     Case: 11-10683   Document: 00511883392    Page: 1   Date Filed: 06/11/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                 June 11, 2012

                                  No. 11-10683                   Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee
v.

KHALID ALI-M ALDAWSARI

                                            Defendant-Appellee

v.

JAMES CLARK

                                            Movant-Appellant



                  Appeal from the United States District Court
                       for the Northern District of Texas


Before HIGGINBOTHAM, GARZA, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
        James Clark, a journalist, appeals from the district court’s entry of an
order barring communication with the media and its denial of his motion to
intervene in a case involving charges of terrorism. We affirm.
                                       I.
        The government indicted Khalid Ali-M Aldawsari for attempted use of a
weapon of mass destruction. The day the indictment was filed, the district court
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                                       No. 11-10683

entered an order barring the parties, their representatives, and their attorneys
of record from communicating with the news media about the case. Clark, a
journalist, then sought to intervene in the case to challenge the order. The
district court denied Clark’s motion to intervene, noting that Clark had not
explained his standing to challenge the order and finding that the order imposed
narrowly tailored and reasonable restrictions on communications with the news
media.
       Clark filed a petition for writ of mandamus, which we denied, concluding
that he had another remedy open to him – an interlocutory appeal.1 We ordered
the district court to docket Clark’s mandamus petition as a notice of appeal
dated April 25, 2011. We subsequently denied Clark’s motion for a stay of the
district court’s order, but granted his motion to expedite the appeal. The
government then moved to dismiss the case, or, alternatively, for summary
affirmance, arguing (1) that the appeal was not timely and (2) that Clark lacked
standing to challenge the gag order. We denied the motion for summary
affirmance and carried the motion to dismiss with the case.
       On appeal, Clark argues that the district court wrongly found that he had
no right to intervene and that the district court’s gag order violates his First and
Fifth Amendment rights. The government argues that Clark’s appeal is untimely
and that he lacks standing.               It also argues that the restrictions on
communications with the media set forth in the district court’s gag order were
appropriate and do not violate the First Amendment.




       1
         The collateral order doctrine provides for appellate jurisdiction over “‘those district
court decisions that are conclusive, that resolve important questions completely separate from
the merits, and that would render such important questions effectively unreviewable on
appeal from final judgment in the underlying action.’” Davis v. E. Baton Rouge Parish Sch.
Bd. v. Capital City Press, 78 F.3d 920, 925 (5th Cir. 1996) (quoting Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 867(1994)).

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                                            No. 11-10683

                                                II.
      Under Rule 4(a) of the Federal Rules of Appellate Procedure, notice of
appeal in a civil case must be filed with the district court clerk within thirty days
of the district court’s judgment or order, unless one of the parties is the United
States, a United States agency, or a United States official or employee sued in
an official capacity, in which case the period is sixty days.2 Under Rule 4(b), a
defendant in a criminal case must file a notice of appeal in the district court
within fourteen days of (1) the entry of the judgment or order being appealed or
(2) the government’s filing of a notice of a appeal.3 When the government is
entitled to appeal, it must file its notice of appeal within thirty days of (1) the
entry of the judgment or order or (2) the filing of a notice of appeal by any
defendant.4
      Clark filed his notice of appeal in the district court on April 25, 2011,
twenty days after the district court’s denial of his original motion to intervene
and eighteen days after the denial of his motion for reconsideration. The
government maintains that Clark’s notice of appeal was untimely because Clark
was subject to the fourteen-day time limit for appeal by a defendant in a
criminal case. We disagree.
      The government’s argument that Clark had to comply with the time limits
in Rule 4(b)(1)(A) is unconvincing for several reasons. First, the cases the
government cites do not suggest that Clark’s appeal is “categorically ‘criminal.’”
The government’s argument rests on a false analogy to cases involving




      2
          FED. R. APP. P. 4(a)(1)(A)-(B).
      3
          Id. 4(b)(1)(A).
      4
          Id. 4(b)(1)(B).

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subpoenas in grand jury proceedings,5 motions to correct or reduce sentences,6
and a lien that arose upon entry of a criminal judgment.7 Clark is not a
defendant in the underlying criminal case,8 and while press coverage is a
frequent companion to criminal cases, unlike grand jury proceedings, it is not an
“integral part of the criminal process.”9 Second, the policy rationale underlying
the shorter period for appeals by a defendant in a criminal case has little
purchase here. The government suggests that the Rule 4(b)(1)(A) time limit
should apply because, in the Seventh Circuit’s words, “the shorter time limit for
criminal appeals furthers the public interest in the prompt resolution of criminal
proceedings.”10 But it is not apparent why allowing sixty days rather than
fourteen days for a third-party journalist to appeal a collateral order would
extend the length of the criminal proceeding.                  The record here offers no
indication that Clark’s motions and subsequent appeal had any effect on the
progress of Aldawsari’s case.           And, last in sequence but not in importance,
nothing in the text of Rule 4(b) suggests that the time limit for appeals by
criminal defendants is meant to apply to third-party appeals from collateral
orders. Rule 4(b)(1) prescribes two specific limits– fourteen days for a defendant,
and, “[w]hen the government is entitled to appeal,” thirty days for the




       5
       In re Grand Jury Subpoenas, 89-3 and 89-4, 902 F.2d 244, 247 (4th Cir. 1990); In re
Grand Jury Proceedings, 835 F.2d 237, 239 (10th Cir. 1987).
       6
         United States v. Mendoza, 372 F. App’x 513, 514 (5th Cir. 2010) (unpublished); United
States v. Byfield, 522 F.3d 400, 402 (D.C. Cir. 2008).
       7
           United States v. Montoya-Ortiz, 31 F. App’x 838, 838 (5th Cir. 2002) (unpublished).
       8
        See Mendoza, 372 F. App’x at 513; Byfield, 522 F.3d at 401; Montoya-Ortiz, 31 F.
App’x at 838.
       9
           In re Grand Jury Proceedings, 835 F.2d at 239.
       10
            United States v. Craig, 907 F.2d 653, 656 (7th Cir. 1990).

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government.11 It does not state a general deadline for any appeal in a criminal
case and does not mention third-party interveners. We conclude that Rule 4(a)
controls this appeal and that notice was timely.
                                              III.
       We are left with issues of standing and the validity of the gag order.
“‘Because this case involves constitutional and other legal questions, we review
the district court’s orders de novo.’”12 “‘Specific factual findings of the district
court on the issue are, of course, entitled to review under the clearly erroneous
standard.’”13
                                               A.
       For constitutional standing, a “plaintiff must have suffered an injury in
fact” that is “fairly traceable to the challenged action” and that likely “will be
redressed by a favorable decision.”14 The government argues that Clark cannot
establish injury in fact because he has not shown that anyone bound by the
court’s gag order would be willing to speak to him about the case. Clark argues
that he does not have to prove the existence of a particular willing speaker, that
the gag order itself shows there are willing speakers, and that he has standing
because the order has impaired the ability of the news media to gather news.
       In Davis, this court declined to decide “whether, in every case, the media
must demonstrate the existence of a willing speaker to establish standing to




       11
            FED. R. APP. P. 4(b)(1).
       12
          In re Hearst Newspapers, L.L.C., 641 F.3d 168, 174 (5th Cir. 2011) (quoting United
States v. Brown (In re Times Picayune Publ’g. Corp.), 250 F.3d 907, 913 (5th Cir.2001)).
       13
            Id. at 174-75 (quoting Brown, 250 F.3d at 913).
       14
          Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quotation marks,
alterations, and citations omitted); see Davis v. E. Baton Rouge Parish Sch. Bd. v. Capital City
Press, 78 F.3d 920, 926 (5th Cir. 1996).

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challenge a court’s confidentiality order.”15        We found that a willing speaker
existed in that case, which involved a desegregation plan, because the parties
had stipulated that the news agencies had been able to discover information
about desegregation of the school system prior to the court’s issuance of the
confidentiality order.16 We also noted that the parties had stipulated that the
subject of the case was “newsworthy and of great public interest in the
community.”17 Here, both the government and Aldawsari’s counsel issued press
releases prior to the district court’s entry of the gag order. Aldawsari’s
prosecution on terrorism charges is unquestionably newsworthy and of public
interest. There is no dispute that, if permitted to do so, Clark will attempt to
speak with the parties or parties’ counsel or representatives about the case. We
agree with Clark that the gag order affected his right to gather news and that
he has standing to challenge it.
                                             B.
       Our conclusion that Clark has standing to present his constitutional
claims has little bearing on the merits of the claims, and we find them lacking.
       First, Clark has not shown that the district court’s gag order violates the
First Amendment.            In general, an order that restricts trial participants’
communications with the press “will be upheld only if the government can
establish that ‘the activity restrained poses either a clear and present danger or
a serious and imminent threat to a protected competing interest.’”18 “The




       15
            Davis, 78 F.3d at 927.
       16
            Id.
       17
            Id.
       18
         United States v. Brown, 218 F.3d 415, 425 (5th Cir. 2000) (quoting Levine v. United
States Dist. Court for Cent. Dist., 764 F.2d 590, 595 (9th Cir. 1985)).

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government must also establish that the order has been narrowly drawn and is
the least restrictive means available.”19
      The government argues that the district court was justified in imposing
a gag order because it found that there was a substantial likelihood that
extrajudicial commentary could compromise Aldawsari’s right to a fair trial.20
As the government notes, when the criminal complaint against Aldawsari was
unsealed, the allegations generated a good deal of media coverage that
highlighted Aldawsari’s alleged radical Islamist views, bomb-making activities,
and targeting of former President George W. Bush.
      Clark does not appear to contest the district court’s determination that the
press attention garnered by the Aldawsari prosecution put Aldawsari’s right to
a fair trial at risk. Nor does Clark argue that the district court should have
taken specific steps other than restraining the trial participants’ communication
with the press to protect Aldawsari’s Sixth Amendment rights. Rather, Clark
focuses on the breadth of the order, suggesting that it restricts the speech of
“every person in the entire world who acts on delegated authority for the United
States” and anyone elected to a federal office in the United States. He argues
that the order thus is not narrowly tailored or “the least restrictive corrective
measure.”21
      We find no support for Clark’s argument. On its face, the gag order is not
overly broad.        The only people restrained from discussing the case are
individuals “involved with the proceedings”22–the parties, the parties’
representatives, and the parties’ attorneys of record.               In addition, as the


      19
           Id.
      20
           See id.
      21
           See id. at 423.
      22
           United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977).

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government observes, the order has not hindered the press. The news media has
continued its coverage, drawing on public hearings and information in the public
record. The restrictions imposed by the district court do not foul the First
Amendment.
       Second, Clark’s claim that the denial of his motion to intervene limited his
right to earn a living through news gathering in violation of his due process
rights is without merit. Individuals possess a liberty interest in pursuing their
chosen profession.23 However, Clark has not shown that he has been deprived
of pursuing work as a journalist. At most, the gag order in this case limited his
access to some information about Aldawsari’s case; he may still report on aspects
of the case not subject to the gag order, and nothing in the gag order or the
court’s denial of his motion to intervene prevents him from reporting on other
newsworthy issues.24 More to the point, Clark’s argument begs the question of
the restraint’s legality–there is no constitutional right to pursue a profession in
a manner that infringes on the constitutional rights of another citizen.
                                             IV.
       We conclude that the gag order entered by the district court was lawful
and that intervention by Clark would have been futile. There was no violation
of Clark’s First Amendment or Fifth Amendment rights.
       AFFIRMED.




       23
            See Stidham v. Tex Comm’n on Private Sec., 418 F.3d 486, 491 (5th Cir. 2005).
       24
         See Bd. of Regents v. Roth, 408 U.S. 564, 573-74 (1972) (rejecting the plaintiff’s due
process claim in part because the plaintiff, a professor, had not been barred from all
employment at state universities); Connelly v. Comptroller of the Currency, 876 F.2d 1209,
1214 (5th Cir. 1989) (rejecting the plaintiff’s due process argument in part because the
defendant’s actions “did not entirely disable him from pursuing” his chosen career).

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