REL:   10/17/2014




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          SUPREME COURT OF ALABAMA
                          OCTOBER TERM, 2014-2015

                         _________________________

                                  1130537
                         _________________________

                          Ex parte Jeffrey Wright

                       PETITION FOR WRIT OF MANDAMUS

                          (In re:      Jeffrey Wright

                                          v.

               A-1 Exterminating Company, Inc., et al.)

                    (Etowah Circuit Court, CV-12-900782)
                     _________________________

                              1130538
                     _________________________

             Ex parte Myron K. Allenstein et al.

                 PETITION FOR WRIT OF MANDAMUS

             (In re:    Myron K. Allenstein et al.

                                    v.

           A-1 Exterminating Company, Inc., et al.)

             (Etowah Circuit Court, CV-12-900784)


WISE, Justice.

    The petitioners, the plaintiffs in two separate cases

below, filed petitions for a writ of mandamus requesting that

this Court direct the trial court to rescind its January 7,

2014,   protective    order   and   its   January   22,   2014,   order

compelling immediate compliance with that protective order.

They then filed amended petitions requesting that this Court

direct the trial court to rescind its February 21, 2014, and

February 27, 2014, amended protective orders.             We grant the

petitions and issue the writs.

          Factual Background and Procedural History




                                    2
1130537 and 1130538

      On   December   14,   2012,    Jeffrey      Wright   and   Myron   K.

Allenstein filed separate complaints against A-1 Exterminating

Company, Inc. ("A-1 Exterminating"); Terry Buchanan; Edward

Wrenn; and David Wrenn (hereinafter collectively referred to

as "A-1").1     In the complaints, the plaintiffs alleged that,

on the date of the initial termite bonds issued to the

plaintiffs, A-1 Exterminating entered into agreements with the

plaintiffs in which it agreed to identify and recommend the

appropriate services to protect the plaintiffs' houses or

property from termites; that the plaintiffs had paid for the

initial service, the issuance of the termite bond, and annual

renewal premiums; that, during subsequent periodic visits to

the   subject   properties,    A-1      sprayed    liquids   and   either

represented to the plaintiffs or led the plaintiffs to believe

that those applications were treatments for termites; that,

during the last two years, A-1 had admitted that the periodic

sprays were not to prevent or control termites; and that

Buchanan, a State-licensed pest-control operator who worked

for A-1 Exterminating, had admitted that the spray was a


      1
     A-1 Insulating Company and Wrenn Enterprises, Inc., were
also named as defendants. However, they were not named in the
motions and orders that are relevant to this case.
                                    3
1130537 and 1130538

regular, watered-down pesticide that might only be strong

enough to kill ants and possibly spiders. The plaintiffs also

alleged that A-1 had led them to believe that, after a proper

and adequate periodic inspections, the subject properties were

free and clear of active or previous infestations of wood-

destroying organisms, including termites; that A-1 had led

them to believe that the properties had been treated to

prevent termite infestation and damage; and that no initial

termite treatment had been applied at the subject properties

and that A-1 had never applied a termite treatment at the

properties.   The plaintiffs further alleged that, to the

extent any house had actually received a partial "vaccination"

for termites, the chemical had worn off and no effective

barrier had been placed between the house and the soil either

initially or after the partial "vaccination" had occurred and

that that fact was concealed from the plaintiffs.    Finally,

the plaintiffs alleged:

    "Because Plaintiff's HOME did not receive a
    vaccination and due to the prevalence of termites in
    central Alabama, hidden infestations are the
    presumed consequence and the ongoing and continuous
    latent damage that termites will cause as the result
    had resulted in an ongoing and continuous injury to
    the HOME from the date of the initial service to
    present which has been compounded by [A-1] skipping

                              4
1130537 and 1130538

     thorough,   professional,   and   required   annual
     inspections to detect and stop infestation and
     damage and instead focus on the useless and
     deceptive sprays to induce renewal payments."

The two complaints included counts alleging fraud, including

promissory fraud; breach of warranty; negligence, including

negligence per se, and wantonness; breach of contract; and

negligent training, supervision, and retention.                      It also

included a request for "equitable relief, including unjust

enrichment."

     Wright's case, case no. CV-12-900782, and Allenstein's

case,   case      no.   CV-12-900784,      were   assigned    to   different

judges.     Later in the day on December 14, 2012, the day the

complaints were filed, Wright filed a first amended complaint

in   case      no.      CV-12-900782       that   included    class-action

allegations.         Also, on that same day, Allenstein filed a

"First Amended Mass Action Complaint" in case no. CV-12-

900784,     and    that    amended   complaint     named     as    plaintiffs

Allenstein and numerous other persons, including                     Wright.

Subsequently, the trial court entered an order consolidating

the two cases.




                                       5
1130537 and 1130538

    On March 5, 2013, A-1 filed motions for protective orders

in both cases. In those motions, A-1 requested that the trial

court enter

    "a protective order or otherwise to bar and enjoin
    Plaintiffs    and    Plaintiffs'     counsel    from
    extrajudicial references to the circumstances of the
    above-styled case, to require Plaintiffs' counsel to
    remove all mention of the above-styled case and the
    surrounding circumstances of the above-styled case
    from its website, Facebook page, social media
    (including electronic social media), and related web
    search   engines;   and   otherwise   refrain   from
    referencing this case and/or its surrounding
    circumstances outside of court."

In the motions for a protective order, A-1 asserted:

         "1.   A-1 has learned that Plaintiff's [sic]
    attorneys have prominently featured the subject-
    matter of this case (A-1's annual sprays at
    customer's houses) on that law firm's web site ...
    The Plaintiff's [sic] attorney's version of this
    case is defamatory, contains egregious errors of
    fact, uses sensationalistic and inflammatory terms,
    and is plainly written to influence prospective
    jurors in this case and attract clients for the
    Plaintiffs' law firm. The extrajudicial references
    to the above-styled case on Plaintiff's [sic]
    attorney's website violates Alabama Rules of
    Professional Conduct 3.6 and 4.1.

         "2. The Plaintiffs' attorney's skewed vision of
    events in this case claims that A-l's annual sprays
    are a 'fraud,' that A-l's customer letters
    concerning the annual spays 'is actually another
    fraud,' that A-l has never performed a proper
    termite prevention treatment at its customers'
    houses, and that A-l's customers have the choice of
    suing now 'or let A-l Exterminating and its owners

                             6
1130537 and 1130538

    get away with a fraud that has drained East Alabama
    of tens of millions of dollars over the years.'
    (Exhibit 1, web page from Plaintiffs' law firm's web
    site).

         "3. Apart from the obvious untruths, the web
    site   is  transparently   intended   to   influence
    prospective jurors.   The web site is inflammatory
    and will taint any prospective venire. The web site
    is clearly designed with the dual intent of tainting
    prospective jurors and attracting additional clients
    for the Plaintiffs' law firm.

          "....

         "7. In addition, a Google search of 'A-l
    Exterminating' shows that the link to file
    aforementioned Plaintiffs' attorney's web site is
    the fifth entry on Google. (Exhibit 5, Google web
    page).    A Google search of 'A-l Exterminating
    lawsuit'   (the   search   term   appears,   without
    prompting, on a dropdown menu) shows that three of
    the first five entries are links to web sites or
    Facebook   pages   operated   by   the   Plaintiffs'
    attorney's law firm.    Because Google places links
    according to paid revenue, it appears that
    Plaintiffs' attorneys may have paid consideration to
    Google to place this information in a prime place on
    Google."

A-1 argued that the Web sites were highly prejudicial to it;

that there was "no justifiable reason for the extrajudicial

references to the above-styled case on the web site reference

above, except to attract clients for the Plaintiffs' law firm

and/or   to   prejudice   potential   jurors";   and   that   "A-1's




                                7
1130537 and 1130538

business reputation and operations are being damaged by the

Plaintiffs' attorney's pretrial tactics."

    The plaintiffs filed oppositions to A-1's motions for a

protective order. In their oppositions, the plaintiffs argued

that the motions for a protective order were an attempt to

restrict the free-speech rights of the plaintiffs and their

attorneys; that the stories included on the law firm's Web

site and in social media "comment upon the evidence concerning

public   trials    where     [plaintiffs'      attorney's    law    firm]

represented the Plaintiff in a case with identical claims";

that the complaints and amended complaints in this case are

public   records   and     include       detailed   statements     of   the

allegations; and that "the facts are contained within dozens

of public complaint files concerning A-1 Exterminating, Co.,

Inc. or its owners and licensees that are on file with the

Alabama Department of Agriculture and Industries ('ADAI')

which    regulate[s]       this   business      and    the   individual

defendants."   The plaintiffs also disputed A-1's allegations

regarding how the Google search engine worked.

    A-1 subsequently filed three supplements to its motions

for a protective order and included additional exhibits and


                                     8
1130537 and 1130538

arguments    in   support   of    the   motions.       In   the   second

supplemental motion for a protective order, A-1 asserted:

      "On November 4, 2013, Birmingham television station
      WBRC-TV 6 aired a 'sting operation'1 which purported
      to show that A-1 performed deficient termite
      inspections at its customers houses.     This 'sting
      operation' clearly was prepared with Plaintiffs'
      counsel's    collaboration,    if    not    outright
      instigation.

      "___________________

           "1The term 'sting operation' comes from the
      Plaintiffs' attorney."

A-1   went   on   to   assert    that   the   "sting   operation"   was

objectionable on several grounds; that the "sting operation"

contained "flagrantly erroneous information"; that the "sting

operation" had damaged its business operations and business

reputation; and that the "sting operation" had "poisoned the

jury venire in Etowah County and has prejudiced A-1's right to

a fair trial in this case."

      On January 7, 2014, the trial court entered the following

protective order, which carried the styles of both cases:

           "This matter came on to be heard on [A-1's]
      March 5, 2013 Motion for Protective Order.       The
      Court has considered that Motion, [A-1's] Supplement
      of September 16, 2013, Plaintiffs' September 16,
      2013 Reply, [A-1's] Second Supplement filed November
      11, 2013, [A-1's] Third Supplement and the arguments


                                    9
1130537 and 1130538

    of counsel, the Court finds that the Motion is due
    to be GRANTED.

         "Accordingly, it is hereby ORDERED, ADJUDGED AND
    DECREED that the Motion for Protective Order is
    GRANTED. The Plaintiffs and Plaintiffs' counsel are
    hereby barred and enjoined from extrajudicial
    references to the circumstances of the above styled
    cases. Plaintiffs' counsel shall remove all mention
    of the above styled cases and the surrounding
    circumstances of the above styled case from its
    website, Facebook page, social media (including
    electronic social media), and related web search
    engines. Plaintiffs and Plaintiffs' counsel are
    otherwise ordered to refrain from referencing this
    case and/or its surrounding circumstances outside of
    court."

(Capitalization in original.)

    On January 13, 2014, A-1 filed a motion seeking to have

the plaintiffs immediately comply with the trial court's

January 7, 2014, protective order.   On January 22, 2014, the

trial court entered an order granting that motion. On January

24, 2014, the plaintiffs filed a "Notice of Compliance with

Gag Order."   On January 31, 2014, the plaintiffs filed a

motion to vacate, alter, or amend the trial court's January 7,

2014, protective order.   They also filed a motion to stay the

protective order pending a ruling on the motion to vacate,

alter, or amend.




                                10
1130537 and 1130538

     On February 5, 2014, the plaintiffs filed an "Emergency

Motion for Hearing on Motion for Stay, Motion to Vacate, Alter

or   Amend,   and    Motion    for       Disclosure    of     Ex    parte

Communications."     On that same date, A-1 filed a motion to

amend the protective order entered on January 7, 2014.

     On   February   18,   2014,     the    plaintiffs      filed   their

petitions for a writ of mandamus in this Court.

     On   February   21,   2014,   the     trial   court    entered   the

following amended protective order in case no. CV-12-900784:

          "This matter came on to be heard on Defendants,
     A-l Exterminating Company, Inc.'s, Edward Wrenn's,
     David Wrenn's, and Terry Buchanan's March 5, 2013
     motion for protective order. Having considered that
     Motion, Defendants' supplement of September 16,
     2013,   Plaintiffs'   September   16,  2013   reply,
     Defendants' second supplement filed November 11,
     2013, and Defendants' third supplement. Having
     considered the Motion and the arguments of counsel,
     the Court finds that the Motion is due to be
     GRANTED.

          "Accordingly, it is hereby ORDERED, ADJUDGED,
     and DECREED that the motion for protective order is
     GRANTED. The Plaintiffs and Plaintiffs' counsel are
     hereby barred and enjoined from extrajudicial
     references to the circumstances of the above-styled
     case, Plaintiffs' counsel and his firm shall remove
     all mention of the above-styled case and the
     surrounding circumstances of the above-styled case
     from the firm's website and from the firm's and/or
     his individual Facebook page, Linkedin Page, and all
     social media (including electronic social media),
     and related web search engines.      Plaintiffs and

                                   11
1130537 and 1130538

    Plaintiffs' counsel are otherwise ordered to refrain
    from referencing this case and/or its surrounding
    circumstances outside of court.

         "Nothing in this order shall prevent any
    attorney, law firm, and/or that law firm's staff
    from discussing this case with their respective
    clients, internally with persons working at any such
    law firm, with other attorneys involved in this
    case, including those attorneys' staff, and/or with
    any expert witnesses."

(Capitalization in original.)

    On February 27, 2014, the trial court entered an amended

protective order in case no. CV-12-900782 that was virtually

identical to the amended protective order entered in case no.

CV-12-900784.

    On March 3, 2014, the plaintiffs filed amended petitions

for a writ of mandamus in this Court seeking a rescission of

the February 21 and February 27 amended protective orders.

                      Standard of Review

         "This Court stated in Ex parte Pfizer, Inc., 746
    So. 2d 960 (Ala. 1999):

              "'The   writ  of   mandamus   is   an
         extraordinary remedy, and one petitioning
         for that writ must show "(1) a clear legal
         right in the petitioner to the order
         sought; (2) an imperative duty on the
         respondent to perform, accompanied by a
         refusal to do so; (3) the lack of another
         adequate remedy; and (4) properly invoked
         jurisdiction of the court."      Ex parte

                                12
1130537 and 1130538

          Alfab, Inc., 586 So. 2d 889, 890 (Ala.
          1991); see also, Martin v. Loeb & Co., 349
          So. 2d 9 (Ala. 1977); Ex parte Slade, 382
          So. 2d 1127 (Ala. 1980) [overruled on other
          grounds by Ex parte Creel, 719 So. 2d 783
          (Ala. 1998)]; Ex parte Houston County, 435
          So. 2d 1268 (Ala. 1983); Ex parte Johnson,
          638 So. 2d 772 (Ala. 1994). "Mandamus is
          an extraordinary remedy and will lie to
          compel the exercise of discretion, but not
          to compel its exercise in a particular
          manner except where there is an abuse of
          discretion." State v. Cannon, 369 So. 2d
          32, 33 (Ala. 1979).'

    "746 So. 2d at 962."

Ex parte Anderson, 789 So. 2d 190, 193-94 (Ala. 2000).

                            Discussion

    The petitioners argue that the trial court's protective

order and amended protective orders constitute impermissible

prior   restraints   on   speech,    in   violation   of   the   First

Amendment, and that they are unconstitutionally overbroad.

Specifically, they contend:

         "Prior restraints are forbidden by the First
    Amendment except in the most extreme circumstances.
    Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559
    (1976).   A prior restraint on pure speech can be
    justified only if the speech to be forbidden
    threatens a constitutional value even more precious
    than the First Amendment. Procter & Gamble Co. v.
    Bankers Trust Co., 78 F. 3d 219, 227 (6th Cir.
    1996).    Such countervailing values as national
    security interests, New York Times Co. v. United
    States, 403 U.S. 713, 714 (1971), or the protection

                                13
1130537 and 1130538

    of reputation, Organization for a Better Austin v.
    Keefe, 402 U.S. 415, 418 (1971), or the protection
    of litigation against public pressure, U.S. v.
    Columbia Broadcasting System, 497 F.2d 102 (5th Cir.
    1974), or the need for orderly processing of class
    actions, Bernard v. Gulf Oil Co., 619 F.2d 459 (5th
    Cir. 1980) (en banc), have all been held to be
    insufficient justification for prior restraints."

    Initially, we note that Rule 3.6, Ala. R. Prof. Conduct,

governs extrajudicial statements by attorneys.      Rule 3.6

provides, in pertinent part:

         "(a) A lawyer shall not make an extrajudicial
    statement that a reasonable person would expect to
    be disseminated by means of public communication if
    the lawyer knows or reasonably should know that it
    will have a substantial likelihood of materially
    prejudicing an adjudicative proceeding.

         "(b) A statement referred to in paragraph (a)
    ordinarily is likely to have such an effect when it
    refers to a civil matter triable to a jury, a
    criminal matter, or any other proceeding that could
    result in incarceration, and the statement relates
    to:

         "(1) the character, credibility, reputation or
    criminal record of a party, suspect in a criminal
    investigation or witness, or the identity of a
    witness, or the expected testimony of a party or
    witness;

         "....

         "(3) the performance or results of any
    examination or test or the refusal or failure of a
    person to submit to an examination or test, or the
    identity or nature of physical evidence expected to
    be presented;

                               14
1130537 and 1130538

         "....

         "(5) information the lawyer knows or reasonably
    should know is likely to be inadmissible as evidence
    in a trial and would if disclosed create a
    substantial risk of prejudicing an impartial trial;
    or

         "(6) the fact that a defendant has been charged
    with a crime, unless there is included therein a
    statement explaining that the charge is merely an
    accusation and that the defendant is presumed
    innocent until and unless proven guilty.

         "(c) Notwithstanding paragraphs (a) and (b)
    (1-5), a lawyer involved in the investigation or
    litigation   of  a   matter  may   state  without
    elaboration:

         "(1) the general nature of the claim or defense;

         "(2)    the   information   contained   in   a   public
    record;

         "(3) that an investigation of the matter is in
    progress, including the general scope of the
    investigation, the offense or claim or defense
    involved and, except when prohibited by law, the
    identity of the persons involved;

         "(4) the scheduling or result of any step in
    litigation;

         "(5) a request for assistance in obtaining
    evidence and information necessary thereto;

         "(6) a warning of danger concerning the behavior
    of a person involved, when there is reason to
    believe that there exists the likelihood of
    substantial harm to an individual or to the public
    interest; and


                                15
1130537 and 1130538

         "....

         "(8) Notwithstanding paragraphs (a) and (b)
    above, a lawyer may make a statement that a
    reasonable lawyer would believe is required to
    protect a client from the substantial undue
    prejudicial effect of recent publicity not initiated
    by the lawyer or the lawyer's client. A statement
    made pursuant to this paragraph shall be limited to
    such information as is necessary to mitigate the
    recent adverse publicity."

Additionally, the Comment to Rule 3.6 recognizes:

         "It is difficult to strike a balance between
    protecting   the   right   to   a   fair  trial   and
    safeguarding   the   right    of   free   expression.
    Preserving the right to a fair trial necessarily
    entails some curtailment of the information that may
    be disseminated about a party prior to trial,
    particularly where trial by jury is involved. If
    there were no such limits, the result would be the
    practical nullification of the protective effect of
    the rules of forensic decorum and the exclusionary
    rules of evidence.    On the other hand, there are
    vital   social   interests    served   by  the   free
    dissemination of information about events having
    legal consequences and about legal proceedings
    themselves. The public has a right to know about
    threats to its safety and measures aimed at assuring
    its security. It also has a legitimate interest in
    the conduct of judicial proceedings, particularly in
    matters of general public concern. Furthermore, the
    subject matter of legal proceedings is often of
    direct significance in debate and deliberation over
    questions of public policy.

         "No body of rules can simultaneously satisfy all
    interests of fair trial and all those of free
    expression. The formula in this Rule is based upon
    the ABA former Code of Professional Responsibility
    and the ABA Standards Relating to Fair Trial and

                             16
1130537 and 1130538

    Free Press, as amended in 1978. The standard to be
    applied in Rule 3.6(a) is the 'serious and imminent
    threat' test developed in the case of Chicago
    Counsel of Lawyers v. Bauer, 522 F.2d 242 (7th Cir.
    1975)."

    The United States Supreme Court has allowed limitations

placed upon the speech of parties who are before a court in a

pending case.    In Seattle Times Co. v. Rhinehart, 467 U.S. 20

(1984), the United States Supreme Court addressed "the issue

whether parties to civil litigation have a First Amendment

right to disseminate, in advance of trial, information gained

through the pretrial discovery process."    467 U.S. at 22.   In

that case, Keith Rhinehart, the spiritual leader of the

Aquarian Foundation, a religious group, brought an action on

behalf of himself and the Aquarian Foundation against the

Seattle Times, the Walla Walla Union-Bulletin, the authors of

certain articles that had appeared in those newspapers, and

the spouses of the authors of the articles.        Five female

members of the Aquarian Foundation also joined the suit as

plaintiffs.     During the litigation, the defendants filed an

order compelling discovery regarding the financial affairs of

the Aquarian Foundation, the source of its donations, and

other information.     The plaintiffs argued that compelling


                               17
1130537 and 1130538

production of the identities of the Aquarian Foundation's

members and donors would violate the First Amendment rights of

the members and donors and would also violate their right to

privacy, freedom of religion, and freedom of association. The

plaintiffs moved for a protective order that would prevent the

defendants from disseminating any information gained through

discovery.

    The trial court initially granted the motion to compel

and refused to issue a protective order.         However, the trial

court later issued a protective order

    "covering all information obtained through the
    discovery process that pertained 'to the financial
    affairs of the various plaintiffs, the names and
    addresses    of    Aquarian  Foundation   members,
    contributors, or clients, and the names and
    addresses of those who have been contributors,
    clients,   or   donors   of any   of  the  various
    plaintiffs.' ... The order prohibited petitioners
    from publishing, disseminating, or using the
    information in any way except where necessary to
    prepare for and try the case.    By its terms, the
    order did not apply to information gained by means
    other than the discovery process."

467 U.S. at 27.    The defendants appealed from the protective

order, and the plaintiffs appealed from the trial court's

order   granting   the   motion    to   compel   production.   The

Washington Supreme Court affirmed both orders.


                                  18
1130537 and 1130538

    The United States Supreme Court granted certiorari in

that case.   In its opinion, the United States Supreme Court

stated:

         "It is, of course, clear that information
    obtained through civil discovery authorized by
    modern rules of civil procedure would rarely, if
    ever, fall within the classes of unprotected speech
    identified by decisions of this Court.       In this
    case, as petitioners argue, there certainly is a
    public interest in knowing more about respondents.
    This interest may well include most -- and possibly
    all -- of what has been discovered as a result of
    the court's order under [Wash. Sup. Ct. Civil] Rule
    26(b)(1). It does not necessarily follow, however,
    that a litigant has an unrestrained right to
    disseminate information that has been obtained
    through pretrial discovery.    For even though the
    broad sweep of the First Amendment seems to prohibit
    all restraints on free expression, this Court has
    observed that '[f]reedom of speech ... does not
    comprehend the right to speak on any subject at any
    time.' American Communications Assn. v. Douds, 339
    U.S. 382, 394–395 (1950).

         "The critical question that this case presents
    is whether a litigant's freedom comprehends the
    right to disseminate information that he has
    obtained pursuant to a court order that both granted
    him access to that information and placed restraints
    on the way in which the information might be used.
    In addressing that question it is necessary to
    consider   whether   the   'practice   in   question
    [furthers] an important or substantial governmental
    interest unrelated to the suppression of expression'
    and whether 'the limitation of First Amendment
    freedoms [is] no greater than is necessary or
    essential to the protection of the particular
    governmental interest involved.'       Procunier v.
    Martinez, 416 U.S. 396, 413 (1974); see Brown v.

                             19
1130537 and 1130538

    Glines, 444 U.S. 348, 354–355 (1980); Buckley v.
    Valeo, 424 U.S. 1, 25 (1976).

                            "A.

         "At the outset, it is important to recognize the
    extent of the impairment of First Amendment rights
    that a protective order, such as the one at issue
    here, may cause.      As in all civil litigation,
    petitioners gained the information they wish to
    disseminate only by virtue of the trial court's
    discovery processes.      As the Rules authorizing
    discovery were adopted by the state legislature, the
    processes thereunder are a matter of legislative
    grace. A litigant has no First Amendment right of
    access to information made available only for
    purposes of trying his suit.     Zemel v. Rusk, 381
    U.S. 1, 16–17 (1965) ('The right to speak and
    publish does not carry with it the unrestrained
    right to gather information').       Thus, continued
    court control over the discovered information does
    not raise the same specter of government censorship
    that such control might suggest in other situations.
    See In re Halkin, 194 U.S. App. D.C., at 287, 598
    F.2d, at 206–207 (Wilkey, J., dissenting).18

         "Moreover,     pretrial     depositions     and
    interrogatories are not public components of a civil
    trial. Such proceedings were not open to the public
    at common law, Gannett Co. v. DePasquale, 443 U.S.
    368, 389 (1979), and, in general, they are conducted
    in private as a matter of modern practice. See id.,
    at 396 (Burger, C.J., concurring); Marcus, Myth and
    Reality in Protective Order Litigation, 69 Cornell
    L. Rev. 1 (1983). Much of the information that
    surfaces during pretrial discovery may be unrelated,
    or only tangentially related, to the underlying
    cause of action. Therefore, restraints placed on
    discovered, but not yet admitted, information are
    not a restriction on a traditionally public source
    of information.


                             20
1130537 and 1130538

         "Finally, it is significant to note that an
    order prohibiting dissemination of discovered
    information before trial is not the kind of classic
    prior restraint that requires exacting First
    Amendment scrutiny. See Gannett Co. v. DePasquale,
    supra, at 399 (Powell, J., concurring). As in this
    case, such a protective order prevents a party from
    disseminating only that information obtained through
    use of the discovery process. Thus, the party may
    disseminate the identical information covered by the
    protective order as long as the information is
    gained through means independent of the court's
    processes.    In sum, judicial limitations on a
    party's    ability   to   disseminate    information
    discovered in advance of trial implicates the First
    Amendment rights of the restricted party to a far
    lesser extent than would restraints on dissemination
    of information in a different context. Therefore,
    our consideration of the provision for protective
    orders contained in the Washington Civil Rules takes
    into account the unique position that such orders
    occupy in relation to the First Amendment.

    "___________________________________

         "18Although litigants do not 'surrender their
    First Amendment rights at the courthouse door,' In
    re Halkin, 194 U.S. App. D.C., at 268, 598 F.2d, at
    186, those rights may be subordinated to other
    interests that arise in this setting. For instance,
    on several occasions this Court has approved
    restriction    on  the   communications  of   trial
    participants where necessary to ensure a fair trial
    for a criminal defendant. See Nebraska Press Assn.
    v. Stuart, 427 U.S. 539, 563 (1976); id., at 601,
    and n. 27 (Brennan, J., concurring in judgment);
    Oklahoma Publishing Co. v. District Court, 430 U.S.
    308, 310–311 (1977); Sheppard v. Maxwell, 384 U.S.
    333, 361 (1966). 'In the conduct of a case, a court
    often finds it necessary to restrict the free
    expression of participants, including counsel,


                            21
1130537 and 1130538

    witnesses, and jurors.' Gulf Oil Co. v. Bernard,
    452 U.S. 89, 104, n. 21 (1981)."

467 U.S. at 31-34 (footnote omitted).

    Ultimately, the Supreme Court held:

    "[W]here, as in this case, a protective order is
    entered on a showing of good cause as required by
    [Wash. Sup. Ct. Civil] Rule 26(c), is limited to the
    context of pretrial civil discovery, and does not
    restrict the dissemination of the information if
    gained form other sources, it does not offend the
    First Amendment."

467 U.S. at 37.

    Subsequently, in Gentile v. State Bar of Nevada, 501 U.S.

1030 (1991), Dominic Gentile, an attorney, was reprimanded

after a finding by the Disciplinary Board of the Nevada State

Bar that he had violated an attorney disciplinary rule by

making a statement to the press shortly after his client was

indicted on criminal charges.       The Nevada Supreme Court

affirmed the Board's decision, and Gentile appealed to the

United States Supreme Court.   The Supreme Court was presented

with the issue whether the application of the disciplinary

rule violated the right to free speech guaranteed by the First

Amendment.   In addressing that issue, the Supreme Court

stated:




                               22
1130537 and 1130538
         "It is unquestionable that in the courtroom
    itself, during a judicial proceeding, whatever right
    to 'free speech' an attorney has is extremely
    circumscribed. An attorney may not, by speech or
    other conduct, resist a ruling of the trial court
    beyond the point necessary to preserve a claim for
    appeal.   Sacher v. United States, 343 U.S. 1, 8
    (1952) (criminal trial); Fisher v. Pace, 336 U.S.
    155 (1949) (civil trial).         Even outside the
    courtroom, a majority of the Court in two separate
    opinions in the case of In re Sawyer, 360 U.S. 622
    (1959), observed that lawyers in pending cases were
    subject to ethical restrictions on speech to which
    an ordinary citizen would not be. There, the Court
    had before it an order affirming the suspension of
    an attorney from practice because of her attack on
    the fairness and impartiality of a judge.        The
    plurality opinion, which found the discipline
    improper, concluded that the comments had not in
    fact impugned the judge's integrity.         Justice
    Stewart, who provided the fifth vote for reversal of
    the sanction, said in his separate opinion that he
    could not join any possible 'intimation that a
    lawyer can invoke the constitutional right of free
    speech   to   immunize  himself    from  even-handed
    discipline for proven unethical conduct.' Id., at
    646. He said that '[o]bedience to ethical precepts
    may   require   abstention   from   what  in   other
    circumstances might be constitutionally protected
    speech.'    Id., at 646-647. The four dissenting
    Justices who would have sustained the discipline
    said:

              "'Of course, a lawyer is a person and
         he too has a constitutional freedom of
         utterance and may exercise it to castigate
         courts and their administration of justice.
         But a lawyer actively participating in a
         trial, particularly an emotionally charged
         criminal prosecution, is not merely a
         person and not even merely a lawyer.

             "'....

                             23
1130537 and 1130538
              "'He is an intimate and trusted and
         essential part of the machinery of justice,
         an "officer of the court" in the most
         compelling sense.'      Id., at 666, 668
         (Frankfurter, J., dissenting, joined by
         Clark, Harlan, and Whittaker, JJ.).

         "Likewise, in Sheppard v. Maxwell, [384 U.S. 333
    (1966),] where the defendant's conviction was
    overturned because extensive prejudicial pretrial
    publicity had denied the defendant a fair trial, we
    held that a new trial was a remedy for such
    publicity, but

         "'we must remember that reversals are but
         palliatives; the cure lies in those
         remedial measures that will prevent the
         prejudice at its inception.     The courts
         must take such steps by rule and regulation
         that will protect their processes from
         prejudicial outside interferences. Neither
         prosecutors, counsel for defense, the
         accused,   witnesses,   court   staff   nor
         enforcement officers coming under the
         jurisdiction of the court should be
         permitted to frustrate its function.
         Collaboration between counsel and the press
         as to information affecting the fairness of
         a criminal trial is not only subject to
         regulation, but is highly censurable and
         worthy of disciplinary measures.'       384
         U.S., at 363 (emphasis added).

    "We expressly contemplated that the speech of those
    participating before the courts could be limited.
    This distinction between participants in the
    litigation and strangers to it is brought into sharp
    relief by our holding in Seattle Times Co. v.
    Rhinehart, 467 U.S. 20 (1984).           There, we
    unanimously held that a newspaper, which was itself
    a defendant in a libel action, could be restrained
    from publishing material about the plaintiffs and
    their supporters to which it had gained access

                             24
1130537 and 1130538
    through court-ordered discovery.   In that case we
    said that '[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 this setting,' id., at
    32-33, n. 18 (citation omitted), and noted that 'on
    several occasions [we have] approved restriction on
    the communications of trial participants where
    necessary to ensure a fair trial for a criminal
    defendant.' Ibid.

         "Even in an area far from the courtroom and the
    pendency of a case, our decisions dealing with a
    lawyer's right under the First Amendment to solicit
    business and advertise, contrary to promulgated
    rules of ethics, have not suggested that lawyers are
    protected by the First Amendment to the same extent
    as those engaged in other businesses. See, e.g.,
    Bates v. State Bar of Arizona, 433 U.S. 350 (1977);
    Peel v. Attorney Registration and Disciplinary
    Comm'n of Ill., 496 U.S. 91 (1990); Ohralik v. Ohio
    State Bar Assn., 436 U.S. 447 (1978). In each of
    these cases, we engaged in a balancing process,
    weighing the State's interest in the regulation of
    a specialized profession against a lawyer's First
    Amendment interest in the kind of speech that was at
    issue. These cases recognize the long-established
    principle stated in In re Cohen, 7 N.Y.2d 488, 495,
    199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 675 (1960):

         "'Appellant as a citizen could not be
         denied any of the common rights of
         citizens. But he stood before the inquiry
         and before the Appellate Division in
         another quite different capacity, also. As
         a lawyer he was "an officer of the court,
         and, like the court itself, an instrument
         ... of justice...."' (quoted in Cohen v.
         Hurley, 366 U.S. 117, 126 (1961)).

         "We think that the quoted statements from our
    opinions in In re Sawyer, 360 U.S. 622 (1959), and
    Sheppard v. Maxwell, supra, rather plainly indicate

                            25
1130537 and 1130538
    that the speech of lawyers representing clients in
    pending cases may be regulated under a less
    demanding standard than that established for
    regulation of the press in Nebraska Press Assn. v.
    Stuart, 427 U.S. 539 (1976), and the cases which
    preceded it.      Lawyers representing clients in
    pending cases are key participants in the criminal
    justice system, and the State may demand some
    adherence to the precepts of that system in
    regulating their speech as well as their conduct.
    As noted by Justice Brennan in his concurring
    opinion in Nebraska Press, which was joined by
    Justices Stewart and Marshall, '[a]s officers of the
    court, court personnel and attorneys have a
    fiduciary responsibility not to engage in public
    debate that will redound to the detriment of the
    accused    or   that   will   obstruct    the   fair
    administration of justice.'     Id., at 601, n. 27.
    Because lawyers have special access to information
    through discovery and client communications, their
    extrajudicial statements pose a threat to the
    fairness of a pending proceeding since lawyers'
    statements are likely to be received as especially
    authoritative. See, e.g., In re Hinds, 90 N.J. 604,
    627, 449 A.2d 483, 496 (1982) (statements by
    attorneys of record relating to the case 'are likely
    to be considered knowledgeable, reliable and true'
    because of attorneys' unique access to information);
    In re Rachmiel, 90 N.J. 646, 656, 449 A.2d 505, 511
    (N.J. 1982) (attorneys' role as advocates gives them
    'extraordinary power to undermine or destroy the
    efficacy of the criminal justice system'). We agree
    with   the   majority   of  the   States   that  the
    'substantial likelihood of material prejudice'
    standard constitutes a constitutionally permissible
    balance between the First Amendment rights of
    attorneys in pending cases and the State's interest
    in fair trials.

         "When a state regulation implicates First
    Amendment rights, the Court must balance those
    interests against the State's legitimate interest in


                            26
1130537 and 1130538
       regulating the activity in question. See, e.g.,
       Seattle Times, supra, 467 U.S. at 32."

501 U.S. at 1071-76 (footnote omitted).

       In    Marceaux    v.   Lafayette         City-Parish      Consolidated

Government, 731 F.3d 488 (5th Cir. 2013), current and former

officers ("the officers") of the Lafayette Police Department

("LPD") sued the LPD and other defendants under 42 U.S.C. §

1983.       The officers communicated with the media about the

case. They also maintained a Web site that contained an image

of LPD's police chief, who was a party to the suit; "excerpts

of critical statements made in the media" concerning the LPD

and    other    defendants;    and    "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."                 731 F.3d at 490-

91. The LPD and other defendants requested a protective order

in which they sought to limit the plaintiffs' communications

with    the    media    and   to   have    the    Web     site   taken    down.

Subsequently, 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;

                                     27
1130537 and 1130538
         (c) the scheduling or result of any step in
         this litigation; (d) references that
         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 ... 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 [United
    States v.] Brown, 218 F.3d [415,] 429–31 [(5th Cir.
    2000)], 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."

731 F.3d at 491.

    In addressing the order, the United States Court of

Appeals for the Fifth Circuit stated:



                             28
1130537 and 1130538
         "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 [United States v.] Brown, 218
    F.3d [415,] 424 [(5th Cir. 2000)] ('"[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."

731 F.3d at 492.   The Fifth Circuit Court of Appeals noted

that this area of law "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."    731 F.3d at 492.


                             29
1130537 and 1130538
It noted that, although the district court had applied a

careful and nuanced approach in much of the protective order,

with regard to the Web site, "the   nuanced approach gave way

to a more wholesale striking of its entire content -- indeed,

the very website itself."   Id.

    In addressing the district court's wholesale striking of

the Web site in Marceaux, the Fifth Circuit Court of Appeals

stated:

         "We analyze this issue under the prior restraint
    doctrine.    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.'         [United
    States v.] Brown, 218 F.3d [415,] 424 [(5th Cir.
    2000)]; see also Levine[ v. United States Dist.
    Court for the Central Dist. of California], 764 F.2d
    [590,] 595 [(9th Cir. 1985)](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

                              30
1130537 and 1130538
      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.')."

731 F.3d at 493 (footnote omitted).                 Ultimately, the Fifth

Circuit Court of Appeals held that "the district court erred

in    concluding     that    the   entirety     of        the   Website   was

substantially likely to cause prejudice."                 Thus, it held that

the   district     court's    finding      "'that    the    entire   Website

demonstrat[ed] a substantial likelihood of impacting the jury

venire' is overbroad and clearly erroneous." 731 F.3d at 488.

Although   the     Fifth    Circuit   vacated       the   district   court's

wholesale ban on the Web site, it noted:

      "[W]e 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. [United States v.] Brown, 218
      F.3d [415,] 425 [(5th Cir. 2000)] . In other words,


                                      31
1130537 and 1130538
    the court must engage in a specific review of any
    claimed improper material."

731 F.3d at 495-96.

    In this case, A-1 argues that the protective order and

amended protective orders issued by the trial court were

necessary to protect its right to a fair trial.      However,

those orders prohibit the plaintiffs and their attorneys from

making any "extrajudicial references to the circumstances of

[these] case[s]."   Additionally, the trial court also ordered

plaintiffs' counsel and his firm to "remove all mention of the

above-styled case[s] and the surrounding circumstances of the

above-styled case[s] from the firm's website and from the

firm's and/or his individual Facebook page, Linkedin Page, and

all social media (including electronic social media), and

related web search engines." Finally, the trial court ordered

the plaintiffs and their attorneys to refrain from even

"referencing this case and/or its surrounding circumstances

outside of court."     Neither the protective order nor the

amended protective orders in this case are narrowly tailored

to protect A-1's right to a fair trial.   Further, the orders

do not provide any exceptions for making statements that are

expressly allowed by Rule 3.6(c)(7), Ala. R. Prof. Conduct.


                              32
1130537 and 1130538
      The amended protective orders do specify that they would

not "prevent any attorney, law firm, and/or that law firm's

staff from discussing this case with their respective clients,

internally with persons working at any such law firm, with

other    attorneys   involved     in       this    case,     including    those

attorney's staff, and/or with any expert witness."                   However,

the     amended   protective    orders       would      still   prevent      the

plaintiffs from discussing this case with potential clients;

discussing this case with putative class members; discussing

this case with state regulators; discussing the case with

anyone in an attempt to discover evidence; and discussing the

case with any potential non-expert witnesses.

      For these reasons, the trial court's protective order and

the amended protective orders are overbroad.                  See Johanson v.

Eighth Judicial Dist. Court of State of Nev. ex. rel. County

of Clark, 124 Nev. 245, 252, 182 P.3d 94, 99 (2008) (holding

that a gag order that "prevented 'the parties, their attorneys

and any employees or persons associated with the parties or

their counsel ... from disclosing any documents in this case

or discussing the case with any ... other party or disclosing

any   information    about     this    case       to   any   other   party   or

individual'" was unconstitutionally overbroad); Kemner v.

                                      33
1130537 and 1130538
Monsanto Co., 112 Ill.2d 223, 246, 492 N.E.2d 1327, 1338

(1986) (holding that a gag order that provided that Monsanto

"'shall not,' in any press release, etc., 'mention this case

or intimate its existence or its trial or any particular facts

or circumstances or positions concerning it until judgment is

entered by this court'" was unconstitutionally overbroad).

    In holding that the trial court's protective order and

amended protective orders are overbroad, we do not intend to

tie the trial court's hands in its attempt to prevent the jury

venire from being tainted by the use of Web sites, social

media, and pretrial publicity.     As the Fifth Circuit Court of

Appeals noted in Marceaux:

    "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,' [United States
    v.] Brown, 218 F.3d [415,] 423 [(5th Cir. 2000)],
    and preventing the 'creat[ion] [of] "a 'carnival
    atmosphere,' which threatens the integrity of the
    proceeding."' Id. at 423 n.8."

731 F.3d at 494.   However, the trial court should balance its

interest in protecting A-1's right to a fair trial against the

First Amendment rights of the plaintiffs and their attorneys.

Further, any protective order in this regard must be narrowly




                              34
1130537 and 1130538
tailored so that it uses the least restrictive means necessary

to protect A-1's right to a fair trial.        See Gentile, supra.

    Finally, A-1 contends that plaintiffs' counsel included

statements on its Web site and in social media that were false

or misleading.    If the trial court finds that the plaintiffs

or their attorneys have made false or deceptive statements, it

has the authority to proscribe such statements.

         "While the First Amendment guarantees the right
    to free speech, government is not prevented from
    proscribing certain speech.        To be precise,
    demonstrable falsehoods are not protected by the
    First Amendment in the same manner as truthful
    statements. Brown v. Hartlage, 456 U.S. 45, 60, 102
    S. Ct. 1523, 1532, 71 L. Ed. 2d 732 (1982); Gertz v.
    Robert Welch, Inc., 418 U.S. 323, 340, 94 S. Ct.
    2997, 3007, 41 L. Ed. 2d 789 (1974)."

Dowling v. Alabama State Bar, 539 So. 2d 149, 151-52 (Ala.

1988).

                            Conclusion

    For the above-stated reasons, we conclude that the trial

court's protective order and amended protective orders are

overbroad.    Accordingly, we grant the plaintiffs' petitions

and direct the Etowah Circuit Court to rescind its January 7,

2014, protective order; its January 22, 2014, order compelling

immediate    compliance   with   the   protective   order;   and   its



                                 35
1130537 and 1130538
February 21, 2014, and February 27, 2014, amended protective

orders.2

    1130537 -- PETITION GRANTED; WRIT ISSUED.

    1130538 -- PETITION GRANTED; WRIT ISSUED.

    Stuart, Parker, and Shaw, JJ., concur.

    Murdock, J., concurs in the result.

    Moore, C.J., recuses himself.




    2
     Based on our holding that the amended protective orders
are overbroad, we pretermit any remaining arguments raised by
the parties.
                             36
