# Appendix — Keene Corp. v. Lindsay

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1144%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 934

## Text

TABLE OF CONTENTS
FOR APPENDIX

API
PAGI
U.S. Constitution, amendment I . Pes l
U.S. Constitution, amendment XIV, $1 ..... l
Harris County, Texas, District Court Order of
RE. Ss ME boa bo kee ae ee ake - 2
Transcript of Proceedings of March 24, 1992 in
Harris County, Texas, District Court.... 3

Harris County, Texas, District Court Order of
a ee a.) | errr errr ees 1]

Opinion of Texas Court of Appeals overruling mo
tion for leave to file mandamus petition, over
ruled, March 27, 1992, opinion filed Apmil 2,
1992 oer er 12

Opinion of Texas Court of Appeals overruling peti
tion for leave to file writ of prohibition, over

ruled March 27, 1992, opinion filed April 2,
aa a te aa eet ee oe ere “AAS 14

April 15, 1992 Order of The Supreme Court of

Texas dismissing as moot motion for leave to

file petition for writ of mandamus ..... 16
Keene’s motion addressed to The Supreme Court

of Texas for rehearing of motion for leave to

file petition for writ of mandamus......... 18
May 20, 1992 Order of The Supreme Court of

Texas overruling Keene’s motion for rehearing

of motion for leave to file petition for writ of

ET eee err Tere Tere Tere 39
Advertisements previously published by Keene

TEE 5 (cas s-ekigccnca ea cccne caveats es 4]
Opinion of Court of Special Appeals of Maryland,

in Keene Corporation v. Abate, et al., opinion

ae: ner reer re 70

App.

UNITED STATES CONSTITUTIONAI
PROVISIONS INVOLVED

Amendment |]

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof: or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to peti

tion the Government for a redress of grievances.

Amendment XIV

Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
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 pro

tection of the laws.

Vé

at

advertisement which

ie) aced In the Houstor (Chro?

inty a jury was deliberating in a tma! in whic!
efendant Keene { Orporation Was a Party It is theref
(\1 EL y ‘ET a» >} ’ 4 ail

MIRDERED, ADJUDGED AND DECREED that Ke
poration shall not advertise regarding asbestos |i

} nanv ne : y ihliched in Harr ( nt |"

Nn any newspaper pudusned In Marris Vounty, iL

nt the verdict of the jury in the above-referenced ca
received bv this Court

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SOLU ad a IC & ISLC Ou! )] —-
) . +544 ;
med Plaintiffs

7 ai

Wspapers WN

Lii\

+

per, on March

rary T ’
ALALIOL LL

tising regarding asbestos lit

>}

tached as Exhibit ‘‘A’’ to th

Keene Corporation. Fron

rdict * the

e Defendant Kee

of the jury is received by this C

1e Corporation is prohibited fron
tigation in any
ure published in Harns County, T:

this Order is a cor

a COD )

:
the Defendant Keene Corpora
t

e, a Harris County N
5, 1992. On that 1

n same day in Harris

t ‘ry a 7 mnrry TY Y Tet y rY\TOCOrnNDpD Ts
and S., IN ET Al ROTH JUDICIAL DISTRI

STATEMENT OF FACTS
EXCERPT OF PROCEEDINGS
MARCH 24, 1992

BE IT REMEMBERED that the above entitled and num
bered cause came on for Trial before said Honorable
Court, Tony Lindsay, Judge Presiding, at the Civil Courts
Building, 301 Fannin, Houston, Texas, on the 24th day

f March, 1992, and the following proceedings were had
APPEARANCES
FOR PLAINTIFFS JIMMY R. BLEVINS AND
SANDRA R. BLEVINS, ET AL
MR. JOHN EDDIE WILLIAMS
MR. ERIC BOGDAN
Umphrey, Burrow, Williams & Baile)
8441 Gulf Freeway
Suite 600
Houston, Texas 77017

MR. JOSEPH COX, JR
Ness, Motley, Loadholt, Richardson & Pool
151 Meeting Street

Suite 600

P.O. Box 11387

Charleston, South Carolina 29402

MR. CAMERON WADDELL

Ness, Motley, Loadholt, Richardson & Pool
2202 Jackson Street

P.O. Box 365

Barnwell, South Carolina 29812

FOR DEFENDANT KEENE CORPORATION
MR. JAMES H. POWERS
MS. GWEN FROST
Roberts, Markel, Folger & Powers
1010 Twenty-Four, Greenway Plaza
Houston, Texas 77046

FOR DEFENDANT PITTSBURGH-CORNING
MR. JOHN H. CUMMINGS
Hassard, Bonnington, Rogers & Hube
50 Fremont Street
Suite 3400
San Francisco, California 94105
MR. NICHOLAS S. BALDO
Weller, Wheelus & Green
P.O Box 350

>

Jeaumont, Texas 77704-0350

THE COURT: With regard to Mr. Powers’ motion, |
haven't seen a copy of it yet, but I assume that M)
Williams has.

MR. POWERS: Here is a copy, Your Honor

THE COURT: Okay. What is Mr.—who wants to reply
his motion? Anybody?

MR. WILLIAMS: I guess, well, Judge, it’s a motion for
reconsideration and you know-

THE COURT: The only difference that I see now is
that he gave me a copy of about six cases that I took
home last night. I don’t know if—I assume they are the
same ones that you have got.

MR. POWERS: Yes, ma’am. They are all the ones listed
in the motion.

THE COURT: So have you read or referred or

MR. WILLIAMS: I am not had an opportunity to read
and analyze those cases, so I am kind of

THE COURT: Okay. What it seems to me like is that
we probably have an order that is broader than it has
to be to do what I wanted to do to begin with. The order
does not prevent—regardless of what my view may De
on whether they should or not, it does not prevent Mr
Keene’s client from talking to the news media, it does
not prevent a news article, does not prevent them going

+

and talking to groups or whoever this is they want to
talk to. They can even go door to door if they want
At least that’s not prohibited by the order
MR. WILLIAMS: But not to any of our 138 jurors
THE COURT: Well, yes. They really get in trouble if
they go to them. But it was never particularly my inten

tion to prohibit them from running an advertisement In
the paper which would say we sold asbestos products In
such and such a year and asbestos causes cancer and we
contend this or that with regard to whether it does or
doesn’t cause cancer or whatever.

What my intention was is to prohibit any inflammatory)
advertisement directed at jurors on the subject of at
torneys fees and punitive damages. Like the ad that your
client ran when the jury was deliberating in Judge Wood's
court.

Now, I don’t know if to narrow that order, if it would
be appropriate to say that they are prohibited from ad
vertising regarding asbestos litigation, except for facts in
contention that have been brought out in this trial or have
been brought out in some other trial. I don’t know how
to—you are not going to get it out in trial, I assume, that
legal fees are up, up and away. If you put it that way,
would that cover what we are really wanting to cover?

MR. WILLIAMS: Yes, Your Honor.

THE COURT: Okay. Then draw me up another order

MR. POWERS: Your Honor, I still think that the court

t }

would be exceeding its power in making any order that

App. 6

restrains Keene from speaking, based on the content of
tne speech before the speech is uttered and I think that’s
the thrust of all of the cases that both our Supreme
Court, Texas Supreme Court and the United States Su
preme Court, that common thread runs throughout all of
the first amendment cases that pnor restraints are just

heir face invalid. And there hasn't been any show
ing—I know the court’s read Nebraska Press Association
vs. Stewart because I gave it to you yesterday and |
think that case is very instructive. In that case, if the
lls, the State court in Nebraska prohibited the
newspapers from talking to the prosecutors in a criminal
case. And Nebraska Press Association took it up. And the
Supreme Court paid particular attention to the fact there
had been no showing at the trial court level that other
means of protecting the fairness of the trial, which was
the court’s purpose in that case in entering the gag order
in the first place that no alternative measures had been
examined and found wanting.

And one of the ones that they suggested would take
care of the problem would be for the court to instruct
the jury on whatever issue it was that would be subject
to the news articles and I know that you, Your Honor
when you gave this jury their instructions, told them not
to read anything, not to discuss anything, not to look at
anything in the newspaper. And I think that instruction,
we have to presume the jury’s going to follow. And even
if the court gives that instruction on a periodic basis, like
perhaps every day, if the jury follows the court’s instruc-
tions, then our advertising which we are directing at the
public at large and not at any specific jury, then our ad-
vertising—we can get our purpose served and if the court
can get its purpose served by insulating this jury from
whatever effects the ad may have on their deliberations,

App 7

then I think that’s the proper way to do it under the first
amendment.

If it turns out—if the plaintiffs or the court is able to
establish that that, in fact, is not sufficient to protect the
integrity of the trial, then I think maybe we readdress
the matter on proper motion and examine it. And jus
look at the issue again.

But I think any prior restraint of Keene’s speech 1s in
permissible under the First Amendment, and that’s tl
basis of our motion.

THE COURT: Okay. If they hadn’t already managed
to speak that speech recently and if they were being re
strained for a very long time, I probably would agree with
you. Considering that they have already made the speech
to this audience and that they are only being restrained
for something like two and a half to three weeks, I think
that their interest in being able to inflame the jury pool
is so little that it doesn’t keep us from entering this order.
But I do want a less restrictive order.

MR. WILLIAMS: Sure, Judge. We must always bal
ance—the First Amendment, of course, is important but
also the amendment that gives us the right to a trial by
jury is also of equal importance and found in the same
Constitution. And must always balance things. It always
comes down to balancing. That’s what we are just ask-
ing the court to do. I think the court struck a very good
balance.

MR. POWERS: One of the problems with what you
said, I guess, is that—well, in addition to the fact tha

I disagree with everything you said, but one of the spe-
cific factual problems with what you said is that it’s true
that the court’s order is only for the pendency of this

trial. That is even—if it’s just while this jury is deliber
Ylal. Nat is even-—lLu il S US VM Lilt LiLiS jul 1S ae LIVE!

. : . 9 ;
IMINO — + w« 17h
uring our pre-triai wnen we

; > duet af xy : vail
ating. But if you will

App. 8

first discussed this issue, you yourself recognized that we
are subject to trial settings virtually every week in Har-
ris County. It’s conceivable, and I think likely, if you
enter this order, that other courts may do the same thing
and Keene will be faced with the prospect of never be-
ing able to express its views on the affect of asbestos liti-
gation on our judicial system and our economy so long
as there is a trial setting in Harris County because, for
example, I have been in trial almost every day in an as
bestos case since February 3rd of 1992 and had such an
order been entered on February 3rd, 1992, it’s now March
24th, isn’t it? And Keene would not yet be able to ex
press its views, would be facing probably another week
r so of being unable to express its views and I know
that I am set for trial sometime in the middle of Apmil
in Judge Cochran’s court. So I think there is a very real
danger that this type of order is going to completely pro-
hibit Keene from expressing any views on asbestos litiga
tion.

THE COURT: Are you all set
up at the end of this week. Are you all set next week

}

my two weeks will be

for asbestos cases’

MR. WILLIAMS: I don’t believe so.

MR. POWERS: Not in Harris County as far as | know

THE COURT: So the next setting is Judge Cochran’s
court in the middle of April?

MR. COX: It’s the 27th.

THE COURT: I’m only talking about Harris County.

MR. POWERS: I know. But you are not leaving us
much of a window. There is nothing to keep you from
advising during those two weeks after my case ends and
hers begins—

THE COURT: And if you are so inflammatory, I don’t
know what she is going to do with you. But—

MR. POWERS: Judge, I don’t think we are inflam-
matory, No. 1.

I don’t know what the court’s ruling is. I know what
the court’s intention is.

THE COURT: My ruling is they have got to give me
a less restrictive order.

MR. POWERS: Does that mean this order is still in
effect?

THE COURT: For the moment, yes.

MR. POWERS: So you are denying my motion:

THE COURT: Sort of.

MR. POWERS: I don’t mean to quibble but, Judge, |
think I told you when they first asked for this, we would
take some action and just so the court knows, I intend to.

THE COURT: Well, I am granting your motion but the
order’s still in effect until | get the other one which |
assume will be probably about the end of the day. But
I am granting the motion in part, obviously.

MR. POWERS: I understand.

THE COURT: You guys go to lunch.

(Court in recess).

(END OF EXCERPT.)

STATE OF TEXAS
Ss.

COUNTY OF HARRIS)

I, LaVearn Ivey, Certified Shorthand Reporter, hereby
certify that I attended the proceedings in the above num
bered and styled cause.

I further certify that I reported same in shorthand and
later reduced it in writing.

I further certify that the foregoing 15 pages contain a
true and accurate representation of my shorthand notes
so taken as aforesaid to the best of my knowledge and
belief

WITNESS MY HAND this the 26th day of MARCH, A.D

1992

s/ LAVEARN IVEY
Certified Shorthand Reporter
301 Fannin, Room 512
Houston, Texas 77002
221-5790
Certificate No. 822
Expires 12-31-92

App. 11
NO. 84-69709

IN THE
DISTRICT COURT OF

BENJAMIN C. WILLIAMS
AND NEOMA WILLIAMS

LO? WP Mm

HARRIS COUNTY, TEXAS

g 1I51ST [sic]
AC&S, INC. ET AI 8 JUDICIAL DISTRICT
ORDER

BE IT REMEMBERED that on March 16, 1992 com-
menced the consolidated trial in the 280th District court
of the above-named Plaintiffs against the Keene Corpora-
tion. From this day until the verdict of the jury is re-
ceived by this Court, the Defendant Keene Corporation
is prohibited from advertising regarding punitive damages
and attorney’s fees in reference to asbestos litigation, in
any newspapers which are published in Harris County,
Texas. Attached as Exhibit ‘“‘A”’ to this Order is a copy
of an advertisement which the Defendant Keene Corpora-
tion placed in the Houston Chronicle, a. Harris County
Newspaper, on March 5, 1992. On that same day in Har-
ris County a jury was deliberating in a trial in which the
Defendant Keene Corporation was a party. It is therefore,

ORDERED, ADJUDGED AND DECREED that Keene
Corporation shall not place advertisements regarding puni-
tive damages and attorney’s fees in reference to asbestos
litigation, in any newspaper published in Harris County,
Texas until the verdict of the jury in the above-referenced
cases is received by this Court. The ORDER of MARCH
16, 1992 prohibiting KEENE from advertising is WITH-
DRAWN.

SIGNED the 24th day of March, 1992.

s/ Tony LINDSAY
JUDGE PRESIDING

T 4
im «ne

Fourteenth Court of Appeals
P]

NO. €14-92-00312-CV

EENE CORPORATION, Relato

t?
V

THE HONORABLE TONY LINDSAY, JOHN EDDIE
WILLIAMS, THE ATTORNEYS OF THE LAW
[RM OF UMPHREY, BURROW, WILLIAMS, AND

BAILEY and THE ATTORNEYS OF THE LAW FIRM O!
NESS, MOTLEY, LOADHOLT, RICHARDSON

AND POOLE, Respondents

ORIGINAL PROCEEDING
WRIT OF MANDAMUS

OPINION

On March 16, 1992, respondent, the Honorable Tony
ordered that relator is prohibited from advertis

1? 9)
Lindsay, L
.

ing regarding asbestos litigation in any and all newspapers
that are published in Harris County, Texas.

Relator asks that we order Judge Lindsay to vacate
that order. We decline to do so and overrule the motion
o file petition for writ of mandamus

i

+

ror teave

PER CURIAM
Motion for leave to file Petition for Writ of Mandamus
Overruled March 27, 1992 and Opinion filed April 2, 1992.

Panel consists of Justices Junell, Robertson, and Draughn
(Justice Robertson not participating).

Do not publish - TEx. R. App. P. 90

NO. €14-92-003809-CYV

KEENE CORPORATION, Relator
THE HONORABLE TONY LINDSAY, JOHN EDDII
WILLIAMS, THE ATTORNEYS OF THE LAW
FIRM OF UMPHREY, BURROW, WILLIAMS, AND
SAILEY and THE ATTORNEYS OF THE LAW FIRM O}
NESS, MOTLEY, LOADHOLT, RICHARDSON,
AND POOLE, Respondents

ORIGINAL PROCEEDING
WRIT OF PROHIBITION

OPINION

\

On March 16, 1992, respondent, the Honorable Ton)
Lindsay, ordered that relator is prohibited from advertis

ing regarding asbestos litigation in any and all newspapers
that are published in Harris County, Texas.

Relator, in cause no. C14-92-00312-CV, asks that we
order Judge Lindsay to vacate that order. In this action,
relator asks that we prohibit respondents, John Eddie
row, Williams, and Bailey and the attorneys of the law
firm of Ness, Motley, Loadholt, Richardson, and Poole,
from requesting such an order in future asbestos litiga-

y

Having overruled the motion for leave to file writ of

CONSIS|

THE SUPREME COURT OF TEXAS
P.O. Box 12248
Supreme Court Building
Austin, Texas 7871]
John T. Adams, Clerk

Apri lo, 1992
Mr. James H. Powers Mr. Kenneth C. Baker
Roberts, Markel, Folger Roberts, Markel, Folge
& Powers & Powers
Weslayan Tower, Suite 1010 Weslayan Tower, Suite
24 Greenway Plaza 24 Greenway Plaza
Houston, TX 77046 Houston, TX 77046
Mr. John E. Williams, Jr. Mr. R. Lyn Stevens
Umphrey, Burrow, Williams Weller, Wheelus & Gre
& Bailey 550 Fannin Street
8441 Gulf Freeway, Suite 600 5th Floor, Petroleum Ti
Houston, TX 77017-5001 Reaumont, TX 77704

Ms. Melinda L. Wesner

Umphrey, Burrow, Williams
& Bailey

8441 Gulf Freeway, Suite 600

Houston, TX 77017-5001

RI Case No. D-2264
Style: KEENE CORPORATION
\ THE HONORABLE TONY LINDSAY, JUDGI

y°

1
LO1O

Ee}

we!

Today, the Supreme Court of Texas dismissed as moot
to file petition for writ of man

relator’s motion for leave
damus in the above styled case. (Chief Justice Phillips not

+++ ’
SILUINMN

ANCA E. MORIN

App. 18

IN THE TEXAS SUPREME COURT
KEENE CORPORATION,
Relator
VS
HONORABLE TONY LINDSAY

Respondent

RELATOR’S MOTION FOR REHEARING

Respectfully Submitted,
ROBERTS, MARKEL, FOLGER &
POWERS
By: JAMES H. POWERS
KENNETH C. BAKER
Weslayan Tower, Suite 1010
24 Greenway Plaza
Houston, Texas 77046
(713) 840-1666
ATTORNEYS FOR RELATOR

App. 19

CONTENTS

Sie Ol» ya rr [19]
LIST OF AUTHORITIES .. [20]
EXHIBITS ..... eo mch as 26)

App 20

LIST OF AUTHORITIES

Nebraska Press Ass Stuart, 427 U.S. 5389
UND RELA Sa ee sabeaseceuameron 23, 25]
State Lodge, 608 S.W.2d 910 (Tex. 1980)... [23]

franiar Mus m” Ora? v. €C ty of San Antonio

615 S.W.2d 202 (Tex. 198] [23]

se

App. 2]
IN THE TEXAS SUPREME COURT
KEENE CORPORATION.
Relator

HONORABLE TONY LINDSAY,

Respondent

RELATOR’S MOTION FOR REHEARING

Respectfully Submitted.
ROBERTS, MARKEL. FOLGER &
POWERS
By: JAMES H. POWERS
KENNETH C. BAKER
Weslayan Tower, Suite 1010
24 Greenway Plaza
Houston, Texas 77046
(713) 840-1666
ATTORNEYS FOR RELATOR

TO THE HONORABLE JUSTICES OF SAID COURT:

Keene Corporation files the following Motion for Rehear-
Ing:

I

On April 15, 1992, this Court dismissed as moot Rela-
tor’s Motion for Leave to File Petition for Writ of Man-
damus. This court erred in dismissing Relator’s Motion
for Leave to File Petition for Wnt of Mandamus because
the issues presented therein are capable of repetition, yet
evading review and therefore are not moot

I]

The name and addresses of the attorneys of record for
the parties to the trial court’s order are:

Mr. James H. Powers

Roberts, Markel, Folger & Powers
24 Greenway Plaza

Houston, Texas 77046

Mr. John E. Williams

Umphrey, Burrow, Williams & Bailey
8441 Gulf Freeway, Suite 600
Houston, Texas 77017

Mr. Frank Bean
Bean and Manning
1500 San Felipe Plaza
5847 San Felipe Road
Houston, Texas 77057

The remaining party to the trial court’s order is:

Honorable Tony Lindsay
280th Judicial District Court
Harris County Courthouse
Houston, Texas 77002

App. 23

- Iii.

In Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976),
the United States Supreme Court considered a Nebraska
trial court’s order which prohibited publication by the
press of certain information pertaining to a criminal trial.
The order expired by its terms when the jury in the case
was impaneled. Jd. at 546. Before the Supreme Court could
hear the matter, the Defendant had been convicted and
sentenced to death. Jd. Nevertheless, the Court held that
“Jurisdiction is not necessarily defeated simply because
the order attacked has expired, if the underlying dispute
between the parties is one capable of repetition, yet evad-
ing review.” Jd. The Court further held that if it declined
to consider the issues presented on the grounds of moot-
ness, “‘the dispute [would] evade review, or at least con-
sidered plenary review . . . by [the] Court since these
orders are by nature short lived.” (emphasis supplied) Jd
at 547. This principle was recognized by the Texas Su-
preme Court in State v. Lodge, 608 S.W.2d 910, 912 (Tex.
1980) and again in Jranian Muslim Org’n v. City of San
Antonio, 615 S.W.2d 202, 209 (Tex. 1981).

IV.

The same scenario is presented here. While the order
complained of has expired, the issue almost certainly will
repeatedly confront Relator in each asbestos-related per-
sonal injury trial setting in Harris County which involves
Plaintiffs’ counsel below, John Williams. Attached as Ex-
hibit “‘A”’ is a currént listing of Relator’s asbestos-related
trial settings in Harris County involving Mr. Williams. In-
deed, Mr. Williams has expressed his intention to move
for an order similar to that entered by Judge Lindsay in
other cases involving Keene as a Defendant. Keene believes

App. 24

that other judges, without appropriate guidance from this
Court, will continue to accede to Plaintiff counsels’ de
mands for such orders.

V.

At least one judge, Judge Sharolyn Wood of the 127th
Judicial District Court of Harris County, has expressed
an intention to enter an order similar to Judge Lindsay’s
in future cases involving Keene. Indeed, Judge Wood has
entered two other orders touching upon this very sensitive
issue. On April 8, 1992, Judge Wood entered an order re
quiring Keene to produce all documents related to its
advertisement placed in the Houston Chronicle on March
6, 1992. See Exhibit “B’’. It is the placement of this ad
vertisement which prompted Judge Lindsay to enter the
order made the subject of Relator’s petition for Writ of
Mandamus before this Court. Following filing of a Mo-
tion for Leave to File Petition for Writ of Mandamus and
Petition for Writ of Mandamus in the Fourteenth Court
of Appeals in Houston, Judge Wood withdrew her order
and entered a new order dated April 22, 1992. This new
order requires that Keene, among other things, produce
documents pertaining to its March 6, 1992 advertisement.
See Exhibit “C’’. Clearly, these orders do not amount to
a prior restraint, nor do they restrict Keene’s exercise
of free speech. However, they do constitute an impermissi-
ble inquiry into the motives and mental processes behind
Keene’s exercise of free speech and demonstrates [sic] the
certainty for repetition of this issue. Absent intervention
by this Court, Keene fully expects to be required to initiate
mandamus proceedings in order to protect itself from fur-
ther Court interference with its First Amendment Rights.

VI.

Orders restricting Keene’s right to publish advertise-
ments pertaining to asbestos-related litigation will be re-
peated. Further, due to the short-term nature of such
orders, an individual order infringing upon Keene’s First
Amendment Rights will probably expire before review by
this Court is possible. Therefore, Relator respectfully
requests that according to the principles set forth in
Nebraska Press Ass’n v. Stuart, 427 U.S. 546 (1976), that
this Court grant its Motion for Leave to File Petition for
Writ of Mandamus and consider the issues presented in
its Petition for Writ of Mandamus.

Respectfully Submitted,
ROBERTS, MARKEL, FOLGER &

POWERS

JAMES H. POWERS
Texas State Bar No. 16217400
KENNETH C. BAKER

Texas State Bar No. 01584480
Weslayan Tower, Suite 1010
24 Greenway Plaza

Houston, Texas 77046

(713) 840-1666

ATTORNEYS FOR RELATOR

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing instrument has
been forwarded to counsel of record by certified mail, re-
turn receipt requested, Lawyer’s Filing Service and/or
regular mail on ______ day of ____s,:-1992.

App. 26

EXHIBITS

Exhibit A— Current listing of Keene’s trial settings in
Harris County involving Mr. Williams

Exhibit B— Order dated April 8, 1992

Exhibit C— Order dated April 22, 1992

4/29/92

PLAINTIFF

GADUS, JOSEPH
HUHS, OSCAR
HUMPHREY, LINDSEY
KING, ARTHUR
MCCAFFETY, GEORGE
MCVAY, WILLIAM
HRAZ, JULIUS
ROUNTREE, EDGAR
SHERRILL, HORACE
TULLAR, GARLAND
VACHULE, CHARLES
CARR, CURLEY

COX, BEN

FOSTER, RICHARD
FROLICK, MILTON
GOODSON, DEWEY
ICKES, SAMUEL
KRAUS, WILMER
MCCALLUM, MAURICE
MICHALSKY, DANIEL
SABATIER, CHARLES
SCHULTZE, EUGENE
SIEMSEN, HUBERT
SOWELL, RAYMOND
STEPHENS, GENE
THIBODEAUX, HENRY
TOMPKINS, JACK
WISNOSKI, JOHN
BRYANT, JOHN P. JR

BUCK, RICHARD A., JR

GARCIA, MANUEL P
GARZA, RAMON
JACKSON, MACK C.
JIMENEZ, SYLVESTER
LEE, EARNEST JR. A
LEOS, JOE

MAY, EDWIN C.
MIRE, LARRY J.
OGLE, JAMES W.

> )
App. a

(

EXHIBIT A

COUNTY

HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS

DOCKET
NO
87-61045
87-31603
85-44380
85-60297
87-3492
87-51955
86-04693
86-15983
87-19969
85-68820
87-13298
87-42872
85-34559
89-53870
$5-65539
90-52152
88-03524
85-44884
90-24254
90-04960
85-50165
89-09839
89-43356
89-34694
88-12821
90-52136
86-15977
89-26762
86-04196
86-16053
86-16145
86-16026
87-0978 1
85-39421
87-3604 1
85-34558
85-44375
86-04695

86-28018

TRIAL

DATE

12/09/91

12/09/9]
12/09/9)
12/09/91
12/09/91
12/09/91
12/09/91
12/09/91
12/09/9]
12/09/91
12/09/91

1/13/92

1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/13/92
1/20/92
1/20/92
1/20/92
1/20/92
1/20/92
1/20/92
1/20/92
1/20/92
1/20/92
1/20/92

1/20/92

App

4/29/92

PLAINTIFF

ORSAK, ERNEST
SALINAS, LUCIANO
SINGLETON, CHARLES |
SKILLMAN, GERALD
SPAMPINATO, SAM
TOWNSEND, CARL A
WHEELER, CHARLES E
GARCIA, BENNIE
BOLTON, ROBERT
WILKIE, JAMES B
ANDERSON, WILLIE M
BRAMEL, PAUL D
CLARY, JOE W.
DELEON, JUAN A
DRAYTON, WILLIE
FLETCHER, JEFF SR
FOSTER, TALMAGE JR
FOWLER, RAY D.
HUSTON, ROBERT M.
JOHNSON, MCELVIN
JOHNSON, RUSSELL
MENDOZA, PAUL S
MONTOYA, POLICARPIO M
NICHOLS, DAVID E
NORWOOD, ROBERT A
SAMUEL, JOHNNIE
SIMS, LEONARD
VINCENT, CLARENCE
ALFRED, ANDRIA
ALLEE, WILLIAM F
ARYES, RAY

BABIN, EVAN R.
BATTARBEE, FLOYD A
BLEVINS, JIMMY R
BOHANNON, PAUL D.
BRYANT, WILLIAM
BURKHALTER, GRADY R
BUTSCHEK, GILBERT P

71°)

EXHIBIT

A

COUNTY

HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS

DOCKET

NO AT

85-44379
86- 16079
86-04188
85-6882 1
87-34980
86-60035
86-0573 1
89-26973
89-36514
89-35726
90-19431
89-24849
89-54145
88-57430
90-52139
91-25396
89-55150
88-60024
91-04683
89-18671
89-43369
88-57050
90-30277
91-12212
89-26793
91-19336
88-60082
90-25239
89-53998
90-63362
89-23671
88-11401
90-52156
85-50166
89-26960
85-18515
90-27876
90-17737

1/20/92
1/20/92
1/20/92
1/20/92
1/20/92
1/20/92
]

2

20/92

‘
¢

~
\~
—
~
se
~

2/26/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/02/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92

4/29/92

PLAINTIFF

CARTER, ALBERT E
CLAY, CLEVELAND
CREED, JOHN R.
CROW, LYNN L.
DAVIS, GRANT SR.
DAVIS, URBAN
DUFFEY, ARCHIE W.
FEIGLER, WILL E.
GREGORY, CHARLIE R.
GRUBBS, JAMES F
GUICHET, JULES J. JR.
HELLER, LOUIS W.
HOLCOMB, JUNE L.
KENNEDY, GEORGE T.
KNOWLES, JOE M.
LEJSAL, JOHN
MATHISEN, EARNEST J
MICHAELS, LEE R.
MORTON, GRADY D.
MOUTON, JAMES J.
PERRY, EMMETT N.
PLATT, MARION E.
RADICKE, HAROLD E.
RANEY, IKA JR.
REEVES, DAN
SCHISSER, ANTON F.
SCOTT, ROBERT D.
STEVENS, JOHN B.
STONE, DON D.
TERRY, MERVYN D.
TUCKER, GEORGE
WHEELER, WILLIAM L.

| nm
App. 29

WILLIAMS, BENJAMIN C.
WILLIAMS, JACK B.(JM ONLY)

WILLIAMS, WILLARD N.

WILLIS, HENRY C.
ALLOY, ADOLPH A.
BUTLER, JAMES F., JR.

EXHIBIT A

COUNTY

HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS

DOCKET
NO

87-61047
89-54365
85-1851]
86-10543
85-18514
85-18227
91-11027
85-39417
85-18233
85-34562
90-52154
86-50434
91-25376
9(0)-04995
85-68819
87-09784
91-23594
87-34983
85-50169
84-69709
87-57975
87-09790
90-63375
91-02736
90-63374
85-18236
85-18232
85-46937
89-19568
86-60034
87-34142
85-3453 1
85-50168
85-65520
85-18234
88-00037
89-011265
89-23668

TRIAL
DATE
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
3/16/92
4/06/92
4/06/92

oO
2
Oo
y J
>

1/29/92

INTI}
il

CHARLES, EASTON |
COLVIN, GEORGE R
COOPER, MARVIN
DILL, LEON M
REICHERT, WILLIE A
SALINAS, FELIPE
SHOCKEY, JOHN |
ROBERT
SONNIER, JUNEIR
TrHIBODEAUX, LILIRS
VERA, ROLANDO
WALLACE, CLINTEl1
WALLS, A.B.
WILLIAMS, WARREN K
ANDERSON, JAMES
BATES, AUBREY H
BLAIR, JAMES E.
BOOKER, JOSEPH J
CONTRERAS, RAFAE]
EVERETT, ARTHUR F
FOSTER, JAMES
FULCHER, WILLIAMS
HOWARD, JESSE M
MERRITT, MAXWELL K
POPE, MANDLE
RAMEY, LAVADA E
REAGAN, GUY D
ROBERTSON, GARNER W
SANCHEZ, JUAN
STAVELY, THOMAS
WARREN, ELROY
ALLEE, WILLIAM
ALLEE, WILLIAM F
BABINEAUX, AVERY J
BAIN, EARL G.
BOZARTH, AUBREY E
BROWNSON, JAMES SR
EVANS, SHELTON
GALLION, GATHER

SILLS

EXHIBIT

A

IUNTY
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS

HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS

DOCKET
NO

RR. 16200
9]-02280
90-52169
8656-00420 1
R8-56479
89-32273
90-17736
89-44769
R5-06R8827
90-63373
90-53566
88-30495
87-058193
90-63414
87-51960
88-01922
88-01916
88-14375
88-01427
88-53458
88- 16004
RR-OY4AO LS
88-1799]
R&S FABRS
88-31549
88- 19608
88-63695
88-11361
88-35892
87-61232
88-10740
90-63362
90-63362
90-6228 1]
91-17165
89-34684
88-57425
90-54821
R8-27998

TRIA

A AVASCLA
DATE

4/06/92
4/06/92
4/06/92
4/06/92
4/06/92
4/06/92

4 UH Q?

4/06/92

4/06/92?

4/06/92
4/06/92
4/06/92
4/06/92
4/06/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/20/92
4/27/92
4/27/92

4/27/92

or Q9°
or >)
Z2i/9

o”r 2)
21/9

or Q°
»”~ Q°

App.

1/29/99

GILBERT, REX

GOFF, LIMON
HEARRON, JOHN H
HICKMAN, LINARD V
HICKS, LEO III
HIGGINS, RICHARD
LEBLOW, JOHN W.
MCLAUGHLIN, PAT SR
MECHELL, LESTER §S
REDDING, ROSCOE
SLOVACEK, CALVIN F
STUBBLEFIELD, ERNEST
THOMAS, NEBRASKA
AYRES, RAY

BABIN, EVAN R.
BETTANSKI, FRANK
COLLIER, BOBBY J
DARNELL, JAMES

DE LA VEGA, JESSE
GILBREATH, BILLY J
GLENN, JOHNNIE
GRAU, NOAN

GRIGGS, WILLIE
HINEY ill, WILLIAM
HUBBARD, RUSH R
HUTTO, GARY D.
JOHNSON, RAYMOND L
KOEPPEN, WILLIE G
MANNING, GRADY T
MEGISON, JOHN T.
NANCE, WILLIAM
NELSON, ROBERT
NILES, GERALD L.
PINSON, ARTHUR E
PLEASENT, SR., EDWARD
POWELL, EDDIE
ROGERS, MONZEL
ROHDE, ELGIN
SAWEY, CHARLES

3]

EXHIBIT A

COUNTY

HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS

DOCKET
NO

88-60025
88-14376
85-50179
90-66576
88-60405
88-32799
88-11346
88-35895
88-54439
88-55672
90-52135
88-12812
88-60195
89-2367 1
88-1140]
88-49097
88-20512
89-2193]
89-34719
88-20513
89-55118
89-40346
87-51956
89-14254
89-23700
89-43351
87-19917
89-11269
87-46228
8'-19922
88-37051
88-34532
88-54435
87-34986
89-48857
89-52238
88-52001
89-18663
88-30497

TRIAI
DATE

4/27/92
4/27/92

4/27/92

5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
0/04/92
5/04/92
5/04/92
5/04/92
0/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92
5/04/92

5/04/92

4/29/92

PLAINTIFF

of

SMITH, AUBREY L.,
TURNER, CLARENCE
WILSON, MILTON Y
ALLMAN, NORMA
ALLRED, JOSEPH
AUZENNE, ALVIN
BAILEY, WILLIAM
BRAINER, GLOSTER
BRAUD, CHARLES
BROWN, ALFRED

JR

CAMPBELL, JOE (JM ONLY

COOPER, JIMMY W.
DAVIS, EARL
DORSEY, CLARENCE
DOZIER, RAYMOND
DUNSON, KARL
ELLIS, HOBART
FITZGERALD, GEORGE
FREEMAN, HENRY
GAUTREAUX, EDWARD
GOMEZ, OCTAVINO
GONSOULIN, RAYMOND
GOOD, CARL

GRACE, GEORGE
GRAY, MONROE
HALES, MURL
HARLAN, INEZ
HECKLER, ALBERT
HERMAN, JOHN
HIBBARD, MASTIN
KAMINSKI, JOHN
KENNIE, NATHANIEL
KIBBE, UDEEN

KIRK, GEORGE
KNIGHT, BILLY
MARESH, EDWIN
MERRITT, ROBERT
MORGAN, DARREL

—

COUNTY

HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS
HARRIS

_- « y a ] 7,
Re forms are needed because more than 60 percent of
‘8 the mone if SPe nt so far on ashestos litigation has gone

O awyers.

» ] ] . . ] Ty l~h]
Reforms would unclog our courts and use available

4

inds to meet the needs of future meritorious claimants

For more information or additional reprints
write to Keene Corporation at
200 Park Avenue, New York, NY 10168
Or call (212) 557-1900

KEENE CORPORATION

er ee

App. 70

REPORTED

IN THE COURT OF SPECIAL APPEALS
OF MARYLAND

No. 616

September Term, 1992

KEENE CORPORATION

wy

ABATE, ET AL

Garrity
Bloom,
Motz,
da

Opinion by Motz, J.

Filed: July 1, 1992

The appeal before us is the most recent in the spate
of asbestos-related cases winding through the State’s court
system. The sole question with which we are now faced
is whether the Circuit Court for Baltimore City can con-
stitutionally enjoin Keene Corporation (‘‘Keene’’), one of
several defendants in a trial now underway, from adver-
tising its views, before the jury returns a verdict, on the
societal impact of the case and of asbestos litigation in
general. Because the First Amendment to the United
States Constitution and Article 40 of the Maryland Decla-

‘

ration of Rights prohibit such an injunction, on June 23,

App. 7]

1992, we entered a per curiam order vacating the lower
court’s order granting the injunction. We now explain the
reasons for our decision.

(1)

The trial below began in February of 1992. From the
outset, it has generated a great deal of public interest.
Members of the White Lung Association have staged nu-
merous demonstrations outside the courthouse. carrying
picket signs and handing out fliers. The demonstrations
at one point prompted the defendants, including Keene,
to move for an injunction against the demonstrators. The
trial court refused to grant the injunction because it “felt
on a balancing consideration” it “could favor the First
Amendment as [it] should and not have a risk to the jury”;
instead it instructed the jury to ignore the demonstrators
and to attempt to avoid them when entering and exiting
the courthouse. One protestor nevertheless managed to
corner a juror in a courthouse restroom in an effort to
relate to the juror a tragic story regarding an asbestos-re-
lated illness. The juror immediately reported the incident
to the court. The defendants moved for a mistrial which
the court, after questioning the juror and instructing her
to disregard the restroom conversation, denied.

On May 5, 1992, while evidence in the instant case was
still being presented, the plaintiffs/appellees (“plaintiffs’’)
filed a “Motion for an Order to Show Cause Against De-
fendant Keene Corporation.” The plaintiffs complained
that Keene’s president and chief executive officer, Glenn
W. Bailey, had improperly sent a letter ex parte to the
trial judge. They asked the court to enjoin Keene from
placing in local newspapers advertisements that might in-
terfere with the fair and impartial deliberations of the

’ . j | ’ T
! “he plaintiffs informed the tmal court that Keen

lant in similar litigation in Houston

naq peen a wngre
Texas. While the jury was deliberating in that case, Bailey

laced a paid odivertinunen! in the Houston Chronicle. As

a result of that advertisement, Keene was found in con
Llempt of court. In another asbestos case. also in Texas.

?

issued an order enjoining Keene from any fur

a judge
in any and

ther “‘advertising regarding asbestos litigation

all prt om vhich are published in Harris Count)

Texas” until the jury reached a verdict. The plaintiffs did
»|

en below that the advertisement in the Housto1
Chronicle was false or deceptive; in that advertisement
Bailey had sera that asbestos litigation had bank
rupted a dozen companies, that Keene alone could be re

quired to pay out millions “pr dollars, and that 60-percent

i the money would go to lawyers.
In the matter sub judice, the tnal court indicated that

t aborted”’ or “‘to allow

did not intend “to let this tnal be
undue publicity,’ and so set

the jury to be affected by
ig. Six

plaintiffs’ motion in for prompt briefing and heari
later, on May 11, 1992, after hearing argument fron

court com

{

lays
counsel, the trial court granted the motion. The

nted

Mr. Bailey does not have the absolute nght
lish anything he wants with regard to this case. He
is writing ex parte letters to this Court which is im
proper. But of more concern to me is the fact that
as I say, he takes out full page ads in newspapers
while juries are deliberating and that is absolutely
improper. He should not be allowed to communicate
with this jury and that is all that a full page ad in
tends to do is to improperly communicate with this
jury

to sign an order \ Pee n* adequat«
hich, in m)

I am going
to prevent him from placing such an ad \v

’ > > +7 - + | _ . ><) . rwitiy . +L,
view, nas no purpose otner than to iniluence tnis

jury.

In response to defense counsel’s argument that such an or
der would infringe upon Bailey—and Keene’s—First Amend
ment rights, the trial court stated: “I perceive a funda-
mental distinction between a newspaper reporter obtain
ing comment of both sides, Plaintiffs and Defendants, and
a man taking out a full-page ad during the pendency of
the case.”” On May 18, the court issued a written order
enjoining Keene from “advertising regarding asbestos
and/or asbestos litigation in any and all newspapers, tele-
vision, radio or other media in the Baltimore, Maryland
area during the pendency of this trial.”

Thereafter, on May 21, Keene placed a paid advertise
ment in the Philadelphia Jnquirer. In the advertisement,
Keene again complained of the high costs of asbestos liti-
gation and alleged that such litigation is “lawyer-inspired”’
and is causing “the unnecessary bankrupting of com-
panies.”” The company suggested legislation that it as-
serted would bring the perceived problem under control
and urged readers to support such legislation.

On May 13, pursuant to Maryland Courts & Judicial
Proceedings Code Annotated § 12-303(8\i), Keene timely
noted an appeal to this Court. Because of the important con-
stitutional question involved, we granted Keene’s request
to expedite consideration and advance the time for brief-
ing and oral argument. In the meantime, Keene moved
below to stay the injunction pending the instant appeal.
The trial court denied the motion in open court without
hearing argument from counsel. It did, however, offer fur-
ther explanation as to its reasons for initially granting
the injunction. The court referred to Glenn Bailey as a
“loose cannon” and remarked that, as far as possible
advertisements were concerned, “I don’t know what he

ADPDp

has in mind. And he doesn’t favor me with what he wants
to do.”’ It acknowledged that news articles about the trial
had been published throughout the pendency of the pro
ceedings, but again stated, “I see a big distinction be
tween a paid ad in the newspaper and a news article, per
se.”’ The court opined that “even though I have cautioned
my jury not to look at the newspapers, if they see a big
bold-faced, full-page advertisement in our phar
here, there is a risk that they will see it and look at it,
even fragmentarily, and I don’t think that a court na
to have to put up with that risk.’”’ The court commented,
on the other hand, that its instructions to the jurors to
avoid the demonstrators from the White Lung Associa
tion had ‘‘worked appropriately.”’ In regard to the adver
tisement in the Philadelphia Jnquirer, published after the
rder enjoining advertisements in the Baltimore area was
entered, the court commented that “it would be improper
for me to try to enjoin any publication in other news
LD

apers outside of Maryland

t

(11)

There can be no dispute that the order enjoining Keene
from “advertising regarding asbestos and/or asbestos liti
gation” in any and all media outlets in the Baltimore area
during the pendency of the trial operates as a prior re-
straint on speech. A threshold question, however, is what
type of speech the order seeks to regulate. The order an
ticipates an attempt by Keene to place advertisements,
similar to those placed in Houston and Philadelphia, in
Baltimore area newspapers. The trial court’s distinction
“between a paid ad in the newspaper and a news article”
suggests that it believed the advertisement amounted to
commercial speech. If that was the case, the advertise

ments would be entitled only to limited protection under

the First Amendment and Article 40. See generally Vir
ginia Pharamcy Bd. v. Virginia Citizens Consumer Coun
cil, Inc., 425 U.S. 748, 770-73 (1976) (commercial speech
afforded First Amendment protection so long as it is not
false and misleading and so long as transactions proposed
in advertisement are not themselves illegal). See also
Freedman v. State, 233 Md. 498, 505 (1964), »ev’d on other
JS. 51 (1965) (Article 40 of the Maryland
Declaration of Rights is to be interpreted in pari materia
with the First Amendment). That is not the proper classi
fication of the advertisements, however.

grounds, 380 |

Commercial speech is defined as ‘“‘speech that proposes
a commercial transaction.” Board of Trustees, State Univ
of N.Y. v. Fox, 492 U.S. 469, 482 (1989) (emphasis omitted)
(citing Virginia Pharmacy Bd., 425 U.S. at 761-62). In
common parlance, “advertising” means “the action of calling
something . . . to the attention of the public{,] esp[ecially]
by means of printed or broadcast paid announcements.”
Webster’s Third New International Dictionary 31 (1981)
The mere fact that speech is published in the form of a
paid advertisement does not render it commercial speech
See New York Times Co. v. Sullivan, 376 U.S. 254. 266
(1964) (a paid advertisement, regarding the civil rights
movement, that “communicated information, expressed opin
ion, recited grievances, protested claimed abuses. and
sought financial support on behalf of a movement whose
existence and objectives are matters of the highest public
interest and concern” was not commercial speech).

The paid advertisements placed by Keene in the Houston
Chronicle and the Philadelphia Inquirer, like the pai
advertisement in New York Times v. Sullivan, addresse:
a matter of public concern. They expressed Keene’s point
of view, aired its grievances, and, in the case of the Phil
adelphia Inquirer advertisement, proposed legislative solu

]
i

eatin

+

tions. Although the message that asbestos litigation should
be controlled clearly promotes Keene’s economic interests,
the advertisements in no way “propose[d] a commercial
transaction.’” Roard of Trustees, State Univ. of N.Y., 492
U.S. at 482. ‘deed, Keene contends that it halted pro-
duction of asbestos products 20 years ago. In short, the
advertisements simply cannot be viewed as commercial
speech. Because there is no reason to believe that the
advertisements fall within any other category of speech
warranting less constitutional protection, we can conclude
only that they were fully protected.!

Even assuming, arguendo, that the advertisements amounted
to commercial speech, it seems clear that an order enjoining simi
lar advertisements in Baltimore area newspapers would be im
proper. The Supreme Court explained in Board of Trustees, State
Univ. of N.Y., 492 U.S. at 480, that even restrictions on commer
cial speech must be “narrowly tailored to achieve the desired ob
jective.”’ In the instant case, the trial court indicated that its ob
jective was to prevent interference with the fair and impartial
leliberations of the jury. As we shall discuss infra, however, we
are not persuaded that the ads posed a threat to those delibera-
tions or that, even if they did, the court’s solution was narrowly)
tailored. See e.g., Peele v. Attorney Reg. and Disciplinary Comm’n.,

U.S. ___, 110 S.Ct. 2281 (1990) (rule prohibiting attorneys

rom truthfully advertising that they were specialists in certain
areas of the law struck down because it promoted no substantial
state interest); Shapero v. Kentucky Bar Ass’n., 486 U.S. 466
(1988) (prohibition on truthful and non-deceptive direct-mail solici-
ation of potential clients by attorneys struck down because it
served no particular objective); Posadas de Puerto Rico Assoc.
Tourism Co., 478 U.S. 328 (1986) (Puerto Rican act prohibiting
gambling casinos Peso ‘adv ertising locally if such advertisements
were directed at residents rather than tourists upheld as being
no more extensive than necessary to protect Puerto Rico’s citizens
from the harmful effects of gambling); Jn re R.M.J., 455 U.S. 191
(1982) (Missouri Supreme Court rule that limited the categories
of information allowable in lawyer advertisements struck down be
cause it excluded relevant, truthful information and promoted no
substantial State interest); Linmark Associates, Inc. v. Willing
boro, 431 U.S. 85 (1977) (town ordinance that banned the posting

Footnote continued on following page

“[PJrior restraints on speech and publication are the
most serious and the least tolerable infringement on First
Amendment rights.” Nebraska Press Ass’n v. Stuart. 427
U.S. 539, 559 (1976) (striking down a court order that en-
joined, until the jury was impaneled, certain news cover-
age in connection with a criminal trial). Moreover. the
“conflict between the right to an unbiased jury and the
First Amendment is ‘almost as old as the Republic.’ ”’
Quinn. v. Aetna Life & Cas. Co., 482 F.Supp. 22, 27 (E.D.
N.Y. 1979), aff'd per curiam, 616 F.2d 38 (2nd Cir. 1980)
(quoting Nebraska Press Ass’n v. Stuart, 427 U.S. at 547).
Although the right to a fair trial is jealously guarded, a
court seeking to insure a fair trial may not impose a prior
restraint unless “the gravity of the ‘evil,’ discounted by
its improbability, justifies such invasion of free speech as
ls necessary to avoid the danger.” Nebraska Press Ass’n.
supra, 427 U.S. at 562 (quoting United States v. Dennis.
183 F.2d 201, 212 (2d Cir. 1950), affd, 341 U.S. 494 (1951).

In State v. Cottman Transmission. 75 Md. App. 647
(1988), this Court was called upon to determine the pro-
priety of a trial court’s order, issued in a civil case at
the defendant’s request, which closed the case file and
proceedings to all but the participants and prohibited all
communications with the press. Jd. at 649. The defendant.
an auto transmission company accused of various decep
tive business practices, had alleged that the State was

damaging the company’s reputation and business by com-

On117 ued
of residential “‘For Sale’ signs struck down because there was ni
indication that it served the stated goal of StabDllzing nelgnbo?
hoods, and because iess restrictive measures. such as posting “No

for sale signs, were avaliable)

App. 78

municating with the news media during the course of the
trial. Jd. at 653. We vacated the closure order in its en-
tirety, id. at 658, and vacated the ‘“‘gag order’”’ to the ex-
tent that it prohibited even those communications with
the press that did not concern the merits of the case. /d.
at 661. We explained that a gag order can be upheld only
‘‘1) if the party seeking the order can establish that the
speech to be restrained poses a ‘serious and imminent

threat’ of interference with the fair administration of

justice, . and 2) the order is ‘tailored as precisely as

possible to the exact needs of the case.’”’ Id. at 659 (cita-
tions omitted). See also, Journal Newspapers, Inc. v
State, 54 Md. App. 98, 110-12, affd, 297 Md. 68 (1983)
(in vacating an order that enjoined certain classes of peo-
ple from making extrajudicial statements regarding a
criminal trial, this Court explained that, once a movant
establishes “‘the need for any restriction . . . the [trial]
court [should] proceed to look at the alternative methods
of implementing the restriction, choosing always that or
those which will do the job in the least intrusive and
onerous manner’) (emphasis in original); CBS, Inc. v
Young, 522 F.2d 234, 238 (6th Cir. 1975) (in vacating an
order that prevented parties to civil litigation from com-
menting to the press, the court noted that ‘‘[t]o justify
imposition of a prior restraint, the activity restrained must
pose a clear and present danger, or a serious or imminent
threat to a protected competing interest. . . . The re-
straint must be narrowly drawn and cannot be upheld if
reasonable alternatives are available having a lesser im-
pact on First Amendment freedoms’’).

Although Cottman involved news coverage rather than
paid advertisements, the speech that was the subject of
the gag order, as in the instant case, was promulgated
by a party to the case. We noted in Cottman that “a trial

App. 79

court has the power to ‘proscribe[ ] extrajudicial state-
ments by any lawyer, party, witness, or court official
which [might] divulgef ] prejudicial matters... .’” 75 Md.
App. at 660 (quoting Sheppard v. Maxwell. 384 U.S. 333,
361 (1966)) (brackets added by Cottman Court). Such pro-
scriptions, however, must be narrowly tailored. See Id
at 699-61. In applying the two-prong test set forth in Cott
man to the particular facts of that case. we recognized
that the speech at issue there could indeed interfere with
the fair administration of justice by, in effect, trying the
case in the press. “Because the tailoring of the trial
court's gag order lacked the definition necessary to be
constitutionally appropriate, [however,] this Court altered
the order so as to provide a better constitutional fit.’’ Id
at 660-61.

The trial court’s order in the instant case fails to satisfy
either prong of the two-prong test enunciated in Cottman.
73 Md. App. at 659.2 Although the advertisements that

* The few cases relied upon by the plaintiffs do not hold to the
contrary; indeed, rather than supporting the issuance of the gag
order, these authorities demonstrate the weakness of plaintiffs’
claim. For example, although plaintiffs cite Landmark Commun;
cations, Inc. v. Virginia, 435 U.S. 829 (1978), for the proposition
that “government may limit speech when compelling government
interests outweigh free expression interests of the speaker,” in
fact, in Landmark, the Court held that the First Amendment pro
hibited criminal prosecution of those publishing truthful informa
tion regarding confidential judicial inquiry proceedings. See also
Gentile v. State Bar of Nevada, ___ U.S. ___. 111 S.Ct. 2720
(1991) (Supreme Court reversed lower court and held that a state’s
application of its rule prohibiting a lawyer from making extrajudi-
clal statements to the press violates the First Amendment); Shep
pard v. Marwell, 384 U.S. 333, 335-58 (1966) (even in face of re-
versal because of extremely prejudicial publicity and carnival-like
trial atmosphere, Supreme Court did not advocate prior restraint

of press or parties by the trial court

i

App. 8&0

appeared in the Houston Chronicle and the Philadelphia
Inquirer complained of the high costs of asbestos litiga-
tion, neither advertisement in any way addressed the
merits of a particular case. It simply cannot be said that
publication of similar advertisements by Baltimore area
media, even if viewed by the jurors, would pose a serious
and imminent threat to the fair administration of justice.

This Court has explained that the record must contain
support for a trial court’s finding that a prior restraint
is necessary to ensure a fair trial. Journal Newspapers,
supra, 54 Md. App. at 111. The record before us contains
no such support. Assuming, arguendo, that the sort of
advertisements at issue here could have an adverse ef-
fect upon the trial, steps short of the prior restraint in
question, such as careful instructions to the jury or even
sequestration, could be taken. See Nebraska Press Ass'n,
supra, 427 U.S. at 563-64 (setting forth alternatives to
be tried before resorting to prior restraint of speech). The
trial court, in denying Keene’s earlier request for an in-
junction, concluded that the jurors could ignore demonstra-
tors who were holding picket signs and distributing fliers
outside the courthouse; that decision has not been chal-
lenged on appeal. It seems clear that properly instructed
jurors could equally well ignore news articles and paid
advertisements in the local media.

In sum, we are sympathetic to the experienced, long-
suffering, trial judge’s understandable, indeed commend-
able, desire to avoid prejudicial publicity and not per-
mit this months-long trial to be ‘‘aborted.’”’ The First
Amendment and Maryland Declaration of Rights, how-
ever, prohibit the use of a prior restraint to accomplish
these goals absent the establishment of a serious and im-
minent threat to the fair administration of justice and an
order tailored to the exact needs of the particular case.

App x]

Here, such a threat was never demonstrated. nor was

such an order fashioned, and so we were required t

acate the judgment of the court below

h

Except for the Texas courts, discussed within, that have sanc-
tioned Keene in other cases, our conclusion here appears to be
in accord with that reached by every other court to consider the
propriety of a similar injunction on advertising. See Quinn v
Aetna Life & Cas. Co., supra, 482 F.Supp. at 27 (and numerous
cases cited therein); Rutledge v. Liability Insurance Industry, 487
F.Supp. 5 (W.D. La. 1979); New York Public Interest Research
Group, Inc. v. Insurance Information Institute, 531 N.Y.S.2d 1002
Sup. Ct. 1988), affd, 554 N.Y.S.2d 590 (1990); Kenner [sic] v. Mon-
santo Co., 492 N.E.2d 1327 (Ill. 1986

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1144%3A2. Public record. Not legal advice.