                                                                          WR-83,719-01
                                                       COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                      Transmitted 9/14/2015 4:10:01 PM
                                                        Accepted 9/15/2015 8:45:28 AM
                                                                        ABEL ACOSTA
          TEXAS COURT OF CRIMINAL               APPEALS                         CLERK
                 ________________________________

                               CASE NO.
                                                                September 16, 2015
                             WR-83, 719-01
                 ________________________________

       IN RE STATE OF TEXAS EX REL. ABELINO REYNA,
                         Relator
                 ________________________________

                      Trial Cause No. 2015-1955-2
             In the 54th District Court, McLennan County

               Appellate Cause No. 10-14-00235-CR
                      10th Court of Appeals
                           Waco, Texas
  _________________________________________________________

 BRIEF OF AMICI CURIAE THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS AND 24 MEDIA ORGANIZATIONS* IN
   OPPOSITION TO RELATOR’S APPLICATION FOR WRIT OF
                         MANDAMUS
  __________________________________________________________

                                        Hannah Bloch-Wehba
                                        State Bar No. 24087175
                                        hblochwehba@rcfp.org
                                           Counsel of Record
                                        Bruce D. Brown
                                        Katie Townsend
                                        REPORTERS COMMITTEE FOR
                                          FREEDOM OF THE PRESS
                                        1156 15th Street NW, Suite 1250
                                        Washington, D.C. 20005
                                        Tel.: (202) 795-9300
 * A full list of amici is reproduced   Fax: (202) 795-9310
 on the next page
                      IDENTITY OF AMICI CURIAE

The Reporters Committee for Freedom of the Press
American Society of News Editors
The Associated Press
Association of Alternative Newsmedia
Courthouse News Service
Cox Media Group, Inc.
First Amendment Coalition
First Look Media, Inc.
Gannett Co., Inc.
Hearst Corporation
Investigative Reporting Workshop at American University
MPA – The Association of Magazine Media
National Association of Black Journalists
National Newspaper Association
The National Press Club
National Press Photographers Association
The New York Times Company
The News Guild – CWA
Newspaper Association of America
Online News Association
Radio Television Digital News Association
Society of Professional Journalists
The Star-Telegram
Texas Press Association
Tully Center for Free Speech




                                      i
                                            TABLE OF CONTENTS

IDENTITY OF AMICI CURIAE ............................................................................... i	  

INDEX OF AUTHORITIES.................................................................................... iv	  

STATEMENT OF INTEREST OF AMICI CURIAE ............................................... 1	  

FEE DISCLOSURE STATEMENT ......................................................................... 1	  

SUMMARY OF ARGUMENT ................................................................................ 2	  

ARGUMENT ............................................................................................................ 4	  

I.	   Gag orders like the one at issue here impinge on constitutionally protected
        newsgathering activities and restrict the flow of accurate, newsworthy
        information about matters of public interest. .................................................... 4	  

II.	   The Texas Constitution and the First Amendment impose stringent standards
         that must be satisfied for a gag order to issue in a criminal case. ..................... 5	  

       A.	   The Davenport standard is compelled by Article I, Section 8 of the Texas
              Constitution and applies in both civil and criminal cases. ........................ 5	  
       B.	   The First Amendment requires a finding of “substantial likelihood” of
              prejudice to the defendant’s fair trial rights. ............................................. 9	  
III.	   Only in the most extreme cases will pretrial publicity threaten a criminal
          defendant’s ability to receive a fair trial before an impartial jury................... 11	  

       A.	   This Court has consistently held that extensive news coverage is not
              inherently prejudicial to a defendant’s fair trial rights. ........................... 11	  
       B.	   Federal courts agree that even widespread, adverse publicity does not
              violate the fair trial rights of criminal defendants. .................................. 14	  
IV.	   The gag order at issue is unsupported by findings sufficient to satisfy either the
         Texas or the federal constitutional standards. ................................................. 19	  

       A. 	  The record in this case is devoid of any specific findings to support a
              substantial likelihood—let alone a serious and imminent threat—of
              prejudice. ................................................................................................. 20	  
V.	   The Court of Appeals’ grant of mandamus was correct on other constitutional
        grounds. ........................................................................................................... 24	  

                                                                ii
       A.	   The gag order is unconstitutionally overbroad and vague....................... 25	  
       B.	   The trial court improperly rejected alternatives to its expansive prior
              restraint on speech. .................................................................................. 27	  
CONCLUSION ....................................................................................................... 28	  

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)................................. 30	  

APPENDIX A ........................................................................................................... 1	  

APPENDIX B ........................................................................................................... 9	  




                                                            iii
                                    INDEX OF AUTHORITIES

Cases	  

Bell v. State, 938 S.W.2d 35 (Tex. Crim. App. 1996) ................................ 11, 12, 20

Bowen v. Carnes, 343 S.W.3d 805 (Tex. Crim. App. 2011) ................................. 24

Calley v. Calloway, 519 F.2d 184 (5th Cir. 1975),
  cert. denied 425 U.S. 911 (1976) ...................................................... 15, 16, 17, 21

Casey v. Moore, 386 F.3d 896 (9th Cir. 2004) ....................................................... 15

CBS Inc. v. Young, 522 F.2d 234 (6th Cir. 1975) ................................................. 4, 9

Dallas Morning News Co. v. Garcia, 822 S.W.2d 675
  (Tex. App.—San Antonio 1991, no writ) ............................................................. 4

Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) (orig. proceeding)............... passim

Ex parte McCormick, 88 S.W.2d 104 (Tex. Crim. App. 1935) ................................ 7

Ex parte Tucker, 220 S.W. 75 (Tex. 1920). .............................................................. 6

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ............................................. 9

Gonzalez v. State, 222 S.W.3d 446 (Tex. Crim. App. 2007) .................................. 13

Henley v. State, 576 S.W.2d 66 (Tex. Crim. App. 1978) ....................................... 13

Houston Chronicle Pub. Co. v. Shaver, 630 S.W.2d 927
  (Tex. Crim. App. 1982)..................................................................................... 5, 8

In re Benton, 238 S.W.3d 587
   (Tex. App.—Houston [14th Dist.] 2007, no pet.) ........................................ passim

In re Charlotte Observer, 882 F.2d 850 (4th Cir. 1989)................................... 10, 27

In re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007, no pet.) .................. passim

In re Houston Chron. Publ’g Co., 64 S.W.3d 103
   (Tex. App.—Houston [14th Dist.] 2001, no pet.) ........................................... 8, 23

Journal Publ’g Co. v. Mechem, 801 F.2d 1233 (10th Cir. 1986) ............................. 9

                                                       iv
Levine v. U.S. Dist. Court, 764 F.2d 590 (9th Cir. 1985) ......................................... 5

Murphy v. Florida, 421 U.S. 794 (1975) ................................................................ 14

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) ............................................ 21

Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se. Texas, Inc.,
  975 S.W.2d 546, 559 (Tex. 1998) ......................................................................... 6

Patton v. Yount, 467 U.S. 1025 (1984) ............................................................. 10, 17

Reynolds v. United States, 98 U.S. 145 (1878) ....................................................... 13

Rideau v. Louisiana, 373 U.S. 723 (1963).............................................................. 18

Rubenstein v. State, 407 S.W.2d 793 (Tex. Crim. App. 1966) ............................... 13

San Antonio Express-News v. Roman, 861 S.W.2d 265
  (Tex. App.—San Antonio 1993, no writ) ............................................................. 8

Sheppard v. Maxwell, 384 U.S. 333 (1966) ........................................................ 4, 18

Skilling v. United States, 561 U.S. 358 (2010) ..................................... 14, 15, 17, 21

Teague v. State, 864 S.W.2d 505, 509 (Tex. Crim. App. 1993) ............................. 11

United States v. Brown, 218 F.3d 415 (5th Cir. 2000)........................................ 9, 10

United States v. Ford, 830 F.2d 596 (6th Cir. 1987) .................................. 10, 21, 25

United States v. Lipscomb, 299 F.3d 303 (5th Cir. 2002)....................................... 14

United States v. Mitchell, 551 F.2d 1252 (D.C. Cir. 1976) .................................... 15

United States v. Scarfo, 263 F.3d 80 (3d Cir. 2001) ................................................. 9

United States v. Wecht, 484 F.3d 194 (3d Cir. 2007) ............................................... 9

United States v. Wilcox, 631 F.3d 740 (5th Cir. 2011) ........................................... 15

Other Authorities	  

Dane Schiller, Waco Twin Peaks says it’s working with police after
  biker brawl, Houston Chron. (May 20, 2015, 8:48 A.M.), archived at
  http://perma.cc/J5Q4-ETNW .............................................................................. 16
                                                     v
              STATEMENT OF INTEREST OF AMICI CURIAE

      Amici file this brief in opposition to Relator’s Application for a Writ of

Mandamus. As representatives and members of the media, amici have a strong

interest in preserving their ability to gather news and report on ongoing criminal

proceedings, and in ensuring that any prior restraint on speech imposed by a court

meets constitutional requirements.

      The impact of this Court’s resolution of Relator’s Application extends

beyond this case. Accordingly, amici submit this brief to emphasize the

constitutional interests at stake and the impact that gag orders like the one entered

by the trial court have on all members of the media. A supplemental statement of

identity and interest of amici curiae is included below as Appendix A.

                        FEE DISCLOSURE STATEMENT

      Pursuant to Rule 11(c) of the Texas Rules of Appellate Procedure, amici

state that no fee was paid or will be paid for the preparing of this brief.




                                           1
                           SUMMARY OF ARGUMENT

      The gag order imposed by the trial court in this case has placed

unconstitutional restrictions on speech and prevented members of the media from

gathering the news and reporting on matters of significant public interest. The trial

court failed to apply the correct legal standards for determining whether and to

what extent the constitutional rights of the press and the public under the First and

Fourteenth Amendments to the U.S. Constitution and Article I, Section 8 of the

Texas Constitution must yield to preserve a defendant’s ability to receive a fair

trial by an impartial jury. The Tenth Court of Appeals, below, was thus correct in

conditionally granting mandamus relief and ordering the trial court to vacate its

gag order. See In re Clendennen, No. 10-15-00235-CR (Tex. App.—Waco August

7, 2015) (not designated for publication). This Court should uphold that ruling.

      The standard set forth in Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992)

(orig. proceeding) is the correct standard for evaluating the constitutionality of a

prior restraint like the one at issue here under Texas law. The gag order entered by

the trial court in this case not only fails to satisfy that heightened standard, it also

fails to satisfy the standard compelled by the U.S. Constitution. The record in this

case does not include any findings of inflammatory or prejudicial media coverage

supporting a determination that Matthew Allen Clendennen’s (“Clendennen”) fair

trial rights would be threatened in any way by public access to information about

                                            2
his case—let alone findings of prejudice to the extent required to justify curtailing

the exercise of state and federal constitutional rights. For that reason alone, the

Court of Appeals’ ruling was correct.

      In addition, the gag order is unconstitutionally vague and overbroad. Not

only does it purport to restrain the speech of too many individuals, including

witnesses and law enforcement officers who do not possess information that could

jeopardize Clendennen’s fair trial rights, but the order also restricts too much

speech and is of unlimited duration. The order prevents any gagged individual

from making any statement whatsoever to the media, without regard to whether it

is innocuous, purely factual, or already a matter of public record. The trial court

made no attempt to narrowly tailor the gag order to prevent dissemination only of

prejudicial material, or even to limit the order’s duration. It is unclear from the

language of the gag order what speech—if any—concerning Clendennen’s case or

the underlying incident falls safely outside its ambit.

      Finally, the trial court failed to give proper consideration to alternatives

designed to safeguard the integrity and impartiality of a jury, including voir dire,

which is normally sufficient to root out prejudice, even in the most high-profile

and publicized of criminal trials.

      For these reasons, amici urge this Court to deny Relator’s Application for a

Writ of Mandamus.

                                           3
                                    ARGUMENT

 I.     Gag orders like the one at issue here impinge on constitutionally
        protected newsgathering activities and restrict the flow of accurate,
        newsworthy information about matters of public interest.

        Media access to criminal proceedings, court records, and trial participants is

essential to the public’s understanding and oversight of the judicial system. For

centuries, the press has played a critical role in facilitating public oversight of the

courts. “A responsible press has always been regarded as the handmaiden of

effective judicial administration, especially in the criminal field.” Sheppard v.

Maxwell, 384 U.S. 333, 350 (1966).

        The press does not simply publish information about trials but guards
        against the miscarriage of justice by subjecting the police,
        prosecutors, and judicial processes to extensive public scrutiny and
        criticism. . . . And where there was no threat or menace to the
        integrity of the trial, we have consistently required that the press have
        a free hand, even though we sometimes deplored its sensationalism.

Id. (citations omitted) (internal quotation marks omitted).

        Both the Texas Constitution and U.S. Constitution protect newsgathering

activities, including the right of a reporter to receive information from a willing

speaker. See Dallas Morning News Co. v. Garcia, 822 S.W.2d 675, 678 (Tex.

App.—San Antonio 1991, no writ) (emphasizing that “news gathering” activities

are protected by both the state and federal constitutions); CBS Inc. v. Young, 522

F.2d 234, 237–38 (6th Cir. 1975) (gag order “directly impaired or curtailed” the

media’s “constitutionally guaranteed right” to gather the news); Levine v. U.S.

                                            4
Dist. Court, 764 F.2d 590, 594 (9th Cir. 1985) (“By effectively denying the media

access to litigants, the district court’s order raises an issue under the first

amendment by impairing the media’s ability to gather news.”) (citation omitted).

        Gag orders curtail the exercise of that right, and restrict the flow of accurate,

newsworthy information to the public about matters of public interest. They

prevent the media and, by extension, the public, from obtaining information about

a case from the most knowledgeable individuals, verifying information obtained

elsewhere, and clarifying or contextualizing arguments asserted in court documents

or proceedings. The effect of such orders is to reduce both the quantity and quality

of information flowing to the public about matters vital to self-governance, such as

the administration of justice, public safety, and law enforcement activities.

II.     The Texas Constitution and the First Amendment impose stringent
        standards that must be satisfied for a gag order to issue in a criminal
        case.

        A.  The Davenport standard is compelled by Article I, Section 8 of the
            Texas Constitution and applies in both civil and criminal cases.

        Article I, Section 8 of the Texas Constitution states that “[e]very person shall

be at liberty to speak, write or publish his opinions on any subject, being

responsible for the abuse of that privilege….” See also Houston Chron. Publ’g

Co. v. Shaver, 630 S.W.2d 927, 928 (Tex. Crim. App. 1982) (“The central idea

embodied in the Constitution is simple: Express what one will, understanding one

may be called to account for abusing the privilege.”). Courts in this state have long

                                            5
recognized that “[p]unishment for the abuse of the right [to free speech], not

prevention of its exercise, is what [this] provision contemplates.” Ex parte Tucker,

220 S.W. 75, 76 (Tex. 1920) (emphasis added). Thus, as “the text, history, and

purpose of the provision” make clear, Article I, Section 8 provides heightened

protection against prior restraints on speech that exceed even the stringent

protections afforded by the First Amendment. Operation Rescue-Nat’l v. Planned

Parenthood of Houston & Se. Texas, Inc., 975 S.W.2d 546, 559 (Tex. 1998).

      Because the Texas Constitution provides “greater rights of free expression

than its federal equivalent,” Davenport, 834 S.W.2d at 10, the Texas Supreme

Court has applied a particularly exacting standard to evaluate gag orders, holding

that such orders:

      will withstand constitutional scrutiny only where there are specific
      findings supported by evidence that (1) an imminent and irreparable
      harm to the judicial process will deprive litigants of a just resolution
      of their dispute, and (2) the judicial action represents the least
      restrictive means to prevent that harm.

Id.; see also id. at 36 (stating that federal First Amendment standards are

insufficiently protective of “the rights of free expression that we believe that the

fundamental law of our state secures”).

      The constitutional standard announced in Davenport is applicable in

criminal cases as well as civil disputes. By requiring the risk of prejudice to a

criminal defendant to be “imminent and irreparable” to justify a gag order, the

                                           6
Davenport standard correctly reflects the Texas Constitution’s animosity toward

prior restraints, and its recognition that in all but the most extreme cases any risk of

prejudice from pretrial publicity may be cured by less drastic remedial measures.

See Davenport, 834 S.W.2d at 10–11 (placing more faith in remedial measures

than federal case law); see also Benton, 238 S.W.3d at 600 (“[I]t is only the

occasional case that presents a danger of prejudice from pretrial publicity.”).

      Application of the Davenport standard in the criminal context is also

consistent with this Court’s precedent, as well as the decisions of lower appellate

courts. Over a century ago, this Court recognized that prior restraints conflict with

“the genius and spirit of our free institutions, which is intended to guaranty

publicity to the proceedings of our courts, and the greatest freedom in the

discussion of the doings of such tribunals, consistent with truth and decency.” Ex

parte Foster, 71 S.W. 593, 595 (Tex. Crim. App. 1903). Because prior restraints

are particularly disfavored as a matter of Texas constitutional law, this Court has

rejected attempts to prevent publication of testimony adduced in criminal trials.

See id. at 595 (holding a prior restraint on publication of testimony

unconstitutional); Ex parte McCormick, 88 S.W.2d 104, 106 (Tex. Crim. App.

1935) (holding a prior restraint on publication of testimony unconstitutional).

Similarly, this Court has recognized that prior restraints that deny the press and the

public access to information about criminal proceedings are almost always

                                           7
unnecessary because “in our adversary system of criminal justice the ultimate

safeguard against prejudicial publicity is the right of the accused to demonstrate

that the media’s coverage of his case—be it printed or broadcast—compromised

the ability of the particular jury that heard the case to adjudicate fairly.” Shaver,

630 S.W.2d at 933 (internal citation marks omitted).

       Recognizing that the Davenport standard strikes the correct constitutional

balance, and is sufficiently protective of criminal defendants’ fair trial rights, the

Tenth and Fourth Courts of Appeals have expressly held that it applies in criminal

cases. See In re Graves, 217 S.W.3d 744, 749 (Tex. App.—Waco 2007, no pet.);

see also San Antonio Express-News v. Roman, 861 S.W.2d 265, 268 (Tex. App.—

San Antonio 1993, no writ). As the Court of Appeals in San Antonio Express-

News explained, “[t]he application of Davenport to a criminal proceeding is

appropriate as a means of protecting the public’s right of access to criminal trials

and proceedings and free speech through the dissemination of public

information—especially when, as in this case, the criminal defendant has raised no

challenge that without the gag order he will be deprived of a fair trial.” 861

S.W.2d. at 268 (citations omitted).1


1
  While other Courts of Appeals have failed to apply the Davenport standard in criminal cases,
they have either declined to reach the question of its application, or not articulated any rationale
for rejecting it. See In re Benton, 238 S.W.3d 587, 597 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (“We need not determine whether the higher Davenport standard applies in this criminal

                                                 8
       B.  The First Amendment requires a finding of “substantial likelihood”
           of prejudice to the defendant’s fair trial rights.

       Gag orders are also presumptively invalid under the U.S. Constitution.

Young, 522 F.2d at 238; see also Journal Publ’g Co. v. Mechem, 801 F.2d 1233,

1236 (10th Cir. 1986) (stating that “any inhibitions against news coverage of a trial

carry a heavy presumption of an unconstitutional prior restraint”). A gag order that

restricts the speech of lawyers and parties may issue only when a court makes

specific findings showing that extrajudicial commentary by those individuals

presents a “substantial likelihood of material prejudice” to the court’s ability to

conduct a fair trial, and the order must be narrowly tailored and the least restrictive

means available to preserve the fairness of the trial. Gentile v. State Bar of

Nevada, 501 U.S. 1030, 1063 (1991); United States v. Brown, 218 F.3d 415, 427–

28 (5th Cir. 2000).2 Speech restrictions must be no greater than essential to



case, because the record and the findings do not support the imposition of a gag order even under
the lower standards articulated in Gentile [v. State Bar of Nevada, 501 U.S. 1030 (1991)] and
Brown.”); In re Houston Chron. Publ’g Co., 64 S.W.3d 103 (Tex. App.—Houston [14th Dist.]
2001, no pet.) (upholding a gag order without explaining the legal basis for the decision).
2
  Federal courts have applied “varying standards to review gag orders depending on whom or
what is being gagged.” United States v. Scarfo, 263 F.3d 80, 92 (3d Cir. 2001). For example,
reasoning that tighter restrictions on the speech of lawyers—as opposed to witnesses and
potential trial participants—may be permissible “[b]ecause lawyers have special access to
information through discovery and client communication” and, thus, their extrajudicial
statements may pose a greater threat of prejudice, Gentile, 501 U.S. at 1074, some federal courts
have concluded that restrictions on lawyers’ speech must present a “reasonable likelihood” of
material prejudice to the fairness of the proceedings to pass constitutional muster. The majority
of jurisdictions require a higher showing for such gag orders. See United States v. Wecht, 484
F.3d 194, 205–06 (3d Cir. 2007) (“every state, as well as a majority of federal district courts,
now apply rules that are more protective of speech than the reasonable likelihood standard”). In

                                               9
prevent the specific harm identified. See Brown, 218 F.3d at 427–28; United

States v. Ford, 830 F.2d 596, 600 (6th Cir. 1987). Because large quantities of

speech about a given case carry no risk of prejudicial effect, gag orders that impose

a blanket “no comment” rule, without exceptions, are unlikely to satisfy

constitutional mandates. See id. (concluding that a “no comment” gag order was

not narrowly tailored).

       For a gag order to be constitutional, it also must be the least restrictive

means of preserving the defendant’s rights. The power of voir dire and other

curative measures to negate the effect of any prejudicial publicity should not be

understated. See Patton v. Yount, 467 U.S. 1025, 1038 (1984) (“It is fair to assume

that the method we have relied on since the beginning [voir dire], usually identifies

bias.”) (citation omitted); In re Charlotte Observer, 882 F.2d 850, 855–56 (4th Cir.

1989) (“Increasingly the courts are expressing confidence that voir dire can serve

in almost all cases as a reliable protection against juror bias however induced.”).




considering the validity of a prior restraint on attorney speech, the Texas Supreme Court has also
“assume[d] that the Gentile standard is a constitutional minimum.” Comm’n for Lawyer
Discipline v. Benton, 980 S.W.2d 425, 431 (Tex. 1998) (emphasis added).

                                               10
III.     Only in the most extreme cases will pretrial publicity threaten a
         criminal defendant’s ability to receive a fair trial before an impartial
         jury.

         A.  This Court has consistently held that extensive news coverage is not
             inherently prejudicial to a defendant’s fair trial rights.

         Under Texas law, publicity must be “pervasive, prejudicial, and

inflammatory” before it is found to pose a risk to a defendant’s right to an impartial

jury. Bell v. State, 938 S.W.2d 35, 46 (Tex. Crim. App. 1996) (en banc), cert.

denied, 516 U.S. 946 (1997) (“The mere fact of media attention and publicity do

not, however, automatically establish prejudice.”). This Court has repeatedly

rejected arguments that pretrial news coverage creates “outside influences affecting

the community’s climate of opinion as to a defendant are so inherently suspect that

the resulting probability of unfairness requires suitable procedural safeguards” to

guard against prejudice. Faulder v. State, 745 S.W.2d 327, 338 (Tex. Crim. App.

1987).

         In Teague v. State, for example, a defendant convicted of capital murder

argued that the “the trial court should have granted his motion for a change of

venue because of the prejudicial pretrial publicity” surrounding his case. 864

S.W.2d 505, 509 (Tex. Crim. App. 1993), abrogated by Robertson v. State, 871

S.W.2d 701 (Tex. Crim. App. 1993). Teague introduced evidence showing that

several area newspapers and television channels had covered his case. Id. at 510.

This Court found that Teague was not prejudiced by the trial court’s failure to

                                          11
grant his motion for a change of venue despite the fact that several jurors were

aware of the case because Teague “did not show the outside influences affecting

the community as to him were so inherently suspect as to raise doubt about the

likelihood of obtaining a fair and impartial jury.” Id.

      Similarly, in Bell v. State, a man who had been convicted multiple times of

capital murder charges sought to challenge one conviction on the grounds of

improper denial of a motion for change of venue. 938 S.W.2d at 41, 44. He

entered 150 newspaper articles and excerpts from nine television news broadcasts

into the record, including one broadcast that intimated his guilt, along with

testimony from attorneys who opined that he could not receive a fair trial in

Jefferson County. Id. at 45–46. Thirty-six of the sixty veniremembers, drawn

from a qualified jury pool of less than 130,000, had existing knowledge of his case,

including six jurors selected for service. Id. at 45–46. Nevertheless, this Court

held that the defendant’s right to an impartial jury was not violated. Id. at 46–47.

“The mere fact of media attention and publicity do not,” the Court reasoned,

“automatically establish prejudice or require a change of venue; jurors do not have

to be totally ignorant of the facts and issues of a particular case.” Id. at 46. This

Court agreed with the trial court that the news coverage was not sufficiently

“inflammatory, pervasive, or prejudicial” to violate defendant’s right to an




                                          12
impartial jury, and that jury panel questionnaires sufficiently guarded against

prejudicial influence. Id.

       As this Court has made clear, “even extensive knowledge of the case or

defendant in the community as a result of pretrial publicity is not sufficient if there

is not also some showing of prejudicial or inflammatory coverage.” Gonzalez v.

State, 222 S.W.3d 446, 449 (Tex. Crim. App. 2007). The extent and nature of

pretrial publicity will be found to have risen to that level only in the most extreme

circumstances. Indeed, amici are aware of only a single case in which this Court

has found that a trial court abused its discretion by failing to grant a motion for a

change of venue for reasons of pretrial publicity: In 1966, this Court reversed the

conviction of Jack Rubenstein, or Jack Ruby, the killer of President John F.

Kennedy’s assassin, Lee Harvey Oswald, because “the Dallas County climate was

one of such strong feeling that it was not humanly possible to give Ruby a fair and

impartial trial which is the hallmark of American due process of law.” Rubenstein

v. State, 407 S.W.2d 793, 796 (Tex. Crim. App. 1966) (McDonald, J., concurring).3




3
  In Henley v. State, 576 S.W.2d 66 (Tex. Crim. App. 1978), this Court held that the trial court
abused its discretion by failing to hold a hearing on the issue of pretrial publicity. That issue is
not presented here.

                                                 13
      B.  Federal courts agree that even widespread, adverse publicity does
          not violate the fair trial rights of criminal defendants.

      The U.S. Supreme Court has likewise made clear that the criminal justice

system both anticipates and tolerates jurors who have been exposed to pretrial

publicity as an inevitable consequence of an informed citizenry. See Reynolds v.

United States, 98 U.S. 145, 155–56 (1878) (“[E]very case of public interest is

almost, as a matter of necessity, brought to the attention of all the intelligent people

in the vicinity, and scarcely any one can be found among those best fitted for jurors

who has not read or heard of it, and who has not some impression or some opinion

in respect to its merits.”); Murphy v. Florida, 421 U.S. 794, 800 n.4 (1975) (“We

must distinguish between mere familiarity with petitioner or his past and an actual

predisposition against him, just as we have in the past distinguished largely factual

publicity from that which is invidious or inflammatory.”).

      Thus, to satisfy the Sixth Amendment’s requirement of an impartial jury,

“[i]t is sufficient if the juror can lay aside his impression or opinion and render a

verdict based on the evidence in court.” Murphy, 421 U.S. at 800 (internal

quotation marks omitted). Under the federal constitution, for pretrial publicity to

reach the point of interfering with a defendant’s fair trial rights, the publicity must

be so inflammatory that any juror exposed to it could not be expected to render an

impartial verdict. See Skilling v. United States, 561 U.S. 358, 382–83 (2010)

(discussing that publicity must be “the kind of vivid, unforgettable information”

                                          14
that is “particularly likely to produce prejudice”); United States v. Lipscomb, 299

F.3d 303, 344 (5th Cir. 2002) (stating that the fair trial right “is violated only if . . .

the trial atmosphere [is] utterly corrupted by press coverage”) (internal quotation

marks omitted).

       To determine whether the nature of pretrial publicity has risen to this level,

district courts must consider the circumstances of each case, including, for

example: (1) the time elapsed between the coverage and the trial4; (2) whether the

coverage contains “confessions or other blatantly prejudicial information of the

type readers or viewers could not reasonably be expected to shut from sight”5; and

(3) whether the coverage invites prejudgment of, or expresses opinions about, a

particular defendant’s guilt.6

       In many high-profile criminal cases—including those involving the

Watergate defendants, the platoon leader in the My Lai massacre in Vietnam, and

Enron executive Jeffrey Skilling—voir dire of prospective jurors sufficiently

guarded against prejudice.7


4
  Skilling, 561 U.S. at 383.
5
  Id. at 382.
6
  Id. at 383 (considering whether the coverage contains reports of a “smoking gun”); id. at 384
n.17 (“[W]hen publicity is about the event, rather than directed at individual defendants, this may
lessen any prejudicial impact.”) (internal quotation marks omitted); see also United States v.
Wilcox, 631 F.3d 740, 747 (5th Cir. 2011) (considering whether publicity “probatively
incriminated” the defendant); Casey v. Moore, 386 F.3d 896, 907 (9th Cir. 2004).
7
  See United States v. Mitchell, 551 F.2d 1252, 1262 n.46 (D.C. Cir. 1976) (stating that 10 of the
12 jurors selected “claimed to have followed Watergate casually, if at all”), rev’d on other

                                                15
       Perhaps the best example of the principle that remedial measures normally

suffice to protect defendants’ rights is Calley v. Callaway, in which Lieutenant

Calley, leader of the platoon responsible for the My Lai massacre in Vietnam, was

convicted in a military court. 519 F.2d 184, 190–191 (5th Cir. 1975), cert. denied

425 U.S. 911 (1976). The massacre, and Lt. Calley’s involvement in it, had

received “massive” amounts of “intense” publicity. Id. at 205. The record

contained “volumes of clippings, reports and extracts from written reports on the

case, as well as video tapes” of news coverage. Id. at 204. The federal district

court that reviewed Lt. Calley’s conviction found that he “had been persecuted and

pilloried by the news media so intent on making prejudicial revelations about the

incident” that it was “not humanly possible for the jurors not to be improperly

influenced by” the news coverage, which had “lasting emotional impact.” Id. at

205. The court concluded “it would be sheer fantasy to believe that the jurors did

not see, hear and read (the publicity) or that they were not influenced by it,” and

held that Lt. Calley’s Sixth Amendment right had been violated. Id.

       The Fifth Circuit reversed, holding that the publicity was not prejudicial, and

that Lt. Calley had not been deprived of his right to a fair trial by an impartial jury.



grounds sub nom., Nixon v. Warner Commc’ns, 435 U.S. 589 (1978); Calley, 519 F.2d at 206
(“the exhaustive voir dire conducted at trial indicates that there is no likelihood that pretrial
publicity prejudiced Lieutenant Calley”); Skilling, 561 U.S. at 384 (“the extensive screening
questionnaire and follow-up voir dire were well suited to that task”).

                                                 16
Stating that it could not “accept the position that ‘prominence brings prejudice,’”

the Fifth Circuit closely examined the publicity in the record before it and

determined that while some of the coverage contained “virulent and oppressive

attacks on Calley,” “a good deal of the extensive publicity” contained “objective

statements of the facts known and discovered about the My Lai incident.” Id. at

206. The federal court of appeals distinguished “‘straight news stories’” from

“‘invidious articles which would tend to arouse ill will and vindictiveness,’” and

concluded that “there appears to have been no single sentiment regarding the case

held by a vast segment of the American public.” Id. (quoting Beck v. Washington,

369 U.S. 541, 556 (1962)).

      The Fifth Circuit also found that a “searching and sensitively conducted voir

dire” eliminated the likelihood that the jurors selected “were other than fair and

impartial individuals who would determine Calley’s guilt or innocence based

solely on the evidence developed before the court.” Id. at 208–09. As the court

explained, “[t]he law does not prohibit the informed citizen from participating in

the affairs of justice. In prominent cases of national concern, we cannot allow

widespread publicity concerning these matters to paralyze our system of justice.”

Id. at 210.

      The Fifth Circuit’s approach comports with U.S. Supreme Court precedent.

See Patton, 467 U.S. at 1025, 1029–30 (holding that pretrial publicity did not

                                         17
violate the right to an impartial jury, despite the fact that 77 percent of prospective

jurors “admitted they would carry an opinion into the jury box” and eight of the

fourteen jurors and alternates actually seated “admitted that at some time they had

formed an opinion as to Yount’s guilt”); Skilling, 561 U.S. at 375, 377, 385

(holding that the district court properly denied a motion to change venue, despite

“community passion aroused by Enron’s collapse and the vitriolic media

treatment” of the defendant, which “wrote of Skilling’s guilt as a foregone

conclusion”).

      In the small number of cases in which the United States Supreme Court has

found such overwhelming prejudice that the defendant was denied his right to

receive a fair trial, the inflammatory nature of the media coverage was extreme.

See Rideau v. Louisiana, 373 U.S. 72, 723–27 (1963) (finding multiple television

broadcasts of footage of the defendant “in jail, flanked by the sheriff and two state

troopers, admitting in detail the commission of the robbery, kidnapping, and

murder, in response to leading questions by the sheriff” prejudicial); Sheppard, 384

U.S. at 334–36, 358, 363 (declining to hold that months of “virulent” pretrial

publicity alone deprived the defendant of a fair trial, even though the media

televised a three-day inquest, during which the defendant “was examined for more

than five hours without counsel”; vacating the defendant’s conviction only after

considering factors unrelated to the content of pretrial publicity).

                                          18
        As the foregoing cases illustrate, pretrial publicity must be extraordinary to

prejudice a defendant’s rights to a fair trial by an impartial jury. And, even in

sensational cases, voir dire and other remedial measures are sufficient safeguards.

IV.     The gag order at issue is unsupported by findings sufficient to satisfy
        either the Texas or the federal constitutional standards.

        This case arises out of a gang-related shootout that resulted in nine deaths,

eighteen injuries and more than 170 arrests. See Dane Schiller, Waco Twin Peaks

says it’s working with police after biker brawl, Houston Chron. (May 20, 2015,

8:48 A.M.), archived at http://perma.cc/J5Q4-ETNW. The incident received both

local and national media coverage when it occurred because the shooting raised

issues of public safety, law enforcement, and gang violence. The nature of the

media coverage was immediately praised by law enforcement. See App. 5, Video

File B at 11:15 8 ( “the media assistance that we had here yesterday was very good

in getting information out quickly to our public”); App. 5, Video File C at 24:30

(“the media is doing a phenomenal job as well providing information and getting

that out”). Indeed, law enforcement described news coverage of the incident as

“responsible,” and encouraged members of the media to continue to verify facts

with police. See App. 5, Video File C at 2:44 (“I would ask you to continue




8
   All subsequent references to “App.” refer to Clendennen’s Appendix for Writ of Mandamus,
filed with the Tenth Court of Appeals on July 8, 2015.

                                             19
responsible reporting. If you don’t know that it’s a fact, please come to me and I

will give you that information if I can.”).

      The only specific reference to Clendennen in the news coverage in the

record is an online report by KCEN-TV, which describes Clendennen’s efforts to

subpoena surveillance footage in connection with this prosecution. App. 3 at Ex.

B. That story refers to Clendennen as “a man charged in the May 17th Twin Peaks

shootings,” and quotes Clendennen’s counsel as saying that the police “have

repeatedly given the public contradictory information about the events,” and that

Clendennen wanted the video footage “to show there was no probable cause to

arrest” him and to loosen his bond conditions at a hearing on August 10, 2015. Id.

      On June 30, 2015, the McLennan County District Attorney’s Office filed a

motion for a gag order approximately ten minutes before the trial court was to hear

its motion to quash Clendennen’s subpoena for the surveillance footage of the

shootout. Pet. at 2. As a result, neither Clendennen nor members of the news

media had any meaningful opportunity to oppose the gag order prior to its entry

      A.     The record in this case is devoid of any specific findings to
             support a substantial likelihood—let alone a serious and imminent
             threat—of prejudice.

      The Court of Appeals was correct that the trial court abused its discretion by

issuing the gag order. The trial court’s conclusion that prejudice was reasonably

likely to result from future news coverage was speculative, conclusory, and


                                          20
unsupported by any specific findings. See Graves, 217 S.W.3d at 752 (requiring

the court to make “specific findings supported by evidence”); Davenport, 834

S.W.2d. at 10.

      The trial court did not identify a single news report that contained any

“prejudicial, or inflammatory” coverage—let alone such coverage concerning

Clendennen specifically. Bell, 938 S.W.2d at 46. Indeed, the gag order did not

discuss the concept of “prejudice,” focusing instead on the quantity of coverage.

See App’x 4 at 1–2. For example, the court commented on “extensive local and

national media coverage,” and expressed concern about the “volume of pre-trial

publicity,” the “willingness” of counsel to speak with the media, and the inability

of a delay to “lessen the publicity generated by this case.” Id. at 2. It offered only

conclusory statements that “publicity will interfere with the defendant’s right to a

fair trial” and that the publicity posed a “specific threat to the judicial process.” Id.

      These findings are facially insufficient to support a gag order. The mere fact

that news coverage about a particular event has been prevalent does not support a

conclusion that such coverage is substantially likely to be prejudicial or poses an

imminent threat to a defendant’s rights. See Calley, 519 F.2d at 206. The proper

inquiry is not whether counsel, the parties, or trial participants exhibit a

“willingness to give interviews to the media,” or whether the resulting news

coverage has been “extensive,” App’x 4 at 1, but whether the nature and content of

                                           21
the publicity is sufficiently threatening to the ability to seat an impartial jury.

Nothing in the record suggests that news coverage of such an inflammatory nature

has occurred or will occur in the absence of a gag order. And there is nothing to

indicate that the effect of anticipated news coverage would be so irreparably

damaging that no alternative remedial measures could “blunt the impact of pretrial

publicity.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 565 (1976).9

       Moreover, the trial court failed to take into account that any prejudicial

effect of media coverage diminishes with time. See Skilling, 561 U.S. at 383;

Benton, 238 S.W.3d at 599 (finding “no substantial likelihood of material prejudice

when such a substantial period of time elapses [six months] between the statements

and the seating of a jury”). When the trial court entered the gag order, Clendennen

had not yet been indicted, and any criminal trial—if one is to occur—is likely

many months away. Even if the trial court had jurisdiction to enter the gag order

before indictment, which Clendennen contests, the order contains no findings

based on any evidence that the impact of future news coverage is substantially

likely to prejudice potential jurors at the time of trial, or that jurors would be

unable to reach a verdict based solely on the evidence presented in court.


9
  The fact that Clendennen is himself challenging the gag order issued by the trial court should
alone counsel against any finding of prejudice. Under the federal constitution, the Sixth
Amendment guarantees a fair trial to the individual defendant, and thus it is the defendant who is
best positioned to advocate for his own rights. See Ford, 830 F.2d at 600.

                                               22
       The gag order at issue here resembles those which were found lacking in

Graves and Benton. In Graves, the trial court’s order noted that pretrial publicity

included “local and national newspaper coverage” and stated that “it is necessary

to enter this Restrictive Order to protect and provide for a fair and impartial trial in

this cause of action.” Graves, 217 S.W.3d at 743. And, in Benton, the trial court

determined that the case had “generated extensive media coverage and publicity,”

and noted that it had previously “admonished trial counsel to try the case in court

and not in the media.” Benton, 238 S.W.3d at 590–91. The trial court also took

note of the fact that the defendant and his counsel exhibited an “extraordinary

willingness to grant interviews to the media,” and that the parties had discussed the

terms of plea-bargain negotiations in detail with the media. Id. at 591.

       In both cases, these findings were insufficient. In Graves, the court of

appeals rejected the trial court’s conclusory findings, pointed to a lack of

evidentiary support for the determination that a gag order was necessary to protect

a fair trial, and criticized the trial court for not “detailing the nature or extent of the

pretrial publicity . . . or how the pretrial publicity . . . will impact the right to a fair

and impartial jury.” Graves, 217 S.W.3d at 752–73. Similarly, in Benton, the

court of appeals identified only one finding that “potentially . . . may have caused

or could cause prejudice”—the disclosure of details of the plea-bargain

negotiations—and determined that it, alone, was insufficient. Benton, 238 S.W.3d

                                             23
at 597–98. The appellate court faulted the trial court for focusing on the “quantity”

of coverage over its “content or even its effects,” id. at 598, and found no issues

with news coverage that contained “defense counsels’ assertions of innocence

based on self-defense, reports of trial proceedings, and reasonable inferences from

witness testimony,” id. at 600. Both gag orders, accordingly, were set aside.10

        The same result is required here. Under either the First Amendment or the

Texas Constitution, the Court of Appeals was correct in its conclusion that the trial

court’s unsupported findings are patently insufficient to sustain the gag order.

 V.     The Court of Appeals’ grant of mandamus was correct on other
        constitutional grounds.

        Under Texas law, mandamus will lie when a relator can show that “he has

no adequate remedy at law to redress his alleged harm” and when “what he seeks

to compel is a ministerial act, not involving a discretionary or judicial decision.”

Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011) (quoting State ex

rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207,



10
   The gag order in this case is similar to one upheld in In re Houston Chronicle Publishing Co.,
64 S.W.3d at 108. In that case, however, the Fourteenth Court of Appeals did not discuss—or
even identify—the legal standard it applied, and thus its decision lacks persuasive value. In any
event, that case is distinguishable in at least two key respects. First, in Houston Chronicle, no
individual subject to the gag order challenged its validity. Second, the defendant in that case,
Andrea Yates, had already been indicted and the parties warned about prejudicial publicity
before the court entered a gag order, after circulating a proposed order and seeking requests for
modifications. Id. at 105. Here, Clendennen had not yet been indicted when the order was
entered, the trial court gave no notice that a gag order might be imposed, and neither Clendennen
nor the media had an opportunity to challenge the gag order prior to its entry.

                                               24
210 (Tex. Crim. App. 2007)). Not only was the Court of Appeals’ grant of

mandamus warranted because the trial court’s lack of findings, under any standard,

violated “unequivocal, well-settled . . . and clearly controlling legal principles,” id.,

it was also warranted because the gag order is unconstitutionally overbroad, vague,

and not narrowly tailored to achieve a compelling interest.

      A.  The gag order is unconstitutionally overbroad and vague.

      The gag order is overbroad, and therefore not narrowly tailored, for at least

three reasons. First, the order restricts innocuous speech that poses no risk of

prejudice to Clendennen. The gag order creates a sweeping “no comment” rule,

ordering that “[a]ll attorneys, their staffs, and law enforcement officers involved in

the case shall not discuss this case with the media.” App. 4 at 2 (emphasis added).

The order similarly directs witnesses “not [to] discuss this case with the media.”

Id. These provisions make no exception for willing speakers to discuss factual

matters already in the public domain or to correct misunderstandings, rumors or

inaccuracies being disseminated about the case. The gag order does not even

permit Clendennen or his counsel to inform the media about logistical matters,

such as the date, time and location of upcoming hearings. Because the gag order

restricts speech that does not carry a sufficient risk of prejudice, the gag order is

unconstitutional. See Graves, 217 S.W.3d at 748 (requiring the gag order to be

“the least restrictive means to prevent” an imminent and irreparable harm); Ford,


                                           25
830 F.2d at 599 (discussing “no comment” gag orders and stating that “such

broadly based restrictions on speech in connection with litigation are seldom, if

ever, justified,” particularly in criminal cases).

      Second, the gag order is overbroad because it extends to all law

enforcement, witnesses, or counsel’s staff without adequate justification. The trial

court’s conclusory findings about the necessity of the gag order relate only to

counsel. See, e.g., App. 4 at 1 (“counsels’ willingness to give interviews . . . would

only serve to increase the volume of pre-trial publicity”) (emphasis added); id. at 2

(“if counsel for the parties continue to grant interviews to the media, the pre-trial

publicity will interfere with the defendant’s right[s]”) (emphasis added); id. (“an

order restricting extra-judicial commentary by counsel for the parties is necessary

to preserve all venue options”) (emphasis added). The trial court made no

findings, whatsoever, and offered no explanation for the restrictions it placed on

statements by law enforcement, witnesses, or counsel’s staff.

      Third, the gag order is overbroad because its duration is unlimited.

Notwithstanding its stated purpose to preserve the ability to seat an impartial jury,

App. 4 at 2, the gag order is not addressed to that concern. The order’s restrictions

on speech will remain in place long after a jury is seated and long after the jury

returns its verdict—assuming this matter ever reaches trial. For all of these

reasons, the gag order is unconstitutionally overbroad.

                                           26
      The order also is unconstitutionally vague. The order does not make clear

whether the speech restrictions apply to any discussion of the underlying incident

generally, including the other pending criminal cases, or to Clendennen’s civil

lawsuit. And to the extent the order permits some nonprejudicial speech about the

case or the underlying incident, it is unclear what speech is permissible. The gag

order should be vacated on vagueness grounds as well.

      B.  The trial court improperly rejected alternatives to its expansive prior
          restraint on speech.

      In rejecting remedial alternatives, the trial court improperly focused on the

volume of publicity, asserting that less restrictive measures, such as delaying trial,

“would not lessen the publicity generated by this case.” App’x 4 at 2. Instead, the

trial court should have inquired whether remedial measures are incapable of curing

any unfair prejudice from pretrial publicity. See Benton, 238 S.W.3d at 598.

      Moreover, the trial court failed to explain why voir dire would be incapable

of rooting out any incurable prejudice, as it has done in so many high-profile cases.

Indeed, in “almost all cases,” voir dire will provide adequate protection “against

juror bias however induced.” Charlotte Observer, 882 F.2d at 856. The Texas

Code of Criminal Procedure specifically anticipates juror challenges based on

conclusions “formed from reading newspaper accounts, communications,

statements or reports or mere rumor or hearsay.” Tex. Code Crim. Proc. § art.

35.16(a)(10) (2006). The trial court’s discussion of alternatives to the gag order is

                                          27
insufficient to sustain a prior restraint under the First Amendment or the Texas

Constitution. 11 See id.; Davenport, 834 S.W.2d at 11 (requiring trial courts to

explain “why such harm could not be sufficiently cured by remedial action”).

       Simply because a criminal case generates media coverage, even extensive

media coverage, does not mean that every potential juror will have been exposed to

it. Nor does it mean that every potential juror will have formed inalterable

opinions as to the defendant’s guilt or innocence and be incapable of making a

decision based solely on the evidence presented at trial. Here, the record contains

no basis for concluding that voir dire or other corrective measures are incapable of

protecting Clendennen’s fair trial rights, and the gag order should be set aside.

                                        CONCLUSION

       For all the foregoing reasons, amici curiae respectfully urge this Court to

deny Relator’s Application for a Writ of Mandamus and uphold the ruling of the

Tenth Court of Appeals.

                                              Respectfully submitted,

                                              /s/ Hannah Bloch-Wehba

11
   Prior restraints on speech, like sealed court documents and closed courtrooms, will almost
always be effective at restricting the free flow of information about a trial. However, the district
court must consider whether alternatives to these extraordinary measures are insufficient to
preserve the defendant’s rights, not whether drastic measures are effective. See Graves, 217
S.W.3d at 748 (requiring judicial action to be “the least restrictive means to prevent that harm”);
see also Davenport, 834 S.W.2d at 11 (“‘the argument of convenience can have no weight as
against those safeguards of the constitution which were intended by our fathers for the
preservation of the rights and liberties of the citizen.’”)

                                                 28
                              Hannah Bloch-Wehba, Esq.
                                 Counsel of Record
                              Bruce D. Brown, Esq.
                              Katie Townsend, Esq.
                              REPORTERS COMMITTEE FOR
                                FREEDOM OF THE PRESS

                              * Additional counsel for amici are listed
                                below in Appendix B
Dated:   September 14, 2015
         Washington, D.C.




                                29
         CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

      This brief complies with the type-volume limitation of Texas Rule of

Appellate Procedure 9.4(i)(3) because this brief contains 7,178 words, excluding

the parts of the brief exempted by Texas Rule of Appellate Procedure 9.4(i)(1).



                                      /s/ Hannah Bloch-Wehba
                                      Hannah Bloch-Wehba
                                          Counsel of Record for Amici Curiae
                                      REPORTERS COMMITTEE FOR FREEDOM
                                          OF THE PRESS



      Dated:       September 14, 2015
                   Washington, D.C.




                                        30
                                   APPENDIX A


     SUPPLEMENTAL STATEMENT OF IDENTITY AND INTEREST
                     OF AMICI CURIAE


      The Reporters Committee for Freedom of the Press is a voluntary,

unincorporated association of reporters and editors working to defend and preserve

First Amendment rights and freedom of information interests of the news media.

The Reporters Committee has provided representation, guidance, and research in

First Amendment and Freedom of Information Act litigation since 1970, and it

frequently files friend-of-the-court briefs in significant media law cases.

      With some 500 members, American Society of News Editors (“ASNE”) is

an organization that includes directing editors of daily newspapers throughout the

Americas. ASNE changed its name in April 2009 to American Society of News

Editors and approved broadening its membership to editors of online news

providers and academic leaders. Founded in 1922 as American Society of

Newspaper Editors, ASNE is active in a number of areas of interest to top editors

with priorities on improving freedom of information, diversity, readership and the

credibility of newspapers.

      The Associated Press (“AP”) is a news cooperative organized under the

Not-for-Profit Corporation Law of New York, and owned by its 1,500 U.S.

newspaper members. The AP’s members and subscribers include the nation’s
                                         A-1
newspapers, magazines, broadcasters, cable news services and Internet content

providers. The AP operates from 300 locations in more than 100 countries. On

any given day, AP’s content can reach more than half of the world’s population.

      Association of Alternative Newsmedia (“AAN”) is a not-for-profit trade

association for 130 alternative newspapers in North America, including weekly

papers like The Village Voice and Washington City Paper. AAN newspapers and

their websites provide an editorial alternative to the mainstream press. AAN

members have a total weekly circulation of seven million and a reach of over 25

million readers.

      Courthouse News Service is a California-based legal news service for

lawyers and the news media that focuses on court coverage throughout the nation,

reporting on matters raised in trial courts and courts of appeal up to and including

the U.S. Supreme Court.

      Cox Media Group, Inc. is an integrated broadcasting, publishing, direct

marketing and digital media company. Its operations include 15 broadcast

television stations, a local cable channel, a leading direct marketing company, 85

radio stations, eight daily newspapers and more than a dozen non-daily print

publications and more than 100 digital services.

      First Amendment Coalition is a nonprofit public interest organization

dedicated to defending free speech, free press and open government rights in order

                                        A-2
to make government, at all levels, more accountable to the people. The Coalition’s

mission assumes that government transparency and an informed electorate are

essential to a self-governing democracy. To that end, we resist excessive

government secrecy (while recognizing the need to protect legitimate state secrets)

and censorship of all kinds.

      First Look Media, Inc. is a new non-profit digital media venture that

produces The Intercept, a digital magazine focused on national security reporting.

      Gannett Co., Inc. is an international news and information company that

publishes 93 daily newspapers in the United States, including The El Paso Times

and USA TODAY. Each weekday, Gannett’s newspapers are distributed to an

audience of 9 million readers and the websites associated with the company’s

publications serve online content to 95 million unique visitors each month.

      Hearst Corporation is one of the nation’s largest diversified media and

information companies. Its major interests include ownership of 15 daily and more

than 30 weekly newspapers, including the Houston Chronicle, San Antonio

Express-News, San Francisco Chronicle and Albany Times Union; hundreds of

magazines around the world, including Good Housekeeping, Cosmopolitan, ELLE

and O, The Oprah Magazine; 31 television stations, which reach a combined 18

percent of U.S. viewers; ownership in leading cable networks, including Lifetime,

A&E, HISTORY and ESPN; significant holdings in automotive, electronic and

                                        A-3
medical/pharmaceutical business information companies; a majority stake in global

ratings agency Fitch Group; Internet and marketing services businesses; television

production; newspaper features distribution; and real estate.

      The Investigative Reporting Workshop, a project of the School of

Communication (SOC) at American University, is a nonprofit, professional

newsroom. The Workshop publishes in-depth stories at

investigativereportingworkshop.org about government and corporate

accountability, ranging widely from the environment and health to national

security and the economy.

      MPA – The Association of Magazine Media, (“MPA”) is the largest

industry association for magazine publishers. The MPA, established in 1919,

represents over 175 domestic magazine media companies with more than 900

magazine titles. The MPA represents the interests of weekly, monthly and

quarterly publications that produce titles on topics that cover politics, religion,

sports, industry, and virtually every other interest, avocation or pastime enjoyed by

Americans. The MPA has a long history of advocating on First Amendment issues.

      The National Association of Black Journalists (NABJ) is an organization

of journalists, students and media-related professionals that provides quality

programs and services to and advocates on behalf of black journalists worldwide.




                                          A-4
Founded by 44 men and women on December 12, 1975 in Washington, D.C.,

NABJ is the largest organization of journalists of color in the nation.

      National Newspaper Association is a 2,400 member organization of

community newspapers founded in 1885. Its members include weekly and small

daily newspapers across the United States. It is based in Columbia, Missouri.

      The National Press Club is the world’s leading professional organization

for journalists. Founded in 1908, the Club has 3,100 members representing most

major news organizations. The Club defends a free press worldwide. Each year,

the Club holds over 2,000 events, including news conferences, luncheons and

panels, and more than 250,000 guests come through its doors.

      The National Press Photographers Association (“NPPA”) is a 501(c)(6)

non-profit organization dedicated to the advancement of visual journalism in its

creation, editing and distribution. NPPA’s approximately 7,000 members include

television and still photographers, editors, students and representatives of

businesses that serve the visual journalism industry. Since its founding in 1946,

the NPPA has vigorously promoted the constitutional rights of journalists as well

as freedom of the press in all its forms, especially as it relates to visual journalism.

The submission of this brief was duly authorized by Mickey H. Osterreicher, its

General Counsel.




                                          A-5
      The New York Times Company is the publisher of The New York Times

and The International Times, and operates the news website nytimes.com.

      The News Guild – CWA is a labor organization representing more than

30,000 employees of newspapers, newsmagazines, news services and related

media enterprises. Guild representation comprises, in the main, the advertising,

business, circulation, editorial, maintenance and related departments of these

media outlets. The News Guild is a sector of the Communications Workers of

America. CWA is America’s largest communications and m

      Newspaper Association of America (“NAA”) is a nonprofit organization

representing the interests of more than 2,000 newspapers in the United States and

Canada. NAA members account for nearly 90% of the daily newspaper circulation

in the United States and a wide range of non-daily newspapers. The Association

focuses on the major issues that affect today’s newspaper industry, including

protecting the ability of the media to provide the public with news and information

on matters of public concern.

      Online News Association (“ONA”) is the world’s largest association of

online journalists. ONA’s mission is to inspire innovation and excellence among

journalists to better serve the public. ONA’s more than 2,000 members include

news writers, producers, designers, editors, bloggers, technologists, photographers,

academics, students and others who produce news for the Internet or other digital

                                        A-6
delivery systems. ONA hosts the annual Online News Association conference and

administers the Online Journalism Awards. ONA is dedicated to advancing the

interests of digital journalists and the public generally by encouraging editorial

integrity and independence, journalistic excellence and freedom of expression and

access.

      Radio Television Digital News Association (“RTDNA”) is the world’s

largest and only professional organization devoted exclusively to electronic

journalism. RTDNA is made up of news directors, news associates, educators and

students in radio, television, cable and electronic media in more than 30 countries.

RTDNA is committed to encouraging excellence in the electronic journalism

industry and upholding First Amendment freedoms.

      Society of Professional Journalists (“SPJ”) is dedicated to improving and

protecting journalism. It is the nation’s largest and most broad-based journalism

organization, dedicated to encouraging the free practice of journalism and

stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta

Chi, SPJ promotes the free flow of information vital to a well-informed citizenry,

works to inspire and educate the next generation of journalists and protects First

Amendment guarantees of freedom of speech and press.

      The Star-Telegram is a daily newspaper in Forth Worth, Texas that

delivers national and local news through its print edition and online at

                                         A-7
http://www.star-telegram.com. The Star-Telegram is owned by Star-Telegram,

Inc., a wholly-owned subsidiary of The McClatchy Company. The McClatchy

Company, publicly traded on the New York Stock Exchange under the ticker

symbol MNI, operates media companies in 28 U.S. markets in 14 states. Contrarius

Investment Management Limited owns 10% or more of the common stock of The

McClatchy Company.

      The Texas Press Association is an industry association representing nearly

450 daily and weekly newspapers across the state of Texas, each of which upholds

a strong tradition of journalistic integrity and community service. Texas Press,

founded in 1880, performs numerous services on behalf of its members, including

sponsoring and promoting legislation and taking legal action to protect the First

Amendment and open government.

      The Tully Center for Free Speech began in Fall, 2006, at Syracuse

University’s S.I. Newhouse School of Public Communications, one of the nation’s

premier schools of mass communications.




                                        A-8
                                 APPENDIX B

               ADDITIONAL COUNSEL FOR AMICI CURIAE


Kevin M. Goldberg                          Lynn Oberlander
Fletcher, Heald & Hildreth, PLC            General Counsel, Media Operations
1300 N. 17th St., 11th Floor               First Look Media, Inc.
Arlington, VA 22209                        162 Fifth Avenue
Counsel for American Society of News       8th Floor
Editors and Association of Alternative     New York, New York 10010
Newsmedia                                  (347) 453-8111

Karen Kaiser                               Barbara W. Wall
General Counsel                            Senior Vice President & Chief Legal
The Associated Press                       Officer
450 W. 33rd Street                         Gannett Co., Inc.
New York, NY 10001                         7950 Jones Branch Drive
                                           McLean, VA 22107
Rachel Matteo-Boehm                        (703) 854-6951
Bryan Cave LLP
560 Mission Street, Suite 2500             Jonathan Donnellan
San Francisco, CA 94105                    Kristina Findikyan
Counsel for Courthouse News Service        Hearst Corporation
                                           Office of General Counsel
Lance Lovell                               300 W. 57th St., 40th Floor
Managing Attorney, Disputes                New York, NY 10019
Cox Media Group, Inc.
6205 Peachtree Dunwoody Road               James Cregan
Atlanta, GA 30328                          Executive Vice President
                                           MPA – The Association of Magazine Media
Peter Scheer                               1211 Connecticut Ave. NW Suite 610
First Amendment Coalition                  Washington, DC 20036
534 Fourth St., Suite B
San Rafael, CA 94901                       Kurt Wimmer
                                           Covington & Burling LLP
                                           1201 Pennsylvania Ave., NW
                                           Washington, DC 20004
                                           Counsel for the Newspaper Association
                                           of America

                                         A-9
Tonda F. Rush                           Laura R. Handman
CNLC, LLC                               Alison Schary
200 Little Falls Street, Suite 405      Davis Wright Tremaine LLP
Falls Church, VA 22046                  1919 Pennsylvania Avenue, NW
(703) 237-9801 (p)                      Suite 800
(703) 237-9808 (fax)                    Washington, DC 20006
tonda@nna.org
Counsel to National Newspaper           Thomas R. Burke
Association                             Davis Wright Tremaine LLP
                                        Suite 800
Charles D. Tobin                        500 Montgomery Street
Holland & Knight LLP                    San Francisco, CA 94111
800 17th Street, NW                     Counsel for Online News Association
Suite 1100
Washington, DC 20006                    Kathleen A. Kirby
Counsel for The National Press Club     Wiley Rein LLP
                                        1776 K St., NW
Mickey H. Osterreicher                  Washington, DC 20006
1100 M&T Center, 3 Fountain Plaza,      Counsel for Radio Television Digital
Buffalo, NY 14203                       News Association
Counsel for National Press
Photographers Association               Bruce W. Sanford
                                        James Romoser
David McCraw                            Baker & Hostetler LLP
V.P./Assistant General Counsel          1050 Connecticut Ave., NW
The New York Times Company              Suite 1100
620 Eighth Avenue                       Washington, DC 20036
New York, NY 10018                      Counsel for Society of Professional
                                        Journalists
Barbara L. Camens
Barr & Camens                           Juan Cornejo
1025 Connecticut Ave., NW               The McClatchy Company
Suite 712                               2100 Q Street
Washington, DC 20036                    Sacramento, CA 95816
Counsel for The Newspaper Guild –       Counsel for The Star-Telegram
CWA




                                      A-10
                         CERTIFICATE OF SERVICE


      I, Hannah Bloch-Wehba, certify that, on this 14th day of September, 2015, I

caused copies of the foregoing Brief of Amici Curiae to be served electronically,

via eFile Texas or email, on:

      McLennan County District Attorney
      219 N. 6th Street
      Waco, Texas 76701
           Counsel for State of Texas, Relator

      F. Clinton Broden
      Broden, Mickelsen, Helms & Snipes, LLP
      2600 State Street
      Dallas, Texas 75204
             Counsel for Matthew Alan Clendennen, Real Party in Interest

      Honorable Matt Johnson
      54th District Court
      501 Washington Ave., Suite 305
      Waco, Texas 76701
            Real Party in Interest

      Tenth Court of Appeals
      501 Washington Ave.
      Waco, Texas 76701
            Respondent



                                      /s/ Hannah Bloch-Wehba
                                      Hannah Bloch-Wehba
                                          Counsel of Record for Amici Curiae
                                      REPORTERS COMMITTEE FOR FREEDOM
                                          OF THE PRESS
