On March 3, 1985, sixteen days before jurors were sche-

duled to appear for selection for the Ogorodnikov trial, the

Los Angeles Times published an article containing extensive

statements attributed to defense counsel, including Green-

berg. Pet. App. A32-A35; Gov't Renewed Motion, Exh. 2.

The lawyers’ comments focused on the prosecution’s deci-

sion to drop four counts of aiding and abetting espionage

against the Ogorodnikovs; one of Ogorodnikova’s lawyers

commented that the dismissal means “the government has

now conceded that no documents were ever passed” (Pet.

App. A33). Remarking on the government’s motives in

bringing the case against Miller, Greenberg was quoted as

asserting that “the FBI misled the U.S. attorney’s office

about the strength of the case until it was too late” (id. at

A34). The defense attorneys also provided a detailed

account of the defendants’ theory of the case, including

descriptions of the testimony expected from certain defense

witnesses. See id. at A32-A35. According to the newspaper

r |

5

account, “[a] federal prosecutor declined to respond to the

comments on grounds that a judge has asked all parties in

the case to avoid public discussion of the evidence” (id. at

A33).

2. After the appearance of the March 3 Los Angeles

Times article, the government renewed its application for

an order restraining extrajudicial statements. Pet. App.

A35-A36. At a March 5, 195, hearing on the motion, the

district court expressed “dismay” at the level of publicity

(id. at A5) in the case and rejected as “completely unpersua-

sive” the justifications offered by the defense attorneys for

their decision to speak to the press (id. at A6).? The court

also found that “the recent publicity that has occurred as the

[trial] date is practically upon us has been instigated by

counsel for defendants and seriously threatens to bias the

jury pool” (id. at A2-A3), thus “creat[ing] a serious and

imminent threat to the administration of justice in this case”

(id. at A7). And the court noted its “affirmative constitu-

tional duty to minimize the detrimental effects of pretrial

publicity upon the potential jury pool” (id. at A8).

In determining whether these circumstances justified

judicial action, the court explained that a restraining order

imposed upon trial participants differs in kind from a prior

restraint imposed directly on the press, of the sort that was

at issue in Nebraska Press Ass'n v. Stuart, 427 U.S. 539

(1976) (Pet. App. A3). The court nevertheless decided to

apply the stringent test set out in Nebraska Press Ass'n (Pet.

App. A8-A9). In doing so, the court found that the level of

publicity about the Miller case presented a “serious and

imminent threat” to “a fair trial before an unbiased jury”

Defense counsel asserted that they had made their public statements

to rebut alleged inaccuracies in a New York newspaper account (Tr. 5,

9). None of the coraments made to the Los Angeles Times, however,

addressed the subjects of the alleged inaccuracies.

6

(id. at All-A12), a problem that was compounded by the

imminence of trial (id. at Al2). Relying on Nebraska Press

Ass'n and Sheppard v. Maxwell, 384 U.S. 333 (1966), the

district court also found that prophylactic measures short

of a restraining order would not adequately counteract the

prejudicial effects of pervasive pretrial publicity (Pet. App.

A14-A21).4

The court accordingly concluded that “restraining coun-

sel and their agents from making extra-judicial statements

concerning the case is the most effective and least drastic

solution to prevent the dangers inherent in counsels’ com-

ments” (Pet. App. A21). The court therefore ordered the

attorneys and their agents to refrain from making “any

statements to members of the news media concerning any

aspect of this case that bears upon the merits to be resolved

by the jury” (id. at A23).°

3. On April 12, 1985, six weeks after the restraining order

was issued, petitioners sought a writ of mandamus to com-

pel the district court to dissolve the restraining order. The

‘The court explained that the use of voir dire to exclude biased jurors

would be ineffective (Pet. App. Al7-Ai8), particularly given the

defense attorneys’ assertion that they were ethically obligated to gener-

ate pretrial publicity favorable to their clients; the attorneys’ position

meant that, absent measures by the court to curb comments by counsel,

“prejudicial extrajudicial comments [would] continue during trial and

voir dire is powerless to neutralize such prejudicial publicity” (id. at

A19). Similarly, the court found that a change of venue or postpone-

ment would not obviate the problem because “[h]ere the problem is with

curbing unwarranted statements by counsel, and a change of venue or

postponement would simply have no effect on the problem” (ibid.). And

the court concluded that jury instructions would be inadequate to assure

a fair trial, finding that “the reasonably anticipated barrage of prejudi-

cial publicity will poison the impartiality of a jury, even with such

limiting instructions” (id. at A20).

‘In its original form, the district court’s order also restrained the

parties and witnesses from making public statements about the case

(Pet. App. A23-A24). The court subsequently modified the order sua

sponte to exclude these persons from its reach (id. ai A26).

|

7

court of appeals granted the petition for mandamus and

directed the district court to define the scope of its restrain-

ing order more narrowly (Pet. App. A28-A98).

At the outset, the court of appeals noted that the district

court’s order “neither denies the media access to any crimi-

nal proceeding nor bars the media from disseminating any

information that it obtains” (Pet. App. A42-A43).° The

court concluded, however, that the order amounted to a

prior restraint on petitioners’ speech (id. at A46), and that it

could be upheld only upon a showing that (1) the activity

restrained poses either a clear and present danger or a

serious and imminent threat to a protected competing in-

terest; (2) the order is narrowly drawn; and (3) less restrictive

alternatives are not available (id. at A47).

Citing Nebraska Press Ass'n, Sheppard, and decisions

from other circuits, the court of appeals found that the

district court’s orcer largely satisfied that test (Pet. App.

A48-A53). The court affirmed the district judge’s finding

that pretrial publicity in this case posed “a serious and

imminent threat to the administration of justice” (id. at

A59), noting that “[e]ven if an impartial jury could be

®The court of appeals left open the question whether the restraining

order violated “the first amendment by impairing the media’s ability to

gather news” (Pet. App. A44); the court noted that “none of the media

organizations that could be affected by the district court’s order have

joined this action” (id. at A45), and it held that petitioners lacked

standing to challenge an asserted infringement of the press’s rights. The

Radio and Television News Association of Southern California

(RTNA) subsequently sought a writ of mandamus from the court of

appeals challenging the order. On February 10, 1986, the court of

appeals denied that application. Radio & Television News Assn v.

United States District Court, 781 F.2d 1443 (9th Cir.). The court of

appeals reasoned that because the district court’s order restricts trial

counsel and not the press, RTNA’s right to gather and disseminate news

has not been restrained. The court of appeals also held that the public

has no First Amendment right to hear from trial participants.

8

selected, intense prejudicial publicity during and imme-

diately before trial could allow the jury to be swayed by

extrajudicial influences” (id. at A63; see id. at A64-A66).

The court of appeals also affirmed the conclusion that less

restrictive prophylactic alternatives would be insufficient to

ensure the integrity of the judicial process (id. at A71-A79).

Although the court of appeals found a restraining order

to be justified in this case, it held that the district court’s

order was overbroad. The court concluded that many

statements bearing upon the merits of the case, which would

be barred by the district court’s order, would pose no threat

to the administration of justice (Pet. App. A68). The court

of appeals therefore directed the district court to narrow its

“Testraining order in accordance with the appellate court’s

opinion (id. at A79).

In fashioning a narrow order, the court of appeals sug-

gested, the district court should consider holding the

government to the limitations on extrajudicial comments

imposed by 28 C.F.R. 50.2(b). As for defense counsel, the

court listed six categories of statements that might appro-

priately be proscribed: those relating to (1) the character,

credibility, or reputation of a party; (2) the identity or

expected testimony of a witness or party; (3) the contents of

any pretrial statement; (4) the nature of physical evidence;

(5) the strengths or weaknesses of either party’s case; and

(6) any other information that the lawyer knows to be

inadmissible as evidence that would create a substantial risk

of prejudice if disclosed. Pet. App. A69-A70. The court of

appeals directed the district court, on remand, to fashion an

order specifying the proscribed types of statements (id. at

A68-A69, A79).’ The district court has since entered such

7Judge Sneed concurred, emphasizing that “the conduct of lawyers

should eliminate the necessity of imposing [restraining] orders” (Pet.

App. A80). Judge Nelson concurred in part and dissented in part; she

accepted the court’s statement of the applicable legal standard, but

9

an order, limiting the prohibitions of the restraining order

to the six specific categories of statements listed by the court

of appeals (id. at A99-A106).®

ARGUMENT

1. Petitioners’ principal contention (Pet. 24-35) appears

to be that the court of appeals’ decision cannot be recon-

ciled with Nebraska Press Ass'n vy. Stuart, 427 U.S. 539

(1976). In fact, however, this case involves a restraining

order that is wholly different in nature from the one at issue

concluded that the record here does not “reflect[] an adequate showing

of a ‘clear and present danger or a serious and imminent threat’ to the

empaneling of an impartial jury in this case” to justify the issuance of a

restraining order (id. at A90).

*The Ogorodnikovs’ trial began in April 1985. They pleaded guilty

some two months later. Jury selection for Miller’s trial began on July 26,

1985; the court declared a mistrial on November 6, 1985, when the jury

was unable to reach a verdict. Jury selection for Miller’s second trial

began on February 13, 1986, and the trial is now underway. We note that

the restraining order will expire upon the termination of trial (see Pet.

App. A23-A24), and that petitioners’ chalienge to the order will, at that

point, become moot. Petitioners cannot bring themselves within the

“capable of repetition, yet evading review” exception to the mootness

doctrine. To do so, they would have to demonstrate not only that the

challenged order was too short in duration to be fully litigated prior to

its termination, but also that there is “a reasonable expectation that the

same complaining party [will] be subjected to the same action again.”

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (emphasis added).

Petitioners, however, have not suggested that they regularly are sub-

jected to restraining orders by federal district courts, and they have

offered nothing to demonstrate “a ‘reasonable expectation’ or a

‘demonstrated probability’ ” that they will be involved in the “same

controversy” in the future. Murphy v. Hunt, 455 U.S. 478, 482 (1982).

Nebraska Press Ass'n does not lead to a different conclusion; there, the

Court found it lixely that the same dispute would arise in the future

between the state and the press. 427 U.S. at 546-547; see Murphy, 455

U.S. at 483 & n.8. Representatives of the press, however, are not parties

to this action, so the possibility that the press may have cause to

complain of restraining orders against other lawyers in othes criminal

cases in the future cannot be invoked to avoid a finding of mootness

upon the conclusion of Miller’s trial.

10

in Nebraska Press Ass'n. There, the Court set aside an order

that directly restrained the press from publishing trial-

related materials, noting that challenges to prior restraints

of that sort present the most compelling First Amendment

claims. See 427 U.S. at 556-560. Here, in contrast—as both

courts below took pains to explain—the order at issue

imposes restraints only on certain of the trial participants. It

leaves the press free to publish whatever information it

obtains. See Houchins v. KQED, Inc., 438 U.S. 1, 9 (1978)

(opinion of Burger, C.J.); Pell v. Procunier, 417 U.S. 817,

834 (1974).

This Court’s decisions leave little doubt that trial judges

have the authority to issue such limited restraining orders

when necessary to guarantee the integrity of the judicial

process. In Sheppard v. Maxwell, 384 U.S. 333 (1966), for

example, where the Court reversed a conviction that had

been tainted by extensive extrajudicial publicity, the Court

found it “obvious that the judge should have * * *

impos[ed] control over the statements made to the news

media by counsel” (id. at 360). See id. at 359. The Court

suggested that the trial court “might well have proscribed

extrajudicial statements by any lawyer, party, witness, or

court official which divulged prejudicial matters.” The “con-

trol of these sources,” the Court stated, was “concededly

within the [trial] court’s power” (id. ai 361). Indeed, the

Court concluded that “[c]Jollaboration between counsel and

the press as to information affecting the fairness of a crimi-

nal tria! is not oniy subject to regulation, but is highly

censurable and worthy of disciplinary measures” (id. at

363).

Similarly, in Neéraska Press Ass'n itself, the Court re-

affirmed Sheppard’s conclusions on this point (427 U.S. at

553-554, 564), and cited with approval the recommenda-

tions of bar association groups “that trial courts in approp-

riate cases limit what the contending lawyers, the police,

eT

— a

11

and witnesses may say to anyone” (id. at 564).° In his con-

curring opinion, Justice Brennan made the same point even

more explicitly:

As officers of the court, court personnel and attorneys

have a fiduciary responsibility not to engage in public

debate that will redound to the detriment of the

accused or that will obstruct the fair administration of

justice. It is very doubtful that the court would not have

the power to control release of information by these

individuals in appropriate cases, see In re Sawyer, 360

U.S. 622 (1959), and to impose suitable limitations

whose transgression could result in disciplinary pro-

ceedings.

Nebraska Press Ass’n, 427 U.S. at 601 n.27 (Brennan, J.,

concurring in the judgment).

Contrary to petitioners’ contentions (Pet. 16, 28), every

court of appeals that has considered the question also has

upheld the authority of trial courts to impose restraints on

statements by trial participants when necessary to ensure a

fair trial. See In re Russell, 726 F.2d 1007 (4th Cir. 1984),

cert. denied, No. 83-6543 (Oct. 1, 1984) (reasonable expecta-

tion of inflammatory and prejudicial statements from

potential witnesses justified order restraining them from

discussing proposed trial testimony with press); Chicago

Council of Lawyers v. Bauer, 522 F.2d 242, 249 (7th Cir.

1975), cert. denied, 427 U.S. 912 (1976) (approving bar

Petitioners, citing 427 U.S. at 564 n.8, suggest (Pet. 26) that the Court

in Nebraska Press Ass'n left open the question whether courts have the

authority to impose restraints on lawyers in criminal cases. In fact, the

Court simply declined to discuss the question whether such restraints

implicate the First Amendment rights of the press. The Court nowhere

suggested that the constitutional rights of trial participants may be

infringed when the participants are subjected to restraints such as the

ones imposed in this case.

12

association ethical rules and local district court rules for-

bidding lawyer contacts with the press that pose a“ ‘serious

and imminent threat’ ” of interference with a fair trial); Farr

v. Pitcness, 522 F.2d 464, 468-469 (9th Cir. 1975), cert.

denied, 427 U.S. 912 (1976) (acknowledging authority of

district courts to restrict extrajudicial speech of parties,

lawyers, and court personnel); United States v. Schiavo,

504 F.2d 1, 6 (3d Cir.) (en banc), cert. denied, 419 U.S. 1096

(1974)(same); United States v. Tijerina, 412 F.2d 661 (10th

Cir.), cert. denied, 396 U.S. 990 (1969) (affirming criminal

contempt conviction for violation of an order restraining

defendants from making extrajudicial comments about

their case where the order was based on a reasonable like-

lihood of interference with a fair trial). Cf. In re San Juan

Star Co., 662 F.2d 108, 113-118 (1st Cir. 1981) (upholding a

protective order in a civil case forbidding disclosure of

deposition evidence to members of press or public because

prejudicial publicity might make empaneling of an impartial

jury impossible); United States v. Norris, 780 F.2d 1207,

121i-1212 (Sth Cir. 1986) (affirming conviction over

defendant’s claim that he was prejudiced by an order prohib-

iting public comment by trial participants). !

2. Petitioners’ complaints here are particularly unper-

suasive in light of the extraordinary measures the lower

courts took to narrow the scope of Téstraining order. Des-

pite their observations that the challenged order did not

impose a restraint on the press, both courts below chose to

safeguard petitioners’ rights by applying the stringent

Nebraska Press Ass'n test. While petitioners appear to

10Petitioners’ contention (Pet. 33) that the court of appeals’ ruling

conflicts with Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970), is

without merit. Chase simply held that a particular restraining order was

overbroad ard not supported by the record. See id. at 1061. Implicit in

the decision was the conclusion that an appropriately limited order

would be constitutional. That conclusion was confirmed by the Seventh

Circuit’s subsequent decision in Chicago Council of Lawyers.

13

acknowledge this point (Pet. 20), they assert that the courts

below erred by failing to make specific findings about the

prejudicial effects of pretrial publicity (Pet. 18-19, 22-23,

34-35) and by basing the restraining order on “the mere fact

of attorney comments” (Pet. 22).

These assertions are inaccurate. The district court ex-

pressly found that the extensive pretrial publicity in this case

was threatening “to bias the jury pool” (Pet. App. A2-A3,

A6, A9). The district court also found that the anticipated

barrage of publicity immediately prior to and during trial

would make a fair proceeding impossible (id. at A12-A13,

A19). And the district court extensively examined the al-

ternatives to a restraining order (id. at Al4-A22), conclud-

ing that none would effectively guarantee a fair trial. That

conclusion hardly required speculation on the court’s part,

as petitioners suggest (Pet. 34-35): defense counsel had

announced that they believed themselves to be ethically

obligated to generate publicity favorable to their clients (see

Pet. App. A5, A10).'! The court of appeals affirmed each /f

these specific factual findings by the district court. The

record before the district court amply supported those find-

ings, and, in any event, those factual determinations do not

warrant review by this Court.

Petitioners’ challenge to the six categories of statements

that the court of appeals found properly proscribed is sim-

ilarly without merit. While petitioners maintain (Pet. 51-54)

that the court erred by referring to ethical guidelines in

developing its standards, this Court has indicated that the

!! Petitioners’ contention that they had a right and duty to make public

statements on behalf of their clients—a claim that they restate before

this Court (Pet. 46-50)—has repeatedly been rejected: “ ‘The theory of

our system is that the conclusions to be reached in a case will be induced

only by evidence and argument in open court, and not by any outside

influence, whether of private talk or public print.’ ” Sheppard, 384 U.S.

at 35 1yQuoting Patterson v. Colorado, 205 U.S. 454, 462 (1907)).

14

consideration of such guidelines is appropriate in the for-

mulation of orders such as the one at issue here. Nebraska

Press Ass'n, 427 U.S. at 564 & n.8. Petitioners’ further

suggestion that the categories are overbroad (Pet. 54-56)

simply disregards the court of appeals’ efforts to tailor the

order narrowly; it is difficult to imagine how the court could

have devised more precise standards for “proscrib[ing]

extrajudicial statements by any lawyer * * * which divulge{]

prejudicial matters.” Sheppard, 384 U.S. at 361. See

Nebraska Press Ass'n, 427 U.S. at 601 (Brennan, J., concur-

ring in the judgment).

3. Finally, petitioners maintain that the restraining order

in this case impairs the First Amendment rights of the press

to gather information (Pet. 36-46) and that they have stand-

ing to challenge that impairment (id. at 56-59). These con-

tentions were properly rejected by the court of appeals. Even

granting petitioners’ implausible assertion that the press has

a First Amendment right to obtain a particular lawyer’s

views about the course of an ongoing criminal proceeding,

petitioners have no standing to advance such a claim.

The general standing rule articulated by this Court is that,

“even when the plaintiff has alleged injury sufficient to meet

the ‘case or controversy’ requirement, * * * the plaintiff

generally must assert his own legal rights and interests, and

cannot rest his claim to relief on the legal rights or interests

of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975).

While the Court has recognized exceptions to this rule—as

the court of appeals recognized (Pet. App. A45)—none of

those exceptions is applicable here. There is no legal rela-

tionship between petitioners and members of the press. See

Warth, 422 U.S. at 510. And petitioners have not suggested

that members of the press “are disabled from asserting their

own right in a proper case” (ibid. (footnote omitted)). To the

contrary, as is noted above (at note 6, supra), the Radio and

Television News Association of Southern California

15

(RTNA) itself sought a writ of mandamus from the court of

appeals, arguing that the district court’s restraining order

violated the First Amendment. That contention was re-

jected by the court of appeals. Radio & Television News

Ass'n v. United States District Court, 781 F.2d 1443 (9th

Cir. 1986). If that ruling is to be challenged in this Court, the

challenge should be brought by the RTNA.

CONCLUSION

The petition for a writ of certiorari should be denied.

Resnvectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

GLorIA C. PHARES

Attorney

May 1986

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