     Case: 13-30332        Document: 00512391600          Page: 1     Date Filed: 09/30/2013




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

                                                                              FILED
                                                                         September 30, 2013

                                        No. 13-30332                         Lyle W. Cayce
                                                                                  Clerk

KANE MARCEAUX; GREG CORMIER; SCOTT POIENCOT; GABRIEL
THOMPSON; NORBERT MYERS; NOVEY STELLY; ULETOM P. HEWITT;
REGINA BRISCOE; ALEETA M. HARDING; GUS SANCHEZ; ROBERT
POLANCO; KENCIL D. JOSEPH; DONALD CEASAR; PAUL TAYLOR, JR.;
RACHEL ROBERTS,

                                                    Plaintiffs - Appellants
v.

LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT; CITY
POLICE OF LAFAYETTE; LESTER JOSEPH DUREL, JR., in his capacity as
President of the Lafayette City-Parish Consolidated Government; DEE
EDWARD STANLEY; JAMES P. CRAFT; GEORGE JACKIE ALFRED,

                                                    Defendants - Appellees



                    Appeal from the United States District Court
                       for the Western District of Louisiana


Before OWEN and HAYNES, Circuit Judges, and LEMELLE, District Judge.*
HAYNES, Circuit Judge:
      Several current and former officers in the Lafayette Police Department
(“Officers”) appeal the district court’s grant of a protective order requiring,
among other things, that a particular website they operate be “taken down” in
its entirety, which was issued at the request of Appellees, officials and entities


      *
          District Judge of the Eastern District of Louisiana, sitting by designation.
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                                  No. 13-30332

within the City of Lafayette Police Department (collectively, “Lafayette PD
Defendants”). We VACATE in part and REMAND for further proceedings.
                                  I. Jurisdiction
      A prior motions panel of this court denied the Lafayette PD Defendants’
motion to dismiss this interlocutory appeal for want of jurisdiction. Although
the Lafayette PD Defendants do not renew their jurisdictional arguments in
their merits brief, we may consider whether we have appellate jurisdiction sua
sponte at any time. See Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102
(5th Cir. 1981) (“Because we may not proceed without requisite jurisdiction, it
is incumbent upon federal courts trial and appellate to constantly examine the
basis of jurisdiction, doing so on our own motion if necessary.” (emphasis
added)).
      We agree with the motions panel, concluding that we have jurisdiction
pursuant to the collateral order doctrine, which provides appellate jurisdiction
to review “a small set of prejudgment orders . . . [1] that are conclusive, [2] that
resolve important questions separate from the merits, and [3] that are effectively
unreviewable on appeal from the final judgment in the underlying action.”
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103–06 (2009) (citation and
internal quotation marks omitted). We have repeatedly found the doctrine
applies in cases in which pre-trial orders arguably infringe on First Amendment
rights. See In re Hearst Newspapers, L.L.C., 641 F.3d 168, 174 (5th Cir. 2011);
Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 926 (5th Cir. 1996). In
United States v. Brown, 218 F.3d 415, 420–21 (5th Cir. 2000), we concluded that
we had jurisdiction to consider a criminal defendant’s pre-trial appeal of a gag
order imposed by the district court on litigants in the case. We similarly
conclude that we have appellate jurisdiction over the Officers’ challenge here.




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                              II. Facts and Background
      The Officers sued under 42 U.S.C. §§ 1983, 1988, alleging, inter alia, that
the Lafayette PD Defendants imposed a “code of silence” to prevent police
officers from reporting certain civil rights abuses and corruption within the
Lafayette Police Department and that the Lafayette PD Defendants retaliated
against them for objecting to these practices.       Relevant here, the Officers
communicated with the media concerning the case and maintained a website,
www.realcopsvcraft.com (the “Website”), which contained: an image of the
Lafayette Police Chief, a party in this suit; excerpts of critical statements made
in the media concerning the Lafayette PD Defendants; certain voice recordings
of conversations between the Officers and members of the Lafayette Police
Department; and other accounts of the Lafayette PD Defendants’ alleged
failings. The Officers’ attorneys eventually transferred ownership of the website
to one of the Officers.
      In response to this publicity, the Lafayette PD Defendants sought a
protective order seeking certain limits on communications with the media and
removal of the Website. At the conclusion of the two-day hearing, the magistrate
judge orally granted the Lafayette PD Defendants’ request to limit the trial
participants’ communication with the media and public. The magistrate judge
then entered a written order accompanied by a memorandum ruling.
      The magistrate judge opined from the bench that “[t]he [W]ebsite . . . is
patently offensive on its face as a means of producing information rather than
being an objective source of information supposedly created for the protection of
the litigants.” In the subsequent written order, the magistrate judge
      ordered that the parties’ and their attorneys’ contact and
      communication with and through the media shall be limited to (a)
      information contained in the public record; (b) identification of
      parties and claims/defenses asserted in this matter; (c) the
      scheduling or result of any step in this litigation; (d) references that


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      investigation(s) is in progress, without disclosure of investigation
      details; (e) requests for assistance in obtaining evidence or
      information; (f) warnings of danger concerning the behavior of
      persons who are parties in this case when there is reason to believe,
      based on a reasonable factual inquiry, that there exists a likelihood
      of substantial harm to an individual or the public interest.
The magistrate judge “further ordered that the website www.realcopsvcraft.com
shall be closed and removed immediately, ceasing all operations and publication,
and that the recordings shall not be publicly disclosed outside the confines of this
case and any other pending legal proceeding, absent leave of court.” The
restrictions on communications with the media were expressly modeled on
Louisiana Rule of Professional Conduct 3.6 and the language approved in Brown,
218 F.3d at 429–31, and Levine v. U.S. District Court, 764 F.2d 590, 598–99 (9th
Cir. 1985). The magistrate judge also “order[ed] the [W]ebsite be taken down”
because it “not only contain[ed] comments and information that would violate
[Louisiana Rule of Professional Conduct] 4.4, it is and has been used as a vehicle
by which to disseminate inappropriate information to the media and the public.”
The primary rationale for the order was to allow for a fair trial by avoiding a
taint on the prospective jury pool. Over objection, the district court adopted the
magistrate judge’s order, and this appeal followed.
                             III. Standard of Review
      We review a district court’s grant of a protective order for abuse of
discretion. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination
Unit, 28 F.3d 1388, 1394 (5th Cir. 1994). The district court’s legal conclusions
should be reviewed de novo, and its factual findings should not be disturbed
unless they are clearly erroneous. See United States v. Aldawsari, 683 F.3d 660,
664 (5th Cir. 2012) (explaining that “[b]ecause [evaluating the validity of a gag
order] involves constitutional and other legal questions, we review the district
court’s orders de novo. Specific factual findings of the district court on the issue


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                                  No. 13-30332

are, of course, entitled to review under the clearly erroneous standard.”
(citations and internal quotation marks omitted)). Importantly, however, “in
cases raising First Amendment issues . . . an appellate court has an obligation
to ‘make an independent examination of the whole record’ in order to make sure
that ‘the judgment does not constitute a forbidden intrusion on the field of free
expression.’” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499
(1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 284–86 (1964)).
                                  IV. Discussion
      When restrictions are sought to be imposed on litigants after litigation is
filed, a district court must balance a litigant’s First Amendment rights against
other important, competing considerations.         See Brown, 218 F.3d at 424
(“‘[A]lthough litigants do not surrender their First Amendment rights at the
courthouse door, those rights may be subordinated to other interests that arise’
in the context of both civil and criminal trials.” (quoting Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 32 n.18 (1984))).          Court orders restricting trial
participants’ speech are evaluated under the prior restraint doctrine, which
requires that the record establish that the speech creates a potential for
prejudice sufficient to justify the restriction. See Brown, 218 F.3d at 424–25. In
addition, the restriction must be narrowly tailored and employ the least
restrictive means of preventing the prejudice. Id. at 425. We note that the
Officers represent that they are willing to accept the application to them of
Louisiana Rules of Professional Responsibility 3.6 and 4.4 in this context,
although those rules ordinarily would not apply to clients who are not lawyers.
They object to the terms of the court’s order only as they support or apply to the
portion of the order mandating that the Website be removed in its entirety.
Thus, we focus our analysis only on the portion of the order addressing removal
of the entire Website.



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      We begin by addressing the necessity of deferring to district courts in
matters affecting the daily functioning of their courts. See, e.g., United States
v. Gurney, 558 F.2d 1202, 1209 (5th Cir. 1977) (“The trial judge is . . . granted
broad discretion in ordering the daily activities of his court.”). In a broader
sense, considerable discretion is vested in district courts in ensuring fair trials
and avoiding a “circus atmosphere” or “chaos” that can be occasioned by
unfettered aggression on the part of one or both sides in litigation. See United
States v. Harrelson, 713 F.2d 1114, 1117 (5th Cir. 1983) (explaining that district
court judges possess “broad discretion, based on the law and on [their] common
experience,” to ensure a fair and orderly trial). We respect and affirm the
district court’s central role in this important process of securing a just and
dignified trial proceeding.
      We disagree, however, with the Lafayette PD Defendants’ implicit
suggestion in their briefs (made explicit at oral argument) that the Officers have
a complete “either or” choice between filing a lawsuit and exercising their First
Amendment rights. This area, as the district court recognized, demands a
nuanced approach to the delicate balance between the necessity of avoiding a
tainted jury pool and the rights of parties to freely air their views and opinions
in the “market square” now taking the form of the electronic square known as
the Internet. The district court faithfully and carefully addressed numerous
precedents surrounding the use of “gag orders” and applied a careful and
nuanced approach in much of the challenged order. When it came to the
Website, however, the nuanced approach gave way to a more wholesale striking
of its entire content—indeed, the very website itself. For the reasons set forth
below, we conclude that this wholesale striking cannot stand in its current form.




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       We analyze this issue under the prior restraint doctrine.1 Court orders
aimed at preventing or forbidding speech “are classic examples of prior
restraints.” Alexander v. United States, 509 U.S. 544, 550 (1993). Indeed, this
court has recognized that “[d]espite the fact that litigants’ First Amendment
freedoms may be limited in order to ensure a fair trial, gag orders . . . still
exhibit the characteristics of prior restraints.” Brown, 218 F.3d at 424; see also
Levine, 764 F.2d at 595 (holding that a court’s order prohibiting trial
participants from speaking to the media constituted a prior restraint). The order
here explicitly restricts the expression of attorneys and parties in this litigation
as it relates to the media and prevents the Officers from expression in the
Website. As a result, the protective order qualifies as a prior restraint.
       Prior restraints “face a well-established presumption against their
constitutionality.” Brown, 218 F.3d at 424–25 (citing Bernard v. Gulf Oil Co.,
619 F.2d 459, 467 (5th Cir. 1980) (en banc) (citations omitted)); see also Org. for
a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (“Any prior restraint on
expression comes . . . with a ‘heavy presumption’ against its constitutional
validity.”). We must therefore balance the First Amendment rights of trial
participants with our “‘affirmative constitutional duty to minimize the effects of
prejudicial pretrial publicity.’” Brown, 218 F.3d at 423 (quoting Gannett Co. v.
DePasquale, 443 U.S. 368, 378 (1979)); see also Sheppard v. Maxwell, 384 U.S.
333, 363 (1966) (“The courts must take such steps by rule and regulation that
will protect their processes from prejudicial outside interferences.”).
       The first step in assessing the constitutionality of a prior restraint
requires considering whether the harm the court seeks to prevent justifies the



       1
          In so doing, we note the Lafayette PD Defendants’ assertion that this is a “sanction”
for “bad behavior.” Our review of the order reveals that it has little of the characteristics of
a “sanctions” order and all of the characteristics of a “prior restraint.” Thus, we do not address
what difference it would make if the challenged order were a sanctions order.

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restraint on speech. Brown, 218 F.3d at 425. In assessing restrictions on
speech, courts have required that the record establish different levels of harm,
including a “clear and present danger,” “substantial likelihood,” or “reasonable
likelihood” of prejudice.2 We have not clearly delineated which standard applies
to the parties (rather than the media) in civil litigation.
       In Brown, we applied a substantial likelihood of prejudice test to both
attorneys and parties in the context of a gag order applied in a criminal matter.
218 F.3d at 426 (noting that the Court in Gentile v. State Bar of Nevada, 501
U.S. 1030 (1991), “approved [a] ‘substantial likelihood’ standard when applied
to gag orders imposed on attorneys, but did not mandate it as a constitutional
minimum necessary to justify a judicially-imposed restriction on attorney
speech”). As “[t]he Supreme Court has recognized that conflict between freedom
of speech and the right to a fair trial is no less troubling in the non-criminal
context,” we conclude that Brown represents the right balance for this civil case.
See Bailey v. Sys. Innovation, Inc., 852 F.2d 93, 97 (3d Cir. 1988); see also Brown,
218 F.3d at 424 (providing that an individual’s First Amendment rights may be
limited by a court order “in the context of both civil and criminal trials”
(emphasis added)). As in criminal matters, civil cases also require avoiding “the
potential that pretrial publicity may taint the jury venire, resulting in a jury
that is biased toward one party or another,” Brown, 218 F.3d at 423, and
preventing the “creat[ion] [of] “a ‘carnival atmosphere,’ which threatens the




       2
          See, e.g., Brown, 218 F.3d at 427 (applying the “substantial likelihood” of prejudice
standard in a criminal case involving a gag order restricting trial participants); Dow Jones &
Co. v. Simon, 842 F.2d 603, 610 (2d Cir. 1988) (applying the “reasonable likelihood” of
prejudice standard in a criminal case involving gag order restricting trial participants); Levine,
764 F.2d at 595 (applying the “clear and present danger” of prejudice standard in criminal case
involving a gag order restricting trial participants).

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integrity of the proceeding.”3 Id. at 423 n.8. Thus, we apply the Brown standard
here.
        In this case, the testimony during the two-day trial presents significant
evidence that the trial participants made extra-judicial comments to the media
and on the Website. For instance, Plaintiff Marceaux testified that he had
television interviews with two news stations, but he did not provide any
newspaper interviews. This testimony, along with the testimony of the other
seven witnesses, speaks to the trial participants’ propensity to make extra-
judicial statements.
        It does not, however, establish a nexus between the comments and the
potential for prejudice to the jury venire through the entirety of the Website. It
is not “narrowly tailored” to excising maters with a sufficient potential for
prejudice to warrant prior restraint.4




        3
         Because the “substantial likelihood” standard easily transfers to civil matters, district
courts in this circuit have applied Brown to the civil context. See, e.g., U.S. ex rel. Stewart v.
La. Clinic, No. CIV.A.99-1767, 2002 WL 32850, at *1–2 (E.D. La. Jan. 10, 2002) (applying
Brown’s “substantial likelihood of prejudice” standard to deny defendant a gag order
prohibiting relators and their attorneys from publically discussing the litigation). But see Liz
Claiborne, Inc. v. Consumer Prod. Recovery, L.L.C., No. Civ. 3:04-CV-819-H, 2004 WL 1243166,
at *1 (N.D. Tex. June 7, 2004) (denying gag order when the defendant “ha[d] not cited any civil
case where a court has imposed a gag order, or even discussed whether a gag order was
appropriate in the civil context; all cases cited by [the defendant] are criminal cases”);
Thurmond v. Compaq Computer Corp., No. 1:99-CV-0711, 2000 WL 33795080, at *2 (E.D. Tex.
Feb. 28, 2000) (noting that the defendant “fails to cite a single published opinion from a civil
case as authority for its proposition” that a standard less than “clear and present danger”
should apply).
        4
            We note that in the past, it could be assumed that everyone would see a news
broadcast or local paper. Nowadays consumers obtain information from dozens of news
sources. As such, the mere presence of extra-judicial comments in some forms of media does
not, by itself, establish the potential for prejudice of the jury venire without a more thorough
examination of that potential. Additionally, a district court should consider the question of
timing of comments relative to the time of trial. See Gentile, 501 U.S. at 1044 (plurality
opinion) (explaining that exposure to information concerning a case six months before trial is
less likely to result in prejudice because it will “fad[e] from memory long before the trial date”).

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      In sum, the district court erred in concluding that the entirety of the
Website was substantially likely to cause prejudice. Accordingly, the court’s
determination that the entire Website “demonstrate[s] a substantial likelihood
of impacting the jury venire,” is overbroad and clearly erroneous. See Canal Ins.
Co. v. Thornton, 279 F.2d 41, 43 (5th Cir. 1960) (concluding that a district court’s
determination was clearly erroneous when “there was no basis [in] the record”
to support its finding); cf. Batchelor v. Cain, 682 F.3d 400, 413 (5th Cir. 2012)
(concluding that the state appellate court made an erroneous factual
determination that a habeas petitioner waived his request to represent himself
when “the record admit[ted] of no basis” to support the finding). As a result, we
must vacate the portion of the order requiring the “takedown” of the Website.
      In remanding the case, we note that one particular concern to the district
court was some of the recordings that appeared on the Website. One objection
to the recordings made by the Lafayette PD Defendants and reurged on appeal
was grounded in a misapprehension of the law. They contended that the
recordings were “unethical,” relying, it appears, on cases that, in turn, relied
upon a now-repealed American Bar Association (ABA) Formal Opinion. Cf.
Chapman & Cole v. Itel Container Int’l. B.V., 865 F.2d 676, 686 (5th Cir. 1989)
(relying on ABA Formal Opinion 337 to conclude that “clandestine taping of a
telephone conversation” by an attorney violates the Model Rules of Professional
Conduct).
      In 1974, the ABA issued Formal Opinion 337 and concluded that a lawyer
could not permissibly tape record another party without that party’s consent,
even in a location where such a tape recording would be lawful. See ABA Comm.
on Ethics and Prof’l Responsibility, Formal Op. 337 (1974). In 2001, however,
the ABA repealed Formal Opinion 337 and issued Formal Opinion 01-422
expressly concluding that such surreptitious taping is not, by itself, unethical if



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it is otherwise lawful in the particular jurisdiction.5 See ABA Comm. on Ethics
and Prof’l Responsibility, Formal Op. 01-422 (2001); see also Midwest Motor
Sports v. Arctic Cat Sales, Inc., 347 F.3d 693, 699 (8th Cir. 2003) (explaining
that, based on the ABA’s Formal Opinion 01-422, “a lawyer who electronically
records a conversation without the knowledge of the other party or parties to the
conversation does not necessarily violate the Model Rules of Professional
Conduct”). In the absence of some indication that Louisiana would view such
recordings to be “unethical” despite the ABA’s change in position, we decline to
accept the argument that these recordings (made by a layperson, not a lawyer)
must be removed from the Website because they were “unethically” obtained.6
       Although we vacate wholesale banning of the Website, we do not intend
to tie the hands of the district court in addressing some of its content, and we
recognize that there may be bases upon which to order removal of some of the
content of the Website. Recognizing the fact-bound nature of the inquiry and the
limited nature of the record presented here, we express no opinion on that issue
but note only that any such consideration of the Website’s content must be
narrowly tailored and represent the least restrictive means. Brown, 218 F.3d at
425. In other words, the court must engage in a specific review of any claimed


       5
           While some jurisdictions forbid recordings of conversations between two people
without both parties’ consent, others only forbid such recordings if neither party consents, i.e.,
if one party consents (or does the recording), the other party need not consent. The latter is
known as the “one-party consent rule.” Louisiana is a “one-party consent” state, and the
Lafayette PD Defendants do not contest John Cormier’s assertion that he was a party to the
recordings he obtained. See LA. REV. STAT. ANN. § 15:1303(C)(4) (West 2005) (providing that
“[i]t shall not be unlawful . . . for a person not acting under color of law to intercept a[n] . . .
oral communication where such person is a party to the communication”); see also 18 U.S.C.
§ 2511(2)(d) (providing for a “one-party consent” rule under federal law, unless a state imposes
a stricter standard).
       6
          While there may be other reasons to remove the recordings in whole or in part, we
leave this issue to the careful consideration of the district court. We note, however, that any
order based on protecting the rights of third parties must meet the tests discussed in this
opinion.

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improper material. In this process, the district court has considerable, but not
unfettered, discretion.
      VACATED and REMANDED.




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