
USCA1 Opinion

	




        August 24, 1992          ____________________        August 24, 1992          ____________________        No. 92-1733        No. 92-1733                         DELORES GONSALVES, ADMINISTRATRIX OF                         DELORES GONSALVES, ADMINISTRATRIX OF                          THE ESTATE OF MORRIS PINA, JR., AS                          THE ESTATE OF MORRIS PINA, JR., AS                        ADMINISTRATRIX, AND ON HER OWN BEHALF,                        ADMINISTRATRIX, AND ON HER OWN BEHALF,                                Plaintiff, Appellant,                                Plaintiff, Appellant,                                          v.                                          v.                   THE CITY OF NEW BEDFORD, MASSACHUSETTS, ET AL.,                   THE CITY OF NEW BEDFORD, MASSACHUSETTS, ET AL.,                                Defendants, Appellees.                                Defendants, Appellees.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Andrew A. Caffrey, Senior U.S. District Judge]                 [Hon. Andrew A. Caffrey, Senior U.S. District Judge]                                          __________________________                                 ____________________                                 ____________________                                        Before                                        Before                            Cyr and Boudin, Circuit Judges,                            Cyr and Boudin, Circuit Judges,                                            ______________                             and Hornby,* District Judge.                             and Hornby,* District Judge.                                          ______________                                 ____________________                                 ____________________             Harvey A.  Schwartz with  whom Robert  A. Griffith and  Schwartz,             Harvey A.  Schwartz with  whom Robert  A. Griffith and  Schwartz,             ___________________            ___________________      _________        Shaw & Griffith were on brief for appellant.        Shaw & Griffith were on brief for appellant.        _______________             Armand Fernandes, Jr. with whom Fernandes, Fraze  & Finnerty were             Armand Fernandes, Jr. with whom Fernandes, Fraze  & Finnerty were             _____________________           ____________________________        on brief for appellees.        on brief for appellees.             Robert A. Bertsche, Hill & Barlow and John Reinstein on brief for             Robert A. Bertsche, Hill & Barlow and John Reinstein on brief for             __________________  _____________     ______________        the Civil Liberties Union of Massachusetts and the New Bedford Minori-        the Civil Liberties Union of Massachusetts and the New Bedford Minori-        ty Action Committee as amici curiae.        ty Action Committee as amici curiae.                                 ____________________                                 ____________________                                 ____________________                                 ____________________                                    ____________________        *Of the District of Maine, sitting by designation.        *Of the District of Maine, sitting by designation.                    Per Curiam.   The present appeal requires  us to deter-                    Per Curiam.                    __________          mine the  constitutionality of  a district court  order enjoining          plaintiff's counsel, Robert A. Griffith,  Esquire, from appearing          on television for  any purpose during the pendency of plaintiff's          civil rights action.  For the reasons which follow, we vacate the          order.                                      BACKGROUND                                      BACKGROUND                                      __________                    The underlying action, asserting claims under 42 U.S.C.            1983 and Massachusetts  law, includes  allegations of  wrongful          death,  police  brutality  and  race discrimination  by  the  New          Bedford police department and certain individual police officers,          pursuant  to  a policy  and practice  tolerated  by the  city and          various  city and police  officials.   The parties  currently are          engaged in pretrial discovery.                    On May 15, 1992, defendant  Police Chief Benoit filed a          motion  under Local Rules 83.2A and  83.2B, D. Mass. L. R. 83.2A,          83.2B, for (1)  an order limiting out-of-court  statements by all          parties  and their  attorneys,  (2) an  order prohibiting  public          dissemination of  discovery  materials,  and  (3)  any  "special"          orders the court  might deem  necessary.  The  motion alleged  in          conclusory  fashion  that  plaintiff's  attorney  had  cultivated          widespread  publicity  about  the  case  by  releasing  discovery          materials to the media, holding a public rally and appearing on a          local cable television  talk show.   During the television  show,          Attorney Griffith is alleged to have requested public support for                                          2          alleged victims  of New  Bedford  police brutality,  and to  have          urged anyone who had suffered  brutality or discrimination in the          past  to come forward to help establish the "policy and practice"          allegations in  plaintiff's complaint.   See Elliott  v. Cheshire                                                   ___ _______     ________          County, N.H.,  940 F.2d 7, 12  (1st Cir. 1991) (citing  Monell v.          ____________                                            ______          New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978)).          ____________________________________                    At  a  scheduling  conference on  June 1,  the district          court  acceded to  Benoit's request  to be  heard on  the motion.          Benoit's  counsel summarized  the  relief requested,  emphasizing          Benoit's  concern  that,  absent  the requested  relief,  certain          discovery  materials  currently  sought  by  plaintiff  might  be          disclosed  publicly.    In  response,  plaintiff's  counsel,  Mr.          Griffith, alluded to the allegations about his television appear-          ance.   Griffith informed the court that the pending legal action          had not  been the subject  of the television  show, but that  his          remarks were made in  response to a question the  moderator asked          about  the case.   Griffith defended his  statements as "entirely          legitimate"  and not  prejudicial  to defendants.   The  district          court orally directed Attorney Griffith not to appear on  televi-          sion for any purpose during the pendency of the case.                    Following the  district court's  denial of a  motion to          stay its order,  Griffith filed a motion  with this court for  an          emergency stay.   See Fed. R. App.  P. 8.  We issued  two partial                            ___          stays  pending  receipt  of  "particularized findings"  from  the          district court, which  were received  on June 22.   The  district          court's particularized findings were as follows:                                          3                    1)  The nature of the harm posed by  Attorney                    Griffith's conduct  is that it  amounts to  a                    poisoning of  the jury pool to  the prejudice                    of  the defendant police officers.  Given the                    fact that the  defendants presented  evidence                    of the  proclivity  of Attorney  Griffith  to                    garner  publicity for his  client in this ac-                    tion,  the potential  harm posed  by Attorney                    Griffith's inclination to publicize  the case                    could be extensive if left unchecked.                    2)  Less restrictive alternatives seem inade-                    quate  to  protect the  interests threatened.                    As noted above,  Griffith has repeatedly pub-                    licized information about the pending case in                    various  mediums.   Thus, a  less restrictive                    protective order, such as one allowing him to                    be  on  television but  ordering  him not  to                    discuss the case,  would not  be adequate  in                    this instance.  Furthermore, as indicated, in                    this instance, Griffith did not  initiate the                    discussion of this pending  case on the tele-                    vision show;  he merely responded  to a ques-                    tion posed to him.  To allow him to appear on                    television,  on the  condition  that  he  not                    initiate discussion on this matter, would not                    prevent  this   circumstance  from  happening                    again.  Given the publicity in this case, his                    mere  presence on  television  would tend  to                    stimulate  further  discussion and  publicity                    regarding  this  case,  even  if  he  himself                    refused to discuss it.                    3)   The  proposed protective  order  will be                    effective in preventing the harm of poisoning                    the jury pool.   To the extent that publicity                    in this  case can be  discouraged, the police                    officers  stand a  better  chance  of a  fair                    trial on this matter.          We expedited  the  appeal and  stayed  the district  court  order          pending appeal.                                          4                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Presumption Against Prior Restraint          A.   Presumption Against Prior Restraint               ___________________________________                    We  are met at the outset with a disagreement among the          parties as to the appropriate criteria to be applied in balancing          the right to free speech against  the right to trial by an impar-          tial jury.  In particular, the parties urge divergent interpreta-          tions  of the recent Supreme  Court decision in  Gentile v. State                                                           _______    _____          Bar of Nevada, 501 U.S. ___, 111 S. Ct. 2720 (1991).          _____________                    Plaintiff,  joined by  amici curiae,  the Massachusetts          Civil Liberties Union and the New Bedford Minority Action Commit-          tee,  characterizes the challenged order as  a prior restraint on          the exercise  of Griffith's  First Amendment  right to engage  in          political  speech.  A  prior restraint on  First Amendment rights          traditionally carries a "heavy presumption" against its validity,          especially  if it  chills  comment  on governmental  proceedings.          Nebraska  Press Ass'n  v. Stuart,  427  U.S. 539,  558-59 (1976).          _____________________     ______          Advance  censorship,  it  is  reasoned,  entails an  irreversible          sanction and strikes  at the stability  of our democratic  system          when it  restrains political comment.  Id.  at 559-60.  For these                                                 ___          reasons,  plaintiff and the amici insist  that the stringent test          applicable  to prior restraints upon  the press should be applied          to  the prior restraint  imposed on  plaintiff's counsel  in this          case; that is, the order is to be overturned in the absence of  a          "clear  and present danger" or a "serious and imminent threat" to                                          5          the  orderly  and fair  administration  of justice.    Bridges v.                                                                 _______          California, 314 U.S. 252, 263, 270 (1941).          __________                    Amici curiae  distinguish Gentile on its  facts.  There                                              _______          the Court upheld against a First Amendment challenge the standard          in a Nevada disciplinary rule prohibiting attorneys from comment-          ing on  pending cases in circumstances  presenting a "substantial          likelihood of material prejudice" to the proceedings.  As Gentile                                                                    _______          involved subsequent sanctions against  an attorney for commenting                   __________ _________          about a pending case,  amici curiae reason that Gentile  does not                                                          _______          diminish  the  First Amendment  protection from  prior restraints                                                           _____ __________          upon comment by counsel in a case  of political importance to the          public.   Amici further  argue that the  "substantial likelihood"          standard approved  in Gentile  represents  the minimum  constitu-                                _______          tional  requirement for  prior  restraints  on  attorney  speech.          Accordingly, amici contend that  Local Rules 83.2A and 83.2B  are          unconstitutional insofar as  their "reasonable likelihood"  stan-          dard  is less  stringent than  the "substantial  likelihood" test          adopted in Gentile.                     _______                    Appellee  Benoit, on  the other  hand, argues  that the          constitutional  right to a fair trial before an impartial jury is          entitled to no less,  if not greater, protection than  an attorn-          ey's  First Amendment right to free speech on matters involved in          a pending judicial proceeding.   Cf. Nebraska Press, 427  U.S. at                                           ___ ______________          561 (Bill of Rights  did not assign priorities to First and Sixth          Amendment  rights, ranking one as superior to the other).  Preju-          dicial  publicity, Benoit points out, might divert the trial from                                          6          its primary purpose     "to adjudicate controversies, both crimi-          nal and civil, in the calmness and solemnity of the courtroom . .          .  ."  Sheppard  v. Maxwell, 384  U.S. 333,  350 (1966) (citation                 ________     _______          omitted).   As the Supreme Court reasoned in Gentile, 501 U.S. at                                                       _______          ___-___, 111 S. Ct. at 2743-45, the threat of prejudicial public-          ity  is greatest when it is  generated by an attorney involved in          the  proceedings.  An attorney, moreover, unlike the press, has a          fiduciary professional  obligation to preserve the  integrity and          fairness  of judicial proceedings.  Thus, Benoit urges that it is          not  improper to  restrain  extrajudicial comment  by counsel  if          there  is a  "reasonable  likelihood" that  the  fairness of  the          judicial  proceeding would  be  prejudiced absent  the restraint.          The Supreme Court's approval of a lesser standard than "clear and          present danger," Benoit says,  supports the constitutionality  of          the  lesser standard in Local Rule 83.2A, even though its wording          is not identical to  the rule approved in Gentile.   Furthermore,                                                    _______          Benoit says, the reasoning in Gentile supports the district court                                        _______          order  insofar  as it  prohibits  Attorney  Griffith from  making          extrajudicial statements about the case.2                                        ____________________          2The  parties  disagree also  as  to whether  the  district court          order, prohibiting Griffith from  appearing on television for any          purpose, unconstitutionally interferes  with plaintiff's  alleged          First  Amendment and/or due process right to appeal to the public          at  large for evidence supporting her  claim that defendants have          engaged  in a practice of depriving minority individuals of their          constitutional rights.                                          7          B.   Balancing Test          B.   Balancing Test               ______________                    We  need not choose between these competing contentions          at this  juncture, as  the challenged order  fails under  either.          First, there was  no sufficient  showing of an  actual threat  to          defendants'  right to a fair  trial.  Second,  the order provided          ineffective  protection from  the  perceived harm.   Third,  less          restrictive conventional alternatives were not considered.          1.  Threat of Harm          1.  Threat of Harm              ______________                               As  it  recognized,  the  district court  is  under  an          affirmative  duty  to safeguard  the  due process  rights  of the          parties before it  by minimizing the adverse effects  of prejudi-          cial  pretrial  publicity  in  proceedings   under  its  control.          Gannett Co. v. De Pasquale, 443 U.S. 368, 378 (1979) (emphasizing          ___________    ___________          district court  duty to  control the proceedings);  Sheppard, 384                                                              ________          U.S. at 333.   See also Report of the  Committee on the Operation                         ___ ____ _________________________________________          of  the  Jury System  on the  "Free  Press-Fair Trial"  Issue, 45          _____________________________________________________________          F.R.D.  391, 401  (1969) (revised,  87 F.R.D.  518 (1980)).   The          district court  enjoys considerable leeway to select from among a          variety  of  devices  for  meeting its  difficult  and  important          responsibility.  Sheppard, 384 U.S. at 357-62.                           ________                    At a minimum, however, a  prior restraint can be justi-          fied only  if the prohibited speech poses an actual threat to the                                                       ______          right to a fair trial before an impartial jury.  See In re Perry,                                                           ___ ___________          859  F.2d  1043, 1050  (1st  Cir. 1988)  (a  vague threat  is not          enough; there  must be  a "cognizable" compelling  interest which                                          8          could  be furthered  by the  restraint).   Thus, no  matter which          recommended standard is used to evaluate the appropriateness of a          prior  restraint on  the exercise  of the  right of  free speech,          there must  be a sufficient  showing of an  actual threat to  the          right to  a fair trial.  United States v. Noriega, 917 F.2d 1543,                                   _____________    _______          1549 (11th  Cir.) ("imminent  danger"  standard; First  Amendment          protections  cannot be  overcome by  "conclusory"  assertion that          publicity  might hamper fair trial), cert. denied, 111 S. Ct. 451                                               ____  ______          (1990);  In re  Dow Jones  &  Co., 842  F.2d 603,  609 (2d  Cir.)                   ________________________          (employing "reasonable likelihood"  standard; "gag" order  justi-          fied only if the  exercise of the right of free  speech "actually          tramples upon  Sixth Amendment  rights"), cert. denied,  488 U.S.                                                    ____  ______          946 (1988).                    Although we do not doubt that the  district court acted          "out  of a legitimate concern, in an effort to protect the defen-          dant's right  to a fair trial,"  the record before us  reveals no          evidentiary basis  for the conclusion that  future appearances by          Attorney  Griffith  would "poison[]  the  jury  pool."   Nebraska                                                                   ________          Press, 427  U.S. at 569.   There are no findings  identifying the          _____          substance of Griffith's  remarks:  whether, for  example, he dis-          paraged defendants  or witnesses, mischaracterized evidence or in          any way  tended to  prejudice the  public perception.   Moreover,          were there proof, which we are unable to discern from the record,          that Griffith  "repeatedly publicized  . . . the pending  case in          various mediums," it would provide an  insufficient basis for the          breadth  of  the present  order.    "Pretrial  publicity     even                                          9          pervasive, adverse publicity     does not  inevitably lead to  an          unfair trial."  Id. at 554.  A jury need not be entirely ignorant                          ___          of the case; all that the Constitution requires is a jury that is          impartial.  See Sheppard, 384 U.S. at 351; Dow Jones, 842 F.2d at                      ___ ________                   _________          603.                    We perceive  scant basis  in the record  for concluding          that Griffith's  appearance on  a local cable  television station          threatened pervasive impact  on the attitudes of those  who might          be called as jurors.  We note  that a trial date has not yet been          set.  The jury pool in this case normally would be drawn from the          nine counties  comprising  populous eastern  Massachusetts.   See                                                                        ___          United States District Court, District of Massachusetts,  Amended                                                                    _______          Jury Plan  (Sept. 6,  1989).   On the  present record, given  the          _________          remoteness of any trial date, the size of the available jury pool          and the geographic  diversity of  the jury pool  drawing area,  a          prediction  that all  publication of  information about  the case          would poison the jury pool seems speculative at best.3                    The Benoit motion included vague allegations  of poten-          tial  harm  to  other  pretrial interests  which  arguably  might          warrant protection (e.g.,  possible privacy interests,  or privi-                              ____          lege against  public disclosure, on  the part  of defendants  and          third  persons; and  undefined  harm  from plaintiff's  counsel's                                        ____________________          3The only other publicity about the case which was brought to the          district court's  attention by  Benoit's motion was  contained in          five  articles appearing  in New  Bedford and  Boston newspapers.          Attorney  Griffith's name  does  not appear  in the  articles and          there  is no indication that the order was crafted in reaction to          the articles.                                          10          efforts to drum up support for litigation).  Neither the district          court,  nor  this  court,  has  addressed  the  discovery-related          matters  raised by  the  Benoit motion.    However, in  order  to          provide an appropriate benchmark for identifying and weighing the          interests involved and the sort of protection needed, the precise          harm must be carefully delineated, Noriega, 917 F.2d at 1550, and                       _________ __________  _______          the restraint must be  tailored narrowly to serve  the particular          interests  warranting  protection,  see  id. at  1549;  see  also                                              ___  ___            ___  ____          Anderson v. Cryovac, Inc., 805 F.2d 1, 8 (1st Cir. 1986) (in case          ________    _____________          involving allegations  that city water supply  had been poisoned,          district court  demonstrated  appropriate "sensitivity  to  First          Amendment concerns  by striving to  keep the protective  order as          narrow  as possible,"  excepting  from its  scope disclosures  to          public health authorities as required in the public interest).                    The challenged order does  not identify with the requi-          site particularity a pretrial  interest warranting the protection          of its broad prior  restraint upon First Amendment rights.   See,                                                                       ___          e.g.,  Seattle Times  Co. v.  Rhinehart, 467  U.S. 20,  37 (1984)          ____   __________________     _________          (orders   protecting  against  disclosure  of  otherwise  private          discovery  materials may  be  permitted for  "good cause"  shown,          where the restriction is carefully limited to discovery materials          and  the  order does  not  affect materials  obtained  from other          sources); Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981) (order                    ____________    _______          restricting communication, as a  means of protecting absent class          members and potential class members, must  be carefully drawn and          based  on  a clear  record  and  specific  findings reflecting  a                                          11          balancing  of the need for the restrictions and protection of the          parties'  rights); Anderson,  805  F.2d at  6 (protective  orders                             ________          prohibiting  discovery  abuse  are  subject  to  First  Amendment          scrutiny within framework  of "good cause" requirement in Fed. R.          Civ. P. 26(c)).4          2.   Ineffectiveness of Order          2.   Ineffectiveness of Order               ________________________                    The order is  not tailored to protect against  the per-          ceived harm (poisoning the jury  pool), as its overbroad prohibi-          tion of  any and all television appearances  by Griffith facially          restrains speech  and other expressive conduct  having no connec-          tion  with the  pending case.    In re  Perry, 859  F.2d at  1050                                           ____________          (overbroad order cannot survive constitutional scrutiny); compare                                                                    _______          Levine v. United States Dist. Court, 764 F.2d 590 (9th Cir. 1985)          ______    _________________________          (in  case applying  "clear  and present  danger" standard,  order          prohibiting statements which "bear upon the merits to be resolved          by the jury" is too broad, as it would prohibit statements posing          no danger  to the administration  of justice), cert.  denied, 476                                                         ____   ______          U.S.  1158 (1986).    "[D]evising the  most effective  preventive          measure  is not the  proper goal.   Rather, the goal  is to craft          measures that ensure an  impartial jury without restricting First          Amendment  rights any  further than  absolutely necessary."   Dow                                                                        ___          Jones, 842 F.2d at 612 n.1.          _____                                        ____________________          4We note no suggestion  that Griffith's statements threatened the          secrecy  of grand jury proceedings.   Cf. Globe  Newspaper Co. v.                                                ___ ____________________          Pokaski, 868  F.2d 497, 509 (1st Cir.  1989) (public has no First          _______          Amendment  right of access to  grand jury records,  as secrecy is          traditional and essential to system).                                          12                    Furthermore, the order is  too underinclusive to effect          meaningful protection  against the perceived harm.   It restrains          access to but one of several public information media on the part          of  one attorney in the  case, leaving seven  other attorneys and          all twelve  parties free to discuss  the case in any  forum.  See                                                                        ___          Nebraska Press,  427 U.S. at 565-69  (practical problems involved          ______________          in predicting what information may in fact undermine impartiality          of jurors, and dilemmas  encountered in drafting effective orders          which are  not overly broad,  call for careful  advance consider-          ation of  alternative measures to counter threat  to fair trial).          We do not  imply that  a more  inclusive order  (or, indeed,  any          order) was  indicated, but that the  challenged order represented          an inappropriate response in the circumstances presented.          3.   Less Restrictive Alternatives          3.   Less Restrictive Alternatives               _____________________________                    Finally, the district court  did not discuss particular          alternatives to limiting the  exercise of Griffith's First Amend-          ment rights.   The case law identifies  several alternative means          of  mitigating pretrial  publicity,  including change  of  venue,          searching voir dire, sequestration of the jury, and emphatic jury          instructions.  Nebraska Press, 427 U.S. at 563-64;  Sheppard, 384                         ______________                       ________          U.S.  at  357-62.   We  recognize that  restrictions  directed to          counsel or  other  trial participants  may stand  on a  different          footing  than those directed to the press or public, Gentile, 111                                                               _______          S.  Ct. at 2742-44;  Levine, 764 F.2d  at 595-96,  and that other                               ______          means  of  mitigating publicity  may  have  costs  of their  own.                                          13          Gentile,  111  S. Ct.  at 2745.    Nevertheless, given  the First          _______          Amendment interests  at stake and  the breadth of  the challenged          order, we think an explicit consideration of alternatives  to the          restraint was required.   Nebraska  Press, 427 U.S.  at 563;  Dow                                    _______________                     ___          Jones, 842 F.2d at 611; Levine, 764 F.2d at 599-601.          _____                   ______                    The district court order of June 1, 1992, is vacated.                    ____________________________________________________                                          14
